[Senate Hearing 106-1030]
[From the U.S. Government Publishing Office]
S. Hrg. 106-1030
REAUTHORIZATION OF THE MAGNUSON-STEVENS FISHERY CONSERVATION AND
MANAGEMENT ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON OCEANS AND FISHERIES
of the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
JULY 29, 1999
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South Carolina
CONRAD BURNS, Montana DANIEL K. INOUYE, Hawaii
SLADE GORTON, Washington JOHN D. ROCKEFELLER IV, West
TRENT LOTT, Mississippi Virginia
KAY BAILEY HUTCHISON, Texas JOHN F. KERRY, Massachusetts
OLYMPIA J. SNOWE, Maine JOHN B. BREAUX, Louisiana
JOHN ASHCROFT, Missouri RICHARD H. BRYAN, Nevada
BILL FRIST, Tennessee BYRON L. DORGAN, North Dakota
SPENCER ABRAHAM, Michigan RON WYDEN, Oregon
SAM BROWNBACK, Kansas MAX CLELAND, Georgia
Mark Buse, Staff Director
Martha P. Allbright, General Counsel
Ivan A. Schlager, Democratic Chief Counsel and Staff Director
Kevin D. Kayes, Democratic General Counsel
------
Subcommittee on Oceans and Fisheries
OLYMPIA J. SNOWE, Maine Chairman
TED STEVENS, Alaska JOHN F. KERRY, Massachusetts
SLADE GORTON, Washington DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas JOHN B. BREAUX, Louisiana
C O N T E N T S
----------
Page
Hearing held July 29, 1999....................................... 1
Statement of Senator Gorton...................................... 7
Prepared statement........................................... 8
Statement of Senator Kerry....................................... 5
Statement of Senator Snowe....................................... 1
Prepared statement........................................... 3
Witnesses
Dalton, Penelope D., Assistant Administrator, National Marine
Fisheries Service, U.S. Department of Commerce................. 11
Prepared statement........................................... 13
Delaney, Glenn Roger, U.S. Commissioner, International Commission
for Conservation of Atlantic Tunas............................. 73
Prepared statement........................................... 75
Fluharty, David, Ph.D., Research Associate Professor, School of
Marine Affairs, University of Washington and Member, North
Pacific Fishery Management Council, Washington State........... 46
Prepared statement........................................... 48
Garcia, Terry D., Assistant Secretary for Oceans and Atmosphere;
accompanied by Andrew A. Rosenberg, Ph.D., Deputy Assistant
Administrator, National Marine Fisheries Service, U.S.
Department of Commerce......................................... 9
Hill, Thomas, Member, New England Fishery Management Council..... 37
Prepared statement........................................... 39
Hinman, Ken, President, National Coalition for Marine
Conservation, on behalf of the Marine Fish Conservation Network 79
Prepared statement........................................... 82
Lauber, Richard B., Chairman, North Pacific Fishery Management
Council........................................................ 42
Prepared statement........................................... 43
Raymond, Maggie, Member and Spokesperson, Groundfish Group,
Associated Fisheries of Maine.................................. 33
Prepared statement........................................... 35
Swingle, Wayne E., Executive Director, Gulf of Mexico Fishery
Management Council............................................. 62
Prepared statement with attachments.......................... 63
Appendix
Response to written questions submitted by Hon. Max Cleland:.....
William M. Daley and Penelope D. Dalton...................... 101
Response to written questions submitted by Hon. Ernest F.
Hollings to :..................................................
David Fluharty............................................... 117
Thomas R. Hill............................................... 100
William M. Daley and Penelope D. Dalton...................... 101
Maggie Raymond, Thomas R. Hill, Richard B. Lauber, David
Fluharty................................................... 102
Response to written questions submitted by Hon. John F. Kerry to:
Penelope D. Dalton........................................... 103
David Fluharty............................................... 118
Thomas R. Hill............................................... 100
Maggie Raymond, Thomas R. Hill, Richard B. Lauber, David
Fluharty................................................... 103
Maggie Raymond............................................... 140
Response to written questions submitted by Hon. Olympia J. Snowe
to:............................................................
Penelope D. Dalton........................................... 104
Glenn Roger Delaney.......................................... 124
David Fluharty............................................... 113
Thomas R. Hill............................................... 95
Ken Hinman................................................... 135
Panel I...................................................... 104
Panel II..................................................... 104
Maggie Raymond............................................... 138
Wayne E. Swingle............................................. 119
Alverson., Robert, Manager, Fishing Vessel Owners Association.... 147
Daley, William M., Secretary, U.S. Department of Commerce,
prepared statement............................................. 140
From The Post and Courier, Welcome Fishing-Limit Push............ 102
Martin, Guy, Counsel, Essential Fish Habitat Coalition, statement 142
North Pacific Fishery Management Council, prepared statement..... 107
Paul, Ron Hon., U.S. Representative from the State of Texas...... 137
Petersen, Rudy A., Fishermen's Finest, Inc., letter dated July
27, 1999 to Senator Snowe...................................... 160
Proposal for Open Access Fishing Vessel Allocation of Pollock
under the American Fisheries Act............................... 161
Thomson, Arni, Executive Director, Alaska Crab Coalition,
prepared statement............................................. 128
Williams, Kay H., on behalf of Save America's Seafood Industry
Coalition...................................................... 159
REAUTHORIZATION OF THE MAGNUSON-
STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT
----------
THURSDAY, JULY 29, 1999
U.S. Senate,
Subcommittee on Oceans and Fisheries,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:30 a.m., in
room SR-253, Russell Senate Office Building, Hon. Olympia J.
Snowe presiding.
Staff members assigned to this hearing: Sloan Rappoport,
Republican Counsel; Stephanie Bailenson, Republican
Professional Staff; and Margaret Spring, Democratic Senior
Counsel.
OPENING STATEMENT OF HON. OLYMPIA J. SNOWE,
U.S. SENATOR FROM MAINE
Senator Snowe. Good morning. I am going to try to move this
along, at least in the first few minutes, because we are going
to have a series of three votes, starting at 9:30. So I will
quickly go through my statement. Then if we can begin with the
first witnesses and see how far we can go before I may have to
leave.
First of all, I would like to welcome all the witnesses who
will be testifying here today and others in attendance, on the
issue of reauthorization of the Magnuson-Stevens Fishery
Conservation and Management Act. The most significant issue
before the Oceans and Fisheries Subcommittee in this Congress
will be the reauthorization of this Act, which is the principal
Federal law governing marine fisheries management.
Today's hearing begins with what is sure to be an
exhaustive review of the statute and the administration's
implementation of it. It is my intention to hold field hearings
in the various coastal regions of this country. They will
provide us with the opportunity to discuss in great depth the
specific regional concerns that have been raised. Today's
hearing, therefore, will lay the foundation for these future
discussions.
The last reauthorization of the Act was quite substantial.
I would be remiss if I did not acknowledge the work of my
colleagues during the last reauthorization. The Subcommittee
was led through the last reauthorization by Senator Stevens,
who chaired this Subcommittee, as well as Senator Kerry, who is
the ranking minority member of this Subcommittee. Their
tireless work significantly changed the way we manage
fisheries.
Enactment of the Fishery Conservation and Management Act in
1976 began a new approach to Federal marine fishery management.
It was a direct response to the depletion of the U.S. fishery
resources by foreign vessels and secured U.S. jurisdiction and
management authority over fisheries, out to 200 miles from our
shores. The Magnuson-Stevens Act is administered by the
National Marine Fisheries Service and the eight regional
councils that manage fisheries in geographic areas through
specific fishery management plans.
Their actions establish the rules under which the fishing
industry operates. They determine harvest quota, season length,
gear restrictions, and license limitation. That is why
difficult management decisions must involve the people whose
livelihood depends on the continued access to these resources.
As such, it is critical that there be a balanced and fair
apportionment of council seats so that all have a strong voice
in management.
Today, we will hear testimony about breakdowns in the
parti-
cipatory process that have led to the adoption of less than
adequate management measures. One of the overall goals of the
Magnuson-Stevens Act is to provide a mechanism to determine the
appropriate level of catch to maximize the benefit to the
Nation, while still protecting the long-term sustainability of
the fisheries. It is a balancing act among competing interests
of commercial and recreational fishermen.
We will also hear about the need for participation of non-
fishing interests when managing public resources.
The Sustainable Fisheries Act was enacted in 1996, and the
provisions and requirements of the Act reflect significant
changes to the goals and objectives of the Magnuson-Stevens
Act. Proper implementation of these provisions is of great
concern to many groups. Accordingly, there is considerable
interest in the implementation activities of the regional
councils, as well as the National Marine Fisheries Service.
The most substantial change in fishery management under the
Sustainable Fisheries Act was the mandates to stop overfishing
and restore overfished stocks. The councils were given a
timetable to achieve these goals, and we will hear today the
status of their actions.
Witnesses from around the country will be able to give
firsthand reports about the level of success the councils have
had in fulfilling this mandate. The councils and the National
Marine Fisheries Service were also told to increase their
emphasis on social benefits that might better preserve
traditional fishermen. Because of the high level of
overfishing, management measures will be required in a variety
of fisheries. It is essential, therefore, that we remember to
preserve the fishermen as well as the fish.
There have been numerous criticisms of NMFS and the
councils for not taking adequate measures to address the
financial hardships tough management will inevitably cause.
Today, we will be hearing from many fishermen, as well as
representatives of fishing communities, of the impact that
these management decisions have had on the fishing industry in
total.
The Sustainable Fisheries Act also imposed a moratorium on
the creation of new individual fishing quota management
programs in which a transferable percentage of the annual catch
is held privately. Today's witnesses will offer recommendations
about how to address such programs in the future.
The final paradigm shift incorporated in the Sustainable
Fisheries Act that we will hear about today are the provisions
to
minimize bycatch and restore and protect fish habitat. Based on
concerns that certain fish stocks had declined due to their
loss of surrounding habitat, the Act established a national
program to facilitate long-term protection of essential fish
habitat. Many have argued that these provisions have not been
properly implemented. We will be discussing this problem with
our witnesses today.
During recent trips home to Maine, I have had the
opportunity to discuss the reauthorization of this Act with
fishermen and people who live in fishing communities. These
hardworking men and women also have very specific concerns with
the way the law is being implemented.
Let me conclude my remarks by saying that those most
affected by this law believe that the Act is too rigid, that it
is not being implemented properly by NMFS, and that contrary to
its mandate, the best science is not being used in management.
As we begin this reauthorization process, we should try to make
sure that sustainable fishing and good management become the
norm and not the exception. Clearly, this reauthorization will
have major implications for the future of marine fisheries in
the United States.
[The prepared statement of Senator Snowe follows:]
Prepared Statement of Hon. Olympia J. Snowe, U.S. Senator from Maine
The hearing will come to order. Before we begin, I would like to
welcome the witnesses, my colleagues, and others in attendance today.
Today's hearing will address the reauthorization of the Magnuson-
Stevens Fishery Conservation and Management Act.
The most significant item before the Oceans and Fisheries
Subcommittee in this Congress is the reauthorization of the Magnuson-
Stevens Act, the principal Federal law governing marine fisheries
management. With today's hearing, the Subcommittee begins what is sure
to be an exhaustive review of this statute and the Administration's
implementation of it.
It is my intention to hold field hearings in the various coastal
regions of the country. These field hearings will provide us with the
opportunity to discuss in great depth the specific regional concerns
that have been raised. Today's hearing, therefore, will lay the
foundation for these future discussions.
The last reauthorization of the Act was quite substantial. I would
be remiss if I did not acknowledge the work of my colleagues during the
last reauthorization. This Subcommittee was led through the last
reauthorization by Senator Stevens and Senator Kerry. Their tireless
work significantly changed the way we manage fisheries.
The enactment of the Fishery Conservation and Management Act in
1976 began a new approach to Federal marine fisheries management. The
Act was a direct response to the depletion of U.S. fishery resources by
foreign vessels. It secured U.S. jurisdiction and management authority
over the fisheries out to 200 miles from our shores. Under the Act,
foreign catch from the U.S. exclusive economic zone declined from about
3.8 billion pounds in 1977 to zero in 1992. The Act's intent was to
provide long-term stability and sustainable fisheries, though today in
mafiy areas we are again overcapitalized and the stocks face a crisis
similar to that of the 1970's.
The Magnuson-Stevens Act is administered by the National Marine
Fisheries Service and eight Regional Fishery Management Councils that
manage the fisheries in their geographic areas through specific fishery
management plans. Their actions establish the rules under which the
fishing industry operates. They determine the harvest quotas, season
length, gear restrictions, and license limitations.
This is where tough management decisions need to be made and must
involve the people whose livelihood depends on the continued access to
these resources. As such, it is critical that there be a balanced and
fair apportionment of council seats so that all have a strong voice in
management. Today, we will hear testimony about breakdowns in the
participatory process that have led to the adoption of less than
adequate management measures.
One of the overall goals of the Magnuson-Stevens Act is to provide
a mechanism to determine the appropriate level of catch to maximize the
benefit to the Nation while still protecting the long-term
sustainability of the fisheries. It is a balancing act among competing
interests of commercial and recreational fishermen. We will also hear
about the need for participation of non-fishing interests when managing
public resources.
There is no doubt that fisheries are very important to many states
and the Nation as a whole. In 1997, commercial landings by U.S.
fishermen were over 9.8 billion pounds of fish and shellfish, worth
$3.5 billion. Further, the recreational fishing catch was 234 million
pounds.
In my State of Maine, fishing is more than a job, it is a way of
life. Up and down the Maine coast are communities with long and rich
fishing heritages. When many people think of Maine, they think of
lobsters--and get hungry.
But there is much more to Maine fishing than lobster. In fact, I'm
very proud to say that in 1998, for the fifth year in a row, Maine has
led the northeast with fishing revenues valued at $277.4 million.
Other regions of the country have a similar dependency on
commercial fisheries, some are strong and robust, others have not fared
as well--their fish stocks have declined and communities in those
regions are feeling the economic impact. Throughout the reauthorization
process we will be examining ways to again bring about healthy
fisheries and healthy fishing communities.
The Sustainable Fisheries Act was enacted in 1996. The provisions
and requirements of the Act reflect significant changes to the goals
and objectives of the Magnuson-Stevens Act. Proper implementation of
these provisions is of great concern to many different groups.
Accordingly, there is considerable interest in the implementation
activities of the regional councils and NMFS.
The most substantial change in fisheries management under the
Sustainable Fisheries Act was the mandate to stop overfishing and
restore overfished stocks. The councils were given a timetable to
achieve this goal and we will hear today the status of their actions.
Witnesses from around the country will be able to give first-hand
reports about the level of success the councils have had in fulfilling
this mandate.
The councils and NMFS were also told to increase their emphasis on
social benefits that might better preserve traditional small fishermen.
Because of the high level of overfishing, many tough management
measures will be needed in a variety of fisheries.
It is important that we remember to preserve the fishermen as well
as the fish.
There have been many criticisms of NMFS and the councils for not
taking adequate measures to address the financial hardships tough
management will inevitably cause. We will be hearing examples today of
the impact on fishermen and fishing communities this has had.
The Sustainable Fisheries Act also imposed a moratorium on the
creation of new individual fishing quota programs in which a
transferable percentage of the annual catch that is held privately. We
will be hearing today some suggestions about how to handle such
programs in the future.
The final paradigm shift incorporated in the Sustainable Fisheries
Act that we will hear about today are the provisions to minimize
bycatch and restore and protect fish habitat. Based on concerns that
certain fish stocks had declined due to loss of their surrounding
habitat, the Act established a national program to facilitate long-term
protection of essential fish habitat. Many have argued that these
provisions have not been properly implemented and we will be discussing
this problem with our witnesses today.
During recent trips home to Maine, I have had the opportunity to
discuss reauthorizing the Magnuson-Stevens Act with a number of people
who are most affected by it. Obviously, I am talking about fishermen
and people who live in fishing communities. These are hard-working men
and women who would probably rather talk about something other than
changing Federal laws. But, I have listened to them, and many have very
specific concerns with the way the law is being implemented.
Let me conclude my remarks by saying this--those most affected by
the law believe that the Act is too rigid, that it is not being
implemented properly by NMFS, and that, contrary to its mandate, the
best science is not being used in management. As we begin the
reauthorization process, we should try to make sure that sustainable
fishing and good management becomes the norm and not the exception.
Clearly, this reauthorization will have major implications for the
future of marine fisheries in the United States.
Before I recognize our witnesses, I will turn to our
ranking minority member for any comments that he would care to
make.
I now recognize Senator Kerry for an opening statement.
STATEMENT OF HON. JOHN F. KERRY,
U.S. SENATOR FROM MASSACHUSETTS
Senator Kerry. Thank you, Madam Chairwoman.
I am particularly happy to welcome Penny Dalton back here.
Her contribution to the Act that we are talking about here is
very significant. There is nobody who understands better what
we were setting out to do, and it is good to have her here.
I welcome all of the witnesses on the various panels who
are here today for this hearing, and thank them for traveling
to Washington to be part of it. The world of fisheries
obviously is well understood by everybody in this room. We wish
it were better understood by lots of other folks who have an
impact on it who are not here today.
In 1997, the last figures we have, commercial fishing
produced some $24.4 billion to the economy of our country. By
weight of catch, the United States is the world's fifth largest
fishing nation, harvesting over 5 million tons of fish
annually. We are the second largest seafood exporter, with
exports valued over $9 billion. In my home State--and I know
the chairperson also shares this--we have an enormous
connection to fishing, to the sea.
It is big business. But it is also much more than just
dollars and cents. It is part of our culture and our social
structure. In places like Gloucester or New Bedford,
Massachusetts, as well as countless other maritime communities
along our coastline, we have a very special connection to this
industry.
So as we think about the reauthorization of the Magnuson-
Stevens Act, we need to stay focused on the purpose of that Act
and the long journey that we have traveled here in Washington,
in trying to create the right balance between regulation at the
Federal level and local decision making, local capacity to be
able to try to manage this way of life. It is clear that the
Sustainable Fisheries Act of 1996 was the single most important
rewrite of Federal fishing laws since the original enactment of
the Magnuson-Stevens Fishery Conservation and Management Act in
1976, when we extended the fisheries regulatory process to the
200-mile limit.
Senator Stevens and I, as the chairwoman commented, were
the original cosponsors of the 1996 effort. We were joined by
our committee colleagues, Senator Hollings and Senator Inouye,
in embracing a number of specific goals: first, to prevent
overfishing; second, to rebuild the depleted stocks; third, to
reduce bycatch; and, fourth, to designate and conserve
essential habitat.
Today, I am interested in the committee being able to
continue the progress that we have made in the implementation
of the Act. We all know, as we have seen in the groundfish
situation in Massachusetts, in New England, there are a number
of key fishery management challenges. That is not the only part
of the country, obviously, where those challenges exist.
But it is obvious that the enactment of the SFA has raised
a number of unanticipated questions for fishermen and for
fishery managers that are still going to require further
creative thinking and application of solutions. But I think the
fundamental principles laid out in the SFA remain well-founded.
I do not believe that sweeping changes are necessary. Unless
testimony today proves to the contrary, in my judgment, we are
really looking at the reauthorization as a mid-course
correction, a tweaking if you will, a fine-tuning of the Act.
One of the key issues that a lot of stakeholders seem to
agree on is that we need to improve our data collection effort.
We have always felt this. We are struggling with the resource
issue. I know the chairwoman voted what I thought was correctly
yesterday on a tax cut that is going to put--I mean this is
just one sector; we could be in the Armed Services Committee,
we could be in the Banking Committee, in VA, HUD--there are a
whole host of areas where an excessive tax cut at this point in
time is going to put further constraints on our ability to do
the fundamental things that we have committed to doing.
One of them, in my judgment, is the establishment of a
full-scale observer program that will give the councils the
best available data so we can make the best informed decisions
on fishery management issues. I fully support the
implementation of a full-scale observer program that ensures
that councils utilize the best science available.
A second issue, and I will try to wrap up here, a second
issue is the progress made in identifying and protecting
essential fish habitat. A number of councils have expressed
difficulties in trying to identify essential fish habitat,
mostly due to the lack of biological information or agreement
about what is essential for fish stocks.
I agree that we need more research in order to be able to
do a better definition of the linkages between habitat and
fishery production. But we can still make management decisions,
even in the absence of perfect data. We need to do so. I
encourage NMFS and the councils to move forward to identify
habitat impacts of fishing and non-fishing activities, which we
are capable of doing, and to assess the need for protected
areas to conserve fish stocks.
I would also like to explore new ways to provide incentives
to fishermen to develop and use new habitat-friendly fishing
gear, as other countries have done.
So, Madam Chairwoman, the Magnuson-Stevens Act requires
councils to consider biological, economic and socio-cultural
data in their deliberations. I hope that we can help find ways
to provide that data to help them incorporate that into their
decisions.
Finally, earlier this year, NMFS issued a proposed rule
that would ban the use of spotter planes by fishing vessels in
the bluefin tuna fishery in the general harpoon categories.
That rule was to have been finalized by July 1, but it has not
been. The administration has not yet issued a final rule. The
rule was recommended by unanimous vote of the Advisory Panel
for Highly Migratory Species. It is supported by the vast
majority of fishermen. I urge the agency to finalize this rule
expeditiously.
Now, I look forward to continuing to work with the
chairwoman on the issue of finding funding for cooperative
management activities in New England. She has worked hard on
that. I would encourage the Secretary and the Administrator to
increase their dialog with fishermen at the grassroots level. I
look forward to the testimony today.
Thank you, Madam Chairwoman.
Senator Snowe. I want to thank you, Senator Kerry for those
very thoughtful comments. I would concur with you on the
banning of spotter planes. That rule is long overdue.
Senator Gorton, do you have any opening comments?
STATEMENT OF HON. SLADE GORTON,
U.S. SENATOR FROM WASHINGTON
Senator Gorton. Madam Chair, this hearing is a welcome
beginning of a series of hearings on the Magnuson-Stevens Act.
I understand that you are planning to hold field hearings in
Seattle and Anchorage, among other places, later this year,
during which we can focus on issues of particular concern to
Washington and Alaska, and can afford industry participants and
other interested parties the opportunity to comment on the
implementation of the Sustainable Fisheries Act and the
Magnuson-Stevens reauthorization. I look forward to these
hearings, as well.
I welcome Dr. David Fluharty, and thank him for coming.
Fisheries management has to be among the most contentious
issues I have had to deal with during my entire Senate career.
Finding someone who can speak for the myriad of Washington
interests fairly is no easy task. Dr. Fluharty has the
advantage of being an academic, unaffiliated with any of the
diverse and warring sectors in West Coast fisheries. Through
his academic work and thoughtful and deliberative work on the
North Pacific Council, has earned the respect of all of the
many sides.
The last authorization of the Magnuson-Stevens Act 3 short
years ago was hard to come by. It is my sincere hope that this
next reauthorization will be less contentious, though there are
a number of important and controversial issues that must be
addressed. Among the issues of particular concern to Washington
State are the lack of stock assessments and useful data on
bycatch, State jurisdiction over Dungeness crab management for
purposes of tribal allocations, effort reduction programs, and
the availability of individual fishing quotas as a management
tool in some fisheries.
To address the first issue, bycatch, it is my intention to
introduce legislation that will enable the Pacific Council, as
well as North Pacific Council, to adopt an industry-funded
observer program. I will continue to support Federal funding
for such a program, and recognize the need for this, given the
drastic reductions in the groundfish quota. But, nevertheless,
I feel it is important to enable the councils to collect fees
should Federal funding be insufficient.
Another worrisome issue is NMFS's implementation of the
essential fish habitat provisions in the SFA, an issue of far
greater concern to non-fishery interests than to fishermen.
Designating most of the State of Washington as essential fish
habitat and requiring every Federal agency action to engage in
an as-yet unspecified consultation process with NMFS could add
an impenetrable layer of bureaucracy to an already heavily
laden bureaucratic process provided by the Endangered Species
Act, the National Environmental Policy Act, the Fish and
Wildlife Coordination Act, and others, including of course all
State laws.
But while there are difficult issues to resolve, we have
the advantage of more information about some of them. On the
issue of individual transferable quotas, for example, the
National Research Council completed a study of ITQ's, which I
hope will inform and facilitate our consideration of this
management tool. The study does not, however, answer some of
the more difficult policy questions about allocation.
Also making our authorization task somewhat easier this
year is the elimination of the battle of the titans--the fight
between the offshore and onshore pollock industries in the
Bering Sea. Unfortunately, the resolution of this battle
through the American Fisheries Act and the rationalization of
the pollock industry has raised additional and very serious
concerns involving the pollock catcher boats and the non-
pollock harvesters and processors--concerns that I want to
ensure receive a full hearing, either through this process or
at a separate forum.
Madam Chairman, thanks for beginning the process. I look
forward both to the beginning and to its continuation.
Senator Snowe. Thank you very much, Senator Gorton, for
those constructive comments on this reauthorization process.
