GAO

United States General Accounting Office

Report to Congressional Committees

and Requesters

April 2000 FISHERY

MANAGEMENT

Problems Remain With

National Marine

Fisheries Service’s

Implementation of the

Magnuson-Stevens Act

GAO/RCED-00-69

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Contents

Letter 3

Appendixes Appendix I: Scope and Methodology 34

Appendix II: Comments From the U.S. Department of Commerce 37

Tables Table 1: Disposition of Selected Permits Submitted for

Consultation to NMFS’ Southeast Regional Office 27

Table 2: People Interviewed 35

Abbreviations

EPA Environmental Protection Agency

NMFS National Marine Fisheries Service

NOAA National Oceanic and Atmospheric Administration
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United States General Accounting Office

Washington, D.C. 20548

Resources, Community, and Economic

Development Division

B-284382 Letr

April 6, 2000

Congressional Committees and Requesters

Ensuring a healthy supply of fish and other marine species in the coastal

waters beyond each state’s jurisdiction is a federal responsibility carried

out principally by the Department of Commerce’s National Marine

Fisheries Service (NMFS) and eight regional fishery management councils

under the Magnuson-Stevens Fishery Conservation and Management Act.1

Among other things, NMFS and the councils track the condition of these

species, determine the level of catch that would provide the greatest

benefit to the nation, and measure the economic impacts of fishery

regulations and policies. Measures to manage fish and marine species are

usually developed by the councils, reviewed by NMFS, and approved by the

Secretary of Commerce. Because these measures influence how many fish

may be caught, they can be controversial as fish quotas effect both the

survival of a species and the economic health of the fishing industry and

many communities. Therefore, you directed us to assess NMFS’

compliance with three provisions of the Magnuson-Stevens Act, which

require it to

• use the best available scientific information for fishery management;

• take into account the economic importance of fishery resources to

fishing communities as it adopts measures to manage fishery resources;

and

• identify essential fish habitat, the adverse impacts on that habitat, and

the actions needed to conserve and enhance that habitat and also

develop a consultation process designed to protect that habitat from

adverse impacts.

Results in Brief NMFS appears to be using the best available scientific information to

determine the condition and abundance of fish and other marine species,

but improvements to include more current and complete data could be

made. According to the National Research Council, a scientific research

agency of the National Academy of Sciences, NMFS’ current process

1

P.L. 94-265, as amended (16 U.S.C. 1801 et seq.).
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provides a valid scientific context for evaluating the status of fish

populations and other marine species. At the same time, the Council and

others have pointed out that some of this information is not current or

complete. The need to rely on such information has led to criticism by

fishermen and others who have been adversely affected by fishery

management decisions. Until NMFS can overcome the weaknesses

associated with the information it uses, more consistently involve others in

its research activities, and improve communications with fishing

communities and the industry, the criticism is likely to continue.

NMFS considers the economic impacts of conservation and management

measures on fishing communities. However, this consideration

concentrates on identifying how communities will be affected by these

measures and not necessarily on how to minimize their effects in order to

sustain the communities’ participation in a fishery. In addition, the data

necessary to identify adverse effects are often unavailable and the

usefulness of the analyses is limited by how they are used in the decisionmaking process. The failure to use economic analyses to develop

alternatives that minimize adverse impacts to fishing communities will

result in continuing questions about why the information is even collected

to satisfy this requirement.

NMFS has technically met the act’s requirements by identifying essential

fish habitat and developing a consultation process for addressing potential

adverse impacts to that habitat. However, lack of information and tight

time frames have caused NMFS to make essential fish habitat designations

that, when aggregated for each species, include virtually the entire portion

of the Atlantic and the Pacific oceans that the United States controls.

Individuals with commercial interests expressed concern that such broad

designations could result in consultations that adversely affect their

planned construction or development projects. So far, however, there is

little evidence to indicate that the new consultation process has resulted in

delayed or cancelled projects. Since completing the habitat designations,

NMFS has increased its efforts to identify the adverse impacts to habitat

and the actions needed to conserve and enhance it, but NMFS officials

acknowledged that much remains to be done.

This report makes recommendations to the Secretary of Commerce that

could improve NMFS’ data collection efforts, communications with the

fishing industry, economic analyses, and estimates of the costs associated

with fulfilling the act’s provisions to conserve and enhance essential fish

habitat.
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Background The 1976 passage of the Fishery Conservation and Management Act

ushered in a new era of federal marine fishery management.2 Until 1966,

when exclusive U.S. fishery jurisdiction was expanded to 12 miles, foreign

fishing vessels had been able to fish to within 3 miles of the U.S. coastline.

In response to the allegations of U.S. fishermen that foreign fishing resulted

in overfishing and depleted fish stocks, the 1976 act further extended

federal jurisdiction for marine resources from each state’s jurisdictional

boundary out to 200 miles from the coastline. Foreign fishing vessels were

no longer allowed to fish inside this new area of jurisdiction without

specific authorization.

Under the act, responsibility for managing marine resources rests with the

Secretary of Commerce. The Secretary has delegated this responsibility to

NMFS, which is part of the National Oceanic and Atmospheric

Administration. NMFS evaluates the condition of fish stocks and other

marine species by using a variety of data sources, including information

obtained from at-sea research and from the fishing industry itself.3 The

agency is also responsible for enforcing fishery laws and regulations. To

carry out its responsibilities, NMFS employs a staff of approximately 2,400,

including oceanographers, biologists, social scientists, economists,

mathematicians, and law enforcement officers.

2

The act was renamed in 1980 to honor the late Senator Warren G. Magnuson (P.L. 96-561,

section 238) and in 1996 to include Senator Ted Stevens (P.L. 104-208, section 208). It is now

known as the Magnuson-Stevens Fishery Conservation and Management Act.

3

A stock is a group of fish that is usually based on genetic relationships, geographic

distribution, and movement patterns. A single species can consist of several stocks, and a

stock can consist of several species.
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To conserve and manage fishery resources, the act calls for developing

fishery management plans. Along with other information, these plans

include basic biological background on managed species, show population

trends, and indicate the abundance levels needed for future sustainability.

The act established eight regional fishery management councils, each

covering a separate geographical coastal area, and assigned them the

responsibility to make recommendations to the Secretary of Commerce

about the fishery management plans. Using scientific information and

advice from NMFS and others, the regional councils are responsible for

recommending a fishery’s optimum yield and preparing analyses on the

economic effects of fishing regulations and practices.4 Regional council

members include the local NMFS Regional Administrator, private citizens

nominated by the governors of each state in a council’s geographic area and

then appointed by the Secretary, and state fishery officials. The purpose of

these regional councils is to enable states, the fishing industry, consumer

organizations, environmental groups, and other interested parties to

participate in developing the fishery management plans.

Currently, there are 40 fishery management plans covering about 900 fish

and marine species. NMFS supplies most of the information the councils

use to prepare and update these plans. To obtain this information, NMFS

conducts at-sea stock surveys and runs models to estimate the abundance

and the conditions of fish stocks. During stock surveys, data are gathered

on the abundance, the distribution, the age, and the size of each species.

This information is combined with data obtained from the fishing industry

on such factors as the number, the type, and the location of fish caught and

then used in an assessment model to estimate the population size and the

condition. Each regional council has a committee that independently

reviews the information NMFS provides as well as any pertinent scientific

data supplied by others. After reviewing all the submitted information, the

committee recommends a course of action to its regional council, which

reviews it and decides what information will be used to update or amend

the fishery management plans and their related conservation and

management measures. Changes and amendments are then sent to NMFS

for approval. The review process used to assess the adverse economic

affects to fishing communities of any changes to the fishery management

4

The amount of fish that will provide the greatest overall benefit to the nation, particularly

with respect to food production and recreational opportunities, and take into account the

protection of marine ecosystems.
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plans and their related conservation and management measures is less

defined and varies by regional council.

In this report, we address three provisions of the act. The first provision

has been in the act since its passage in 1976, while the remaining two were

added in the 1996 amendments. The provisions are as follows:

• The best available scientific information is to be used for fishery

management and determining the condition and the abundance of fish

and other marine species. The act does not contain any guidance as to

what constitutes the best available scientific information.