We have a series of three votes. Ms. Dalton, we are down to
about 4 minutes. Let me just say at this point, before we
recess for probably 30 minutes here, that I welcome you to this
Subcommittee. I know you are very familiar with this committee
because you have served on the staff. This is your first
appearance before this particular Subcommittee, so I cannot
think of a more appropriate topic, given your familiarity with
these issues, than discussing the reauthorization of the
Magnuson-Stevens Act. I know your testimony and input will be
of considerable value to us as we begin this process.
I should also tell the audience that Secretary Daley was
going to appear before this Subcommittee, but when we realized
that there were going to be three consecutive votes at 9:30,
and he could have only stayed for an hour, then that time would
have been used before he would be able to give his statement.
So, with that, we will recess until the conclusion of the three
votes. I would expect it would be about 30 minutes.
[The prepared statement of Senator Gorton follows:]
Prepared Statement of Hon. Slade Gorton, U.S. Senator from Washington
Madam Chairman, this hearing is a welcome beginning of a series of
hearings on the Magnuson-Stevens Act. I understand that you are
planning to hold field hearings in Seattle and Anchorage later this
year, during which we can focus on issues of particular concern to
Washington and Alaska and can afford industry participants and other
interested parties the opportunity to comment on the implementation of
the Sustainable Fisheries Act and the Magnuson-Stevens reauthorization.
I look forward to these hearings as well.
I welcome Dr. David Fluharty, and thank him for coming. Fisheries
management has to be among the most contentious issues I have to deal
with as a U.S. Senator, and finding someone who can speak for the
myriad of Washington interests family is no easy task. Dr. Fluharty has
the advantage of being an academic unaffiliated with any of the diverse
and warring sectors in West Coast fisheries, and through his academic
work and thoughtful and deliberative work on the North Pacific Council,
has earned the respect of all of the many sides.
The last reauthorization of the Magnuson-Stevens Act, three short
years ago, was hard to come by. I hope that this next reauthorization
will be less contentious--though there are a number of important and
controversial issues that must be addressed.
Among the issues of particular concern to Washington State are the
lack of stock assessments and useful data on bycatch, State
jurisdiction over Dungeness Crab management for purposes of tribal
allocations, effort reduction programs, and the availability of
Individual Fishing Quotas as a management tool in some fisheries. To
address the first issue--bycatch, I intend to introduce legislation
that will enable the Pacific Council, as well as the North Pacific
Council, to adopt an industry funded observer program. I will continue
to support Federal funding for such a program and recognize the need
for this given the drastic reductions in groundfish quota, but
nevertheless feel it is important to enable the councils to collect
fees should Federal funding be insufficient.
Among the most worrisome issues is NMFS's implementation of the
Essential Fish Habitat provisions in the SFA, an issue of far greater
concern to non-fishery interests than fishermen. Designating much of
the State of Washington as Essential Fish Habitat, and requiring every
Federal action agency to engage in an as yet unspecified consultation
process with NMFS could add an impenetrable layer of bureaucracy to an
already heavily laden bureaucratic processes prescribed by ESA, NEPA,
the Fish and Wildlife Coordination Act, and others.
But while there are difficult issues to resolve, we have the
advantage of more information on some of them. On the issue of
Individual Transferable Quotas, for example, the National Research
Council completed a study of ITQs, which I hope will inform and
facilitate our consideration of this management tool. The study does
not, however, answer some of the most difficult questions about
allocations.
Also making our reauthorization task somewhat easier this year, is
the elimination of the battle of the titans--the fight between the
offshore and onshore pollock industries in the Bering Sea.
Unfortunately, the resolution of this battle through the American
Fisheries Act, and the rationalization of the pollock industry has
raised additional, and very serious, concerns involving the pollock
catcher boats and the non-pollock harvesters and processors, concerns
that I want to ensure receive a full hearing either through this
process or in a separate forum.
Madam Chairman, thank you again for beginning this process. I look
forward to its continuation.
Senator Snowe. Thank you.
[Recess.]
Senator Snowe. The hearing is now reconvened. Since that
time, we have added a witness.
Senator Kerry was asking for you, Mr. Garcia. I want to
welcome you to the Subcommittee. We appreciate your standing in
for the Secretary this morning. As you know, we had several
back-to-back votes, and it probably will be that way all day
long, with the tax bill. So we will try to move efficiently
through this hearing. I really appreciate your being here this
morning in place of the Secretary and I am looking forward to
your participation.
So, let us begin with you.
STATEMENT OF TERRY D. GARCIA, ASSISTANT SECRETARY FOR OCEANS
AND ATMOSPHERE; ACCOMPANIED BY ANDREW A. ROSENBERG, Ph.D.,
DEPUTY ASSISTANT ADMINISTRATOR, NATIONAL MARINE FISHERIES
SERVICE, U.S. DEPARTMENT OF COMMERCE
Mr. Garcia. Thank you, Madam Chairman. It is a truly
unexpected--I underscore ``unexpected''--pleasure to be here.
The Secretary had intended to be here, had looked forward to
it, and regrets that he is unable to attend. I would like, with
your permission, to read his opening statement before we begin.
I will do that now, if you agree.
As always, I appreciate the opportunity to discuss fish
with all of you. I recall one of the first conversations I had
with your colleague, Senator Lott. The Majority Leader told me
that when I think of him, I am to think fish.
Frankly, I think fish when I think of most of you. I do not
have to tell this Subcommittee about the value our fishing
industry provides to this country. You all represent some of
our finest coastal States and fisheries. I have had the
pleasure of being with many of you in your States. I have met
with fishermen on their home turf--shrimpers in the Gulf,
scallopers in New England, and salmon fishermen in Alaska. I
have met with many of them here in Washington.
One of my finest experiences as Secretary of Commerce is
becoming familiar with our fishing communities and appreciating
their contributions, of understanding how the U.S. commercial
fish industry generates more than $25 billion to our economy
and employs 300,000 people. We are the fifth largest fishing
nation, and our exports are valued at over $3 billion. It is an
important recreational resource for millions of saltwater
anglers. It is my support for this resource and the people it
supports that brings me here.
It is easy to look at the past decades and see failure.
Many important fish stocks are under great pressure, and we do
not know enough about the health of many more. We do know our
fishing grounds can be rebuilt to support far more fishing than
they do today. Scientists estimate we could increase our
catches 60 percent if we manage them better.
At the same time, we must recognize it took 20 years of
poor management and good intentions gone wrong to bring us to
where we were in 1996, when the Magnuson Act was overhauled
into the Magnuson-Stevens Act. This administration is committed
to the philosophy embodied in the Act. I believe the best way
to restore our fisheries and sustain a growing economy is
through the combined participation of public, business and
government interests. We must apply the best science, including
economics and social sciences, to help fishing communities move
from traditional fishing management to newer, sustainable
approaches.
I have strongly encouraged NOAA, the councils and all
stakeholders to take advantage of the flexibility of the
Magnuson-
Stevens Act to develop creative solutions and partnerships. I
have learned through my regulatory actions as Commerce
Secretary that there is no ``one-size-fits-all'' solution. Each
case has its own set of unique circumstances, conflicts and
challenges.
Resolving these is not easy. These are contentious issues,
as you well know. But the fact is, if we fail to come together,
we will not have fishermen or fish left. Frankly, I think this
is an important test of sustainable development.
Despite the challenges, I see hope in a number of small
recent successes. I think, with Magnuson-Stevens, we are
getting back on the track to build sustainable fisheries.
Let me illustrate, if I may, with the progress we are
making with scallops in the Northeast. The first directive of
Magnuson-Stevens is to end overfishing and rebuild fish stocks.
In 1994, we were very concerned about groundfish and scallops
off of New England. We took the aggressive and painful step of
closing large areas to all fishing. Then, in late 1998, we
learned that after over 4 years of closure, scallop stocks were
recovering. In other words, the closure was working to rebuild
scallop stocks and it was time to start rebuilding the scallop
fishery.
While Magnuson-Stevens directs us to rebuild fisheries, it
also says: Use the best science available when we act. Though
we knew that scallops were on the way back, our science was not
detailed enough to act on it. Also, many raised concerns about
starting up scalloping again. Scalloping disturbs the bottom
and can have lots of bycatch of groundfish that still needed
protection. It looked like yet another contentious issue.
So the first thing we did was ask for and listen to the
advice of constituents. Soon, we came together around a shared
goal: scallop if possible, while protecting other fish and the
habitat. Then everyone contributed to a solution. We built an
extraordinary partnership with industry and the academic
community to find out exactly where the scallops were healthy
and what areas could be reopened for scalloping.
Also, we talked to the industry about a management approach
that would let scallopers catch scallops if they controlled
their bycatch. For our part, we developed a new way to fund
independent observers. I asked the council and NOAA to make
sure the regulatory process kept moving. Magnuson-Stevens is
clear that the council process is key to making management
decisions. But that does not mean we cannot find ways to make
it flexible and responsive to urgent needs.
I am pleased to say scallopers are fishing within a
formerly closed area of Georges Bank nearly 9 months earlier
than scheduled. In the last 6 weeks, the fleet has landed more
than 2 million pounds of scallops, worth nearly $10 million.
They are making money without compromising long-term
sustainability. It is good news for the economy and good news
for the environment.
My point is that the Magnuson-Stevens Act works. It does
not need major changes at this time. What we need is to
continue to work collaboratively and creatively. No question,
we want to work with this committee on addressing outstanding
issues, like individual transferable quotas and observer
programs. We feel there is a need to collect more economic data
to better understand and manage our fishery resources.
Penny Dalton will point out all of this in her testimony.
Let me assure the members of this committee that I understand
when we try new approaches, even though they may be
incremental, there are often serious concerns from your
constituents back home. So I want to work with you to take into
account these concerns as we move forward with developing and
implementing the legislation.
Thank you for asking me here, and I ask that my remarks be
included in the record.
Senator Snowe. Thank you.
Ms. Dalton.
STATEMENT OF PENELOPE D. DALTON, ASSISTANT ADMINISTRATOR,
NATIONAL MARINE FISHERIES SERVICE, U.S. DEPARTMENT OF COMMERCE
Ms. Dalton. Madam Chair, members of the Subcommittee, I
appreciate the opportunity to testify with Assistant Secretary
Garcia today on the Magnuson-Stevens Fishery Conservation and
Management Act.
I am Penny Dalton, Assistant Administrator for Fisheries of
the National Oceanic and Atmospheric Administration. I have to
say it is really, really odd to be on this side of the table.
[Laughter.]
Over the years, the Magnuson-Stevens Act has changed and
evolved through several reauthorizations. Of these, the most
significant probably is the revisions in 1996 by the
Sustainable Fisheries Act (SFA). The Sustainable Fisheries Act
strengthened conservation provisions to prevent overfishing and
rebuild depleted fisheries, identify and protect fishery
habitat, and minimize bycatch and discards of unusable fish.
These new conservation requirements may have far-reaching
effects on fishermen, their families and communities.
To address this concern, the SFA established a new national
standard to ensure sustained participation of fishing
communities and minimize adverse impacts. In addition, a
national standard had been added on promoting the safety of
human life at sea.
The SFA also provides a number of new tools for addressing
problems relating to the transition to sustainable fisheries,
including amendments to provide for fisheries disaster relief,
fishing capacity reduction programs, vessel financing, and
grants and other financial assistance. NOAA Fisheries has
developed and published nearly all of the regulations and
policy guidance related to SFA implementation.
In addition, the SFA required about 20 studies and reports
to Congress that address critical issues in fisheries
management. We will be using the findings and recommendations
of these reports to improve our programs. They also contain a
great deal of useful information that could inform and guide
the reauthorization process.
The new SFA requirements necessitated amendments to each of
the 39 existing fishery management plans. As of June 1999, 52
amendments were either approved or partially approved. Another
two amendments were under Secretarial review. The remaining 13
amendments were scheduled to begin Secretarial review this
summer.
Throughout this process, we relied on the regional fishery
management councils. I cannot overemphasize the critical role
and contribution of the councils in developing plans, resolving
conflicts among stakeholders and making the transition to
sustainable fisheries.
We are still working to understand and effectively
implement the SFA, and would not propose major changes to the
Magnuson-
Stevens Act at this time. However, we have identified revisions
in five areas that may be useful to improve efficiency and
resolve some relatively minor problems.
No. 1, the SFA attempted to simplify and tighten the
approval process for management plans and regulations. However,
it creates two distinct review processes--one for plans and
amendments and another for implementing regulations. As a
result, the decision to approve or disapprove a plan or
amendment may be necessary before the public has had an
adequate opportunity to comment on the accompanying
regulations. This disconnect should be addressed in the
reauthorization.
In addition, the committee may wish to consider reinstating
the initial review of fishery management plans and amendments
by the Secretary. At present, 2 or 3 months may elapse before a
plan or amendment is approved or disapproved. If it is
disapproved, months may go by before the council can modify and
resubmit it. While the initial review was eliminated by the SFA
to shorten the review process, it actually may reduce the time
needed to get a plan or amendment in place.
No. 2, the Magnuson Act current restricts the collection of
economic data from processors. Removal of this restriction
could improve the quantity and quality of information available
to meet the requirements of the Regulatory Flexibility Act and
other laws requiring economic analysis.
No. 3, special management areas, including those designated
to protect coral reefs, hard bottoms and precious corals, are
important commercial resources and valuable habitats for many
species. Currently, we have the authority to regulate anchoring
and other activities of fishing vessels that affect fish
habitat. Threats to such habitat from non-fishing vessels
remain largely outside agency jurisdiction. We would like to
clarify and strengthen NOAA Fisheries authority to regulate the
actions of a vessel that directly impacts resources being
managed under the Magnuson-Stevens Act.
No. 4, the current description of the Caribbean Council
limits its jurisdiction to Federal waters off Puerto Rico and
the U.S. Virgin Islands. As a result, the council cannot
develop plans governing fishing in Federal waters around
Navassa Island or any other U.S. possession in the Caribbean
jurisdiction of the Caribbean Council could be expanded to
cover U.S. possessions.
No. 5, Magnuson-Stevens Act mandates currently result in
the councils spending tens of thousands of dollars a year to
publish meeting notices in local newspapers and regional
fishing ports. By contrast, E-mail, public service
announcements and notices included with marine weather
forecasts are much cheaper and could be more effective in
reaching fishery participants and stakeholders.
NOAA Fisheries takes seriously its new mandates under the
SFA, and we are working to ensure that they are fully
implemented. We recognize that the benefits of the changes we
make now may take years, and perhaps decades, to realize. In
addition, we must build consensus with the public and among
various stakeholders to facilitate development of approaches
that move us toward healthy and sustainable fisheries.
As Assistant Secretary has stated, we look forward to
working with the Committee on the reauthorization and on the
high priority policy issues, such as observer programs,
individual transferable quotas, and funding and fee
authorities.
This concludes my testimony. Thank you for the opportunity
to discuss the Magnuson-Stevens Act. I am happy to answer any
questions.
[The prepared statement of Ms. Dalton follows:]
Prepared Statement of Penelope D. Dalton, Assistant Administrator,
National Marine Fisheries Service, U.S. Department of Commerce
Madam Chair and members of the Subcommittee, thank you for inviting
me to testify today on implementation and reauthorization of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). I am Penny Dalton, Assistant Administrator for Fisheries
for the National Oceanic and Atmospheric Administration.
building a foundation for sustainable fisheries
The fishery resources found off our shores are a valuable national
heritage. In 1997, U.S. commercial fisheries produced almost $3.5
billion in dockside revenues. By weight of catch, the United States is
the world's fifth largest fishing nation, harvesting almost 10 billion
pounds annually. The United States also is the third largest seafood
exporter, with exports valued at over $3 billion in 1996. In addition
to supporting the commercial seafood industry, U.S. fishery resources
provided enjoyment for almost 9 million saltwater anglers who caught an
estimated 366 million fish in 1997.
As we approach the close of the 20th Century, we are at a crucial
point in fisheries management, with considerable work ahead of us. In
the 23 years since the enactment of the Magnuson-Stevens Act, we have
seen the complete Americanization of fisheries in Federal waters, the
expansion of the U.S. fishing industry, declines in many fishery
resources, and the rise of public interest in fisheries issues. We have
seen some successes from our management actions, including the initial
rebound of a few depleted stocks like Georges Bank haddock, the
rebuilding of Atlantic king mackerel, and the continued strong
production of fish stocks off Alaska. However, 12 percent of U.S.
living marine resources are overfished or are approaching overfished,
24 percent are not overfished, and there is another 64 percent whose
status is unknown. Scientists estimate that we could increase U.S.
fishery landings by up to 3 million metric tons by rebuilding fisheries
and harvesting them at long-term potential yields.
The Magnuson-Stevens Act, of course, provides the national
framework for conserving and managing the wealth of fishery resources
found within the 197-mile-wide zone of Federal waters contiguous to the
United States. To allow broad-based participation in the management
process, the Act created eight regional fishery management councils
(Councils) composed of State fishery managers, the regional NOAA
Fisheries administrator, and qualified fishing industry, academic, and
environmental representatives. Each Council has authority over the
fisheries seaward of the states comprising it while NOAA Fisheries has
management authority over most highly migratory species (e.g.
swordfish) in the Atlantic ocean. The primary responsibility of the
Councils is the development of fishery management plans that set the
rules for each fishery and meet national conservation and management
standards established in the Act.
Over the years, the Magnuson-Stevens Act has changed and evolved
through several reauthorizations. In 1996, Congress ushered in a new
era in fisheries management, making significant revisions to the
Magnuson-Stevens Act in the Sustainable Fisheries Act (SFA). The SFA
addresses a number of conservation issues. First, to prevent
overfishing and rebuild depleted fisheries, the SFA caps fishery
harvests at the maximum sustainable level and requires fishery
management plans to rebuild any overfished fishery. NOAA Fisheries
reports annually on the health of marine fisheries and identifies
fisheries that are overfished or approaching an overfished condition.
Second, the SFA sets a new direction for fisheries management that
focuses on protecting fisheries habitat. To enhance this goal, the SFA
requires that management plans identify habitat that is necessary to
fish for spawning, feeding or growth. The new law also clarifies our
existing authority to comment on Federal actions that affect essential
fish habitat. Third, to reduce bycatch and waste, the SFA adds a new
national standard requiring that conservation and management measures
minimize bycatch and the mortality of bycatch that cannot be avoided.
It also calls for management plans to assess bycatch and to take steps
to reduce it.
The new conservation requirements may have far-reaching effects on
recreational and commercial fishing and on fishermen, their families
and communities. To address this concern, the SFA establishes a new
national standard which requires, consistent with conservation
objectives, that fishery management plans ensure sustained
participation of fishing communities and minimize adverse impacts. In
addition, a national standard has been added on promoting the safety of
human life at sea. Finally, the SFA provides a number of new tools for
addressing problems relating to the transition to sustainable
fisheries, including amendments to provide for fisheries disaster
relief, fishing capacity reduction programs, vessel financing, and
grants and other financial assistance.
implementation of the sustainable fisheries act
NOAA Fisheries takes seriously its new mandates under the SFA. We
are continuing to work to ensure that SFA requirements are implemented,
and that conservation and management measures fully protect the
resource and provide for the needs of fishing communities and the
Nation. A great deal of work remains to be done. We are laying a better
foundation for future fisheries management, yet the benefits of the
changes made by Congress in 1996 will take years, perhaps decades, to
realize. In addition, the management decisions that we face are
becoming ever more complex and contentious, and good solutions are hard
to come by. We need to direct resources and effort to the scientific
and technical aspects of our work. We also must build consensus with
the public and among various stakeholders to facilitate progress in
developing management programs that will move us toward the goal of
healthy and sustainable marine resources.
Regulations and guidelines.--Nearly all of the regulations and
policy guidance related to SFA implementation (other than implementing
regulations for plan amendments) have been developed and published.
These regulations and guidelines address such issues as foreign
processing in internal waters, observers' health and safety, procedures
for monitoring recreational fisheries, secretarial emergency actions,
and negotiated rulemaking. Proposed regulations for carrying out
fishing capacity reduction programs were published in January 1999;
final regulations currently are under review in the agency clearance
process. However, sectors of the fishing industry that are interested
in pursing buyouts can proceed with the development of buyout plans
while this rule is being finalized.
The national standard guidelines were one important area where
substantial revisions were necessary because of the significant changes
made by the SFA. The national standards are the guiding principles for
the management of our Nation's fishery resources, and any management
plans or associated regulations prepared by either the Secretary or the
Councils must satisfy the criteria which they establish. The Magnuson-
Stevens Act requires that the Secretary prepare advisory guidelines on
their application to assist in the development of management plans. The
guidelines build on the national standards, providing more detailed
advice for plan development and a guide to the Secretary in the review
and approval of proposed plans and regulations. They were revised to
reflect the changes made by the SFA and published as a final rule in
May 1998. The final rule addresses the need to end overfishing, reduce
bycatch and rebuild stocks, emphasizing use of the precautionary
approach. It adds important guidelines on evaluating impacts on fishing
communities, and provides guidelines to enhance safety at sea.
Among the changes made by the SFA, one of the most important may be
a strengthened standard for preventing overfishing, accomplished by
revising the definition of terms used in National Standard 1. The
effect of this revision is to cap the optimum yield from a fishery at
the maximum sustainable yield (MSY) and require all stocks to be
rebuilt to and maintained at levels consistent with MSY. In addition,
fishery management plans must establish clear criteria for determining
when overfishing of a stock is occurring. NOAA Fisheries has worked
with the Councils to develop an understanding of the new requirements
to prevent overfishing. The Councils, in turn, have worked hard to
develop new overfishing definitions, management programs to achieve the
revised goals, and rebuilding programs where stocks were found to be
overfished. This has proven to be a very difficult task--in part
because of the complex biological structure of fisheries and
complicated calculations of MSY and other fishery parameters--but also
because of the necessity to consider impacts on fishermen and dependent
communities while achieving conservation goals.
The Act calls for ending overfishing and rebuilding the fishery in
the shortest time possible, taking into account a number of factors and
within 10 years except under certain circumstances. As a result, the
national standard guidelines allowed the Councils to take into account
potential impacts on the industry or communities to extend the
rebuilding period up to the 10-year limit, even when the stock could
otherwise be rebuilt in a much shorter period. For long-lived and slow-
maturing species like red snapper, the rebuilding period may be as long
as the time it would take the stock to rebuild without any fishing plus
a period equal to the species generation time. This solution balances
the need to meet the conservation requirements within a reasonable
period while minimizing effects on the industry and dependent
communities.
Another significant change that resulted from passage of the SFA is
the increased emphasis of the Magnuson-Stevens Act on conserving and
enhancing essential fish habitat (EFH). NOAA Fisheries published a
proposed rule in April 1997 for the implementation of the EFH
provisions of the SFA, and an interim final rule in December 1997. The
extended time frame was necessary so that all interested groups and
individuals had ample opportunity for comments on the rulemaking. These
rules establish guidelines to assist the Councils and the Secretary in
the description and identification of EFH in fishery management plans,
including identification of adverse impacts on such habitat from
fishing and identification of other actions to encourage conservation
and enhancement of EFH. The rule also provides procedures for EFH
consultations on actions that may adversely affect EFH. The interim
final rule became effective in January 1998, and is treated as final
for the purposes of implementing the EFH provisions. We currently are
reviewing the comments received on the interim final rule and plan to
issue a final rule early next year. This will enable us to benefit from
experience with EFH consultations with other Federal agencies and from
the practical experience we will have gained from the first round of
fishery management plan amendments on EFH. To date, NOAA Fisheries has
conducted over 400 consultations with Federal agencies whose actions
may adversely affect EFH. We have completed seven agreements with other
Federal agencies to establish specific procedures for using existing
environmental review processes (e.g., NEPA) to handle EFH
consultations, and we are working on 36 more. Federal agencies have
been generally receptive to the new consultation requirements and have
begun responding to NOAA Fisheries EFH conservation recommendations, as
mandated by the Magnuson-Stevens Act. We expect consultations to
increase as outreach efforts with Federal agencies continue to build
awareness of the EFH statutory requirements.
Turning to Council operations, Council members currently are exempt
from conflict-of-interest provisions of the criminal code, as long as
they are in compliance with the financial disclosure requirements of
the Magnuson-Stevens Act. Concern that these provisions were not
adequate to prevent the financial interests of Council members from
influencing the decision making process led to their revision in the
SFA. As a result, NOAA Fisheries prepared regulations that prohibit
Council members from voting on matters that would have a significant
and predictable effect on any personal financial interests disclosed in
accordance with existing regulations.