• Management measures are to take into account the economic

importance of fishery resources to fishing communities. The provision

specifies two reasons for doing so: to provide for the sustained

participation of such communities in fishing activities and, to the extent

practicable, to minimize the adverse economic impacts to those

communities. The act does not define or provide guidance on what is

meant by the phrase “to take into account.”

• Each fishery management plan is to identify and describe the essential

fish habitat for the fishery, along with 1) the actions that will minimize,

to the extent practicable, the adverse impacts of fishing and other

factors and 2) the actions that should be considered to conserve and

enhance habitat. Other federal agencies are required to consult with

NMFS to help minimize the adverse impacts to essential fish habitat that

could result from any action under their jurisdiction.

Best Available

Scientific Information

Could Be More Current

and Complete

Although NMFS is using the best available scientific information,

sometimes that information can still be problematic. Independent reviews

by the National Research Council found that the stock assessment process

provided a valid scientific context for evaluating fish stocks but that

improvements could be made to make the data used in the process more

current and complete. Although fishermen and others accept many of

NMFS’ stock surveys and assessments without controversy, we also found

instances in which the use of such data was perceived as having adverse

economic consequences to the fishing industry and associated fishing

communities. Our review of these instances showed that the concerns

often did not center on whether NMFS had access to better scientific data

and failed to use it, but rather on the currency and the amount of the

scientific data available. The resulting decisions were controversial, and

the controversy was sometimes exacerbated by miscommunication among

NMFS, the councils, and those affected by the decisions. At times, the
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groups apparently did not understand what the others were saying or did

not listen closely enough to what was being said.

Little Controversy in Many

Fisheries About the Quality

of the Scientific Information

Little controversy surrounds the scientific information used by NMFS in

many fisheries. One reason for the lack of controversy is the reputation of

NMFS as a leading authority in marine research—a reputation supported

by the recent National Research Council evaluations.5 Another reason is

found in the fisheries themselves. The Alaska pollock fishery in the Bering

Sea, which is the world’s largest single-species groundfish fishery,6 is an

example of a fishery about which there is little disagreement that the best

available scientific information is of high quality.7 The wide acceptance of,

and limited controversy about, this information derives from such

favorable factors as the following:

• The status of the fish stock is classified as healthy and abundant.

• NMFS conducts extensive at-sea surveys of the pollock population

every year.

• The conclusions reached by NMFS are similar to those reached by

fishermen according to their experiences at sea.

• Fishing vessels in this fishery are generally large, and most are required

to have independent observers on board to provide reliable information

about the amount of pollock and other species that are caught. This

allows fishermen to observe and understand the data collection process.

• There are a small number of participants in the fishery, and they use

tracking and reporting equipment that results in up-to-the-minute

reporting. This means that quotas are generally not exceeded.

5

The National Research Council reports were published in 1998 and are entitled Improving

Fish Stock Assessments and Review of Northeast Fishery Stock Assessments.

6

Groundfish are various species of fish that live on or near the seafloor.

7

We recently examined this fishery in another assignment. See Fishery Management: Market

Impacts of the American Fisheries Act on the Production of Pollock Fillets (GAO/RCED-99-

196, June 30, 1999).
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These same favorable factors are seldom present in fisheries where there is

controversy.8 In the following sections, we present and discuss cases that

illustrate what might happen when these favorable conditions are not

present.

Concerns That Best

Available Scientific

Information Is Not Current

or Is Limited

Sometimes, even the best available data may not be current or may have

limitations. Because of limited resources, NMFS has not been able to

manage all fisheries as it does the Bering Sea pollock fishery, either in its

ability to conduct routine surveys or to monitor the harvest. As a result,

much remains unknown about the status of the nation’s marine resources.

This past year, NMFS reported that it does not know the status of 75

percent of the species (30 percent of the stocks) it manages.9 NMFS also

noted that its assessments on the known species are often based on limited

data.

Our conversations with representatives of the fishing industry raised a

number of concerns about the use of scientific information that is not

current and limited. Two common areas of concern involved the adequacy

of NMFS’ at-sea stock surveys and the inconsistencies in the way NMFS

uses other data gathered from commercial and recreational fishermen.

Concerns About Information

From Stock Surveys

Although NMFS uses the best available scientific data, many at-sea stock

surveys are not conducted as frequently or designed as specifically as

either NMFS or others would like. Surveys are usually done on a scheduled

basis with commercially harvested species being more frequently surveyed

than others. The number and the design of surveys is limited by such

factors as the total number of species involved (about 900), the area that

must be covered (over 3.4 million square miles), the ocean conditions the

surveyors encounter, and the constraints on funding, staff, and equipment.

These limitations lead to complaints about the data’s adequacy when those

adversely affected by a resulting decision become aware of the basis for

that decision. The following examples illustrate what industry and other

officials told us:

8

Although there are few disagreements about the quality of the scientific data in this fishery,

there are disagreements about the impact of this fishery on the endangered Steller Sea Lion

that are being addressed by the courts.

9

Although NMFS only knows the status of 25 percent of the species, this percentage

represents about 90 percent of the total weight or volume of all species in U.S.-controlled

waters.
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• Fishermen and council members believe that more frequent surveys

would detect the downward trends earlier, which would result in less

sudden and dramatic reductions in the harvest. Although many stocks

are surveyed annually, others are surveyed with far less frequency. For

example, the 83 species classified as Pacific groundfish, including many

species of rockfish, are surveyed every 3 years. Using the 1995 survey’s

data, the assessment indicated that the populations of some rockfish

were up and some were down while the data for some others were

inconclusive. Harvest restrictions were imposed for several species.

However, the latest assessment performed, which used data from a 1998

survey, revealed that these species, along with several others, had

continued to decline. As a result, the council has implemented harvest

restrictions for at least one species that reduces fishing by over 80

percent, even though substantial economic impacts to the fishing

industry and communities are expected. NMFS officials stated that more

frequent surveys could have identified trends earlier but that limited

resources kept them from doing the surveys more often. They also noted

that a portion of the proposed harvest restrictions was the result of

other factors, such as the change in regulations resulting from the act’s

amendment in 1996.

• Fishing industry officials complained that, from their perspective,

basing a stock assessment on what can be just a few fish caught during a

general groundfish survey is not an appropriate way to establish

population estimates for species that may occur elsewhere in greater

numbers. For surveys with multiple species, they thought that the

locations used for the surveys might not be representative of the

abundance for all the species being surveyed. For example, there are

over 50 species of Pacific rockfish, and their habitat requirements are

varied. NMFS officials did not disagree that the scope of some of their

surveys needs to be expanded but noted that, in many cases, they are

more interested in the trend than in the absolute number of fish caught

during the surveys because trend data provide a very good indicator of

whether population counts are up or down over time.

To make stock surveys more frequent and more specific, several fishing

industry officials indicated a willingness to participate in research, and

NMFS officials stated that recently there has been an increase in the

agency’s willingness to use private vessels for research. NMFS officials

noted that the contribution of such vessels represented 41 percent of the

agency’s total research days at sea in 1998. However, they also stressed that

this research must conform to the same standards the agency uses

internally. Some NMFS officials initially expressed reluctance to increase
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the use of private research vessels for surveys because of problems in

obtaining consistency. They stated that a vessel’s size, speed, equipment,

and even the captain and the crew can affect a survey’s results. As a result,

changes in private research vessels from year to year could alter the results

of surveys. NMFS officials stated that although recent electronic advances

have improved the calibration techniques necessary to achieve consistency,

private vessels generally must still be calibrated against a standard (NMFS

research vessel) to maintain long-term data continuity. They added that it

would also be beneficial to get fishermen more involved in survey design to

improve their understanding of research methods.