Amending fishery management plans to meet SFA requirements.--In
addition to revising the national standards, the SFA established a
number of other new requirements for fishery management plans that
necessitate their amendment. NOAA Fisheries and the Councils have made
dedicated efforts to meet most SFA deadlines for 121 major activities
and approximately 400 separate tasks to bring fishery management plans
into compliance with the new requirements. Commendably, this has been
accomplished in a relatively short period of time. The SFA imposed a
deadline of October 11, 1998 for amendments to each of the 39 existing
fishery management plans to provide overfishing definitions; measures
to prevent overfishing and rebuild overfished stocks; measures to
minimize bycatch; descriptions of essential fish habitat; measures to
minimize adverse effects of fishing on habitat; descriptions and
analysis of trends in landings for commercial, recreational, and
charter sectors; and assessment of effects on fishing communities. As
of June 1999, 52 amendments were either approved or partially approved,
another two amendments were under Secretarial review, and the remaining
13 amendments were scheduled to begin Secretarial review this summer.
Despite the Councils' best efforts, there were some proposed amendments
that did not satisfy the requirements, for which the analyses were
inadequate, or that did not minimize socioeconomic or environmental
impacts to the extent possible and achieve management objectives. NOAA
Fisheries disapproved or partially approved those amendments and is
working closely with the Councils to improve them, particularly in the
areas of overfishing definitions, bycatch reduction measures, and EFH
identification and protection.
I cannot over-emphasize the critical role and contribution of the
Councils in implementing the SFA and bringing Federal fishery
management into compliance with its new requirements. The Councils have
performed admirably over the years in developing plans, resolving
conflicts among stakeholders, and making recommendations to the
Secretary, particularly in light of the controversy and conflicts
surrounding many fishery decisions. While both NOAA Fisheries and the
Councils are adjusting to the changes made by the SFA, we remain
committed to working together in the transition to sustain fisheries.
Turning to the management of wide-ranging Atlantic fish like tunas
and billfish, NOAA Fisheries has taken the lead in preparing management
plans and rebuilding programs. Of these Atlantic highly migratory
species (HMS), the following are currently classified as overfished:
bluefin tuna, big eye tuna, Northern albacore tuna, swordfish, blue
marlin, white marlin, and the 22 species that make up the large coastal
shark management complex. Yellowfin tuna are fully exploited, with a
fishing mortality rate that is probably above the levels that support
the maximum sustainable yield. This past April, NOAA Fisheries
completed a fishery management plan for Atlantic tunas, swordfish and
sharks (HMS Plan) and an amendment to the billfish fishery management
plan (Billfish Amendment) that contained rebuilding programs. Numerous
and substantial changes were incorporated in the final rule to
implement the HMS Plan and Billfish Amendment, based on the thousands
of public comments received by the agency. Advisory Panels established
under the SFA and composed of representatives of commercial and
recreational fishing interests and other knowledgeable individuals,
including members of the ICCAT Advisory Committee, participated in the
development of the management measures. The final rule became effective
July 1, 1999.
Improving technical and scientific information and analyses.--
Another initiative of the SFA was to establish a new title in the
Magnuson-Stevens Act on fishery monitoring and research. NOAA Fisheries
is committed to using the best possible science in the decision making
process, and to incorporating biological, social, and economic research
findings into fisheries conservation and management measures. Meeting
our responsibilities under the Magnuson-Stevens Act and other
applicable laws requires collection of a considerable amount of data,
and in many fisheries we do not have all the data we need. We will
continue to support a precautionary approach in the face of scientific
uncertainty. At the same time, we are expanding our collection efforts
and, wherever we can, partnering with the states, interstate
commissions, fishermen and others to collect and analyze critical data.
In addition, we are using a variety of methods to improve public input
in the management process and the availability of socioeconomic data to
assess and minimize impacts to communities and small entities and to
meet the requirements of other applicable laws such as the Regulatory
Flexibility Act.
Despite these efforts, we are vulnerable to overlooking or
accepting alternatives with unanticipated effects, due to the
limitations of our models and underlying data. NOAA Fisheries is
addressing this vulnerability by placing a high priority on using funds
to fill in gaps, particularly in the area of economic and social data
collection and analysis. In January of this year, NOAA Fisheries
delivered a Report to Congress entitled Proposed Implementation of a
Fishing Vessel Registration and Fisheries Information System that calls
for innovative state-Federal partnerships to improve the quality and
quantity of information for marine resource stewardship. Such Federal-
state partnerships are an important mechanism for sharing resources and
reducing duplicative efforts.
Just as important as the collection of timely and complete data is
sophisticated modeling to analyze the complex interactions between
management measures and various impacts. State-of-the-art modeling
techniques that incorporate information from the biological and social
sciences, for instance, would improve NOAA Fisheries' ability to make
accurate predictions about economic impacts and benefits. As we improve
our capabilities to conduct integrated analyses, scientific assessments
of the effects of management decisions on both fish and fishermen will
be enhanced. This information will enable managers to choose the
alternative that best balances conservation needs and community
impacts.
Reports to Congress.--In addition to the data management report,
the SFA required about 20 other studies and reports to Congress that
address many critical issues in fisheries management. We will be using
the findings and recommendations of these reports to improve our
conservation and management programs. They also contain a great deal of
useful information that could inform and guide the reauthorization
process.
One of the most thorough and interesting of these reports is the
National Research Council's study, Sharing the Fish: Toward a National
Policy on Individual Fishing Quotas (IFQs), an examination of the
issues surrounding the use of such quotas to manage fisheries. The
report recommends that IFQ programs be retained as a fisheries
management tool. It also contains a number of useful suggestions for
developing potential ground rules for and key elements of IFQ programs
if they are authorized.
Another NRC report, The Community Development Quota Program in
Alaska, highlighted some of the current successes of existing CDQ
programs, and recommended expanding the programs over the long term to
ensure overall success in meeting a variety of community development
goals. We look forward to transferring some of the lessons learned to
future programs.
Earlier this month, the Federal Fisheries Investment Task Force
released its report analyzing the Federal role in subsidizing expansion
and contraction of fishing capacity. We will be looking closely at the
recommendations in the report, including those that propose to rework
existing programs and develop new funding mechanisms, to address
problems of overcapacity and resource degradation.
The National Research Council's report entitled Sustaining Marine
Fisheries and the Ecosystem Principles Advisory Panel's Ecosystem-Based
Fishery Management--A Report to Congress both advocate greater use of
the precautionary approach and an ecosystem-based approach to
management. In the latter report, the authors maintain that the burden
of proof must shift to the fishery to ensure that the ecosystem will
not be harmed by fishing. They also suggest that we develop indices of
ecosystem health as targets for management. We will be looking to these
reports and others for ideas as we continue to move toward ecosystem-
based fisheries management.
reauthorization issues
We are still working to understand and effectively implement the
changes to fishery management policies and procedures made by the SFA.
Consequently, we would not propose major changes to the Magnuson-
Stevens Act at this time. However, we have established an internal
agency task force to evaluate SFA implementation, and the group has
identified some revisions of existing provisions that may be useful to
make the management process more efficient and to resolve some
relatively minor problems. We currently are reviewing various issues
raised by the task force, the Councils, and some of our stakeholders.
Among the issues identified are the following:
Review process for fishery management plans, amendments and
regulations.--The SFA attempted to simplify and tighten the approval
process for management plans and regulations. However, one result of
that effort has been two distinct review and implementation processes--
one for plans and amendments and another for implementing regulations.
This essentially uncouples the process for plans and amendments from
the process for regulations, and as a result the decision to approve or
disapprove a plan or amendment may be necessary before the end of the
public comment period on the implementing regulations. This prevents
agency consideration of public comments that could be germane to the
decision on plan or amendment approval. We are considering amendments
that would modify the process to address this issue.
In addition, the Committee may wish to consider reinstating the
initial review of FMPs and FMP amendments by the Secretary.
Considerable energy and staff resources are expended on plans or
amendments that are ultimately disapproved because of serious omissions
and other problems. At present, 2 to 3 months must elapse before the
Secretary makes his determination, and if the amendment is then
disapproved, it can be months or longer before the Council can modify
and resubmit the plan or amendment. While the initial review was
eliminated by the SFA to shorten the review process, it actually may
provide a mechanism to shorten the time it takes to get a plan or
amendment approved and implemented.
Restrictions on data collection and confidentiality.--As I
indicated in the April hearing on this topic, the Magnuson-Stevens Act
currently restricts the collection of economic data from processors.
Removal of this restriction could improve the quantity and quality of
information available to meet the requirements of the Regulatory
Flexibility Act and other laws requiring economic analysis. In
addition, the SFA changed the term ``statistics'' to ``information'' in
the provisions dealing with data confidentiality. The change has raised
questions about the intended application of those provisions,
particularly with respect to observer information, and Congressional
clarification would be useful.
Coral reef protection.--Special management areas, including those
designated to protect coral reefs, hard bottoms, and precious corals,
are important commercial resources and valuable habitats for many
species. Currently, we have the authority to regulate anchoring and
other activities of fishing vessels that affect fish habitat. Threats
to those resources from non-fishing vessels remain outside agency
authority except when associated with a Federal action that would
trigger EFH consultation or where addressed in regulations associated
with a national marine sanctuary. We suggest amending the Act to
clarify, consolidate, and strengthen NOAA Fisheries' authority to
regulate the actions of any recreational or commercial vessel that is
directly impacting resources being managed under the Magnuson-Stevens
Act.
Caribbean Council jurisdiction.--The current description of the
Caribbean Council limits its jurisdiction to Federal waters off Puerto
Rico and the U.S. Virgin Islands. As a result, the Council cannot
develop FMPs governing fishing in Federal waters around Navassa Island
or any other U.S. possession in the Caribbean. Jurisdiction of the
Caribbean Council could be expanded to cover Navassa Island, by
including ``commonwealths, territories, and possessions of the United
States'' within the description of that Council's authority.
Council meeting notification.--Pursuant to the notification
requirements of the Magnuson-Stevens Act, Councils spend tens of
thousands of dollars a year to publish meeting notices in local
newspapers in major and/or affected fishing ports in the region. By
contrast, e-mail, public service announcements, and notices included
with marine weather forecasts are much cheaper and could be more
effective in reaching fishery participants and stakeholders. The
Committee may wish to consider modifying notification requirements to
allow Council use of any means that will result in wide publicity.
We also look forward to working with the Committee on high-priority
policy issues such as observer programs, individual transferable
quotas, and funding and fee authorities. We appreciate the concern of
the Congress and industry regarding the Administration's fee proposal,
and NOAA is interested in working with all relevant parties to develop
a viable fee proposal. However, at this time, we have no specific
recommendations for changes in the Act to address these issues.
Madam Chair, this concludes my testimony. Thank you for the
opportunity to discuss the implementation and reauthorization of the
Magnuson-Stevens Act. I am prepared to respond to any questions members
of the committee may have.
Senator Snowe. Thank you, Mr. Garcia and Ms. Dalton, for
your testimony here today, as we begin a series of hearings on
reauthorization. I know that you are speaking, Mr. Garcia, on
behalf of the Secretary. Ms. Dalton, you indicated that it
really is not necessary to have any significant changes with
respect to the Magnuson-
Stevens Act. That may be true, and obviously we may reach that
conclusion at the end of this process.
But, nevertheless, what concerns me is that somehow there
is a belief that we are satisfied with the way in which the Act
has been implemented, and particularly in response to some of
the issues that were inserted in the Act in 1996. I would like
to review that for you.
First of all, when it comes to responding to the social and
economic impact on communities. That was a critical issue. The
agency has gone through several lawsuits because it has not
responded to the mandates under the Regulatory Flexibility Act.
In addition, the lawsuits cited National Standard Number 8, an
amendment that I offered in 1996, that in considering the
management measure, you have to consider the socio-economic
impact on the fishing communities.
That is an area in which the agency has not responded. That
is obvious by the numerous lawsuits that have been filed.
Further, we all know that 95 percent of commercial fishing
businesses are small businesses. That is why the Department has
been sued several times, because they have not responded to the
Regulatory Flexibility Act and the mandate to consider the
impact of regulations on small business.
Now, OSHA and EPA, for example, have set up panels to
review the impact. That way, they have been able to measure the
effect of their rules and regulations.
We are talking about flexibility, and we keep hearing it.
But I would like to go beyond just stating the fact that
flexibility should be part of this Act. We have to demonstrate
a good-faith effort, that in fact we are flexible in managing
the fisheries and that we are considering the impact of
management decisions on fishing communities. That is the way we
can best demonstrate flexibility. That was the genesis for
National Standard 8. Certainly, the Regulatory Flexibility Act
focuses on these issues as well.
The Department has not responded to that issue. That is the
one thing I keep hearing over and over again. It is replete.
You folks cite it. But you are in the position, representing
the agency, to be flexible. We have not seen that response.
So, what are you going to do in your positions--and I am
talking about here and now; I am not talking about 6 months
from now or 8 months from now--what are you going to do to
respond to the mandate of flexibility with respect to the
impact on the communities that are directly affected by the
consequences of regulatory measures in fishery management
plans?
Mr. Garcia. I will start off, Senator, and then Penny can
add to it. I also want to note that Andy Rosenberg, who is the
Deputy Assistant Administrator for Fisheries, is here with us
and is also available to answer questions.
I do not disagree with your point that the economic and
social impacts of these measures must be taken into account.
Nor would I challenge your concern that at times we have not
fully implemented those directives. We have 2 to 2\1/2\ years
of experience now. I think that the agency is making progress.
The lawsuits are regrettable. The Secretary and I have both
issued instructions that the highest priority is to be given to
the consideration in these regulations of the economic and
social impacts on communities, and that we are to take those
into consideration as we develop management measures.
We are also concerned about resources in the agency to
develop the necessary analysis, and we have devoted additional
resources to it. We also have requests in the budget to add to
those resources. But we are taking steps now to deal with it. I
think that you will find, as we move forward, that we are doing
a much better job of taking into account those issues.
We have always been concerned, this administration has
always been concerned, about the impact that management
measures have on communities. That is why we had sponsored the
buy-out program in New England, to assist fishermen and
fisherwomen who are impacted by these decisions. That is why we
continue to be concerned about the need to deal with
overcapacity in our fisheries, and the need to assist
communities as they transition to a more sustainable fishery.
So we agree with you that these are issues that must have a
high priority. The Secretary and I, as I said, have both
instructed the Fisheries Service to give it high priority. We
expect that these regulations, as they are finalized, will
reflect that.
Penny, you may want to add to it.
Ms. Dalton. Yes. I think we do have a number of
requirements that we have to meet to deal with the economic
consequences. We do a regulatory impact review. We have to
comply with the Regulatory Flexibility Act. We have to do a
fishery impact statement as one of the requirements for fishery
management plans. We have to meet the requirements of National
Standard 8.
I think this is an evolutionary process in the Act. We have
put increasing emphasis on the need to do economic analysis in
the Act in recent years, and our bureaucratic processes have
not always geared up to deal with it. We are hiring more
economists. We have requested a million dollars in the fiscal
year 2000 budget to beef up and increase the amount of economic
and social data that we collect. So we are working with that.
Mr. Garcia. Senator, could I also say, the point about the
Act not needing a major overhaul or change, I still want to
address that. As I said in the opening remarks, we do not feel
that the Act needs to be changed in any major way. I think
there is a distinction that we need to draw between
implementation--and I take responsibility for that, as does the
Fisheries Service--and the Act itself. The Act has the tools in
place that are needed to address these problems.
The question has been implementation. We are working hard
to ensure that we follow the spirit of the authors of this
legislation. As I said, I think that you will see, over the
coming months, that we are doing an effective job in
implementing the Act.
Senator Snowe. Senator Breaux and I had sent a letter,
requesting the GAO to conduct an investigation across the
country. GAO has conducted four hearings on National Standard 8
because of the failure of NMFS to implement that Standard
properly. Frankly, it is regrettable that we reached this point
where we had to even pursue this option.
It suggests to me that the agency is not taking the issue
very seriously with respect to the impact on the fishing
communities. Frankly, the mandate of the Act is to consider all
of these issues in a comprehensive fashion. That does include
the social and economic impact on fishing communities. It is
stated very clearly in the Act.
Now GAO has to conduct hearings--the most recent one was
conducted in my State, in Portland, ME, in July--because the
agency has not properly implemented this aspect of the Act. I
continue to hear it.
So what is it going to take? What resources? What is
necessary to change? Is it an attitude adjustment? What is it
that will ensure that this is part and parcel of the overall
consideration of the agency?
Ms. Dalton. I think that we are working internally to make
the necessary adjustments in our resources. We did not have
very many people with a lot of expertise on economic issues. We
are hiring more people. We are going to be continuing to hire
more people. This is also an area, because we did not have the
expertise, we will get better. We freely admit that we have
been weak in the area of doing economic analysis.
We have also been in touch with SBA and begun to work with
them on improving our implementation of the Regulatory
Flexibility Act. We have also been in touch with the Economic
Development Administration within the Department. They have
recently listed fisheries as among their priorities.
So we are reaching out to other agencies that traditionally
have had that expertise. We are also working in house to
improve our expertise, as well. But it is not going to happen
overnight. But we will get better.
Senator Snowe. Senator Inouye.
Senator Inouye. Madam Chair, if I may follow up on your
question. In the assessment of the impact, I have been told
that one of the problems may be traced to the fact that self-
employed fishermen are counted as farmers and miners in the
census. Is that correct?
Ms. Dalton. I honestly do not know. We can find out for you
and get back with you.
Senator Inouye. I see people nodding their heads. If that
is the case, I hope that steps will be taken to correct this
for the 2000 census.
Ms. Dalton. OK.
Senator Inouye. As you know, Hawaii is surrounded by water,
and we have a lot of self-employed fishermen. I would hate to
have them designated as miners. We do not have any mines in
Hawaii. [Laughter.]
Senator Inouye. Thank you.
Senator Snowe. Thank you, Senator Inouye.
Senator Stevens.
Senator Stevens. Thank you very much, Madam Chairman. I
appreciate your holding this hearing. I am sorry I was late
because of other problems.
First, Ms. Dalton, it was nice to have you seated behind
me, but it is nice to see that you are where you are right now.
Mr. Garcia, I thank you for coming to Alaska. It is a trip
that many people do not take, to western Alaska, so we are
delighted that you took the time.
We had two major purposes for the Sustainable Fisheries
Act: clarify the management policies for fisheries, and give
the councils the tools to implement and enforce those policies.
We had the general impression that the fisheries were
overcapitalized and overfished. I thought for a while that the
first was taken care of. I am not sure anymore now. But it is
clear that many of the fisheries are still overfished.
The councils have begun to address these problems. I think
the North Pacific Council--we will hear from them later--has
done a good job of attempting to manage our own fisheries. We
have, in the Sustainable Fisheries Act, required the North
Pacific Council to file new amendments to its fishery
management plan. Nine of those, I understand, have now been
approved, which I think is a significant record for them. I do
hope that we can get to some of the other issues that we have
here.
First, I do not mean to be critical, but just to be
specific--on the floor is the tax bill. The farmers are very
aggressive. They have two significant amendments coming. One
will enable farmers to establish a fund, like our old fund for
boat owners, but it is a fund into which they can put up to 20
percent of their income, and keep that for 5 years, untaxed. If
they have a disastrous year, they can pull that out and assist
themselves, or they can keep it for the end. If it goes over 5
years, the first year is taxed in that sixth year.
Second, they have an income averaging concept, like artists
have. They can have it rolling forward at least 3--I think it
could be up to 5 years--of income. So that if they have a good
year, then a bad year, they can go back and average and get
some tax money back. They can continue to do that for the next
year, as I understand it.
But although the census includes fishermen with farmers,
fishermen are not included in the tax law with farmers. I think
that ought to be your job. I think, within the administration,
the National Marine Fisheries Service ought to be speaking up
and NOAA ought to be speaking up more for fishermen, and
ensuring that things we are doing to help farmers extend to
fishermen as well.
I have got to go out this afternoon to do battle. Time is
almost up. But it will be one of those amendments where we have
no time to debate--maybe 1 minute to try and explain what we
are doing. But I really think that fishermen shouldn't have to
fight for that right.
We have a lot of things like that that are sort of plaguing
us as far as trying to get into these activities. I hope that
we will have a hearing on the IFQ's later. It would take too
long to really get into the discussion of IFQ's today. I do
have some specific questions I would like to get into, if that
is all right.
I understand that you have now a proposal to develop a data
collection system that will preempt the States' systems.
Particularly, Alaska has a fish ticket system, and the industry
follows that system. Is that right, are you developing a new
concept of data collection that would be inconsistent with the
policies that already exist and have been approved by the
existing regional councils?
Mr. Garcia. Senator, if I could respond to two things.
First, to your point about assisting fishermen. As you
know, I was with Dave Russell, from your staff, recently in
Alaska. We visited several villages along the Yukon River,
villages that contained 200 people, some 300, some 500. But
they all had one thing in common, which was that they depend
upon fishing. They are subsistence fishermen. The sole source
of revenue in many cases is fishing. When the fish do not come
back, these villages and the people who inhabit those villages
are in very tough straits.
I agree with you that we need to develop a national
strategy for dealing with problems, both of
overcapitalization--which the Act does address--but also
dealing with some of the natural occurrences that impact
fishing and that--for example, in Bristol Bay, the Kuskokwim
and Yukon areas have resulted in 2 years of disastrously low
salmon returns that have impacted people in a very direct way.
We will have more of these incidents--perhaps not in
Alaska, but in other parts of the country. We do need to have a
comprehensive way of responding. So we are working toward that
end. We would look forward to working with you and members of
this Subcommittee in developing such a plan that would allow us
to respond, along with States, in dealing with these problems.
On your second point, I will defer to Penny.
Ms. Dalton. One of the initiatives of the SFA was to
establish a new title in Magnuson-Stevens basically on fishery
monitoring and research. One of the things that was required in
that new title was a study of vessel information and
registration system. I think what you are talking about, if I
am not mistaken, is the report that we did to respond to that
section.
That section actually was developed--the State of Alaska
was one of the primary people that were involved in developing
it. The intent of it was to establish a cooperative State/
Federal plan so you had a national data base.
The idea is the States have--and Alaska is a great
example--have far more information that we do about what
vessels are out there and what they are doing.
What we were trying to do is something actually that was
modeled after the system in the North Pacific. It certainly
would not preempt it.
Senator Stevens. The industry and the State and our
individual fishermen all--I am talking about the processing
industry, the fishermen and the State--are all in agreement
with the regional council that we have a system that works. I
would hope that if we are going to go forward, that system that
is working will not in any way be crippled by a new national
system that is trying to meet the needs and necessities in
other places.
Recently--I will change the subject--recently, Andy Grove
pointed out to me that at the turn of the century, 40 percent
of the people of the United States were on farms or were
involved in food processing and food gathering. I assume he
would have included fishermen in that. At the end of this year,
it will be 4 percent.
Now, with farms, that is a significant figure. But
fishermen are still living on the seacoast, and we have a great
problem with that, because there are many more fishermen today
than there are fish. I think we need to find some plan for
dealing with that. Because many of them cannot go into a city,
like the farmers were able to, and adjust to another way of
life. Fishermen are still out there, and many of them are in
extremely disaster-ridden areas, in my judgment, along the
entire coastline, not just in Alaska.
I am glad to hear you say, Mr. Garcia, you are looking at
the concept of dealing with fishery failure for these
communities. But I am concerned that the community and regional
assistance has not been available through the SBA and the EDA.
Are you working to coordinate their activities with these
disaster plans? It seems we have to come up with disaster
assistance after the fact in fishing communities. Whereas, if
you look at the farm communities, they have a program that is
there to reach out, and they know in advance that if there is
either economic failure or a natural disaster failure, it means
the farmer is in trouble.
We have to wait for the disaster to occur in order to
trigger a response. Then it is probably almost 9 months late in
getting there to assist these people.
Mr. Garcia. That is right.
Senator Stevens. Are you working on trying to bring that
together, government agencies with the State agencies, so we
can have a plan in effect and, if someone finds there is a
disaster, we move to it like we do with FEMA? We need a FEMA
for fisheries.
Mr. Garcia. We are. One of the concerns expressed in the
recent trip to Alaska, to the villages on the Yukon, was that
some of the assistance, the medium-term and long-term
infrastructure aid from EDA and SBA, were not getting to people
as quickly as we might have hoped. It is our intention to call
a meeting of the Federal agencies that are involved in the
administration of these disaster funds, as well as the State,
to talk about any mid-course corrections that we need to make.
If there are statutory changes that we need, then we will be
discussing it with the Subcommittee.
I think that the lessons we have learned in Alaska can be
applied to other parts of the country. So the trip was timely.
We gathered a lot of good information. As I said, we intend to
meet with EDA, SBA, any other agencies that are involved--and
the State, too, has to be part of this, because the State is
administering much of the Federal assistance right now--and
talk about what we need to do to make it more effective and to
respond quickly to these problems.
Senator Stevens. That is good. FEMA has been helpful when
there is a natural disaster. But when you have a fisheries
disaster, too often it is a combination of economic
circumstances, just like the farmers of the country are facing
right now. The Pacific Rim markets have collapsed, so the
farmers have overproduction, and they are plowing away
livestock now. They cannot sell it and they cannot feed it
either.