Concerns About Information on

Commercial and Recreational

Fishing

To develop its estimates of population levels for each species, NMFS

combines the data it obtains from its stock surveys with data from other

sources. Two frequent sources of this additional information are the

commercial fishing industry and recreational fishermen. From these

groups, NMFS obtains such information as the number and the type of fish

caught, the amount of time spent fishing, and the location of the fishing

activity. However, fishermen identified several problems in NMFS’ use of

this information:

• Inconsistency in credibility given to such data. NMFS requires

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

and the length of species kept or discarded.10 However, because much of

this information cannot be independently verified, NMFS is reluctant to

use some of it. Instead, some NMFS offices rely on reports from fish

processors to estimate the number of fish caught, and, for information

about discards, they may rely on independent observers who, depending

on the fishery, will be aboard fewer than 1 percent of fishing trips.

NMFS, however, does use similar self-reported data from recreational

fishermen. NMFS obtains information about recreational catches, in

part, by calling a random sample of people who live in coastal areas and

asking those that say they fish for recreation in salt water about where

they fished, and how they fished (e.g., private or charter boat). These

unverified responses are then combined with catch data obtained from a

sample of recreational fishermen returning from fishing trips to estimate

the total recreational catch.

• Limited accuracy for some key information. Reliance on self-reported

data, or limited but verifiable alternatives, raises a number of questions

10Discards are those fish caught but not kept because they are the wrong species or size or

because a fisherman already has the allowed limit of a particular fish.
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about the accuracy of the information obtained. For example, with

regard to the self-reported information on the recreational fishery, the

Oregon State Department of Fish and Wildlife compared NMFS’

recreational catch estimates to its own sampling of recreational

fishermen for a 4-year period and found that, depending on the species

or group analyzed, NMFS’ catch estimates were greater than that state’s

by 69 to 200 percent. It is unknown which data are more accurate, and

NMFS is currently studying why this difference occurred. In 2000,

however, the regional council has elected to use Oregon’s data to

apportion the total annual allowable catch of Pacific groundfish

between the commercial and recreational fishery sectors because they

believe the state’s estimates are a more accurate estimate of actual

catch. In commercial fishing, because NMFS can reject self-reported

data on discards in some fisheries in favor of data obtained from a very

small sample of independent observers, the errors that could result from

an unrepresentative sample could be significant. Commercial fishermen

noted that NMFS’ reluctance to use self-reported data on discards could

result in a sizeable understatement of existing populations. For

example, several fishermen reported discarding thousands of pounds of

Gulf of Maine cod for every 30 pounds they were allowed to keep and

were concerned that this discard information was not included during

the stock assessment process. NMFS officials stated that they do use

information from the industry on the discards of some species in some

fisheries, but this is supplemented with other data in determining the

level of discards.

• Difficult to close depleted recreational fisheries. Because of problems

with the data collection and reporting methods used in the recreational

sector, NMFS officials stated that currently they seldom use this data to

close recreational fisheries, even if they indicate that an excess harvest

is occurring.11 Reasons given for this reluctance included a 4-month time

lag in summarizing the recreational data and the wide allowance for

errors associated with survey methods that are not designed to be

species specific. In contrast, the closures of commercial fisheries can

and do result from weekly updates of commercial fishery data, on-board

observers, and independent verifications from fish processors. The

inability to use self-reported data to close those recreational fisheries

for which recreational fishermen account for a large percentage of the

11NMFS officials stated that recreational data are used to close the red snapper, the bluefin

tuna, and some Pacific salmon fisheries.
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catch, is a source of frustration to commercial fishermen who find their

own access to the fishery cut off.

Decisions Based on the

Interpretation of the Best

Scientific Data Can Be

Controversial

Uncertainties surrounding scientific data can create disagreements about

how they should be interpreted. These disagreements can become

particularly controversial if they are seen as adversely affecting the health

of the fishery or the economic viability of those that depend upon it. To

increase the confidence in its data, NMFS requires that all published

research be peer reviewed by a group of independent scientists before it is

released. One part of the peer review process looks at the reasonableness

of the conclusions that were reached by using the best available scientific

data. However, peer reviews do not necessarily eliminate scientific

uncertainties or controversies. In many instances, the correctness of

inferences based on the best available scientific data cannot be proved or

disproved except by additional research or the passage of time. As a result,

even research that passes peer review might not be readily accepted by

those who have concerns about its quality.

For example, the management plan for monkfish in the New England area

concluded that the species was declining and called for a significant

reduction in the annual fishing harvest. This decision was based on a 1997

stock assessment conducted by NMFS. Although NMFS’ conclusions were

peer reviewed and found to be acceptable, monkfish fishermen hired

another scientist to review them. This scientist questioned several

assumptions, such as the estimated mortality rates and the reasons why the

catch rates were increasing even though surveys indicated a decline in

stock abundance. To respond to these concerns, the New England Fishery

Management Council requested that its Scientific and Statistical Committee

examine the assumptions. The committee concluded that there were some

problems with the assessment but that “reasonable minds might reasonably

disagree about the conclusions of the assessment.” The committee

ultimately concluded that there was no reason to overturn the collective

judgment of the original peer review panel. When we talked to the other

scientist, he stated that, in the end, they “agreed to disagree.” The existing

data were insufficient to conclusively find one position more valid than

another one. Thus, the inexactness of the data, even when they are the best

scientific information available, may make it as difficult for NMFS to prove

its assumptions and conclusions are right as it is for someone else to prove

they are wrong.
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Miscommunications in

Some Fisheries Increases

Controversy

Controversy most often develops in those fisheries where conservation

measures have resulted in adverse economic consequences to the fishing

industry and fishing communities. We found that some complaints

questioning whether the best available scientific information was being

used were the result of miscommunications among NMFS, the councils,

and those involved in the fishing industry or these groups’ not listening to

each other. These misunderstandings have frustrated all those involved.

The Atlantic scallop fishery is an example of how miscommunications

between NMFS and the fishermen raised anxiety levels, especially when

the economic consequences to the fishing industry and communities were

adverse. While NMFS cited the scallop fishery as an example of the

agency’s efforts to cooperate with industry, some industry representatives

cited it as an example of NMFS’ failure to work with them. In 1994, NMFS,

with the support of the regional council, closed two areas of the Georges

Bank, along with another area in southern New England to protect

depleted groundfish stocks. In 1999, portions of these areas were reopened,

with restrictions, to limit fishing and scallop dredging. During the 5-year

closure, NMFS continued to conduct its groundfish and scallop surveys as

well as other studies. These surveys and studies indicated that, although

groundfish stocks were improving, they had not yet reached the level that

would convince the regional council to reopen the area. Meanwhile, the

scallop industry had information that indicated the scallop population was

expanding rapidly. The industry requested that more research be done and

that the area be reopened.

The history of this research request is confusing, with both sides having

different recollections of what occurred. Fishermen said that they had

requested permission to have major universities conduct research in all

three closed areas as early as 1996 but that NMFS delayed the research

permit until 1998 and only allowed them access to one area. The fishermen

said they later requested that they be given access to the other areas but

were denied. NMFS officials remembered conducting discussions in 1996

and informing industry officials that a formal proposal would be needed

because the research would be done in a closed area. They stated that they

had helped industry officials prepare the proposal but that it was not

submitted until 1998 and that it requested access to only one area. NMFS

officials also said that a second research proposal was approved, not

denied.

Our review of the available documentation indicates that a formal proposal

was submitted by the Center for Marine Science and Technology of the
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University of Massachusetts at Dartmouth in 1998. Supporting

documentation indicates that the Center originally discussed requesting

access to all three closed areas, but the formal proposal requested that the

experiment be limited to one area, citing the limited availability of

independent observers as the reason for the modification. NMFS’ records

indicate that a research proposal submitted by the Virginia Institute of

Marine Science to study a second closed area was approved on June 11,

1999, and that on June 15, 1999, NMFS approved a proposal for the agency’s

Northeast Fisheries Science Center to study all three closed areas. In the

case of the scallop fishery, the new research resulted in the partial opening

of the closed areas and an increase in the number of days fishermen would

be allowed to fish. The regional council estimated that these actions would

increase the value of the scallop harvest by $47 million.

The misunderstandings between NMFS and the scallop industry are similar

to those we heard elsewhere. From the fishing industry, we heard general

complaints questioning NMFS’ conclusion that a species is in trouble when

fishermen could not keep from catching it, even if they were not

specifically fishing for it. Some fishermen also believe the assumptions

made in stock assessment models are not adequately explained in terms of

how they affect the accuracy of the final estimates of stock abundance and

condition. When NMFS officials discussed the same complaints with us,

they expressed frustration about not being asked for clarification. They

acknowledged that the process is complex but said they try to adequately

explain it in both the assessment meetings and in their reports.

Economic Impacts to

Communities Are

Considered, But More

Effort to Minimize

Effects Is Needed

Although NMFS does consider the economic importance of fishing to

fishing communities, this consideration concentrates on identifying how

adversely a community would be affected by the measures and not

necessarily on how to minimize that impact to provide for the sustained

participation of those communities in the fishery. In addition, the quality of

the economic analyses is dependent on the availability of economic

information and the usefulness of these analyses is then dependent on how

they are incorporated into the decision-making process. NMFS officials

stated that, even though the economic impacts to fishing communities are

considered, more could be done to address these other concerns.
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Guidelines Issued, Impacts

Assessed, Some Alternative

Actions Implemented, and a

Review Process Established

NMFS has issued guidelines for considering the impacts on fishing

communities, worked with councils to collect and develop data to assess

those impacts, considered and implemented alternatives to reduce adverse

economic impacts, and established a process to review compliance with

the act’s requirements. Although much time and effort has been devoted to

these activities, substantial work remains.

On May 1, 1998, NMFS issued guidelines for considering the social and

economic impacts of conservation and management actions on fishing

communities. Among other things, the guidelines

• defined a fishing community as a location that was substantially

dependent on or engaged in the harvesting or processing of fishery

resources and included fishing vessel owners, operators, crews, and fish

processors based in those communities along with people employed in

such places as boatyards, ice suppliers, or tackle shops that were

directly related to fishing;

• limited deliberations on the importance of fishery resources to those

that do not compromise conservation requirements;

• recommended data collection efforts if the needed data were severely

limited;

• permitted both qualitative and quantitative data; and

• required that fishery management plans include social and economic

considerations.

Although the guidelines suggest that fishermen, dealers, processors, and

fishery organizations could be a source of qualitative and quantitative data,

the guidelines are silent as to the role that these people might play in

identifying or assessing economic alternatives to help minimize adverse

impacts to their communities.

The guidelines have been used to prepare many fishery management plans.

For example, the April 1999 Fishery Management Plan for Atlantic Tuna,

Swordfish, and Sharks lists 44 different conservation and management

actions for the three fisheries and estimates the economic and social

impacts of each action. Although none of the impacts is quantified in the

plan, there are qualitative statements associated with each action, such as

the minimal impact, the substantial impact, the positive impact, or some

negative impacts, which describe what is expected to occur as a result of

that action. Although the plan does delineate the economic and social

severity of the various actions, it is not clear on how the analysis was used
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to decide among alternatives or if affected communities were involved in

identifying alternatives that could minimize adverse economic impacts.

We did find instances where NMFS and council analyses were used to

assess the economic effects of various conservation and management

alternatives. In these instances, the analyses provided a basis to select an

alternative that would less adversely affect a fishing community. For

example, although certain Pacific groundfish quotas were significantly

reduced recently, the need to shorten the fishing season was minimized

through the use of varying trip limits. These varying trip limits were

designed to keep the fishing season open for most of the year, which would

help stabilize the product’s availability and prices and thereby minimize the

adverse impact on the fishing community caused by the reduced quota.

NMFS has developed a process to review compliance with the requirement

to consider the economic impacts on fishing communities. This process

applies to all fishery management plans, their amendments, and any other

regulatory amendments that require approval of the Secretary of

Commerce. After a team of NMFS officials has reviewed each document for

compliance with the act, the document is approved, partially approved or

disapproved, or totally disapproved. Of the 35 documents submitted for

review since the act’s 1996 amendment, 6 have been partially disapproved

on the basis of deficiencies associated with the requirement to consider

communities. In these instances, the documents were returned to the

councils for additional action.

The guidelines used to review compliance with this requirement of the act

recognize the need to identify the fishing communities that would be

adversely affected and the degree to which each of them depends on the

fishery. However, the guidelines are silent about the role these

communities might play in identifying or assessing economic alternatives

to minimize adverse impacts.

Economic Data Are Often

Unavailable

Council members, council staff, and committee members, fishermen, fish

processors, academics, and community leaders all complained about the

general lack of economic data on fishing communities. While this

information is often available on fishermen, they are not the only ones

adversely impacted when fishing is restricted. People who are a part of the

industry infrastructure that supplies the gear, the port facilities, the ice, and

the fuel to the fishermen as well as other local businesses that provide

general services may also experience reduced revenues or face
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unemployment when fishing is curtailed. Information on these types of

economic impacts is often not available at the community level. NMFS

must either develop this economic information or focus its community

impact analysis on the individual fishermen. However, NMFS officials

noted that their ability to develop some of this information is restricted by

the act itself. For example, under the act, fish processors cannot be

required to submit economic data.

A report prepared by Oregon State University, entitled Oregon’s Changing

Coastal Fishing Communities, highlights some additional difficulties in

developing data on fishing communities. For example, it points out that a

fishing community may consist of many smaller communities based on the

types of fishing equipment used, the fisheries involved, and the geography

of the area. In addition, business economic information is usually collected

on incorporated areas or by county, and fishing communities are often in

unincorporated areas. Because of the relatively small number of people

involved in fishing nationwide, the federal labor statistics on fishing at the

local level are usually combined with those of forestry and farming.

Members of the regional council’s economic advisory committees also

provided specific examples of the types of information that are most often

unavailable. They noted that most readily available economic information

focuses on such data as the prices fishermen receive for the fish caught but

that there is a general lack of data on 1) the crew, such as how many are

employed, how many days they work, and how much they are paid; 2) the

economic relationships between those that buy the catch and those that

catch it; 3) the production costs for such items as fuel, ice, equipment, and

other supplies as well as the costs for repairs; 4) the levels of debt and

equity in the industry (which is important to assess vulnerability to

changes); and 5) the operating characteristics of import, export and

domestic markets.

NMFS officials recognize the shortage of community-based economic data.

They stated that one constraint on the agency’s efforts to improve its data

collection and analysis is financial. Nationwide, NMFS employs 33

economists, who are responsible not only for the economic analyses

required by the Magnuson-Stevens Act but also for analyses required by the

Regulatory Flexibility Act and other mandates. When asked about the

funding to implement the new economic requirement of the MagnusonStevens Act, NMFS officials reported that specifying the funding for this

effort is difficult because the agency’s individual economists are not

specifically assigned to fulfill the requirements of that act; they all work on
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a variety of projects. However, in fiscal years 1998 and 1999, they identified

about $400,000 from the headquarters statistics program that was sent to

the regions for general economic analyses and $500,000 from the

Recreational Fisheries Information Network that was used to assess the

economic impacts on recreational fishing. For fiscal year 2000, NMFS is

again allocating about $900,000 to assess the economic impacts of its

conservation and management measures. NMFS officials noted, however,

that additional funding from grants and independent research also

contributes to developing economic information.

Economic Impacts Need to

be Part of the DecisionMaking Process

Economic impacts should be considered early in the decision-making

process if they are to maximize their influence on the decisions. Because

there are often a variety of ways to manage a fishery to achieve the desired

conservation goals, an economic analysis is essential to choose the best

alternative to protect a marine fishery while minimizing the adverse

economic impacts to the fishing industry and community. Although the act

gives priority to the conservation of overfished species, it also requires that

economic impacts to communities be considered in developing

conservation alternatives. However, we found that potential economic

impacts are sometimes assessed after management alternatives have

already been developed; as one social sciences advisory committee

member stated, they do not help formulate alternatives in the first place. As

a result, alternatives that have no adverse impact on conservation but are

very important for economic reasons might be overlooked. In some

instances, the decision-making process had progressed so far that there

was little time to consider economic impacts. For example, the “West Coast

Fisheries Economic Data Plan” stated that “When the need for an economic

analysis to support a particular fishery management decision becomes

apparent, it is generally too late to initiate a data collection effort.” 12

Council members, committee members, council staff, and NMFS

economists all agreed that much more could be done to help ensure that

economic impacts were part of the decision-making process from the start.