Now, I think that we ought to have a similar plan to deal
with fisheries, in terms of projections and knowledge of what
is going on in the fishery community, so that there is a plan
there. Again, I commend to you the two amendments we found in
this tax bill. I think each one of them would help.
I know I have talked to some of the people in the Bristol
Bay disaster. Several of those people had paid substantial
taxes the year before. But there they were, with no capability
of recovering any of that to meet their own needs. The farmers,
under this bill, will be able to do so. I hope the Senate will
listen to me and include fishermen today.
Let me shift gears to essential fish habitat. You have
regulations that define essential habitat to include areas
where there are no fish. Now, that disturbs me a little bit,
because I do think we all have been very strong defenders--I
spend a lot of my time trying to get people in the private
sector to contribute money to protect fish habitat, but I did
not know that you had used your authority to extend to areas
where there are no fish under the essential fish habitat
program. Can you tell me why you did that?
Ms. Dalton. I am not aware of any areas where we have
actually defined it as no fish. The initial identification of
essential fish habitat has been quite broad, and it
encompasses--in Alaska, it would include probably most of the
EEZ and also some inland areas where you have anadromous
species. The definition of essential fish habitat under the law
itself is anyplace where--any area or waters or substrate that
are necessary for fish growth, breeding spawning. It basically
is anyplace where a fish goes ends up being essential fish
habitat. So that is one issue.
The other issue is that we do not know, or did not have a
lot of baseline information, to do the initial identification
of essential fish habitat. So, very often, what we did is use
the entire range of the species.
Senator Stevens. Well, that does have an impact on the
State that has half the coastline of the United States, if
every inch of the coastline is fish habitat. Because we are
going to have a little bit of development along the line there.
I would not want to see development which would interfere with
fish runs. But, on the other hand, if there are no fish there
but could be there later, I think you have to take a closer
look at that one.
Ms. Dalton. What we have tried to do with these
regulations, basically the only new authority, the authority
for the councils and the Secretary to comment on activities
that affected fish habitat has been there in the Act for 20
years.
Senator Stevens. On the other hand, we have a lot of barren
streams, streams where fish used to be. You know where they are
located? In National Park Service areas, Fish and Wildlife
refuge areas.
If you are right--I would like for you to be right--the
fish habitat concept could go back in there and do something
about restoring those fish runs. I am not sure you are ready
for that battle yet. But I would like to see you think about
it.
Ms. Dalton. OK.
Senator Stevens. Because the concept--I remember distinctly
the concept of not being able to have fishery enhancement
projects in the Kenai moose range. Now, moose do not eat fish.
So, therefore, that was not compatible. But then we went to the
Kodiak Bear Refuge, and they said we could not do that there
either. But bears do eat fish. There is an inconsistent policy
in the agencies that are managing restricted areas as far as
fish propagation is concerned. I would hope that the fish
habitat concept would win.
Ms. Dalton. I guess part of it is we are not--the authority
that is in the law just says that the Federal agency that is
taking action that will affect the essential fish habitat has
to respond to concerns that are expressed by either NMFS or the
councils. It does not say that the activity cannot move
forward. What we are trying to do is piggyback those kinds of
consultations on top of existing activities that we have--
things like 404 permits, under the Clean Water Act, NEPA
analysis that needs to be done for Federal activities and
things like that.
So hopefully it is not going to have any--it will bring a
new dimension to those activities, so that people pay attention
to their impacts on fisheries, but it should have no impact on
them in terms of the processing of permits and things like
that.
Senator Stevens. Now, this is just a request, and I have
got a bunch of questions I could ask. We are coming up to the
end of the period on the moratorium on the IFQ's. I am not sure
whether Congress will extend that in whole or in part. But
without regard to that, we will certainly have some hearings. I
would hope that you are spearheading the task of getting some
real information about what has happened where there are IFQ's
and where there are not IFQ's, so we can have some real factual
information to deal with it.
One of the basic problems we have about the IFQ's is, the
IRS believes those are property rights, they have property
rights, and an IFQ permit is something that they can execute
on, and then put it up for sale to someone that does not even
know anything about the fishery. Suddenly we have a bunch of
absentee owners that are executing rights with regard to a
fishery. The IFQ was supposed to perpetuate the concept of
people who know what they are doing and trying to harvest our
fish.
I think we have to have some basic understanding of what an
IFQ is. It is really not something that people pay for.
Therefore, I do not know why the IRS should create a property
right value in it and seize it. But that is just one of the
issues that is involved in IFQ's. IFQ's also have a capability
of bringing about a consolidation of vessel size if we are not
careful. Because if you have an IFQ and I have one, and I want
to go bigger, I buy yours and I go bigger. Suddenly, we are
going into a matter of a new race between a larger boat and a
fishery that was primarily made up of vessels of the same size.
I think we have to do something about the transferability
of IFQ's. If a person wants out of an IFQ, I really think it
ought to be returned to the source from which it came. I think
our largest objection to IFQ's has been the fact that it will
soon be a non-
fishermen asset, owned by people who are more interested in the
bottom line than they are in terms of preserving the species
for the next generation.
So I am urging you to find a way to collect the data on
what has happened under IFQ's, what are the problems there,
before we get to the hearings, which I hope will take place
either this fall or next year, about IFQ's. That is something
beyond our ability.
We could put the GAO and the Library of Congress in it, but
you all have got the expertise. If you need more money, Senator
Inouye and I happen to be in a position to get you more money.
[Laughter.]
Mr. Garcia. We appreciate that.
Senator Stevens. We would like to have you have people who
are really looking at this from the point of view of
establishing a policy for the Nation for the next century--at
least for the first part of the next century--that will protect
our fish and, at the same time, enhance the survivability of
some of these fishermen. Because I really am worried about what
is going to happen to fishermen. I think if we did a study--it
would be interesting if you would do a study and see how many
people really were fishing in 1900 as compared to those who
really were harvesting fish and making money in the year 2000.
Andy Grove has got that figure for farmers, as I told you,
but I think it would be very interesting. We ought to know what
we are dealing with. Are we going to have to give incentives to
people to catch fish?
I think, from a health point of view, we are better off to
have our fish population healthy, and we will be healthy. I do
think that we ought to have really a comprehensive review of
that before we get to those hearings. So I urge you to help us
do that.
Mr. Garcia. Senator, we are gathering the data on IFQ's,
and we look forward to the hearing. It is the agency's position
that IFQ's are not property rights, and we have had discussions
with the IRS. So we will look forward to discussing this with
you further at the hearings.
Senator Stevens. Well, I suggest to you, the next time
around, I am going to insist that Congress legislate that IFQ's
are not property rights, they are not to be sold. They can be
transferred from generation to generation but, if there is no
one within the family, they have to be turned back.
Thank you, Madam Chairman.
Senator Snowe. Thank you, Senator Stevens.
Just a few additional questions on the groundfish fishery
in New England. We have been waiting for a response to the
emergency request made by the New England Fishery Management
Council with respect to the groundfish fishery. The whole issue
was nothing short of a disaster as it has impacted fishermen in
my State and throughout New England. The Council should have
made a different decision, which at the time the State of Maine
was arguing, and it should have been proportionate to the
problem and where the problem had developed.
Now it has been 2 months. The daily trip limit for cod went
from 700 to 200 pounds a day. They achieved that in a matter of
weeks. Then the plan shifted to a 30-pound limit a day. Now
there is a recommendation by the Council to go back up to 700
pounds.
What has happened in the meantime is that the fishermen
have been catching cod as bycatch and have had to discard those
cod. It has been 2 months, and there has been no response to
the emergency request.
Mr. Garcia. Yes, Senator. Let me respond today. Today we
are filing an interim final rule with the Federal Register.
Penny and Andy can both provide additional details. But this
will increase the landing limits to 100 pounds daily, and
establish a 500-pound trip limit, as well as restrict the so-
called running clock provision that allowed people to go out,
catch fish, come back, and then sit.
We think that while this is an interim response, it is not
the long-term solution. We have urged the council to deal with
the problem of bycatch in this fishery. We are looking forward
to working with the council. If an acceptable management scheme
is not developed, however, the Department is prepared to do
what is necessary to protect this fishery and the fishing
industry.
Senator Snowe. So, when can we expect a final decision on
this matter?
Mr. Garcia. Well, it will be final once published. So the
first of next week it is effective. But it is going to the
Register today.
Senator Snowe. How would the running clock proposal work
with these changes?
Dr. Rosenberg. Senator, the running clock proposal is
changed, such that the trip limit applies for 100 pounds per
24-hour period. But instead of continuing to run your clock for
whatever amount that you land, you are restricted to that 100-
pound per day period and you have to wait to go back out until
your time is allotted. Say, you have landed 200 pounds in a 48-
hour period, you have to be at the dock for 48 hours until you
can go back out again and catch more, as opposed to continuing
to just run your clock and make another trip.
Senator Snowe. How did you arrive at the 100 pounds now,
since we have been all over the lot?
Dr. Rosenberg. Well, we started the fishing year at 200
pounds, in May, on recommendation of the council, along with
some additional closed areas. The tension here, of course, is
between ensuring that there is a disincentive to target cod,
while also allowing people to bring in bycatch. And 100 pounds,
up to a 500 limit, was within the scope of options that the
council analyzed and could be justified under the conservation
guidelines for rebuilding the stock.
If we had gone--the council vote was for up to 700 pounds.
That was outside the scope of what they had originally
considered and, frankly, impossible to justify under the
rebuilding program. So this provides some relief in terms of
bycatch, but stays within the scope of the plan that they had
put forward to us.
Senator Snowe. To followup on the groundfish industry in
general, we passed, under an appropriations bill last fall, $5
million to aid those who participate in the fishery. Again, the
final rules have not been issued with respect to how that money
is going to be used. So now it has been about a year until the
fishermen will see the benefits of this money to mitigate a
disastrous situation in the groundfish industry in New England.
Why has it taken so long to issue the regulations and how is
this money going to be used?
Ms. Dalton. Part of it is I think we changed course a
little bit after the money was appropriated. There was a
decision made to work with many of the stakeholder groups in
New England. They came up with a proposal that we work with
them to go ahead and implement, that basically compensates
fishermen who were adversely affected by the rolling closures
last spring for their lost days at sea.
So one of the things that is going on is they are actually
going to be compensated for the regulatory actions that we took
this past spring. So there is no way for us to go ahead and do
this until they turn in their logbooks. That will be by the end
of July.
We have done the proposed regulation on it. We also had
some issues that came up, like income requirements and things
like that, that we have been getting worked out. We expect the
rule to come down here and to go through the review process and
be ready to be finalized sometime in the beginning, first week,
of August. Then, when the fishermen go ahead and turn in their
logbooks, they will be compensated this fall for that lost
period of time.
Part of this is we are making--this is a brand-new program
and a brand-new concept that we are trying to work through and
make sure that it works effectively.
Senator Snowe. On spotter planes, the harpoon category was
closed last week by NMFS because the quota had been achieved.
Most of the bluefin tuna had been caught in that category by
the use of spotter planes. NMFS has not issued a rule on this
issue out of fear of litigation.
Now, I cannot believe that there are not lawyers within the
Department that could come up with a rule that would not invite
litigation or at least could withstand a lawsuit. Why has this
taken so long? What is going to happen now?
Mr. Garcia. All of our rules seem to invite litigation
these days.
Senator Snowe. Some you fear more than others.
Mr. Garcia. Yes. The key, as you point out, is withstanding
the judicial challenge. We did issue a proposed rule on spotter
planes, banning spotter planes in the fishery.
We have been challenged on that rule. We were recently
taken back to court by the plaintiffs. The judge felt that it
was not ripe for a decision at this point because it was just a
proposed rule, although he did very clearly indicate that he
did not like the proposed rule.
So we are very carefully now reviewing the record with the
Justice Department, as well as the Department lawyers, to make
sure that when and if we issue that final rule, that we have a
rule that will pass judicial muster. As I said, we had a
proposed rule that banned spotter planes, and we are working
very hard now to try to finalize that rule. We have received a
number of comments. We are analyzing those. The Justice
Department has expressed its concern to us about the rule. We
are working with them to make sure that we have a rule that is
strong and will do what we had intended.
Senator Snowe. Will that be sooner rather than later?
Mr. Garcia. It would be soon, yes. Sooner rather than
later. I cannot give you a precise date.
Senator Snowe. On essential fish habitat, again, final
rules have not been published on that. When do you expect that
to occur?
Ms. Dalton. What we are doing with that is we are beginning
now--we have an interim final rule that has gone into effect.
What we are hoping to do is basically go through--we have done
about 400 consultations now on essential fish habitat, and the
process seems to be working well--is to do this very
deliberatively, so that we make sure that the final rule is one
that will actually work. What we are doing is trying to take
advantage of our earlier experiences with the consultations, to
try to make sure that the system is responsive to the needs.
Senator Snowe. Are you going to be very careful in not
implementing it in a way that is too broad? Have you been able
to determine the best way to do that? That seems to be the
major issue with respect to how we are going to define what our
essential habitats are.
Ms. Dalton. The broadness of the identification of the
areas is based on the scientific information that we have and
on the definition that is currently in the Act. What our
guidelines have focused on is trying to integrate any
consultations or any requests or concerns that the councils and
the Department have about activities that could affect
essential fish habitat into existing permit processes.
One of the things that Terry Garcia has been very involved
in is, we have a pilot program now in California that we are
going to be doing that is going to be one-stop shopping for all
of these different types of permits. We chose it there because
we also have the salmon/ESA issues going on. It will also pull
in marine sanctuary permits and permits for national estuary
and research reserves. So that when somebody has something that
they are doing in one of these areas, they only have to make
one call on the National Oceanic and Atmospheric Administration
to get their permits.
Mr. Garcia. I just want to say that there has been some
concern expressed in various quarters that we are creating a
new regulatory program. That is just not true. That was not the
purpose of the Act, and it was not our intent in promulgating
regulations. We have to identify essential fish habitat.
That is a necessary piece of information for the councils
as they move forward in amending their fishery management
plans. We need to consult with other Federal agencies when
their actions may affect essential fish habitat. But we are not
trying to use this as a mechanism to reach other activities
that had not formerly been regulated. It is just not true that
we are using it in that way.
The consultation mechanism which people have questioned, we
have gone to great lengths to ensure that we are not
duplicating efforts, that we are not creating a new
consultation mechanism where others could do the job. So that
if someone has to consult under the Endangered Species Act, we
will use the Endangered Species Act consultation to satisfy
EFH. Similarly, if there is another consultation that is
ongoing, we will use that consultation to satisfy the EFH
consultation.
I think that when the various groups that have expressed
concerns about this rule see how it is implemented, they will
agree with us that this is not a threat, it is not going to
interfere with business, and that it is useful information that
the councils will be able to incorporate into their fishery
management plans, and that we will not be creating multiple
consultations where one would do just as well.
Senator Snowe. Is it true that NMFS is pursuing a
subdefinition that would include habitat areas of particular
concern? Would that probably more closely approximate what
Congress had in mind with respect to this mandate?
Dr. Rosenberg. Senator, we are urging the councils,
although it is council prerogative, to identify habitat areas
of particular concern. One of those areas in New England, for
example, is on the so-called Northeast Peak, as groundfish
habitat.
We feel that helps prioritize the conservation measures
that might be needed or comments that we might provide to other
agencies in terms of those areas that can currently be
identified with the available science as clearly of particular
concern, usually as nursery habitat for young fish. So that is
one of the mechanisms we have used to narrow down the focus and
prioritize the various kinds of consultations.
Senator Snowe. I have other questions that I will submit.
But let me just say in conclusion that I think it would be
very important to think about how the Department could respond
to the issue of flexibility and identify a way that would
implement the whole concept of National Standard 8, to minimize
adverse economic impacts as a result on fishing communities.
The agency should continue to consider the Regulatory
Flexibility Act and the significant economic impact their
regulations have on small businesses because 95 percent of
commercial fishermen are small businesses.
Obviously, the Department has failed in the regard. It gets
back to what Senator Stevens was raising--the whole issue of
whether or not we are going to have fishermen in the future. We
have got to consider how these management plans affect
individuals and, collectively, as communities. If the
Department is disregarding that aspect, it is disregarding an
entire segment of our economy and a very important one at that.
So I think it requires a change in the way you address
issues. For so long, obviously the mandate has been to look at
the fish, which stocks have been overfished, how you are going
to rebuild the fisheries, but you were not looking at the
entire picture. Now, we have grave concerns that the entire
picture is wreaking havoc on fishing communities. So we have
got to do both. They are not mutually exclusive. So we cannot
pursue this narrow path without looking at the whole picture.
That is now the mandate of the Act.
I would encourage you to do what OSHA and EPA have done.
That is to set up specific panels that look at the rules and
regulations and how they have an economic impact on small
business. In the case of fishermen, they certainly are small
businesses. I would encourage you to adopt that emphasis within
the Department. Because I think that if you do not give it that
kind of consideration, it is just going to be disregarded in
the future.
Mr. Garcia. Senator, we will do whatever is necessary to
comply with the law.
Senator Snowe. I appreciate it. I do not think it means
that you disregard the health of the fish stocks. That is not
what we are talking about. But we have to look at the entire
health of the industry, as well. So I think it is critical.
Obviously the Department has not figured out how to address
that aspect of its responsibilities.
If you have multiple lawsuits in this area alone, I think
you would have to acknowledge that the Department has been
deficient in this area.
Senator Inouye. Madam Chair.
Senator Snowe. Yes, Senator Inouye, go ahead.
Senator Inouye. I would like to take this opportunity to
thank Assistant Secretary Garcia, Ms. Dalton and Dr. Rosenberg
for being so helpful to the Western Pacific Regional Fishery
Management Council. I have been receiving communication from
them, expressing their gratitude.
As you know, we have problems that are unique in the
Pacific, and also in the Atlantic. I hope that you will take
into consideration some of the cultural issues that we are
having problems with.
If I may, Madam Chair, I would like to submit a few
questions.
Senator Snowe. Without objection, so ordered.
Senator Inouye. Thank you.
Thank you very much.
Mr. Garcia. Thank you.
Senator Snowe. Again, I want to thank you, Mr. Garcia, Ms.
Dalton and Dr. Rosenberg, for being here today and taking the
time. I am sorry it took so much time, because of the votes,
but I thank you.
Mr. Garcia. Thank you, Senator.
Senator Snowe. Thank you.
We will proceed with our second panel of distinguished
witnesses. Our first witness will be Mr. Thomas Hill, from
Gloucester, MA. Mr. Hill is a marine surveyor and a member of
the New England Council.
We will also hear from Ms. Maggie Raymond, from Portland,
ME. Ms. Raymond has had a significant amount of experience in
commercial fisheries in New England. She has seen dramatic
changes in an industry faced with many serious problems and
difficult choices.
We will also hear from Mr. Rick Lauber, from Juneau, AK.
Mr. Lauber serves as the chairman of the North Pacific Fishery
Management Council.
Dr. David Fluharty, a research associate professor at the
School of Marine Affairs, the University of Washington, will be
the final witness of this panel.
Would everybody step forward? I would ask you to limit your
statements to 5 minutes, if you could. You can summarize them
and I can include your entire statements in the record.
STATEMENT OF MAGGIE RAYMOND, MEMBER AND
SPOKESPERSON, GROUNDFISH GROUP, ASSOCIATED FISHERIES OF MAINE
Ms. Raymond. Chairwoman Snowe, good morning. My name is
Maggie Raymond. I am the spokesperson for the Groundfish Group
of Associated Fisheries of Maine. I am also the wife of a
fisherman. My husband, John, has fished for 25 years. Together,
we have managed our own successful fishing business for the
past 13 years. I am pleased to be here today to offer the views
of the Groundfish Group on the Magnuson-Stevens Act and the
Sustainable Fisheries Act.
Senator Snowe, as you know, commercial fishing makes a
significant contribution to Maine's economy, and our fishing
families and communities define the charm and the character of
our State. The last several years have been difficult, but we
are committed to ensuring that fishing remains a strong
component of Maine's economy. I want to assure you that our
membership is dedicated to the revitalization of the resources
on which our industry depends.
The cornerstone of the Magnuson-Stevens Act is the
scientific principle expressed as maximum sustainable yield.
The Sustainable Fisheries Act has reaffirmed MSY. The National
Marine Fisheries Service guidelines have elevated MSY to the
dominant factor in decision making.
Although there are many issues attendant on the Magnuson-
Stevens Act that your Subcommittee will be considering--and I
do hope you will allow us a future opportunity to speak to
those--there are few as significant as the questions related to
the validity of MSY as a management tool, the scientific
information used to support MSY-based decision making, and the
impact of MSY-based decision making on the fishing community.
Senator you did not invite me here today so that I could
pretend to be a scientist. Believe me, I am not going to do
that. I am sure that in the 5 minutes I have today, I could be
more successful at selling you a boat-load of fish than I could
ever be at selling you the idea that I fully understand fishery
science.
Maximum sustainable yield has been explained to me in the
very simplest of terms as an assumption that a stock of fish
exists in equilibrium. MSY does not fully factor in all the
complexities of the environment or the ingenuity of fishermen,
and therefore does not represent conditions as we know them to
exist in the fishery. It is for this reason that MSY is
considered flawed and has been rejected by many in the
scientific community.
Unfortunately, this flaw has been exacerbated by the SFA.
The SFA mandates the achievement of MSY by defining
overfishing as a relative mortality level that jeopardizes the
capacity of the fishery to produce MSY. Furthermore, the SFA
redefines optimum yield to mean that which provides for a
rebuilding of an overfished fishery to levels consistent with
the production of MSY.
In response to the SFA, NMFS has published guidelines to
assist the councils in meeting their new obligations. In
response to the criticism of MSY, the agency responds,
MSY is the key to the Magnuson-Stevens Act even more so
than under the former Magnuson Act. MSY now constitutes an
upper limit on optimum yield. NMFS believes that the lack of
flexibility imposed by ascribing such a fundamental role to MSY
was clearly an intent of Congress.
The problems with MSY-based management are more apparent
when one considers the basis of the scientific information used
to support the fisheries management process. Although an
imperfect analogy, it is valid nonetheless to point out that
one cannot measure the size of a stock of fish as one would
count head of cattle. The marine environment can be hostile,
and it is remote. Of necessity, stock assessments are
statistically driven, and decisions are based on the
probability that the statistics are right.
NMFS recognizes, ``The difficulty of estimating MSY is a
significant problem that will require the best efforts of NMFS
and the councils to solve.''
Because MSY is central to SFA management and is admittedly
imprecise, the consequences of this imprecision is damaging to
the fishing community. This is particularly so because NMFS
advocated the risk-averse approach as highly desirable for
estimation of MSY and the criteria used to set target catch.
Despite the potential for inaccurate stock assessments and the
agency's claim that allowing for the uncertainty inherent in
the estimate of MSY is important, it is the view of our members
that neither the SFA nor the agency will allow the flexibility
to free councils to consider social and economic factors when
confidence levels around MSY and optimum yield are low.
This brings me to the most important point I wish to make
today--that being that the SFA and NMFS guidelines, in spite of
the best intentions of National Standard 8, simply do not allow
management decisions to consider the social and economic needs
of fishing communities. The changes made to the definition of
optimum yield have reduced economic impacts on fishing
communities from a relevant factor which could be used to
justify optimum yield to a subordinate concern. We are very
concerned that unless the balance is restored, it will be
impossible to maintain our traditional dependence upon the
fisheries.
Senator Snowe, you asked me today to speak specifically to
the current situation with cod in New England. With your
indulgence of an additional minute, I can do that.
The current status of Georges Bank cod, along with the most
recent management advice for that stock, provide a good example
of the need for flexibility within the law to allow the
balancing of measurable progress in the resource with the needs
of the fishing community. Five years ago, the New England
Council took the unprecedented step of closing year-round the
known spawning areas on Georges Bank. This simple principle of
providing complete protection to aggregations of spawning fish
resulted in what is now likely a permanent closure of over
6,000 square miles of world-
renowned fishing grounds.
As a regrettable consequence, many harvesters and
processors, including many from Maine who were dependent on
that catch, are now out of business. This action also,
predictably, resulted in great leaps forward in the rebuilding
status of Georges Bank cod. Now, fishing effort is down, the
Georges Bank cod stock is rebuilding, and the target total
allowable catch has increased every year. But because landings
have out-paced the target, additional restrictions on fishing
effort are mandated. Despite obvious progress and the magnitude
of that progress, the principle of MSY does not allow the
recognition of that achievement.
On the other hand, when it came to Gulf of Maine cod, the
council simply could not bring itself to ignore the severe
economic impacts that would result from the restrictions
mandated to meet the rebuilding schedule. So, instead, it
recommended, and National Marine Fisheries Service approved,
measures both knew to be inadequate. To compensate, included a
default mechanism, a lowered trip limit, intended to keep
landings within the numbers allowed. The conservation goals
were achieved on paper, but landings have been converted to
discards, and both the fish and the fishermen now suffer.
As I said at the outset, we are committed to sustainable
fisheries and we have willingly made many sacrifices. We have
always found strength through faith in our abilities and in our
community. But the events of the past few years, and especially
the potential impacts of the SFA, have shaken that faith and
raised concerns that our community may be changed forever.
I hope you will seriously consider these issues, and I urge
you to seek the counsel of those with the expertise to guide
you in this task. Thank you again for this opportunity to be
here.
[The prepared statement of Ms. Raymond follows:]
Prepared Statement of Maggie Raymond, Groundfish Group,
Associated Fisheries of Maine
Chairwoman Snowe and Members of the Subcommittee on Oceans and
Fisheries, my name is Maggie Raymond. I am a member of and spokesperson
for the Groundfish Group of Associated Fisheries of Maine. Associated
Fisheries of Maine is a trade organization of fishing and fishing
dependent businesses. The Groundfish Group is an ad hoc committee
formed to represent the interests of the Association's harvesters in
fisheries policy development.
I am also the wife of a commercial fisherman. My husband, John
Raymond, is a career fisherman with over 25 years experience in
different fisheries in the Northwest Atlantic Ocean. Together we have
managed our own commercial fish harvesting business for the past 13
years.
I am pleased to be here today to offer the views of the Groundfish
Group on the Magnuson-Stevens Act and, specifically, the implementation
of the 1996 amendments referred to as the Sustainable Fisheries Act.
Senator Snowe, as you know, commercial fishing makes a significant
contribution to Maine's economy, and our fishing families and
communities define the charm and character of our state. The last
several years have been difficult for our industry, but we are
committed to ensuring that the industry remains a strong component of
Maine's economy. It is for this reason that the members of Associated
Fisheries are dedicated to revitalization of the fishery resources on
which our industry depends.
With the initial passage of the Magnuson-Stevens Act, many felt
that fisheries management had been put on a rational footing; that
those with practical and scientific experience with the fisheries would
collectively guide us and that we would regain control of our fishery
resources. The cornerstone of the Magnuson-Stevens Act is the
scientific principle expressed as maximum sustainable yield and it is
this principle which has served as the foundation for all fisheries
management decisions for nearly a quarter century.
But if this central tenant of fisheries management, this principle
of maximum sustainable yield, is valid, then why does it appear that we
have made so few gains in the status of our fisheries resources?
Fisheries management as prescribed under the Act has not been
successful; that is clear and there are few that would dispute that
statement. But many have cast about looking for some human failure,
placing blame on fishermen and the men and women who serve on
management councils. While I readily admit that human errors, including
my own, have played a role, in my view, the most significant cause for
fishery management failures is the hubris which led us to believe that
we can render the complexities of Mother Nature to a two dimensional
equation. The principle of maximum sustainable yield in fisheries
management is seriously flawed and has been repudiated by many in the
scientific community as not accurately depicting conditions as they
exist in the fisheries. Nevertheless, this principle remains the
fundamental component of U.S. fisheries management, and despite
scientific evidence against MSY, the SFA has reaffirmed its use, and
the National Marine Fisheries Service guidelines have elevated its use
to the dominant factor in decision making.
Senator Snowe, although there are many issues attendant to the
Magnuson-
Stevens Act that your Subcommittee will be considering--and I do hope
you will allow us a future opportunity to speak to those--there are few
as significant as the questions related to the validity of MSY as a
management tool, the scientific information used to support MSY-based
decision making, and the impact of MSY-based decision making upon the
fishing community.
Senator, I am not a scientist and I won't pretend to fully
understand the science of fishery management.
Maximum sustainable yield in a fishery, as I understand it, is
based upon an assumption that a stock of fish exists in equilibrium.
Simply put, it assumes that if the number of fish in a stock changes as
a result of environmental conditions or fishing, for example, that the
growth of the stock will automatically adjust to compensate for that
change. Over the short run, this is perhaps so. But over the long run,
the time frame within which our fisheries are managed, this assumption
has proven to be wrong. MSY assumes away the complexities of the
environment and even the actions of fishermen and treats them as simple
events. Intuitively we know, and many in the scientific community have
confirmed, that the complexities of the environment and of human
decision making can not be rendered unidi-
mentional--they can not be assumed away as they are under MSY. It is
for this reason that so many have rejected MSY as a scientific
principle.
Unfortunately, this fundamental flaw in Magnuson-Stevens has been
exacerbated by the SFA. The SFA mandates the achievement of MSY by
defining overfishing as a relative mortality level that jeopardizes the
capacity of the fishery to produce MSY. Furthermore, the SFA redefines
optimum yield to mean that which provides for a rebuilding of an
overfished fishery to levels consistent with production of MSY. With
all due respect, given the flaws inherent in the MSY principle, these
changes amount to pretzel logic and that has fisheries managers tied in
a knot.
In response to the SFA, NMFS published regulations referred to as
guidelines to assist the management councils in meeting their new
obligations. In its summary, its response to public comment, and its
guidelines, NMFS has pledged itself to the MSY principle. In response
to criticism of its use of MSY, NMFS responds; ``MSY is the key to the
Magnuson-Stevens Act, even more so than under the former Magnuson Act.
MSY now constitutes an upper limit on OY . . . NMFS believes that the
lack of flexibility imposed by ascribing such a fundamental role to MSY
was clearly an intent of Congress.''
NMFS also cites Congress' willingness to delete the modifying words
``long term'' when referring to the capacity of a stock to produce MSY
and concludes ``(u)nless MSY is established as a strict goal, the
greatly enhanced benefits anticipated by enaction of the SFA cannot be
achieved.'' Unfortunately, the only flexibility the Council's had in
addressing the flaws inherent in MSY was in setting the optimum yield
over the long term, flexibility which was removed by the Gilchrist
amendment which states specifically that OY can no longer exceed MSY.
The flaws of MSY-based management become more apparent when one
considers the basis of the scientific information used to support the
fisheries management process. Although perhaps a trite comment or an
imperfect analogy, it is valid nonetheless to point out that one cannot
measure the size of a stock of fish as one would count head of cattle.
The marine environment can be hostile and it is remote. Of necessity,
fishery stock assessments are statistically driven, sample sizes are
typically low, and decisions are based on the probability that the
statistics are right. What this means is that the best science
available can in reality be nothing more than an educated guess and
perhaps more often than not derived by seat-of-the-pants methods.
NMFS recognizes that ``. . . the difficulty of estimating MSY is a
significant problem that will require the best efforts of NMFS and the
Council to solve.'' Because MSY is central to SFA management and is
admittedly imprecise, the consequence of this imprecision is damaging
to the fishing community. This is particularly so because NMFS
advocates the risk adverse approach as highly desirable for estimation
of MSY and the criteria used to set catch targets. Despite the very
great potential for inaccurate stock assessments and the agency's claim
that ``(a)llowing for the uncertainty inherent in the estimate of MSY
is important . . .'' it is my view that neither the SFA nor the agency
will allow the flexibility necessary to free Councils to consider
social and economic factors when confidence intervals around MSY and OY
estimates are low.
This brings me to the most important point I wish to make today,
that being the SFA and NMFS guidelines, despite the addition of
National Standard 8, simply do not allow management decisions to
consider the social and economic needs of fishing communities. The
changes made to the definition of optimum yield have reduced economic
impacts on fishing communities from a relevant factor, which could be
used to justify an optimum yield, to a subordinate concern. The NMFS
guidelines allow consideration of the needs of fishing communities only
as a means of adjusting the rebuilding period and only when that
rebuilding period is less than 10 years. We are very concerned that,
unless the balance is restored, it will be impossible to maintain our
traditional dependence upon the fisheries.
Senator Snowe, you asked me today to speak specifically to the
current situation with cod in New England. The current status of
Georges Bank cod along with the most recent management recommendations
for that stock provide a good example of the need for flexibility
within the law to allow the balancing of measurable progress in the
resource with the needs of fishing communities.
Five years ago, the New England council took the unprecedented step
of closing year-round the known spawning areas on Georges Bank. This
simple principle of providing complete protection to aggregations of
spawning and juvenile fish has resulted in a 5-year closure of over
6,000 square miles of world-renowned fishing grounds. As a regrettable
consequence, many harvesters and processors, including many from Maine,
who were dependent on the catch from those areas, are now out of
business. This action also, predictably, resulted in great leaps
forward in the rebuilding status of Georges Bank cod, haddock, and
yellowtail. Fishing effort is down, the GB cod stock is rebuilding, and
the target total allowable catch has increased every year. But because
annual landings have outpaced the target, additional restrictions on
fishing effort are mandated. Despite obvious progress, and the
magnitude of that progress, the principle of MSY simply does not allow
for recognition of that achievement.
On the other hand, when it came to Gulf of Maine cod, the council
simply could not bring itself to ignore the severe economic impacts on
fishing communities that would result from the restrictions recommended
to meet the rebuilding schedule. So instead, the council recommended
and NMFS approved, measures both knew to be inadequate, and to
compensate included a default mechanism--a lowered trip limit--intended
to keep landings within the numbers allowed. The conservation goals
were achieved on paper, but landings have been converted to discards,
and both the fish and the fishermen must suffer.
As I said at the outset, we are committed to sustainable fisheries
and we have willingly made many sacrifices. We have overcome many
obstacles, and have always found strength through faith in our
abilities and our community. But the events of the past few years and,
especially, the potential impacts of the Sustainable Fisheries Act have
shaken that faith and raised concerns that our community may be changed
forever.
Senator Snowe, I urge you to seriously consider the issues I have
raised here today and implore you to seek the counsel of those with the
necessary expertise to guide you in that task.
Senator Snowe. Thank you very much.
Mr. Hill.
STATEMENT OF THOMAS HILL, MEMBER, NEW ENGLAND FISHERY
MANAGEMENT COUNCIL
Mr. Hill. Thank you, Madam Chairman. It is an honor to be
here today to speak on this important issue. For the record, I
am a member of the New England Fishery Management Council. My
past fishing experience was largely related to the recreational
passenger boat industry in New England. I am testifying here
today on my own behalf and do not represent the views of the
Council. In fact my views are significantly diverged from the
views of many of our council members.
I think it is difficult to imagine anywhere in the country
where fisheries management is not as contentious and visceral
as it is in New England. We have had probably some of the
greatest controversies in fisheries management in recent
memory.
I would like to begin by making the premise that I think
healthy fish stocks generally ameliorate many of the social and
economic costs and concerns that are stated in terms of the
social consequences of tough fisheries regulations. It is the
goal, in my opinion, of the Act that we maintain and ensure
healthy fish stocks in order to prevent the social and economic
dislocations that occur when we have depressed fish stocks.
On the other hand, it is very difficult to achieve rebuilt
fish stocks without having social and economic costs. It is
clear that many of the Council's actions over the past several
years have been intended to try to avoid the social and
economic consequences of trying to rebuild overfished stocks.
In that attempt, the council has used various input controls
and soft TAC's in order to try to avoid closing fisheries which
have attendant social and economic impacts on the industry that
we serve.
In my opinion, though those measures have been well
intended, we have exceeded our target TAC's 4 years running,
which has led to the consequences of the Gulf of Maine codfish
situation, where we spent the principal, so to speak, in the
bank of the codfish stocks by allowing ourselves to go over our
target TAC's on a regular basis.
There are four separate issues that I think are critical in
the coming revision that I think would be helpful in the
council in terms of either technical or biological information
that will help us to make decisions, in addition to some
standards that I believe each council ought to be held to what
I believe will assist the council in focusing its attention on
the issues that will improve the stock conditions in a way that
will provide the greatest benefits to the Nation.
The first is that I believe, as has been mentioned
earlier--I believe it was by Senator Kerry--I believe in a
full-scale observer program. It is impossible to manage some of
these stocks with the level of information that we have. The
recent revision of the Act required the council to pass
management plans for all of the stocks under our jurisdiction.
Many of those stocks have poor or inadequate science.
In the stocks where we have overfishing conditions, it is
very difficult to make finite management changes with stock
information that is a year to 15 months old. We need more real-
time data in order to make critical decisions that are based on
the best science in order to avoid the kind of social impacts
that the wrong decision will make. It will strengthen the
council's ability to be thoughtful and deliberate about our
decisions and avoid those consequences that I think everybody
wishes to.
The second thing I believe that would he helpful and I
think productive is to work on an industry-based science
program that assisted the National Marine Fisheries Service and
other bodies that collect conditions for the council in order
to have an industry participation that will strengthen their
faith in the science that we use.
Third, I believe that the requirement for mortality
targets, the standards by which we set are often set in terms
of a 10-year timeframe. In my opinion, it is clearly apparent
that when you look out into the future in overfished stocks, it
is very easy for the council to look off into the future and
delay the significant mortality cuts up front because of the
social costs.
My recommendation is that the council should be required to
establish TAC's for the stocks under their jurisdiction, and
then to be required to implement regulations that ensure that
the fish stock targets are met in the fishing year that we are
fishing in. The overages that we have experienced in fishing
have taken the principal out of the bank. Just like in a
business, when you do not have a budget that you live within,
the following year you have economic consequences that cause
further cuts in your budgetary process. If you are not careful,
it leads to bankruptcy.
In my opinion, that physical discipline is occasionally
lacking in an environment where the social costs to fish
mortality reductions have significant impacts in the
communities that we affect.
Finally, I believe just as critically that we must address
the issue of economic and social data collection. We do not
have adequate data to assess the social and economic impacts
that fishery regulations have. It is clear to me that the
Congress intends for us to do the best we can in making those
decisions and ameliorating those impacts. I must tell you that
the data is totally inadequate.
It is clear that the analysis to do so and the difference
between my Port of Gloucester and the Port of Newberryport both
have fishing fleets and the impacts of different regulations
are totally different. The substantive analysis that is
required to do community-based impact analysis is sadly
lacking. I urge the Senate, in their deliberations of the
reauthorization, to address that issue.
But I think, finally and in closing, that I would suggest
that even if the council knows what those impacts are, if we
are clear about what those impacts are, what does that mean in
a fishery that needs to be rebuilt? Their options are very few.
That the impacts are clear, the alternatives are few because,
in rebuilding a fishery that is overfished, there are always
social and economic consequences.
My own view is that if we rebuild fisheries as rapidly and
as straightforwardly as we can, with as straightforward
regulations as we can, the social and economic benefits from a
rebuilt fishery outweigh the short-term costs if we are
deliberate and we do our job and rebuild fisheries and not make
compromises that prolong the agony of the rebuilding process.
Thank you, Madam Chairman. I am grateful to be here. I will
be happy to answer any questions.
[The prepared statement of Mr. Hill follows:]
Prepared Statement of Thomas Hill, Member, New England Fishery
Management Council
Madame Chairman and members of the Subcommittee, thank you for
inviting me to testify on implementation and reauthorization of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). I am Thomas Hill, a member of the New England Fishery
Management Council. I was appointed to this position, based on my past
experience, to provide the council a perspective regarding the
recreational fishing sector of New England. I have already served one
3-year term on the Council and was recently reappointed to a second. I
would like to make it clear that my testimony represents my personal
views and that I do not speak on behalf of the New England Fishery
Management Council. In fact, on many issues, I represent the minority
view on the Council.
It is difficult to imagine anywhere in the country where fishery
management issues are as visceral and contentious as in New England. I
am a native of Gloucester, Massachusetts, where fishing has been a way
of life for nearly 400 years. My community's economy and culture have
been built around its ability to harvest fish from the Gulf of Maine
and Georges Bank. For many years, it appeared to many that the ocean
held an endless supply of fish. However, over the last 20 years, due to
our collective failure in managing the resource, we have observed a
steady decline in most of our stocks.
As an illustration of our management policies, the current plan in
the Gulf of Maine restricts a fisherman to 30 lbs. of cod per trip in
certain areas. This might amount to a catch of one good fish per trip,
and potentially results in the discard of thousands of pounds of dead
fish. Clearly, in too many cases, the council and the fishing industry
leadership have been more interested in limiting short term social or
economic impacts than in ensuring the healthy rebuilding of fish
stocks. The council has been more concerned with the reaction their
decisions might receive, than in ensuring the effectiveness of the
fishery management plans themselves. As a result, we have experienced
greater dislocation than might have occurred if other choices had been
made.
I would like to address several issues today that I believe should
be considered during reauthorization of the Magnuson-Stevens Act. While
my perspective is based on my experience on the New England Fishery
Management Council, I feel many of the regional councils face similar
challenges. In my view, the following issues should be given priority
during consideration of this legislation:
(1) Establish a full-scale observer program;
(2) Develop a cooperative industry-agency science program;
(3) Allow an average Maximum Sustainable Yield for aggregate
species;
(4) Require a performance standard for mortality targets, such as
setting a hard Total Allowable Catch; and
(5) Provide for the collection of economic data.
establish a full-scale observer program
National Standard 2 in the Magnuson-Stevens Act requires the
Councils use the best science available. We need information in a
timely manner to fulfill our responsibilities under the Act. A first-
class observer program that gathers real-time data is desperately
needed. This should be both required and funded.
The Act was changed during the last reauthorization to require
management plans for all the species under the Council jurisdiction.
For many of these species we have incomplete and sometimes inadequate
science. We need to ensure that the Council has the best available data
to make the decisions that are incumbent upon it. This should include
current assessment information, which should be no more than 6 months
old. To use data that is 12 to 15 months old (as we now do) to make
management decisions, undermines the trust and confidence we must have
with the community to make our decisions. For example, in the recent
Gulf of Maine codfish situation, if we had had observers on board the
fishing vessels, we would have known immediately upon opening the
fishery that we were experiencing high bycatch beyond the limits that
were set, and the Council could have taken immediate action to avoid
the ugly aspects that occurred in this debate.
develop a cooperative industry-agency science program
Involve the fishing industry in the collection of data where
possible. Ensure that the development of science needs and the
utilization of platforms include the fishing industry wherever
possible. Done properly, the fishermen can have input into the science
and subsequent rules that will regulate them--it will build confidence.
The fishermen have hands-on, practical knowledge that a non-fisherman
will never have. Farming practices would never be regulated without the
input of farmers. Fishery practices should be provided the same level
of respect.
allow an average maximum sustainable yield for aggregate species
Allow the Councils to manage for the average Maximum Sustainable
Yield (MSY) for those species that are caught in aggregate. Given some
thoughtful discussion about the way the language of the Act is crafted,
Congress could acknowledge the interrelationships of various fish
stocks and set thresholds for the minimum but not necessarily the
optimum yield. There are two ways to view this issue:
First, Congress' intent is that all stocks will be re-built without
regard for the social and economic costs. As an example, if you are
using a control on ``days at sea'' as your primary mortality tool, you
will be setting your days at sea schedule to the lowest common
denominator of the stock complex to insure rebuilding, since each stock
in a stock complex must be maintained at optimum yield. You will
therefore forgo the social and economic benefits that would be derived
from capturing the other stocks that may be in abundant and in
excellent biological condition while you try to re-build a single stock
that is depressed.
As an alternative, the Councils could be allowed to conduct
aggregate assessment/management plans for those stocks that are
interrelated in terms of habitat and likely removal by commercial and
recreational gear. So on average, the stocks that are involved are
above the MSY, even though one stock may be below the MSY. This would
avoid triggering significant restrictions by the Councils and would
maximize the total yield and therefore the total value of the entire
fishery. Because the multi-species fish stocks are caught in aggregate,
we end up managing for the fish stock in the worst condition no matter
what the economic or social cost with respect to the other stocks. This
may be a lost opportunity. There needs to be a way to manage for the
highest aggregate rebuilding, coupled with the maximum economic and
social benefit.
Congress could acknowledge this type of stock interrelationships
and set thresholds for the minimum but not necessarily the optimum
yield. This issue would require some hard thought to provide a way of
doing this, but is significant enough to be raised as a concern without
offering a specific solution.
require a performance standard for mortality targets, such as setting a
hard total allowable catch
The Magnuson-Stevens Act should require that the Councils set a
hard Total Allowable Catch (TAC) limit for each species under their
jurisdiction. Requiring the setting of a hard TAC on an annual basis
will hold the Councils and industry to a standard of performance
regarding the setting and meeting of mortality targets. This needed
discipline will help ensure a clarity of thought and testimony before
the Council.
For example, the mortality tools currently used (i.e., trip limits,
Days-At-Sea, area closures) have allocation implications built into
them. A given fisherman will support one tool, but not another
depending on his/her allocation interests, as much as whether it will
help insure a healthy fishery. In other words, the mortality tools have
become a surrogate for stock allocations among the various sectors of
the industry (small boat, big boat, inshore, offshore, etc.) versus
whether they will insure meeting the mortality targets.
This change would require that the Councils draft and submit
Fishery Management Plans that meet the TAC goals within the year in
question, to ensure that the mortality targets are not exceeded in each
fishing year. This would avoid the exponential increase in the degree
of restrictions caused when the mortality targets are exceed by using
soft targets, as is currently common in many fisheries management
plans. This then requires more restrictions on the industry in future
management actions for the following year.
provide for the collection of economic data
I find it extremely frustrating that the council does not have data
that would enable us to incorporate socio-economic information into
fishery management decisions. The Magnuson-Stevens Act specifies the
collection of biological, economic, and socio-cultural data to meet
objectives of the Act and for the fishery management councils to
consider this information in their deliberations. However, Section
303(b)(7) specifically excludes the collection of economic data, and
Section 402(a) precludes Councils from collecting ``proprietary or
confidential commercial or financial information.'' NMFS should not be
precluded from collecting such proprietary information so long as it is
treated as confidential information under Section 402. Without this
economic data, multi-disciplinary analyses of fishery management
regulations are not possible preventing NMFS and the Councils from
satisfying the requirements of the Magnuson-Stevens Act and the
Regulatory Flexibility Act (RFA).
Assuming that the council does have accurate socio-economic
information available, the larger question still remains: ``How does
the council make changes in proposed management measures if there are
negative socio-economic impacts forecast for the needed reductions in
fishing mortality?'' This unresolved issue is at the heart of many of
the disagreements about policy development in New England today. The
consequence of taking expedient short term management steps in lieu of
a long term approach has led to a series of measures which have not
resolved the biological concerns and in fact have led to severe
economic and social dislocation.
Madame Chairman, I would like to thank you for this opportunity to
comment on the Magnuson-Stevens Act reauthorization. I'm also happy to
answer questions or provide further information about the positions
taken by the Council chairmen.
Senator Snowe. Thank you very much, Mr. Hill.
Mr. Lauber.
STATEMENT OF RICHARD B. LAUBER, CHAIRMAN, NORTH PACIFIC FISHERY
MANAGEMENT COUNCIL
Mr. Lauber. Good afternoon, Madam Chairman. Thank you for
the opportunity for me to offer comments related to the
implementation of the Magnuson-Stevens Fishery Conservation and
Management Act. As requested, my comments will focus on the
implementation of the 1996 amendments, the Sustainable
Fisheries Act.
In addition to the provisions which apply to all of the
Nation's fisheries, there were, as you know, many provisions in
the 1996 amendments which were specific to the North Pacific
Council and the fisheries off of Alaska. Beginning in late
1996, and continuing to the present, the North Pacific Council,
along with the National Marine Fisheries Service, the Alaska
region has devoted a tremendous amount of time and energy to
implementing the provisions contained in those amendments.
I am happy to say that those efforts have paid off, and the
implementation of those amendments have improved our fishery
management process and strengthened the long-term viability of
an already healthy fishery in the North Pacific.
I would like to make note of some supplemental materials
that we have supplied your committee on more detail in what we
have done. This packet here should have come to you and your
staff and the other members of the Senate. I hope you will find
these materials useful, and I believe they will show that we
have made some very significant progress.
I would like to speak to the specific things that were
mentioned in the Sustainable Fisheries Act. One of them was the
overfishing definitions. Overfishing definitions, according to
the mandates of the SFA, are now in place for all species
managed by our council. With the exception of Tanner crab,
currently managed by the Alaska Department of Fish and Game,
there are no overfished species in the North Pacific, though we
actively manage over 100 species or species complexes of
groundfish and crab. The Tanner crab is the subject of an
aggressive rebuilding plan drafted by the council, the National
Marine Fisheries Service and the Alaska Department of Fish and
Game, which is scheduled for implementation this next January.
As required, we have developed a comprehensive description
of essential fish habitat for all species we manage, and are
now concentrating on identification of habitat areas of
particular concern, based on ecological functions and
vulnerability to man-made impacts. I think Dr. Fluharty may
speak more to that.
Our council has found the use of marine protected areas to
be a particularly useful tool for managing bycatch and
protecting habitat. Vast areas of the North Pacific have been
permanently closed to groundfish, trawling and scallop dredging
to protect habitat and juvenile crab. These marine protected
areas comprise a relatively large portion of the continental
shelf and, in my respects, serve as marine reserves.
In the Bering Sea, habitat area closures encompass about
30,000-square nautical miles. This is an area more than twice
the size of Georges Bank, off the coast of Massachusetts.