Fishermen agreed with the comments made by members of the regional

councils and their advisory boards and provided the following as an

example of an alternative that they believe would probably have been

included by NMFS and the regional councils if economics had been

12This November 1998 report was prepared by the Pacific Fishery Management Council and

the Pacific States Marine Fisheries Commission.
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considered when the alternatives were being developed. Fishermen that

seek highly migratory species, such as tuna and swordfish, may fish

anywhere from a few miles offshore to several days offshore. If NMFS were

to shut this fishery down and provide only a short time period for all fishing

boats to unload their catch, two adverse economic hardships could result.

First, some boats could be too far offshore to return in time to meet the

closure deadline and must either throw their catch overboard or face

penalties. Second, if all the fishing boats were forced to sell their catch

within a few days time, the market supply would greatly increase and the

prices the fishermen could obtain would temporarily decrease. As an

alternative, the fishermen emphasized that providing a wider window to

unload their catch would not adversely affect conservation goals because

the fish would have already been caught. Moreover, because this

alternative would provide them with a longer time to sell their catch, they

would probably receive better prices, which could mitigate some of the

economic hardships caused by closing the fishery.

In a recent closure, NMFS provided a wider window to unload catch

through a voluntary program involving the use of vessel monitoring

systems. At that time, however, only one vessel was equipped to qualify for

this exemption. NMFS officials stated that they were reluctant to permit

offloading flexibility without onboard vessel monitoring systems because

there was no guarantee that fishing would stop as the vessels returned to

port. They also added that, after June 1, 2000, vessels fishing for highly

migratory fish would be required to carry tracking devices to permit

constant monitoring of their fishing activity. As a result, if this fishery needs

to be closed in the future, offloading flexibility will be permitted.

Two recent court rulings have also pointed out that NMFS has not always

complied with the act’s requirement to minimize the adverse affects of

conservation and management measures on fishing communities.

• In the first case, NMFS had determined that participants in the North

Carolina summer flounder fishery would not experience significant

adverse economic impacts if their 1997 annual quota were reduced by

approximately 58 percent. In the summer flounder fishery, the annual

quota is divided among several states. If the commercial sector exceeds

its quota in any given year, the excess is subtracted from next year’s

quota.13 Due to two successive reductions for excess catches (as well as

13No subtraction is made from the annual recreational quota if it is exceeded.
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other factors), North Carolina’s 1997 commercial quota was 58 percent

less than it had been in 1996. NMFS argued that because the annual

quota before subtractions for excess catch was the same in both years,

the 58 percent reduction was not significant. The court decided that the

reduction was significant and ordered NMFS to do an economic analysis

and, to the extent practicable, minimize the adverse impacts on fishing

communities.

• In the second case, involving the Atlantic large coastal shark fishery, the

court took no exception to NMFS’ reduction in the annual shark quota

by 50 percent but did fault the agency’s conclusion that this reduction

would not cause substantial economic hardship. NMFS reasoned that

few fishermen are solely or primarily dependent upon sharks for their

livelihood and that the reduction would merely redirect their efforts to

other fisheries. The court found that there was a small but significant

group that was largely dependent on shark and ordered NMFS to do an

economic analysis, take into account the economic impacts of this

reduction on the affected fishing communities, and take steps to

minimize any adverse effects.

NMFS officials pointed out that these cases were “wake-up calls” for the

need to expand how they view economic impacts. They stated that they

have learned from these cases and do not expect to make these mistakes

again. They also noted that there are cases where NMFS’ economic

analyses have been upheld by the courts.

Consideration of Secondary

and Cumulative Impacts

Needs to Be Expanded

When information is available, NMFS considers the economic impacts of

conservation measures on fishing communities. However, certain

secondary and cumulative impacts are sometimes not included in its

analyses. As a result, economic impacts could be underestimated, and the

decisionmakers would not have a clear picture of the adverse affects of

their decisions on fishing communities. For example,

• Several fishermen stated that they once specialized in one or two

fisheries but, as quotas were reduced, they now fish for anything they

can. They noted, however, that current economic analyses do not

account for the ripple effects of such changes. For example, if the quota

for cod is reduced, fishermen may switch to flounder, and that, in turn,

economically hurts fishermen and communities that historically had

depended on flounder.

• Fishermen pointed out that new management and conservation

measures are often implemented without assessing the cumulative
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economic impacts of previous measures. For example, with NMFS’

approval, a regional council might increase the size of the fish that could

be caught, increase the size of the mesh in the net the following year,

and then establish a quota in the third year. When considered

independently, the economic impacts of these measures could be

relatively small, but their impact would probably be more significant

when considered cumulatively. Fishermen call this aggregate effect

“death by a thousand cuts.”

Others agree that the cumulative impact and the effects on other fisheries

should be an integral part of an economic analysis. For example, the Social

Science Advisory Committee for the New England Fishery Management

Council said in a November 1999 report that they “strongly encouraged the

consideration of the cumulative impacts of various management actions on

other fisheries...”

Requirements for

Essential Fish Habitat

Have Been Met, but

Additional Work and

Concerns Continue

NMFS and the eight regional councils have described and identified

essential fish habitat for all fishery management plans except one, and

NMFS has developed a consultation process for actions that may adversely

impact that habitat.14 NMFS has also placed a high priority on the research

needed to identify the adverse impacts to habitat and to identify the actions

needed to conserve and enhance habitat, but much more remains to be

done. Additional work is also needed to more specifically define essential

fish habitat. NMFS’ current habitat designations are broad and require

consultations on a wide variety of activities. As a result, the designations

have raised concerns among conservationists and those with business

interests about their ultimate impact on habitat protection efforts and

onshore activities. To date, there is little evidence that the consultation

process has adversely affected planned projects or that the broad

designations have resulted in the most valuable habitats being overlooked.

Combined Essential Fish

Habitat Includes Entire

Ocean From Coastline to

200-Mile Limit

Because of tight time frames and the lack of information about the habitat

needs of most managed species, NMFS and the councils have designated

essential fish habitat so broadly that, when the habitat needs of all

managed species are combined, virtually the entire U.S.-controlled portion

14The one exception is the Pacific salmon plan, which includes three species and has yet to

be submitted by the Pacific Council.
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of the Atlantic and the Pacific oceans is considered essential by one species

or another. Those with business interests expressed concern that the broad

designations would adversely affect their ability to develop onshore

projects whereas some conservationists expressed concern that because

the area designated was so vast the importance of the most valuable areas

in a habitat would be overlooked.

The Magnuson-Stevens Act gave the Secretary of Commerce 6 months to

develop guidelines to help identify essential fish habitat and gave the

regional councils 24 months to submit their amended fishery management

plans to the Secretary. However, important information about habitat was

not known for the majority of federally managed fish stocks. NMFS

officials stated that they did not have the tools necessary to quantify the

different types of ocean habitat and that the amount of scientific

information that was lacking on the role of habitat at each life stage of a

managed species could take over 20 years to obtain.

To meet the deadline for designating essential fish habitat, NMFS officials

took what they called a precautionary approach that resulted in designating

very extensive habitat areas. In some instances, all that was known about a

stock was its range. In such situations, NMFS and the councils designated

essential fish habitat broadly−anywhere the species was commonly found.

In most instances, however, essential fish habitat was designated as that

portion of the total range that included the highest density of the species.

As a result, after NMFS and the regional councils had identified the

essential habitat for each managed species, most rivers that include

managed species of anadromous fish as well as virtually the entire ocean

from the coastline to the 200-mile limit were included as essential fish

habitat for at least one species.15 NMFS officials stated that it should not be

surprising that virtually the entire U.S.-controlled portion of the Atlantic

and the Pacific oceans would be important to one or more life stages of one

species or another.