Bycatch has been a focal issue for our council over its 23-year
existence. We spend a significant amount of our time addressing
bycatch management allocation and reduction.
Since enactment of the 1996 amendments, the council has
taken specific actions, such as banning on-bottom trawling for
pollock, established an incremental Chinook salmon bycatch
reduction in trawl fisheries from 48,000 Chinook salmon down to
29,000 by the year 2003, and our developing, in cooperation
with industry, a halibut mortality avoidance program, and
reducing the maximum retainable bycatch amount for several
species, including sablefish and rockfish.
Among the provisions of the SFA is the reduction of
economic discards. The council has implemented and improved the
retention and utilization program, which took effect beginning
in 1998, and which prohibits the discard of all pollock and
Pacific cod in all North Pacific fisheries, regardless of gear
type or fishery. This measure has drastically reduced discards
of groundfish.
For example, in 1997, about 22,000 metric tons of cod--
almost 9 percent of the cod catch--and 95,000 metric tons of
pollock--about 8.2 percent of the pollock catch--was discarded.
In 1998, discards amounted to only 4,300 of cod, approximately
2 percent, and 16,000 of pollock, about 1.5 percent.
We also have entered into a total catch measurement system,
where we are requiring scales in many of our fisheries. We
have, as you know, a comprehensive onboard observer program
which, by the way, in my opinion, without such an observer
program, we would not have had such healthy fisheries. We have
had observer programs in place for 10 years or longer. We
commend them. There are problems with them, but they still are
very, very important to us.
Madam Chairman, I am cutting my remarks close to reduce the
time, but I do not pretend that our system is perfect by any
means or that there is not room for improvements, whether those
improvements originate with the council or in the congressional
arena. Our council respects the intent of the 1996 amendments,
and has worked extremely hard to bring those to pass.
We also stand ready to respond to any new amendments that
come out for the pending reauthorization, and to provide any
input into the process that you require. Thank you, Madam
Chairman.
[The prepared statement and information of Mr. Lauber
follows:]
Prepared Statement of Richard B. Lauber, Chairman, North Pacific
Fishery Management Council
Good morning Senators, and thank you for the opportunity to offer
comments related to implementation of the Magnuson-Stevens Fishery
Conservation and Management Act. As requested, my comments will focus
on implementation of the 1996 amendments (the Sustainable Fisheries
Act), and you will find more detailed comments attached to my summary
oral comments. Also attached is a copy of the recommendations which
arose from the Council Chairman's meeting which was held last month in
Rhode Island. These are consensus recommendations from the eight
Regional Councils regarding the upcoming reauthorization of the Act. I
believe these recommendations were provided last week to the House
Subcommittee on Fisheries, Conservation, Wildlife, and Oceans by Joseph
Brancaleone, Chairman of the New England Council. I provide these
collective Council recommendations for your reference and would be
happy to try and answer any questions related to those recommendations.
For now however, I will return my comments to implementation of the
1996 amendments.
In addition to provisions which apply to all the Nation's
fisheries, there were as you know many provisions in the 1996
amendments which were specific to the North Pacific Council and the
fisheries off Alaska. Beginning in late 1996 and continuing to the
present the North Pacific Council, along with the National Marine
Fisheries Service--Alaska Region, have devoted a tremendous amount of
time and energy to implementing the provisions contained in those
amendments. I am happy to say that those efforts have paid off, and
that implementation of those amendments has improved our fishery
management process and strengthened the long-term viability of an
already healthy fishery resource in the North Pacific. I would like to
take this opportunity to toot our own horn a bit and note that the
North Pacific Council had already initiated several conservation
related management programs at the time of passage of the SFA, and that
the amendments therein provided both a mandate to follow through on
those initiatives as well as a mandate for additional measures. I can
assure you that the fish harvesters and processors in the North Pacific
are as dedicated as anyone to preserving and maintaining the health of
our fisheries and oceans, and we welcome the past and future efforts of
Congress to provide us the tools to realize that goal.
I would like at this time to make note of the supplemental
materials I have provided--you will find these in the white folder with
our Council logo--which summarize the overall management philosophy of
the North Pacific Council and provide examples of what we are doing as
fisheries managers to protect these fisheries, and to incorporate
habitat considerations and a broader perspective of ecosystem
management. I hope you find these materials useful and I believe they
will serve to instill some confidence that we are, with your guidance,
operating as responsible stewards of our national marine resources off
Alaska. I would like to speak further to some of the Council's actions
in response to the provisions of the SFA. Most of those provisions are
fully addressed by Council actions since 1996 while others are in the
iterative stages of implementation.
Again, details on our implementation schedule for all issues
covered by the 1996 amendments are contained in the attachment that has
been provided. I would like to spend the remainder of my time briefly
addressing a few of the specific actions that we have taken to
implement the mandates of the SFA.
Overfishing definitions.--Overfishing definitions, according to the
mandates of the SFA, are now in place for all species managed by our
Council. With the exception of Tanner crab, there are no overfished
species in the North Pacific, though we actively manage over 100
species, or species complexes, of groundfish and crab. Tanner crab is
the subject of an aggressive rebuilding plan drafted by the Council,
National Marine Fisheries Service, and Alaska Department of Fish and
Game, which is schedule for implementation this January.
Essential Fish Habitat.--As required we have developed a
comprehensive description of essential fish habitat for all species we
manage, and are now concentrating on identification of Habitat Areas of
Particular Concern (HAPC), based on ecological function and
vulnerability to man-made impacts. Concurrent with that effort will be
the necessity to evaluate potential impacts of fishing gears and
implement additional measures as necessary. Our Council has found the
use of marine protected areas to be a particularly useful tool for
managing bycatch and protecting habitat. Vast areas of the North
Pacific have been permanently closed to groundfish trawling and scallop
dredging to protect habitat and juvenile crab. These marine protected
areas comprise a relatively large portion of the continental shelf, and
in many respects, serve as marine reserves. In the Bering Sea, habitat
area closures encompass about 30,000 square nautical miles. To put this
in perspective, this is an area larger than Indiana or Maine and more
than twice the size of Georges Bank off the east coast of the United
States.
Bycatch Reduction.--Bycatch has been a focal issue for the Council
over its 23 year existence and we spend a significant amount of our
time addressing bycatch management, allocation, and reduction.
Since enactment of the 1996 amendments the Council has taken the
following specific actions:
Banned on-bottom trawling for pollock;
Established an incremental chinook salmon bycatch
reduction in trawl fisheries from 48,000 chinook down to 29,000 chinook
by year 2003;
Are developing, in cooperation with industry, a halibut
mortality avoidance program (HMAP); and
Reduced the maximum retainable bycatch (MRB) amount for
several species, including sablefish and rockfish.
Additional measures have been proposed and are awaiting development
pending other pressing Council issues such as Steller sea lion
protection and implementation of the American Fisheries Act.
Waste and Discard Reductions.--Among the provisions of the SFA is
the reduction of economic discards. The Council has implemented an
Improved Retention and Utilization Program (IR/IU) which took effect
beginning in 1998, and which prohibits the discard of all pollock and
Pacific cod in all North Pacific fisheries, regardless of gear type or
fishery. This measure has dramatically reduced overall discards of
groundfish. For example in 1997, about 22,100 mt of cod (8.6 percent of
the cod catch) and 94,800 mt of pollock (8.2 percent of the pollock
catch) were discarded. In 1998, discard amounted to only 4,300 mt of
cod (2.2 percent) and 16,200 mt of pollock (1.6 percent). These rates
are not 0 percent as might be expected because at certain times of the
year regulatory discards come into play, which are required to avoid
exceeding the total allowable catch (TAC). A regulation requiring full
retention of all demersal shelf rockfish species was adopted in 1999.
Flatfish retention will be required beginning in 2003--the delay will
allow for development of new markets and gear technological responses
by the vessels engaged in these fisheries. These overall retention
requirements are expected to reduce total discard rates (all species)
from about 15 percent to about 5 percent.
Total Catch Measurement.--One section of the SFA requires the
Council to develop and submit measures to ensure total catch
measurement in each fishery under our jurisdiction, and to require
weighing of all fish if necessary. I feel confident when I say that
North Pacific fisheries are the most tightly managed and monitored in
the U.S. Between the National Marine Fisheries Service in-season
management division, the Alaska Department of Fish and Game fish ticket
system, catch reporting requirements, the U.S. Coast Guard, the NMFS
Enforcement Division, our comprehensive on-board fisheries observer
program, and requirements for weighing of fish in many of our
fisheries, we have a good handle on the amounts of catch, bycatch, and
discards occurring in the North Pacific. The Council initiated scale
requirements for some of the pollock fisheries as early as 1994 to help
tighten catch estimates. In specific response to the mandates of the
SFA, our Council has undertaken a review of our estimation procedures
which has included an assessment from the National Marine Fisheries
Service, an assessment from the Alaska Department of Fish and Game, and
an in-depth assessment by our Scientific and Statistical Committee
(SSC) which is comprised of some of the most respected stock assessment
scientists and fish population dynamics experts in the country. These
assessments have resulted in suggestions for incremental improvements
to our existing program, but overall have endorsed our catch
measurement system as adequate, specifically in reference to the
mandates of the SFA. The SSC comments conclude with the statement ``In
many respects, the system in place is better than any found around the
world''. Additional actions taken by the Council in 1998 include: (1)
initiation of a requirement for either certified bins or scales in all
pollock and yellowfin sole fisheries; (2) initiation of a framework
plan to evaluate and improve catch estimation fishery by fishery; and,
(3) began a formal process for the SSC to annually review sampling
methods and catch estimation procedures.
In summary Madame Chairperson, I do not pretend that our system is
perfect by any means, or that there is not room for improvements,
whether those improvements originate in the Council arena or in the
Congressional arena. Our Council respects the intent of the 1996
amendments and has worked extremely hard to effect that intent. We also
stand ready to respond to any new amendments that come out of the
pending reauthorization and to provide any input into that process that
you require. Again, I appreciate the opportunity to speak to you today
on these issues. Thank you.
Senator Snowe. Thank you very much, Mr. Lauber. The entire
text of your statement will be included in the record, and all
additional materials.
Dr. Fluharty.
STATEMENT OF DAVID FLUHARTY, Ph.D., RESEARCH
ASSOCIATE PROFESSOR, SCHOOL OF MARINE AFFAIRS,
UNIVERSITY OF WASHINGTON AND MEMBER, NORTH
PACIFIC FISHERY MANAGEMENT COUNCIL, WASHINGTON STATE
Dr. Fluharty. Thank you, Senator Snowe. I am very happy to
be here.
Besides being on the faculty of the University of
Washington, I also am a Member of the North Pacific Fishery
Management Council. I had the privilege to chair the Ecosystem-
Based Principles Fisheries Management Panel, which is part of
the SFA. I believe you received our report in March. If you
have questions about that, I would be happy to discuss those.
Today, Senator Gorton invited me to try to cover the span
of traditional interests of Washington State in fisheries off
of Alaska and off our West Coast. These include recreational,
commercial and processing interests in fisheries.
Essential fish habitat is obviously an important issue. Our
conclusions, after looking at the first iteration, are that we
really know remarkably little about the distribution and
utilization of habitat by life history stage of the managed
species, and of course much less about the non-managed species.
Second, based on what we do know, most of the waters and
substrates within 200 nautical miles are essential habitats for
some species at some life history stage. That is a fact. It
certainly is consistent with what the language has told us to
do. It does not mean we cannot refine it.
Concern continues to exist over consultation requirements
in the Pacific and North Pacific Council areas, where you have
extensive salmon, ESA and Steller sea lion ESA consultations.
Those have essentially trumped any of the activities by the
National Marine Fisheries Service with respect to consultation.
So we do not know really how it is going to work. But I think
that, as Ms. Dalton mentioned, it will work in a coordinated
way.
But what is really clear to us is that the most important
reason for maintaining efforts to further define and refine the
essential fish habitat measures, if we do not pay attention to
habitat, then other places will be in the same management
straits that we are with managing endangered species. We really
do need to monitor habitat very carefully, to avoid surprises
in the management of our fisheries.
Councils in our region have yet to identify and take
comprehensive action concerning fishing effects on fish
habitats. However, that should be seen in the context of
measures that have already been taken, such as those Chairman
Lauber mentioned.
As a component of essential fish habitat, the tool of
designating marine reserves for fisheries has long been part of
our fishery management, and we expect that it will expand in
the future.
As I mentioned, the Ecosystem-Based Fisheries Report has
come out. We feel that some of the recommendations can be very
helpful in refining the way that essential fish habitat is
implemented, particularly the concept of a fisheries ecosystem
plan that might be considered.
With respect to overfishing, the North Pacific, as Mr.
Lauber mentioned, has been very successful at using an MSY-
based TAC since 1977. We feel that careful application of that
approach is a key to our success. In the Pacific Fishery
Management Council, the biggest issue there is how to manage
what has been managed as a species complex of over 60 species
of rockfish under the new overfishing definitions. They have
been struggling with that mightily.
One of the most difficult parts of the implementation of
the overfishing definition is the assessment of all sources of
mortality. The Pacific Council is desperately interested in
having the option of an observer program, either federally-
funded, or by giving the Council authority to levy fees in that
region.
Rebuilding plans, we have made significant progress in
bringing those into effect. Some of our concerns are technical,
relating to the 10-year timeframe. But the important part, we
feel, is that we have started and we are moving ahead to
rebuild those fisheries.
The North Pacific, as mentioned, has some of the best data
on bycatch over the years, through its extensive observer
program. In the Pacific Marine Fisheries Council area, they are
less known, and therefore we have a significant problem in even
estimating progress against the SFA requirements to reduce
bycatch. We also have problems that are occasioned by ESA-
listed stocks of salmon that require special efforts to monitor
and to contain interceptions of the wild stocks for which we
are trying to cause recovery.
One of the concerns among the fleets is over the
interpretation of minimization of bycatch. The basic feeling is
that where it imposes cost over and above the biological and
conservation benefits, then it becomes a punitive measure.
There is very strong interest on the West Coast in
management measures that will deal with problems of
overcapacity. Our efforts to work on license limitation and
setting moratoria on new entry in fisheries are insufficient
for managing a number of the fisheries. Notably, for example,
would be the Bristol Bay red king crab fishery that takes place
in the winter. The race for fish there creates some very
hazardous conditions that cannot be solved by license
limitations alone.
Also the SFA, the ITQ report by the National Research
Council, we think, is very beneficial, and provides some
information for how to proceed to reduce fishing capacity.
Under the American Fisheries Act, which was passed last year,
with leadership from members of this committee, a new approach
dealing with fishing cooperatives has been set up and has
worked the first year. Based on the information we have so far,
it has been extremely successful.
Other co-ops are in the process of being formed at the
present time. There is a great deal of interest in other
sectors of our fishing industry to see how these co-op
agreements might work for them. So this is a new and innovative
approach that is there.
I would close by stating that with respect to safety
requirements, we are still struggling how to implement them. We
know that we have some of the worst cases to deal with. We
really feel that it is an integrated approach that will be most
necessary--one that combines flexible choices among fishermen
for effort reduction, with a decrease in the race for fish.
Finally, we would second the recommendations on social and
economic information. This is notwithstanding what Senator
Stevens said about the excellent information that is gathered
in the State of Alaska. We, frankly, in the States of
Washington and Oregon, have less well-documented fisheries.
Many of the kinds of things that we need--proprietary data,
obviously properly taken care of for privacy concerns, are
really necessary. In major decisions on inshore or offshore and
looking into the ``community'' national standards, we lack the
actual data that we need, both economic and social information.
Thank you.
[The prepared statement of Dr. Fluharty follows:]
Prepared Statement of David Fluharty, Research Associate Professor,
School of Marine Affairs, University of Washington
Thank you for the opportunity to testify on the implementation of
the Sustainable Fisheries Act (SFA) amendments to the Magnuson-Stevens
Fishery Conservation and Management Act (MSFCMA). I am David Fluharty,
Research Associate Professor, School of Marine Affairs, University of
Washington and a member of the North Pacific Fishery Management Council
from Washington State. I speak in my personal capacity as an analyst
(1) and participant in fisheries management, however, in preparation of
this testimony, I have consulted with others (2), especially with
respect to implementation issues before the Pacific Fishery Management
Council. I had the privilege to Chair the National Marine Fisheries
Service (NMFS) Ecosystem Principles Advisory Panel requested under the
SFA (Section 406 MSFCMA). Our report entitled, ``Ecosystem-Based
Fishery Management'' (3) was delivered to Congress in March 1999. I
presently serve on the National Research Council, Ocean Studies Board,
Committee on the Evaluation, Design and Monitoring of Marine Reserves
and Protected Areas in the United States.
general context for sfa implementation issues
The Sustainable Fisheries Act amendments to the Magnuson-Stevens
Fishery Conservation and Management Act were major steps forward toward
solving many of the problems in U.S. fisheries management. Congress
clarified and strengthened its directives to the NMFS and the Councils
to end overfishing, rebuild stocks, reduce bycatch, protect fish
habitat, reduce conflict of interest and establish user fees. Congress
intended reform. Conservation came first and fishery management was
intended to become more precautionary. I believe that fishery
management institutions are responding.
In the scant two and a half years since enactment, implementation
of the SFA is happening at a pace limited by three factors:
First, is the limit of the capacity of a large fishery management
institutional system to make rapid change in a democratic and open
process. I believe that NMFS deserves a fair amount of credit for
organizing itself for implementation. Within weeks after the passage of
the SFA, Councils were given marching orders in letters from the
Director, Rolland Schmitten and NOAA General Counsel. Not everything
could be accomplished at once. Priorities were established and then
reestablished as regulatory processes bogged down. Still, I would argue
that as much of what Congress intended was implemented in a short time
under the SFA as in 1976 when Federal management for the 200 n.mi. zone
was established. Much still remains to be done. Continued support and
oversight by Congress is a necessary component of staying the course.
Second, is the limit of the available resources for management. Few
tasks were removed from management responsibility by the SFA and
enormous tasks were added. Congress did increase funding in later
budgets, but, as with all legislative mandates, ``Was the increase in
budget and employees commensurate with the increase in tasks?'' Besides
the SFA, other Federal fishery management responsibilities affected the
implementation work loads of the Councils and NMFS in the Pacific West
Coast. More species of salmon were listed as threatened or endangered
under the Endangered Species Act (ESA). Similar ESA issues were raised
with respect to Steller sea lions and the Short-tailed albatross. The
adequacy of the environmental impact assessment under the National
Environmental Policy Act (NEPA) was challenged with respect to
groundfish management. Finally, as members of this committee know, the
passage of the American Fisheries Act (AFA) 1998, set in motion
extensive reduction in fishing effort and rationalization of pollock
fisheries in the North Pacific. Implementation of ``sideboard'' issues
to prevent spillover effects into other fisheries has been a major
focus of fishery management.
Third, is the limit of our understanding of the fisheries and their
interrelationships with ocean and coastal processes as well as other
ecosystem components. This is to be distinguished from the failure to
use the scientific knowledge and common sense that we do have
available. It is not an excuse for inaction, nor is it a defensible
formula for regulatory choices.
Actions that are being taken now may not show results for some
time. Like a large ship, turning to a new course is not instantaneous.
But the course is set. And the Councils with which I am most familiar,
the North Pacific and Pacific Fishery Management Councils, have gotten
the message. Much has been accomplished to implement the SFA and this
is turning fishery management toward a more sustainable pathway. This
should not be forgotten as we continue to implement other parts of the
SFA.
specific implementation issues
In the interest of brevity, these issues are presented in a series
of short paragraphs without extensive documentation. (4) I would be
pleased to answer questions or supply additional documentation as
needed. The order of presentation is a focus on the fisheries
environment issues and then moving to socio-economic and allocation
issues. I have sought to avoid making recommendations for resolving
these issues as I understand the Committee's focus for this hearing is
on implementation.
essential fish habitat (ehf)
The SFA requires that Councils become much more serious about
habitat issues than before. For managed stocks, i.e., those under a
fishery management plan (FMP), Councils are to designate essential fish
habitat considering all life stages and, through new consultation
requirements, manage to reduce impacts from other ocean uses. In
addition, Councils were required to consider the effects of fishing on
habitat. This latter emphasis is a new focus and one for which Councils
and NMFS have the least information and preparation to implement.
NMFS worked extremely hard and quickly to develop regulatory
guidelines to implement EHF and to initiate teams at the regional
levels to pull together and evaluate information. Some scientific
issues were raised about the original guidelines and many of these were
resolved. More serious challenges to the guidelines, in concept, came
from other potentially affected parties in the mining, forestry,
agriculture and water resources management arenas. This delayed the
final regulations, but the job did get done. The two important
conclusions that I believe came from this effort are: (1) despite,
significant long term scientific study, we know remarkably little about
distribution and utilization of habitat by life history stage of the
managed species [and much less about non-managed species]; and (2)
based on what we know, most of the waters and substrates within the 200
n.mi. Exclusive Economic Zone (EEZ) are essential habitats for some
species at some life history stage. Some find fault with the definition
of essential fish habitat by the Councils as being too encompassing,
but I argue, the onus is on them to demonstrate their position given
the language of the SFA. Habitat is important for fisheries management.
These results and the documents identifying EFH do several
important things. They establish a baseline of knowledge from which to
build. This should help to prioritize research. They show the necessity
to gain a better understanding of time/space scales in fisheries in
order to develop appropriate fishery management approaches that take
these factors into account. They point out the iterative nature of the
task, i.e., to continually develop and apply better understanding of
fish and their habitats. Perhaps most important, is that expanded
effort and expenditure of resources on better defining the habitat
needs of fish is critical to avoid more serious management issues under
the ESA and to avoid ``surprises'' in the management of fisheries.
Concern continues to exist over the EFH consultation requirements
that the SFA advises for all fisheries and requires for anadromous
species. To some these requirements are simply redundant to other
regulatory processes (NEPA, Fish and Wildlife Coordination Act, ESA,
etc.) where fishery management agencies have long held a commenting
role. Others consider the requirements impractical and beyond the
resources of fishery management if any but the most significant
projects affecting habitat are brought forward for consultation. In
fact, experience, so far, indicates that the Councils and NMFS in the
NE Pacific region have not involved the consultation provisions. NMFS
has continued its normal role of commenting in other processes. It has
assumed a major role regarding Section 7 consultations with respect to
ESA processes for salmonids and the ESA trumps the EFH under such
circumstances. Thus, the EFH consultative provisions do not appear to
be another layer of bureaucracy. However, this could change if the
implementation approach is challenged and that is the worry.
The aspect of implementation of the SFA provisions for EFH that is
least complete is for Councils to identify and take actions concerning
fishing effects on fish habitats. In the North Pacific and Pacific
Council regions, very little study of benthic impacts of fishing has
been done. Since passage of the SFA, efforts have increased but the
task is almost overwhelming and the resources are undoubtedly
inadequate for the task. This failure to take new, comprehensive
actions under the SFA requirements, as is being urged in legal actions
at present, should be seen in the context of efforts, [some before and
after the SFA took effect] to reduce benthic impacts of fishing. In the
North Pacific region, more than 15,000 sq. n. mi. in the Bering Sea are
closed to bottom trawls to protect red king crab habitats, reduce crab
bycatch and to reduce gear conflicts. In the SE Gulf of Alaska a much
larger area is closed to bottom trawls. Numerous other fisheries gear
closure areas exist. In addition, the requirement to use midwater
trawls in the pollock fisheries lessens benthic impacts as well. This
is not to argue that the Council's work is done but to remind that we
are not starting from a blank slate. In the North Pacific region, work
is underway to develop a systematic approach to identification of
Habitat Areas of Particular Concern as expected under the EFH
guidelines.
ecosystem-based fisheries
The National Marine Fisheries Service (NMFS) Ecosystem Principles
Advisory Panel established under the SFA (Section 406 MSFCMA) reported
to Congress as noted above. The NMFS is in the process of implementing
the portions of the recommendations that can be done under existing
authorities. The Report makes recommendations to Congress on how to
build off of the work done under the SFA (especially EFH) using the
concept of a Fishery Ecosystem Plan (FEP). Ecosystem-based fishery
management is not a substitute for good fisheries management. The full
implementation of the SFA is a prerequisite to the development of
ecosystem-based fishery management.
marine reserves
As noted above, extensive areas have been designated in the North
Pacific (4) to control impacts of fisheries on habitat, reduce bycatch
and to minimize gear conflicts. The tool of designating marine reserves
for fisheries has long been part of fishery management and it is likely
that it will be used more in the future. NPFMC is developing a
systematic way to evaluate areas for consideration. The PFMC has
established a committee to advise it on how marine reserves can be used
in fishery management. It expects to initiate actions in the fall of
1999. The National Research Council, Ocean Studies Board, Committee on
the Evaluation, Design and Monitoring of Marine Reserves and Protected
Areas in the United States has met three times and is hard at work
drafting its report [Draft expected by April/May 2000]. This study,
sponsored by the NMFS and other agencies, should result in extensive
information on use of marine reserves in fishery management and for
other purposes. My impression of the West Coast fishery management
institutions is that they are actively interested in how to use marine
reserves in fishery management. They are keenly aware that such areas
must be part of an integrated approach to fishery management. There is
considerable concern over the frequently advanced view that large no-
take reserves are a substitute for fishery management. Full
implementation of the SFA measures will go a long way toward resolving
the fishery management failures that critics can so easily point out.
Marine fishery reserves should be employed for fishery management
purposes where they are the most effective and reliable approach to
achieving the goals and objectives defined. [There are, of course,
other marine management goals and objectives that can be served by
marine reserves].
overfishing
Probably the most fundamental shift in the SFA was the requirement
that MSY not be exceeded for any reason. While this seems like it
should be an obvious tenet of fisheries management, Councils and NMFS
were permitted to exceed MSY for socio-economic and other reasons in
the earlier versions of the MFCMA. The new overfishing definition had
to be worked out and placed in regulations. This delayed somewhat, its
application in TAC setting until 1999. The new definition clarifies
that all sources of fisheries mortality (including bycatch, discards,
and estimates of unobserved mortality) should be counted against the
Total Allowable Catch calculated around MSY. Fishery science has long
regarded MSY as a crude measure and one that is not necessarily
conservative because of its focus on ``maximum'' yields as opposed to
long term sustainable yields. The regulatory definition goes quite far
to incorporate more modern fishery reference points than straight MSY
but the question remains as to how conservative it is and how useful it
is to apply universally.
In the NPFMC area, conservative TACs have been set since 1977 so
the new definition continues existing practices. The one species that
falls under the new overfished definition is a species of crab for
which the directed fishery has been closed for several years. Some
discussion exists that there may be a need to examine how appropriate
MSY is for management of crab species where recruitment and survival
appear quite sensitive to ocean regimes as well as fishing pressure.
This is a technical issue that can be resolved by stock assessment
biologists given sufficient flexibility in the interpretation of the
law.
For the PMFC the biggest issue in this respect has been how to
implement the overfishing definition on its multi-species rockfish
fisheries (nearly 60 species previously managed as a species complex).
The overfishing definition applies to species and not to species
complexes. Thus, there has been a major effort to work out
scientifically how to implement the regulations and the species-by-
species approach has radically reduced the TACs and fishing patterns
have been altered. One of the most difficult parts for implementation
is the assessment of direct and estimation of non-direct mortalities
where there is not an observer program to gather reliable data across
the fleet. PMFC is desperately aware of this problem and is working
with members of this Committee to resolve it. There are further
complications in managing this fishery because of the difficulty of
using trip limits to accomplish management objectives. This appears to
result in high regulatory discards and possibly in high grading of
catches.
rebuilding plans
Implementation of rebuilding plans is necessarily downstream of
determination if a fish stock is overfished. Thus, rebuilding plans on
the West Coast are lagging behind the SFA mandated schedule in terms of
implementation. Significant progress has been made and these plans will
go into effect in the near future. SFA has set in motion the kinds of
actions intended to reverse downward trends in some fish stocks. For
some species, results cannot be expected to be seen within a 10-year
time period due to the long life spans and slow recruitment into the
fisheries (e.g., rockfish). For species dependent on special
environmental conditions beyond the control of management, a similar
problem exists with the specification that the plan causes recovery
within 10 years. The most important effect of this provision of the SFA
is that it forces Councils and the NMFS to focus on rebuilding the
stocks once overfished.
bycatch
With the addition of a new National Standard, SFA requires Councils
and the NMFS to ``minimize'' bycatch to the extent practicable, and,
with respect to the NPFMC, sets a requirement for successive reduction
of bycatch annually over a period of 4 years. NPFMC probably has some
of the best data on bycatch over the years because of its extensive
observer program. These bycatch amounts have been counted against the
TAC for a considerable period of time and relatively little biological
impact is attributed to it by the Plan Development Teams and by the
Scientific and Statistical Committee of the Council. Bycatch of
prohibited species (mostly high value species caught in other fisheries
like salmon, herring, halibut) is closely monitored and, in some cases,
this has led to a closure of a fishery before the TAC of the target
species was caught. Thus, there has been a responsible management of
bycatch to avoid conservation and economic concerns in the NPFMC area.
To the extent that ``minimization'' of bycatch imposes costs over and
above the biological benefits, it becomes a punitive measure in the
eyes of the fishing fleets. Reducing bycatch commensurate to
biological, conservation and economic realities is seen as a reasonable
approach whereas minimization for the sake of minimization is not. It
all boils down to the interpretation of ``to the extent practicable''.
NPFMC has reduced its total bycatch by approximately 50 percent in
on set of management actions taken just prior to the SFA amendments but
implemented after the SFA. It required that all non-prohibited species
of bycatch be retained and utilized under its Improved Retention/
Improved Utilization amendments to the groundfish FMP for cod and
pollock. Some objected to this being considered as bycatch reduction
and instead, called it a sleight of hand because the same fish were
caught but simply re-categorized as utilized. The difference was that
they were no longer discarded. This points to the conflict among
fishery management objectives that promote utilization and those that
call for minimizing bycatch. A common sense approach is needed to
ensure that where there is not a discernible biological or conservation
impact, utilization would seem a more important objective than bycatch
reduction. To further complicate matters, some insist that utilization
of fish for purposes other than human consumption is inappropriate even
if profitable. Again, a common sense clarification is necessary along
with what is outlined above.
Further actions by the NPFMC have aimed at reducing bycatch but
these have not been as dramatic in effect as the earlier measures. They
have probably resulted in a reduction in bycatch in each of the
subsequent years but it is difficult to track completely. This points
to the need for flexible options for bycatch reductions, rather than a
target schedule, as effective ways to reduce bycatch. In the same
amendment that produced large reduction in bycatch in pollock and cod
fisheries, NPFMC adopted the goal of IR/IU for yellowfin sole and rock
sole in 5 years from date of approval to allow the industry to adapt
gear and equipment to accommodate the acknowledged changes that would
be necessary.
In the PFMC region bycatch amounts are less well known because of
the lack of an observer program over the full range of fisheries. To be
certain, some management measures like trip limits and regulatory
discards from them, make implementation difficult. Problems with
interceptions of ESA listed salmon runs and a general management
concerns over other depleted stocks have led to greater efforts to
restrict time and fishing areas to those with the least interceptions
and/or highest degree of catch of hatchery fish. This has had major
impacts on all salmon fisheries but especially on coastal charter
fisheries and commercial troll fisheries.
I am convinced that a necessary component of bycatch reduction
measures is bycatch allocation and monitoring at the vessel level.
NPFMC efforts from its Vessel Incentive Program (VIP) demonstrate this.
Effective use of such a measure at the vessel level is complicated by
due process limitations and by concerns that such allocations represent
individual quotas not allowed under the SFA moratorium on IFQs.
reducing overcapacity
The SFA and concomitant measures under ESA for salmon have resulted
in some buyback programs for fisheries in economic crisis in the PFMC
region. Obviously, the long term goal is to have healthy fisheries and
fishing industries. The SFA measures discussed above are setting the
stage for that scenario.
One of the keys to successful implementation of fisheries
management measures is providing the right kinds of incentives to
fishermen to do what is needed. When the fishing industry can see the
justification for and reap the benefits of management measures, they
can more readily accept additional costs to achieve them. If the
benefits are not spread too thinly, fishing interests are much more
likely to be able to afford the sometimes costly measures required to
achieve management goals. On the West Coast, fishery managers and
fishing interests are eager to embrace a variety of programs that would
reduce the amount of fishing capacity. In this regard, the SFA provides
for the use of industry-funded buyback programs. However, the Federal
regulations for this approach are yet not approved, despite pleas from
some segments of the fishing industry and interventions by some members
of this Committee. This delay in developing regulations has impeded
industry actions to develop such programs.
The SFA moratorium on IFQ programs has set back Council development
of IFQ plans in several cases on the West Coast. Because of its
concerns about the use of IFQ programs, Congress requested that the
National Research Council report on use of IFQs in fisheries
management. That report was released earlier this year. It finds that
IFQs and similar measures should be in the fishery management toolbox
for use where they are determined to be appropriate at the regional
level, and where they are properly conditioned to avoid mistakes and
unintended consequences of some previous efforts. This sparks interest
in reviving in that mechanism.
Since passage of the SFA, fishery management Councils have
continued efforts to limit access to the fisheries through moratoria on
new entry and through license limitation programs. While these measures
are important in and of themselves, they do not address the underlying
issue of too much active and latent capacity in the fishing fleet. For
some fisheries, like Bristol Bay red king crab, the race for fish under
very hazardous conditions cannot be solved by license limitation alone.
Management problems, too, are considerable in such a short duration,
high intensity fishery. It is my impression that market-based choices
by fishing entities to exit or remain in a fishery relieve the Councils
of this onerous task and are more likely to be viewed as fair than any
formula that might be designed by a Council process. These choices are
served by a variety of effort limitation mechanisms, including
industry-funded buyback programs, IFQs, etc.
Since the passage of the SFA, one of the most innovative
developments in capacity reduction is the formation of a Pacific
whiting fishing cooperative that significantly reduces the number of
vessels competing for a specific allocation of the Pacific whiting
catch in the Pacific region. In 1998, a similar cooperative approach
was enabled through passage of the American Fisheries Act (AFA) with
leadership by members of the Committee. Already pollock fisheries
cooperatives have formed among the at-sea processors and the catcher
vessels delivering fish to them. Similar efforts are underway for
catcher vessels delivering to onshore processors as one of the
alternatives allowed by the AFA. The cooperative approach is being
observed favorably by other fishing sectors and it is likely that other
efforts will be made to form them. The benefits of increased recovery
rates, reduced bycatch and increased ability to produce high value
products, as opposed to high volume products, appear to be realized.
The environmental costs of operating redundant fishing capacity, the
ending of the ``Olympic-style'' competitive race for fish, the losses
to net economic benefits, and the social benefits of more stable
fishing opportunities at increased returns all point in the right
direction from the cooperative approach.
national standard for safety
Two new national standards were promulgated under the SFA--for
bycatch (discussed above) and for fishing safety. With respect to the
national standard for fishing safety, it does not appear that
significant changes are being made to implement it in FMPs. The
willingness of fishing entities to take risks seems highly correlated
with the economic incentives to race for fish in high value, low
volume, short duration fisheries. Management measures that allow more
flexibility in choices of when and how to fish without competing for a
share of the fish, seem most favored by the participants in such
fisheries. Market-based and cooperative mechanisms are likely to
develop the innovations to vastly improve decision making with respect
to risk. In addition, fishing operations that are profitable are able
to maintain vessel systems and retain qualified crew members--all of
which contribute to but do not guarantee safety of fishing.
national standard definition of fishing communities and
socio-economic information
One of the realizations of efforts to implement the fishing
community definition was that socio-economic data gathered by states
are woefully inadequate for fishery council deliberations. Almost no
socio-economic data is collected on fishing entities (despite
willingness of industry to provide them) that is sufficient for
management decisions. This means that even qualitative judgments are
hard to make. Implementation of a scientifically sound policy with
respect to fishing communities requires a significant new effort to
obtain them on a routine basis and this implies a need for budgetary
support.
other issues
Two issues of particular concern for West Coast fisheries are the
development of an observer program and the continuation State
management authority for Dungeness crab in Federal waters off
Washington. Whether the observer program is based on fees collected
from the fleet or general appropriation is a matter to be decided, as
well. Without an observer program it is nearly impossible to make
measurable progress toward bycatch reduction or the monitoring of
discards or high-grading. The ability of the State to continue to
manage Dungeness crab in Federal waters is particularly important given
its co-management agreements with Native American tribes under Treaty
obligations. This option has been implemented quite successfully under
the SFA and makes the management approach inside State waters and in
Federal waters a more coherent and consistent one.
In the SFA, there were a variety of other reports on such things as
lien registries for fishing vessels and reduction of subsidies in
fishery management. Based on anecdotal reports these studies are
progressing but not yet complete. These reports are needed links in
developing more innovative and sustainable fisheries under the SFA.
notes
1. See, for example, Fluharty, David. 1996. ``Magnuson Fishery
Conservation and Management Act Reauthorization and Fishery Management
Needs in the North Pacific Region.'' Tulane Environmental Law Journal.
Vol. 9:2 Summer 1996. Pp. 301-328.
2. Preparation of this statement included discussions with a number
of people in the ``Council families'' of the North Pacific Fishery
Management Council and the Pacific Fishery Management Council. NPFMC:
Rick Lauber, Chairman; Clarence Pautzke, Executive Director; Dennis
Austin, Council Member, Washington Department of Fisheries and Wildlife
(WDFW); Wally Pereyra, Council Member; Arni Thomsen, Alaska Crab
Coalition; Paul MacGregor, Jim Gilmore, Trevor McCabe, At-Sea
Processors Association; Tom Casey, Alaska Fisheries Conservation Group.
PMFC: Larry Six, Executive Director; Phil Anderson, Council Member
WDFW; Bob Alverson, North Pacific Vessel Owners Association and Council
Member; Rob Zuanich, Purse Seine Vessel Owners Association. The press
of time did not allow for contact with processors, tribes, and many
other interests.
3. http://www.nmfs.gov.sfa/reports.html
4. This presentation is coordinated with that of Rick Lauber,
Chairman, NPFMC in order to avoid repetition. Materials supporting his
presentation are incorporated by referenced herein as well.
Senator Snowe. Obviously that is an issue that has been
raised consistently by many of the witnesses here today and in
my discussions with others in the industry. What should we do
in this reauthorization process to ensure that the essential
data is collected and is done in order for the councils to make
the best decisions possible? I know that you have mentioned it.
Mr. Hill has mentioned it. We have had others. How recent
should that data be? Because Mr. Hill said I think that it is
as old as 1 year to 15 months. How updated should that
information, how recent, can it be and should it be?
Dr. Fluharty. Senator Snowe, I think the best
recommendation, the most telling that I have seen and I think
where the most work is being done, comes out of the council
chair recommendations to this committee. I think Mr. Lauber has
appended those to his remarks. So, in terms of the detail, I
think there is a committee of the councils that is working on
sort of a more uniform approach that would perhaps provide that
kind of information.
But it really gets at who is doing what, when. One of the
problems that we have is obviously the time lag in obtaining
these data. So I do not know that we are going to be able to
get them in any real-time sense. That, coupled with the
problems of dealing with the changing fisheries is another
problem. So that much of our data base is out of date relative
to the way that the fisheries are being prosecuted, say, in
1999 compared with 1998.
So there are a number of data problem areas that we
probably will not be able to overcome. But getting a time
series about social and economic information that is similar to
what we have for biological data on fisheries is, I guess, the
simplest way that I know to express what we need.
Senator Snowe. Mr. Lauber.
Mr. Lauber. Senator, I have been a chairman for a number of
years, and therefore have been somewhat involved with and
talked to a number of other council members and chairmen from
other areas. Everything, of course, that Dr. Fluharty says is
correct. We always can use better and we can use more timely
information. But I have the feeling that the North Pacific
Council has always had better data than many of the councils,
if not most or all of the other councils. More recently,
because of our observer programs, we have had a lot better data
on bycatch, discards, waste, that type of thing, better catch
estimates in the round, before they were processed, that type
of thing.
Now, we may suffer from some of the same problems that
other councils have on social and economic data, but even there
I think we have gone a long way, because some pressing issues
that we have had have caused us to collect through other means,
private sources, whatever, contracts, some of that data, on a
case-by-case basis. But probably the reporting system and the
observer program have made it much easier for us than a lot of
the councils are experiencing, because they just do not have
access. In many cases, they do not really know how much is even
being caught. Certainly they do not know how much is being
discarded.
Senator Snowe. Has that been a decision that has been made
unilaterally by the North Pacific Council with respect to the
observer program?
Mr. Lauber. Yes. The original observer program was by us.
The one in existence today is strictly a North Pacific observer
program and is totally funded by the industry. We actually, a
few years ago, had an amendment to the Magnuson Act then that
called it the North Pacific Research Plan. Quite frankly, we
called it that because, to some areas of the United States,
observers were such a bad word that we did not want to use the
word ``observers'' when we put it into effect. When it became
law, we have not implemented under that law for various reasons
of no concern to this meeting. But we put in our own observer
program many years ago. To us, it seemed like a logical thing
to do.
Now, I do not mean to say that every single vessel that
take every catch is observed. Very briefly, all vessels over
125 feet are observed. Those 125 feet to 160 feet have 30
percent observer coverage. This gives us a wealth of
information.
In the CDQ fishery, we have two observers on each vessel.
In the new American Fisheries Act, on factory trawlers,
there will be two observers aboard each vessel. So we have a
pretty extensive observer program.
Senator Snowe. Do you think that is the most effective
means of gathering information?
Mr. Lauber. Well, yes, it is. Of course, you do not rely
just upon the observer program, as well. We have other things
that supplement that. But one of the things that we have found
is that the observer program collects the data, but the more
important thing is that it gives a degree of confidence to not
only the council, but to other fisheries that are involved that
the bycatch numbers are in fact correct or close to being
correct. They still quibble or think somebody is pulling
shenanigans, of course. You know how fishermen would be. But
for management purposes at least, the data is very good data.
Senator Snowe. Plus, it involves the fishermen themselves.
They are involved. It gives them more confidence in the
outcome.
Mr. Lauber. Yes.
Senator Snowe. I guess it is as recent as you can get,
because they had a chance to observe onboard what is happening.
Mr. Lauber. Well, we do not have instantaneous data. We are
working toward that. Senator Stevens made some reference to
data reporting and the problem. This is a unique problem,
obviously, in Alaska, where the National Marine Fisheries
Service is preempting the State program. I think that Senator
Stevens is correct in that.
Senator Snowe. I do not know if that would go over well.
Mr. Lauber. That needs to be looked into. I have a sneaking
suspicion that since the Senator brought it up, it will be
looked into.
Senator Snowe. Right. That would not go over well in Maine,
I can assure you.
Mr. Hill and Ms. Raymond.
Mr. Hill. Thank you, Senator.
Just a couple of brief points. In my written testimony,
there are several sections of the Act that exclude the
opportunity of the councils or the National Marine Fisheries
Service from collecting data from processors and proprietary
information. It would seem to me if that data is handled in an
appropriate manner, it would be helpful for the councils and
the Service would be able to have access to that in order to
make these decisions.
I think also it is critical to point out that the kind of
data that is necessary to make the kind of social assessments
that you are talking about, that you have raised during your
comments, it is fairly finite. The difference between Portland,
Maine, and Gloucester is fairly significant in terms of the
impacts. It would be helpful to have a time series of data
between gear sectors, vessel sizes, communities themselves
where the fish is landed.
When we go to try and make allocation decisions or when we
are trying to make decisions of the reduction of mortality and
how that is fairly attributed to the different participants
within the fishery, the kind of data we are talking about, at
least lends an air and a sense of credibility to the decisions
that are made. When they are made in a vacuum of--I will not
call it ignorance, but when the data is really weak, it leads
to very strong suspicions that they are inappropriate transfers
of opportunity and/or transfers of responsibility.
I think it breeds distrust in our process, to a degree.
Anything we can do to strengthen that I think would strengthen
our ability to be viewed as being evenhanded and
straightforward during our deliberations.
Senator Snowe. So what approach should be taken in this
reauthorization with respect to that issue? Is it money?
Mr. Hill. Well, I would make the observation that an
observer program funded by the industry is very appropriate in
a fishery where the fishery is very healthy. I think the
problem has been, in New England, where we have had very
depressed stocks, boat owners cannot even afford to take care
of their boats. The thought of levying fees on them during a
time of great distress is not politically tenable.
So my view is that a nationally-funded observer program,
focused on fisheries that are having difficulties, I think
would be very helpful. The time series that I spoke about
earlier in my testimony, relative to the year to 15 months was
related to biological information. We need to do better on
that. The social and economic data, in my opinion, is
extraordinarily weak and/or does not exist at all in many
instances.
Senator Snowe. Ms. Raymond.
Ms. Raymond. Senator Snowe, I just want to emphasize the
need for collecting more accurate and timely social and
economic data. At the beginning of this hearing, both Senator
Kerry and Assistant Secretary Garcia quoted some numbers about
the numbers of people who are employed throughout the country
and the value of those fisheries.
Just because they both said the same number, I hope you do
realize that those are just gross estimates. We really do not
have any kind of information about what the value of these
fisheries are. In our own State, this information is very
lacking. We cannot call the Department of Labor and ask how
many people are employed in fishing, and we cannot call the
planning office. Nobody knows these figures.
I think the problem can be partially solved at the State
level by an emphasis on the States in collecting some of this
data, to make it available. But certainly it should be a high-
priority issue.
Senator Snowe. Can I ask you a follow-up on the
announcement that Mr. Garcia mentioned with respect to the
groundfish industry and the 100-pound trip limit? What is your
reaction to that and the revisions on the running clock? Do you
think it will still end up with major discards of cod?
Ms. Raymond. Yes, I do, Senator. Again, the numbers, as you
said, were all over the map. The numbers have changed daily.
I guess I am glad that the number is going up, from 30 to
100. But what I am most disappointed at is that the decision
does not include any recommendations to compensate for those
changes and to compensate for the loss that has already
occurred to the status of the resource because of this
continuing discard that has gone on for 2 months. The council
and the Service debated several plans on what to do.
Everybody knew what to do, but nobody wanted to do it. When
the council threw up its hands and gave the emergency action
request to the Secretary, that literally gave the Secretary the
power to do anything he wanted to do. He knew what to do,
Senator, and I submit that he did not do it.
Mr. Hill. Could I just make a quick observation?
Senator Snowe. Yes.
Mr. Hill. As a part of my testimony, my point about having
specific mortality targets, TAC's, that the councils are
required to meet under their obligations of the administration
of the Act, would have prevented the kind of issues that we are
dealing with now. That it is by the overages that we have spent
the money in the bank, so to speak, for 3 or 4 years in a row
that led us to the consequences of this recent implementation
of the trip limit.
Senator Snowe. Because it was a failure of the information
that you had at hand, although I think we all expressed deep
concerns about the direction the council was likely to take on
this issue that would result in what happened.
Mr. Hill. Personally, I do not think it was a failure to
understand--well, there were several failures--and one of them
was that we did not have as good a data on a timely basis about
what landings were occurring. But I think, more specifically,
the council was reluctant, and has been reluctant, to implement
specific mortality controls that would ensure that we did not
exceed our target TAC's.
The reason for that has been the potential adverse social
and economic consequences of having hard TAC's, because they
have undesirable consequences, as well. Unfortunately, the
consequences of exceeding the TAC on an annual basis for
several years, we have stripped away the principal in the bank
and we are now paying that price. The choice we made in January
relative to the trip limit--I can honestly say I did not vote
for it--but it was a choice between competing possibilities.
The choice that was made was made, I think, in good faith.
In the subsequent fishery, there was a big movement of fish
into the inshore bottom from, I believe, Georges Bank. We had a
fairly significant movement of fish that caused discards far in
excess of anything that anybody anticipated when we were
drafting that regulation.
Thank you.
Senator Snowe. Well, in rebuilding schedules for depleted
stocks, do you think that socioeconomic impacts should be
considered?
Mr. Hill. I have been told that Senators ask hard questions
when you come here. You just confirmed that. [Laughter.]
Mr. Hill. I will do my best to answer that. I believe,
Senator--and it is my point earlier about having probably a
minority view on my council in some respects, or at least I am
not in the majority, I would suspect--I honestly believe,
Senator if we rebuild fisheries, we will provide the industry
with the social and economic benefits that they need in order
to be able to be fully self-sufficient in the fishery.
My opinion is that the council has attempted to ameliorate
those social and economic consequences for about 7 or 8 years.
That the measures that we have taken, the incremental steps
that we have taken, in my opinion, were an attempt to avoid the
social and economic consequences and not alter the fabric of
the fishing communities that we regulate.
My opinion is that in fisheries management, dramatic
action, particularly in an overfished stock, dramatic action,
the closure of Georges Bank, significant reductions in
mortality by either TAC or reductions in days at sea, are far
more effective, far more likely to lead to success, than
incremental measures that seek to avoid those social costs. I
do not want to dismiss the consequences of those social costs,
but I believe it is beyond the ability of the council, quite
frankly, to wrestle with them sometimes.
When you are in a depressed fishery that is significantly
overfished, any measure that you take has consequences. The
visceral and contentious arguments about who should bear that
cost, the council is the recipient of those arguments.
Oftentimes the council errs on the side of caution in
trying to protect the industry from the consequences. In my
opinion, we have prolonged the cost, we have prolonged the
impacts that might have been borne by the industry by our
attempting to address those very consequences.
That is my own opinion. I think it has been borne out by
history. How we address the social consequences I put in my
written testimony, it is the fundamental question. We are
required, under National Standard 1 to rebuild these fisheries.