NMFS’ future plans call for defining essential fish habitat more specifically

when sufficient information is available to do so. The three more specific

definitions, in increasing order of specificity, are as follows;

• the habitat supporting those portions of the range where the stock has

been found in high relative abundance;

15Anadromous fish migrate from saltwater to fresh water to spawn.
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• the habitat supporting those portions of the range where the stock has

had high growth, reproduction, or survival rates; and

• the specific habitat needed to achieve the population goal in NMFS’ fish

management plan for that species of fish.

NMFS officials believe their goal is to define essential fish habitat as the

type and the quantity of habitat needed to achieve the population goal in

the fishery management plan. Nearly all of the current designations fall far

short of that standard because scientific information is lacking to link the

production rates of managed species to specific types of habitat.

Because essential habitat includes rivers supporting anadromous fish and

so much of the ocean, effectively implementing other essential habitat

provisions, such as assessing factors that adversely impact the habitat, the

extent of the impact, and what can be done to conserve and improve the

habitat, may be very expensive. NMFS officials said they appreciate the

importance of these activities, and they have identified research efforts in

these areas since completing the initial designations for essential habitats.

They noted that effectively evaluating threats to essential fish habitat and

developing appropriate conservation measures would be difficult with the

agency’s available resources.

A Consultation Process Has

Been Implemented, but

Concerns About Its Impact

on Planned Projects Remain

NMFS has developed a consultation process for actions that may adversely

affect essential fish habitat, but the broad designation of essential fish

habitat has many with onshore business interests concerned because

NMFS must be consulted on any action authorized, funded, or undertaken

by a federal agency that could adversely affect that habitat. There are

thousands of such actions initiated each year.

NMFS has implemented a three-tiered consultation process to help ensure

that the level of review is commensurate with the potential for harm. NMFS

has encouraged federal agencies to incorporate the following provisions

into existing environmental reviews to streamline consultations.

• Activities by federal agencies that will cause only minimal adverse

impacts may be addressed in a statement of general concurrence.

• Activities that cannot be addressed using a general concurrence but

which will not cause substantial adverse impacts are handled by an

abbreviated consultation process. The other federal agency must

provide NMFS with a written assessment of the impacts of their

proposal on essential fish habitat. After receiving this assessment,
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NMFS will provide conservation recommendations to the other agency,

which must respond in writing to them.

• Proposed actions with the potential for substantial harm to essential

fish habitat must be evaluated through an expanded consultation

process, which is similar to that of the abbreviated process but provides

a greater opportunity for NMFS and the other federal agency to work

together to develop protective measures.

NMFS officials pointed out that, unless an action requires that a federal

permit be obtained or involves federal funds, the consultation process will

not affect private landowners at all. If federal action is required, NMFS

officials stated that, in most instances, other agencies could evaluate

potential harm to essential fish habitat during their normal environmental

reviews under other laws. However, the Magnuson-Stevens Act does

require that they respond to NMFS’ essential fish habitat recommendations

in writing. Otherwise, the law does not require federal agencies to change

their decision-making process during a consultation and does not

automatically impose any additional restrictions on nonfishing interests

because NMFS’ recommendations are not binding. It is the action agency

that decides whether to accept NMFS’ recommendations. NMFS officials

stated that, as of November 1999, they had completed 18 agreements with

other agencies to establish specific procedures for using existing

environmental review processes to handle essential fish habitat

consultations and were working on 32 others. NMFS officials stated that

they are committed to using the existing environmental review processes

and the three-tiered consultation process to ensure that consultations are

limited to actions where adverse impacts may occur.

Those with business interests, however, were generally skeptical about

whether the process would pose a burden. Some were concerned that,

given the huge areas designated as essential fish habitat, the consultation

process would result in additional restrictions on nonfishing industries

occurring inland. For example, an interviewee said a consultation related

to essential fish habitat in the Gulf of Mexico was required before the U. S.

Army Corps of Engineers (Corps) would grant a permit for a crane barge

and a levee crossing almost 185 miles upstream on the Mississippi River.

Others expressed concern about the potential for the process to cause

project delays. For example, interviewees said the consultation process

had lengthened the time needed to obtain permits for certain types of oil

and gas activities in coastal Louisiana by 3 weeks.
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When interviewees provided specifics, we followed up on their concerns

about delays. In the case of the barge and a levee crossing, we found that

NMFS’ Southeast Regional Office had no objection to the project and

approved it within 7 days of receiving the public notice. Of the nine other

consultation requests to that office that we reviewed, we found that, as of

March 1, 2000, one was withdrawn, six had been issued, and two were still

waiting approval. Of the two still awaiting approvals, one was being held

because of objections by the Corps and the other because of the concerns

of a neighbor and the U.S. Environmental Protection Agency (EPA). As the

following table shows, in the cases we reviewed, there is little evidence that

NMFS’ consultation process has imposed substantial delays to affected

projects. However, because this process is new and its full ramifications

are unknown, it is too early to fully identify the adverse impacts of NMFS’

actions.
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Table 1: Disposition of Selected Permits Submitted for Consultation to NMFS’ Southeast Regional Office

Source: The Corps’ permit files.

Many environmental groups said NMFS’ actions did not go far enough.

They expressed concern that the consultation process did not require other

agencies to take any action and that NMFS does not plan to follow up to

determine if its recommendations are adopted. NMFS’ officials stated that

they do intend to follow up on their essential fish habitat conservation

recommendations to the extent possible with existing staff and resources.

As of the end of December 1999, NMFS had conducted between 2,500 and

3,000 consultations with federal agencies whose actions could adversely

affect essential fish habitat. NMFS officials stated that a database is being

set up to track each consultation. The database will include information on

the planned action, its location, the consulting agency, and the filing dates.

Project description

Date of

notice

Date of

NMFS’

response

NMFS’

recommendation

Action on

application Comments

Stabilize a bank 5/14/99 6/10/99 Do not issue Application

withdrawn

Louisiana requested additional

data 6/23/99

Fill wetlands for a

homesite

6/25/99 7/2/99 No objection Permit issued

9/7/99

Build a deck 8/18/99 8/27/99 No objection Permit issued

10/25/99

Stabilize a bank 11/2/98 11/13/98 Modify project Permit issued

4/5/99

Meeting between applicant,

NMFS, and the Corps resolved

problems

Dredge a canal and

stabilize a bank

5/14/99 6/7/99 Modify project Open The Corps wants a different

type and location for project

Dredge a channel 2/9/99 3/5/99 Modify project Permit issued

3/29/99

Meeting between applicant,

NMFS, and the Corps resolved

problems

Dredge a channel 4/28/99 5/25/99 Change the type of

permit

Permit issued

6/25/99

Project revised to the Corps’

satisfaction and permit

approved

Fill wetlands for a

homesite

8/27/99 9/10/99 No objection Open Project objected to by EPA and

a neighbor

Build a crane barge

and a levee crossing

9/3/99 9/10/99 No objection Permit issued

1/25/00

Project held up by the Coast

Guard’s objection 10/25/99

Build a boat slip 9/3/99 9/10/99 No objection Permit issued

1/9/00

Had to wait for Louisiana water

quality certification
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Conclusions By its nature, assessing the condition and the abundance of fish and other

marine species is likely to be controversial, especially to those fishermen

who might be adversely impacted by changes in a species’ condition or

level of abundance. NMFS is using the best available science in its

assessments. However, inherent weaknesses in data collection and

communications need to be resolved by NMFS.

The act’s requirement to consider the economic impacts to communities is

new and causes some expected discomfort to both NMFS as it struggles

with implementing the requirement and to those that expect a quick fix.

Economic information on fishing communities is scarce and the act’s

requirement “to take into account” these impacts is not very specific or

directive. Ultimately, questions about how far to go with data collection

efforts will involve resource questions in which hard choices will have to

be made. However, NMFS’ emphasis on missing or inadequate data fails to

recognize that this provision is intended to sustain participation and

minimize the adverse economic impacts to fishing communities, not to

accumulate data about them. What is needed is more timely economic

analysis to suggest which alternatives would minimize the adverse

economic impacts while satisfying NMFS’ requirements for fishery

conservation and management.

NMFS acknowledges that to improve the value of essential fish habitat as a

useful management tool, that habitat must be more specifically defined for

managed species. However, describing essential fish habitat in more

precise terms is likely to be an expensive activity requiring a substantial

amount of time and effort. More work and data are also needed to assess

what is adversely impacting habitat and what can be done to protect it; this

will also require substantial resources. We think it is important for NMFS

and the Congress to understand what will be needed to more specifically

define essential fish habitat to be more useful and to fulfill the related

requirements to protect it.

Recommendations To improve the data upon which fishery conservation and management

decisions are based and to improve the communications between the

regulators and those who are regulated, we recommend that the Secretary

of Commerce direct the Director of NMFS to do the following:
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• Increase the involvement of the fishing industry, its expertise, and its

vessels in fishery research activities in order to expand the frequency

and scope of NMFS’ data collection efforts.

• Review data collection requirements placed on fishermen to limit

requested information to what is needed for conservation and

management, regulatory, and scientific purposes.

• Review data collection procedures for fisheries where the recreational

sector constitutes a major portion of the fish caught to minimize the

inconsistent treatment of commercial and recreational fishermen.

To improve the acceptance of conservation and management decisions and

to minimize the adverse economic impacts of those decisions to fishing

communities, we recommend that the Secretary of Commerce direct the

Director of NMFS to do the following:

• Determine what resources NMFS might redirect to help ensure that the

full range of economic alternatives are considered early enough in the

decision-making process to be useful in minimizing the adverse

economic impacts of fishery conservation and management decisions.

To more accurately assess the impacts of essential fish habitat provisions

on the nation’s fisheries and NMFS’ budget, we recommend that the

Secretary of Commerce direct the Director of NMFS do the following:

• Provide the Congress with information on the costs of 1) identifying

habitats that contribute most directly to fishery production, 2)

identifying priority threats to essential fish habitat and, 3) identifying

techniques and methods needed to protect and enhance essential fish

habitat from priority fishing and nonfishing threats. The above cost

estimates should be compared with estimates of the cost for all species

without first establishing priorities.

Agency Comments We provided the Department of Commerce with a draft of this report for

review and comment. The Department agreed with some of our findings

and disagreed with others. In particular, the Department was concerned

that our discussion of possible improvements to the fishery assessment

process would overshadow our conclusion that NMFS is using the best

available scientific information. We appreciate the Department’s concern

but believe the report’s message is balanced and clearly acknowledges

NMFS’ use of the best available scientific information.
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The Department also made several comments on our recommendations.

On our recommendation to increase fishing industry participation in

research activities, the Department expressed concern that we had not

recognized that NMFS has made greater use of domestic charters to

perform its research and expects to do more of this in the future. While we

recognize that NMFS has increased its use of these vessels, there is an

opportunity to do more. Currently, there is substantial vessel over capacity

in some fisheries that could be available for research use. For example, in

October 1999, we reported that there were proposals for using between

$150 million and $220 million in federal funds to buy back vessels to reduce

excess capacity.16 It appears that NMFS could use this excess vessel

capacity and proposed funding to both fulfill its research needs and help

fishermen at the same time.

The Department was concerned that our recommendation on the data

collection requirements placed on fishermen did not recognize that NMFS

does review its data collection initiatives and that its data collection

programs are continually revised to meet changing needs. The Department

is correct, and we do not wish to minimize NMFS’ activities. However, we

believe that this “continuous” review should include an assurance that

NMFS is still using all of the data supplied by fishermen. If NMFS does not

use certain data fishermen are required to collect, such as cod discard data,

we do not understand the basis for requiring them to continue collecting it.

In commenting on our recommendation about minimizing the differences

in recreational and commercial data collection procedures, the Department

stated that because the commercial and recreational fisheries differ

significantly, “it would be inappropriate to have consistent data collection

procedures for each sector.” In our view, inconsistent data collection

procedures lead to differing management actions and result in unequal

treatment of the two fishing sectors. Closures of commercial fishing

sectors can, and do, result from weekly updates of commercial fishing data,

on-board observers, and independent verifications from fish processors. In

contrast, because of the 4-month delay in summarizing recreational catch

data and the wide allowance for error associated with the recreational

survey’s method, excess recreational harvest is seldom currently used to

close recreational fisheries. Thus, in fisheries where the recreational sector

16Commercial Fisheries: Information on Federally Funded Buyback Programs (GAO/RCED00-8R, Oct. 1999).
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is significant, we believe the Secretary should minimize the differences in

how catch data are collected and used to manage fisheries.

The Department agreed with the basis of the economic alternative

recommendation and with the essential fish habitat recommendation.

The Department also made a number of technical comments and

suggestions that we incorporated into our report as appropriate. The

Department’s complete comments and our responses are presented in

appendix II.

A copy of this report is being sent to the Honorable William M. Daley,

Secretary of Commerce; Dr. James Bake, Director of the National Oceanic

and Atmospheric Administration; Penelope Dalton, Director of the National

Marine Fisheries Service; and other interested parties. We will also make

copies available to others upon request.

If you have any questions about this report, please contact me at (206) 287-

4810. Other key contributors to this report were Jill Berman, Jerry Aiken

and Bill Wolter.

James K. Meissner

Associate Director, Energy,

Resources and Science Issues
B-284382

Page 32 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

List of Committees and Requesters

The Honorable Ted Stevens

Chairman

The Honorable Robert Byrd

Ranking Minority Member

Committee on Appropriations

United States Senate

The Honorable Judd Gregg

Chairman

The Honorable Ernest F. Hollings

Ranking Minority Member

Subcommittee on Commerce, Justice,

State, and Judiciary

Committee on Appropriations

United States Senate

The Honorable Olympia J. Snowe

The Honorable John B. Breaux

The Honorable Frank R. Lautenberg

United States Senate

The Honorable Walter B. Jones

The Honorable Frank A. LoBiondo

The Honorable Jim Saxton

House of Representatives
Page 33 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act
Page 34 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

Appendix I

Scope and Methodology ApApenednxidexiIs

To assess the compliance of the National Marine Fisheries Service (NMFS)

with the requirements to use the best available scientific information; to

take into account the economic importance of fishery resources to fishing

communities; and to define, identify, and implement essential fish habitat

provisions, we interviewed various NMFS officials. We discussed

appropriate processes, regulations, and procedures with NMFS officials in

the headquarters office; the Northeast, Southeast, and Pacific Regional

Offices and Science Centers; and the Alaska Science Center.

To understand the role of fishery management councils in developing and

implementing NMFS' requirements, we met with representatives of six of

the eight regional councils−New England, Mid-Atlantic, South Atlantic,

Gulf of Mexico, Pacific, and Northern Pacific. In addition to current council

members, we also talked to past members, council staff, and members of

the advisory panels and science and statistical committees.

To obtain the opinions of those affected by the implementation of the act's

requirements, we interviewed over 300 individuals, who represented six

regional fishery management councils; commercial and recreational

segments of the fishing industry; the states' and other marine commissions,

and fishing associations. We also interviewed consultants, lawyers,

conservationists, suppliers, and members of the academic community.

Interviews were conducted individually, in small groups, or in “town hall”

settings. Table 2 summarizes who was interviewed. These interviewees

provided us with examples of their concerns that we then evaluated,

researched, and discussed with NMFS' officials. For our review, we

assessed whether their examples corroborated or refuted NMFS' use of the

best available scientific information in making conservation and

management decisions or if some other factors had led to dissatisfaction

with the science.
Appendix I

Scope and Methodology

Page 35 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

Table 2: People Interviewed

To reach as many people as possible, we scheduled our meeting dates and

locations to correspond with regularly scheduled meetings of the regional

councils. We attended at least one meeting of each of the six councils

whose representatives we met with. These included meetings in Portland,

Maine; Fairhaven, Massachusetts; Norfolk, Virginia; Anchorage, Alaska;

Portland, Oregon; Austin, Texas; and Key West, Florida. In addition, we met

with representatives of the Bluewater Fisherman's Association at their

annual meeting in Atlantic City, New Jersey. This association represents

fishermen who fish for highly migratory species that are managed by NMFS

and not a council. We also met separately with members of the North

Carolina Fishermen's Association in New Bern, North Carolina, and with

scallop fishermen and other interested parties in Seaford, Virginia, and

New Bedford, Massachusetts.

In addition to the interviews, we also reviewed numerous documents that

were provided to us by those we interviewed. We reviewed the law, its

history, and the implementing regulations along with reports prepared by

the Congressional Research Service, the National Research Council, and

others to obtain additional information. We also reviewed fishery

management plans, economic analyses, court cases, and other pertinent

agency and council documents.

Sector

Number

interviewed

NMFS officials 37

Other government officials (federal, state, and local) 16

Fishery management council members and staff 35

Commercial fishery representatives 75

Recreational fishery representatives 9

Fish processors 26

Conservationists 27

Members of the academic community 13

Members of fishing associations 33

Suppliers for commercial and recreational fisheries 10

Other representatives of the fishery infrastructure 9

Other 29

Total 319
Appendix I

Scope and Methodology

Page 36 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

We conducted our review from April 1999 through March 2000 in

accordance with generally accepted auditing standards.
Page 37 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

Appendix II

Comments From the U.S. Department of

Commerce ApendxiI
Appendix II

Comments From the U.S. Department of

Commerce

Page 38 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act
Appendix II

Comments From the U.S. Department of

Commerce

Page 39 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

See comment 1.

See comment 2.

Now on p. 4.

See comment 3.

Now on p. 4.

See comment 3.

Now on p. 6.

See comment 4.
Appendix II

Comments From the U.S. Department of

Commerce

Page 40 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

Now on p. 7.

See comment 5.

Now on p. 9.

See comment 6.

See comment 4.

See comment 6.

Now on p. 11.

See comment 4.

Now on p. 11.

See comment 4.

Now on p. 12.

See comment 4.
Appendix II

Comments From the U.S. Department of

Commerce

Page 41 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

Now on p. 12.

See comment 4.

Now on p. 12.

See comment 7.

Now on p. 12.

See comment 8.

Now on p. 12.

See comment 9.

Now on p. 13.

See comment 4.

Now on p. 13.

See comment 3.
Appendix II

Comments From the U.S. Department of

Commerce

Page 42 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

Now on p. 14.

See comment 4.

Now on p. 14.

See comment 5.

Now on p. 16.

See comment 4.

Now on p. 17.

See comment 4.

Now on p. 18.

See comment 4.

Now on p. 19.

See comment 4.

Now on p. 19.

See comment 4.
Appendix II

Comments From the U.S. Department of

Commerce

Page 43 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

Now on p. 20.

See comment 4.

Now on pp. 20 and 21.

See comment 10.

Now on p. 21.

See comment 6.

Now on p. 21.

See comment 6.

See comment 4.

See comment 4.

See comment 4.

Now on p. 23.

See comment 4.
Appendix II

Comments From the U.S. Department of

Commerce

Page 44 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

Now on p. 24.

See comment 4.

Now on p. 24.

See comment 4.

Now on p. 24.

See comment 4.

Now on p. 24.

See comment 4.

Now on p. 25.

See comment 4.

Now on p. 25.

See comment 4.
Appendix II

Comments From the U.S. Department of

Commerce

Page 45 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

Now on p. 25.

See comment 4.

Now on p. 25.

See comment 4.

Now on p. 27.

See comment 4.

Now on p. 26.

See comment 4.

Now on p. 28.

See comment 4.
Appendix II

Comments From the U.S. Department of

Commerce

Page 46 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act
Appendix II

Comments From the U.S. Department of

Commerce

Page 47 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act
Appendix II

Comments From the U.S. Department of

Commerce

Page 48 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act
Appendix II

Comments From the U.S. Department of

Commerce

Page 49 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

GAO's Comments 1. We believe we appropriately looked at NMFS' compliance with the act's

requirement to consider the economic impacts to fishing communities

(National Standard 8) in the context of other statutory requirements. In

fact, NMFS refers to these other requirements in its implementation

regulations for National Standard 8. For example, the regulations state that

“an appropriate vehicle for the analyses under this standard is the fishery

impact statement required by section 303(a)(9) of the Magnuson-Stevens

Act.”

2. We agree that follow-up action on the comments is needed to help ensure

that appropriate corrective action is taken. When the fishermen provided

us with examples of problems, we followed up on their suggestions and

analyzed the basis for their examples. If the examples warranted attention,

we have included them or similar cases in this report.

3. We believe NMFS is using the best available science. We found little in

our analysis of what experts said about NMFS' science, the council's

process to assess the science of others, or the problems identified through

our interviews, to contradict this conclusion. However, in some instances,

we believe it is important to recognize that the best available scientific

information might not be good enough for what it is being used to do.

NMFS officials have pointed out to us that conditions in fisheries can

change rapidly due to many factors. Given this fact, we believe that 3- to 5-

year gaps in data collection efforts may not provide the information

necessary for informed decision-making. We recognize the magnitude of

NMFS' efforts to manage the nation's marine resources but believe it is also

important to acknowledge the problems encountered in carrying out its

responsibilities. The Department of Commerce also maintains that

fishermen will complain that NMFS is not using the best available scientific

information as long as the conservation and management measures based

on that science adversely affect them or constrain their activities. Although

this may be so, we do not believe that this is enough reason to discount the

concerns we heard from fishermen. In addition, our report points out that

concerns about the data not being current and complete were not limited to

fishermen but were also voiced by members of the regional councils and

were pointed out in reports by the National Research Council. For

example, the Gulf of Mexico Fishery Management Council rejected NMFS'

analysis of the red drum and red grouper fisheries in 1999 because the

agency's information was insufficient to assess catch limits. Even NMFS

officials stated that they wished certain surveys could be done more

frequently and more specifically.
Appendix II

Comments From the U.S. Department of

Commerce

Page 50 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

4. We agree. The final report was revised to reflect the Department's

comment, as appropriate.

5. We believe the scallop example provides many details that illustrate

where and how miscommunications occur. Our intent is to show that

miscommunications occur for many reasons and frustrate all the affected

parties.

6. We believe that the Department's request goes beyond the scope of the

mandate.

7. The wording has been clarified to reflect that NMFS will use selfreported discard data from fishermen if it is supplemented with data from

other sources.

8. We believe the example is appropriate and have clarified the wording to

make the connection clearer.

9. We disagree. The red snapper, bluefin tuna, and some Pacific salmon

fisheries were the only current examples the Department could provide of

recreational fisheries closed using the survey to collect data on

recreational fisheries. We agree that quite often, recreational fisheries are

managed through the use of such regulations as individual bag limits, size

limits, or seasons instead of by a total fishery quota, and we agree that

these methods are appropriate for most recreational fisheries. However, we

encountered instances of recreational fisheries exceeding their allotted

portion of a fishery's total annual allowable catch. This overage could then

be factored into future stock assessments and result in reduced catch

allowances for everyone. Understandably, reduced allocations to the

commercial sector caused by recreational overfishing upsets commercial

fishermen whose access to the same fishery may be closed as soon as their

portion is caught. Using quotas to close one fishing sector but not the other

raises a fairness issue that is especially controversial in those fisheries

where the recreational sector constitutes a large percentage of the total

allowable catch.

10. We disagree. The National Oceanic and Atmospheric Administration's

(NOAA) Office of General Counsel provided both court cases as examples

of compliance issues with National Standard 8. In both cases, the court

found that NMFS had failed to comply with this standard. For example, in

the case involving the summer flounder, the court held that “the Secretary

acted arbitrarily and capriciously in failing to comply with National
Appendix II

Comments From the U.S. Department of

Commerce

Page 51 GAO/RCED-00-69 Implementation of the Magnuson-Stevens Act

Standard 8.” The court ordered the Secretary to perform a level of

economic analysis sufficient to comply with National Standard 8 and “to

the extent practicable, minimize the adverse economic impacts on

communities.” We intended to provide some case examples of National

Standard 8 compliance issues, not an exhaustive list of cases. Thus, we are

not adding the additional cases suggested by the Department.

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