We have been given a timeframe. In any reasonable timeframe,
the rebuilding of these stocks have consequences to the
participants in the fishery. I, quite, frankly, do not have a
good solution to dealing with those consequences. I believe
that is beyond the council's ability. But I believe that if we
rebuild these stocks, we will enjoy the benefits that the
industry is looking for.
I would submit that the closure of Georges Bank was
probably the most contentious fisheries management measure that
has been taken probably in New England ever. It is now viewed
as a major success. It is touted by many of the industry now,
today, as a sacrifice that they made that has provided
significant benefits. But at the time, it was widely hated. It
was--there are not enough proper adjectives to describe their
views. [Laughter.]
Senator Snowe. Thank you.
Ms. Raymond. It was, however, supported by the Groundfish
Group of Associated Fisheries. [Laughter.]
Senator Snowe. Yes. Mr. Lauber, what do you think?
Mr. Lauber. We do not have to deal with Georges Bank.
[Laughter.]
Not to say that we do not have contentious issues. I do not
know how other councils operate. All I can tell you is that
this system that Congress put together, they were either very,
very smart or they were very, very lucky, or maybe a little bit
of both.
Senator Snowe. That is the first time we have ever been
described that way. [Laughter.]
Mr. Lauber. Because it has the elements of a very, very
good system. Because the council system, if it does its job--
and let us say, as anything composed of individuals, most of
the time it does its job most of the time. This is grade A to
the Secretary and the Department of Commerce and the National
Marine Fisheries Service, of course. But the councils are only
advisory in nature. Therefore, there is a stopgap. There is a
checks and balances. So that if the council does not do what it
should be doing, the agency can step in, the Secretary can step
in with secretarial plans and so forth.
Fortunately, most times the Secretary does not feel that
that should be done. But I think that, like in any system,
everybody has to do their job. If for some reason some council,
sometime, is not doing what it should, then I think it is up to
the agency, the Secretary, to step in and they have a
responsibility, as well. It is difficult to make some of these
decisions when you have people that you are putting out of
business. There are human beings that are appearing before you.
But we have a mandate.
So far--knock on wood--but we do not have any fisheries in
the State of Alaska that are in an overfished state that are
under our jurisdiction, that we are managing. That has not been
easy. We have set some serious limits on fisheries, shut
fisheries down--maybe not as dramatic as Georges Bank, but we
have shut fisheries down and people have been impacted
negatively, seriously. It just has to be done. The end result
is that we do not have these fisheries disasters.
Now, that does not mean that environmental conditions and
so forth are not going to create problems, but at least they
will not be our management problems.
Senator Snowe. Can you tell me, should this be a 4-year
authorization? Should it be longer? Should it be shorter?
Any thoughts on that?
Mr. Lauber. Well, I submitted as part of my testimony, and
I am sure maybe others will, the council chairman's comments.
Many of those I would put more in the housekeeping category. At
the North Pacific Council, we have had this on our agenda
several times, as to amendments. Quite frankly, I do not know
whether we are so busy working on the American Fisheries Act
and our problems with Steller sea lions and attempting to
implement the amendments that you gave us in 1996, that we
really are not asking you to do an awful lot, because we have
got enough to do.
So, I do not know, the year does not make much difference
to us. We do not have any burning issues in the North Pacific,
that I am aware of, that we are asking you to amend.
Senator Snowe. Yes, it gives us an opportunity, I think 4
years, thinking about it. Although it may be that we will not
be required to make some significant changes, as did occur in
1996. But, nevertheless, it gives you an opportunity to conduct
oversight and review in the event that there are problems. If
it goes much longer, then it makes it much difficult,
particularly if there are issues that warrant the attention of
Congress.
Mr. Lauber. I think that was the way your staff suggested
that I concentrate on commenting on the 1996 amendments and our
problems, if any, in implementing those and how we have done.
In following that suggestions, that is what I did.
Senator Snowe. Dr. Fluharty, do you have any comments?
Dr. Fluharty. I think it is important to recognize that, as
has been pointed out, we have not fully implemented the 1996
Act. Even where we have, we may not have done a good enough job
in various councils. So I think it is really important for
Congress to stay the course on that and keep the pressure on.
I do think that there are some specific issues, regionally
and perhaps nationally, that will come to the fore through this
process that can be useful. One of these is certainly the
question of authorization for observers, observer-type
programs, and the ability of councils to develop those at their
discretion. Specifically, in the Pacific Council area, the need
to maintain management authority over Dungeness crab by the
State of Washington permits it to better fulfill its
responsibilities under treaty obligations.
Senator Snowe. One other question on the essential fish
habitat. Obviously that is of serious concern to many and
obviously to the stakeholders. Some have said that the councils
have had difficulty in distinguishing between essential and
nonessential habitat. Do you have any comments on that?
Dr. Fluharty. I think that the answer that the councils
have given in the first iteration is that habitat is essential,
and lots of it.
Senator Snowe. Can you make that narrower, like the NMFS is
talking about, or is that possible? I guess it was Senator
Gorton saying they did the whole State of Washington,
designating the entire State of Washington.
Dr. Fluharty. Right. But that is a function of the way that
the law was written and I think correctly interpreted. It does
not mean that every area is going to be subject to a
significant determination for every activity. I think that the
approach taken so far is going to be a successful way to
implement it. But I can understand why some people are worried.
I think the habitat areas of particular concern (HAPC under
the SFA) approach which is being implemented in some areas, is
an important part of the SFA. But it still does not solve all
problems. There are many scientific discussions about how you
define essential habitat. Here Congress has said, look at your
managed fisheries and tell us what they need. Another approach
is to look at the habitat and say, which of these areas are
particularly important for groups of species?
Right now we have dis-aggregated approach to defining
Essential Fish Habitent. With something like the Fisheries
Ecosystem Plan (FEP) Proposal that we have submitted through
the Ecosystem-Based Fisheries Management Panel, it provides a
vehicle to start aggregating, to start looking at the way that
these processes and functions, i.e., the way the ecosystem
functions. So I think that there are some leads here as to how
to narrow that down, how to make them a more useful approach
for fisheries management.
Senator Snowe. Mr. Hill.
Mr. Hill. Madam Chairman, I would just bring to your
attention the New England Council has implemented that section
of the Act in a very similar way. Because of the life stages of
all of the different species that are under our jurisdiction
covers almost every area of the Gulf of Maine. But I think Dr.
Rosenberg accurately--what I would call--clarified the
council's approach to areas of critical concern.
Those are areas where they are unique in nature, have
either very high spawning activity or are used in a variety of
life stages. Our council is being very cautious but very
deliberate about determining. There has only been one so far,
and we are looking at a couple of others.
So my view is that all of the marine environment is
critical habitat. The question is, how much of it deserves
special attention from a regulatory standpoint? Thank you.
Senator Snowe. I want to thank all of you very much for
your very thoughtful information here today and your testimony.
It is going to be very helpful to us as we pursue this process
over this next year. I thank you for taking the time, for
traveling long distances, to be here today and to spend so much
time with the committee. We certainly appreciate your insight
and your testimony and your thoughtfulness here today. Thank
you.
OK, we are down to the last panel. I apologize that it has
taken so long today. Now, we will proceed with our third panel
of distinguished witnesses. You may step forward.
I would like to welcome Mr. Wayne Swingle, from Tampa, FL.
Mr. Swingle is executive director of the Gulf of Mexico Fishery
Management Council.
The next witness is Mr. Glenn Delaney. Mr. Delaney serves
as the U.S. Commissioner on the International Commission for
Conservation of Atlantic Tuna.
Our final witness will be Mr. Ken Hinman, the co-chair of
the Marine Fish Conservation Network.
I thank you and I welcome you for being here today. Again,
I apologize for the length of this hearing, but we got set back
by those votes earlier today. But I really appreciate you being
here today to share your thoughts with the committee.
Mr. Swingle, we will begin with you.
STATEMENT OF WAYNE E. SWINGLE, EXECUTIVE DIRECTOR, GULF OF
MEXICO FISHERY MANAGEMENT COUNCIL
Mr. Swingle. Madam Chairman, I greatly appreciate the
opportunity to appear before you and present the councils'
progress in implementing the provisions of the Sustainable
Fisheries Act and to provide the council's recommendations for
amendments to the Magnuson Act.
First, let me briefly acquaint you with the status of our
stocks under the Sustainable Fisheries Act. We manage the
shrimp, spiny lobster and stone crab, none of which are
overfished or have been. The shrimp fishery is probably the
Nation's most valuable, having contributed about $2.9 billion
to the gross national product in 1989, and certainly more than
that at this date.
We protect the coral and coral reef resources and manage
three finfish fisheries. Our reef fish fishery consists of
snappers and groupers and results in landings of about 30
million pounds annually. Red snapper are classified as
overfished. We have been rebuilding this stock since 1990. With
the new standards, this task will extend well into the next
century. Gag grouper was recently classified as approaching an
overfished state, and the council recently took action to
reduce fishing mortality that should alleviate that condition.
We also manage species such as mackerels, cobia and
dolphin, of which only the Gulf king mackerel and Spanish
mackerels have been classified as overfished. We began the
rebuilding programs for those stocks in 1985, and have
completely restored Spanish mackerel and nearly restored the
king mackerel. We also manage red drum, which is a major
recreational fishery in our area. This stock would have been
restored by the year 2001, but will take longer under the new
Sustainable Fisheries Act overfishing criteria.
In complying with the Sustainable Fisheries Act, we
developed two generic amendments. The first of these was an
amendment that identified and described essential fish habitat
for the life stages of the stocks. The National Marine
Fisheries Service partially disapproved that amendment because
we depicted the life history stages and their distributions for
only 26 dominant stocks. The distribution information for the
minor stocks was not available to us, so that was not included.
The amendment is currently under litigation, filed by the
Florida Wildlife Federation.
The second amendment addressed bycatch, overfishing
criteria, rebuilding periods, and fishing communities. Prior to
the completion of this document, we implemented an amendment to
our shrimp plan for the Central and Western Gulf that reduced
bycatch by requiring bycatch reduction devices in the trawls.
An amendment addressing the shrimp trawl bycatch for the
Eastern Gulf is currently being prepared. Therefore, our
Sustainable Fisheries Act amendment only described the bycatch
in other fisheries, most of which was regulatory discards.
In the section on overfishing criteria, the council acted
conservatively by increasing our overfishing standard from 20
percent spawning potential ratio to about 30 percent, to assure
the stocks are managed at or above MSY. The effect of these new
standards, however, will be that additional stocks will be
classified as overfished and will require amendments to rebuild
those stocks.
In gathering the U.S. census data and other information to
characterize fishing communities, we found that most of these
data are inadequate for that purpose, and certainly inadequate
to assess the impacts of management measures on communities. We
did suggest, in an attachment to this testimony to Secretary
Daley, actions that could be taken to make the census data more
useful.
As you can see, the increased workload for the councils
from the Sustainable Fisheries Act will carry over into the
next several fiscal years. However, we would like to point out
the administration proposed to increase the fiscal year 2000
allocation for the eight councils by only 2.3 percent, which
will be inadequate to carry out that mandate.
I have appended the council's recommendations for
amendments to the Magnuson Act to this testimony. I thank you
for this opportunity to testify.
[The prepared statement and information of Mr. Swingle
follows:]
Prepared Statement of Wayne E. Swingle, Executive Director, Gulf of
Mexico Fishery Management Council
Madame Chairman and members of the Committee, I greatly appreciate
the opportunity to appear before you to present the Council's progress
in implementing the provisions of the Sustainable Fisheries Act (SFA),
and to provide you with the Council's recommendations for amendments to
the Magnuson-Stevens Act (MSA).
First, let me briefly acquaint you with the fisheries we manage,
and the status of those stocks under the SFA. The crustacean fisheries
we manage include shrimp, spiny lobster, and stone crab, none of which
are overfished or have ever been. The Gulf shrimp fishery is the
nation's most valuable fishery, having contributed 2.9 billion dollars
to the GNP in 1989, and certainly more than that now.
We also preserve and protect the corals and coral reef resources
and manage three finfish fisheries. Our reef fish fishery consists of
more than 40 stocks of snappers, groupers, and related species and
results in landings by recreational and commercial fisherman of about
30 million pounds annually. Red snapper is the principal snapper
species and is classified as overfished. We have been rebuilding this
stock since 1990, but with the new SFA standards, this task will extend
well into the next century. Gag, a major grouper stock, was recently
classified as approaching an overfished state. The Council took action
within the last 2 weeks to reduce fishing
mortality by about 17 percent, which should alleviate that condition.
We have also prohibited harvest and possession of two other minor reef
fish stocks (Jewfish and Nassau grouper) that were classified as
overfished in the early 1990's.
We also manage the fishery for coastal migratory pelagics species,
such as mackerels, cobia, dolphin, etc. In this species complex only
Gulf king and Spanish mackerels have been classified as overfished. We
began the rebuilding program for these stocks in 1985 and have
completely restored the Spanish mackerel stock and have nearly restored
King mackerel. We also manage Red drum, which is a major recreational
fishery in all our states. This stock would have been restored by 2001
under the current overfishing criteria, but it will take longer under
the new SFA criteria.
In complying with the SFA, we developed two generic amendments that
addressed those issues for our seven fishery management plans (FMPs).
The first of these was an amendment that identified and described
essential fish habitat (EFH) for the estuarine and marine life stages
of the stocks in our FMPs. The amendment also discussed threats to EFH
and management measures for enhancing EFH. NMFS partially disapproved
the amendment, largely because we had diagrams depicting the estuarine
and marine life stage distributions for only the 26 dominant stocks,
rather than for all of them (Attachment 1). This distribution
information for the minor stocks was not included because it was not
available (Attachment 2). This amendment is currently under litigation
filed by the Florida Wildlife Federation with the allegation that it
does not comply with the SFA because it does not include management
measures reducing the impact of gear on EFH.
The second generic amendment principally addressed bycatch,
overfishing criteria, rebuilding periods, and fishing communities. This
amendment has not yet been considered for approval by NMFS. Prior to
completion of this document an amendment to our Shrimp FMP was
implemented (May 1998) that reduces bycatch in that fishery by
requiring shrimp vessels fishing the Gulf, off the Florida panhandle
west to the Mexican border, to install bycatch reduction devices (BRDs)
in the trawls. An amendment addressing shrimp trawl bycatch for the
eastern Gulf is being prepared. Therefore, the generic amendment only
describes the bycatch in other fisheries, which primarily consists of
regulatory discards created by our management rules.
In the section on overfishing criteria, the Council acted
conservatively by increasing our overfishing standard from 20 percent
SPR (spawning potential ratio) to about 30 percent SPR to assure the
stocks are managed at or above the MSY (maximum sustainable yield)
level. The effect of these new standards, when approved, will likely be
that several additional reef fish stocks will be classified as
overfished and will require amendments to rebuild those stocks.
We have a fairly large number of coastal communities that likely
would be classified as fishing communities. However, in gathering the
U.S. Census data and other available information to characterize the
economic and social structure of these communities, we found most of
the data to be inadequate for that purpose, and certainly inadequate to
assess impacts of management measures on the communities. We did call
to the attention of Secretary Daley some actions that could be taken to
make the U.S. Census data more useful for these purposes (Attachment
3).
As you can see from this discussion, the increased work load on the
Councils from the SFA will carry over into the next several fiscal
years. We call to your attention that the Administration proposed to
increase the FY2000 allocation to the 8 Councils by only 2.3 percent,
which will be inadequate to carry out that mandate.
I have appended the Gulf Council's recommendations of amendments
needed under the re-authorization to the Magnuson-Stevens Act as
Attachment 4, and we appreciate your consideration of these
recommendations.
I thank you for this opportunity to testify on behalf of the Gulf
Council.
Attachment No. 1
National Marine Fisheries Service,
St. Petersburg, FL.
Mr. Hal Osburn, Chairman,
Gulf of Mexico Fishery Management Council,
Tampa, FL.
Dear Hal: This advises you that NMFS has partially approved the
Generic Essential Fish Habitat (EFH) Amendment to the Fishery
Management Plans of the Gulf of Mexico. All sections of the Amendment
have been approved, except for sections 5.0. (Identification and
Description of EFH) and 6.1 (Fishing Activities that may Adversely
Impact EFH). NMFS approved only the EFH designation for the 26 selected
species and coral complex in section 5.0 and only the fishing gear
impact assessments on EFH discussed in the categories of trawls,
recreational fishing, and traps in section 6.1.
I am asking that the Council place high priority on identifying and
describing EFH for all non-selected managed species in a subsequent
amendment as soon as possible. Additionally, the Council needs to
describe and address the impacts of all fishing gears used in all EFH
areas, also in future amendments. NMFS is committed to working
cooperatively with the Council to complete the remaining work. NMFS
expects to initiate a gear impact study this fiscal year, with emphasis
given to trawl gear. Reports on the status of this research will be
provided to the Council as the research progresses.
There appear to be errors in the text, tables and figures provided
in the amendment. It appears that information provided by the SEFSC on
Gag grouper EFH was unintentionally omitted relative to the
distribution of juvenile Gag in Apalachee Bay, and there is no
reference list for these fish. These errors should be corrected through
errata sheets.
Explicit, regional research needs sections should be included in
future EFH amendments to FMPs. Inclusion of this information will help
identify data gaps and focus needed research to improve EFH
identification and protection within the Gulf of Mexico. NMFS
appreciates the great effort expended by the Council to complete the
Gulf EFH amendment in a timely manner. We look forward to continuing
our close association with the Council in working to improve and refine
EFH designations, and in identifying and addressing adverse impacts to
EFH.
Sincerely yours,
Andrew J. Kemmerer,
Regional Administrator.
______
Attachment No. 2
Gulf of Mexico Fishery Management Council,
Tampa, FL, March 23, 1999.
Dr. Andrew J. Kremmerer, Regional Administrator,
St. Petersburg, FL.
Dear Dr. Kemmerer: The Gulf of Mexico Fishery Management Council
(Council) has reviewed your letter dated February 8, 1999 concerning
the partial approval of the Generic Essential Fish Habitat (EFH)
Amendment to the Fishery Management Plans of the Gulf of Mexico. In
Section 5.0, NMFS only approved EFH designations for the 26 selected
species and coral complex. In Section 6.1, only the fishing gear impact
assessments on EFH discussed in the categories of trawls, recreational
fishing, and traps were approved. With this letter, the Council would
like to comment on this partial EFH approval.
This Generic EFH Amendment was produced as a cooperative effort
between the Council, the National Marine Fisheries Service, the Gulf
States Marine Fisheries Commission, and the National Ocean Service. As
stated in the Sustainable Fisheries Act, ``NMFS, in consultation with
participants in the fishery, shall provide each Council with
recommendations and information regarding each fishery under that
Council's authority to assist it in the identification of essential
fish habitat, the adverse impacts on that habitat, and the actions that
should be considered to ensure the conservation and enhancement of that
habitat.'' This clearly states that it is NMFS's responsibility to
provide EFH information to the Council.
The final draft, National Marine Fisheries Service Essential Fish
Habitat Recommendations to the Gulf of Mexico Fishery Management
Council, states on Page 2 that ``The best available information was
used that could be gathered in the time available for preparation of
EFH descriptions. As additional information becomes available and as
research results are produced, it is expected that the level of
precision for designating EFH will be increased and that the
appropriate FMPs will be amended accordingly.'' Specifically with
regard to EFH designations the draft also states on Page 4 that ``. . .
even if maps of additional species was available, they would not
encompass any habitat that is not already included and identified as
EFH. EFH for the remaining managed species will be addressed in future
FMP amendments, as appropriate.'' The Council would have included
additional species EFH identifications and fishing gear impacts in the
Amendment if this information had been provided or available but it was
either not provided or unavailable. We reiterate that even if this data
was available, they would not include any additional habitat that is
not currently described as EFH for the selected species. It would be
ludicrous for the Council to proceed with an additional amendment at
this time and to attempt to specifically describe habitat of species
for which such habitat is unknown especially when EFH has already been
defined as all estuarine and marine habitat in the Gulf of Mexico (see
page 22 of the Amendment).
Regarding impacts of fishing gear, the draft Recommendations on
Page 11 State that ``The NMFS understands that information is presently
lacking in the Gulf of Mexico to draw definitive conclusions. As
additional information becomes available, it should be included in the
amendment.''
Concerning the errors in the amendment, the Council simply copied
the tables that were provided by NMFS. When corrected information is
provided to the Council, we will be happy to correct the problems.
As stated in the NMFS recommendations to the Council and in the
Amendment, as future information concerning individual species' EFH and
fishing gear impacts on EFH becomes available, the Council will update
the Amendment. Although your letter did not indicate a time frame for
developing an update, it did include the terms ``high priority'' and
``as soon as possible''. While the Council looks forward to working
closely with NMFS in the effort to further identify and describe EFH
and fishing gear impacts in the Gulf of Mexico, it is our view that the
primary responsibility to initiate gathering and developing this
information lies with NMFS. While Council staff will proceed with
gathering additional information for updating the Amendment, the
Council's priority for this task will mirror that of NMFS, and we will
proceed with appropriate amendments as data is made available.
Sincerely,
Hal Osburn,
Chairman.
______
Attachment No. 3
Gulf of Mexico Fishery Management Council,
Tampa, FL., June 23, 1999.
Hon. William M. Daley, Secretary of Commerce,
Washington, DC.
Dear Mr. Secretary: Pursuant to National Standard 8 of the
Sustainable Fisheries Act, the Gulf of Mexico Fishery Management
Council (Council) is required to assess the impacts of fishery
regulations on fishing communities. In its Generic Sustainable
Fisheries Act Amendment of several fishery management plans, the
Council attempted to delineate the socioeconomic characteristics of
fishing communities within the coastal counties of the five Gulf
states. Census data for 1970,1980, and 1990 was assembled by the
Louisiana State University through a MARFIN-funded study and used for
this purpose. Because the census data aggregated information for
persons employed in agriculture, fishing, and mining industries, and
aggregated information on self-employed persons for the farming,
fishing, and forestry sectors, the data cannot be used to assess
impacts of measures on communities or even to provide an adequate
representation of fishing communities. To this effect, the Counci1 is
requesting that for the year 2000 census, employment data in coastal
counties should be collected and reported separately for fishing.
We believe modifying the census for the coastal counties would be
adequate to make the data set usable for fishery analyses related to
fishing communities. We also feel it would be very advantageous if
technical personnel within NMFS and NOAA were utilized to modify the
census forms for the coastal counties so that the data is more
appropriate in economically characterizing the communities. We
sincerely hope for your favorable action on this matter that is of
vital importance to all of the Councils.
Sincerely,
Hal Osburn,
Chairman.
______
Attachment No. 4
Magnuson-Stevens Act (MSA) Reauthorization Issues--Gulf of Mexico
Fishery Management Council Recommendations
rescinding the congressional prohibitions on ifos (or itos)
Currently Section 303(d)(1) of MSA prohibits a Council from
submitting or the Secretary approving an IFQ system before October 1,
2000. Section 407(b) prohibits the Gulf Council from undertaking or
continuing the preparation of a red snapper individual fishing quota
(IFQ) or any system that provides for the consolidation of permits to
create a trip limit before October 1, 2000. If the reauthorization
process is completed in 1999, the Council supports rescinding those
provisions before the year 2000 deadline. The Council also opposes
extending the moratorium on IFQs.
regional flexibility in designing ifo systems
The Council, while philosophically opposed to fees that are not
regional in nature and dedicated by the Councils, is concerned over the
ability of the overcapitalized fleets to pay fees. However, they do
support the National Academy of Science (NAS) recommendation that
Congressional action allow the maximum flexibility to the Councils in
designing IFQ systems and allowing flexibility in setting the fees to
be charged for initial allocations, first sale and leasing of IFQs [MSA
Sections 303(d)(2-5) and 304(d)(2)].
coordinated review and approval of plan amendments and regulations
The Sustainable Fisheries Act (SFA) amended Sections 304(a) and (b)
of the MSA to create separate sections for review and approval of plans
and for review and approval of regulations. This has resulted in the
approval process for these two actions proceeding in different time
periods, rather than concurrently as before the SFA Amendment, which
also deleted the 304(a) provision allowing disapproval or partial
disapproval of the amendment within the first 15 days. The Council and
the Timely Review Panel recommend these sections be modified to include
the original language allowing concurrent approval actions for plan
amendments and regulations and providing for the initial 15-day
disapproval process.
regulating non-fishing activities of vessels
The Council recommends that Section 303(b) of MSA be amended to
provide authority to Councils to regulate non-fishing activities that
adversely impact fisheries or essential fish habitat (EFH) by vessels.
One of the most damaging activities to such habitat is anchoring of
large vessels near habitat areas of particular concern (HAPC) or other
EFH (e.g., coral reefs, etc.). When these ships swing on the chain
deployed for anchoring in 100 feet, 20 to 70 acres of bottom may be
plowed up by the chain dragging over the bottom. Regulation of this
type of activity should be allowed.
bycatch
The MSA, under Section 405, Incidental Harvest Research, provided
for conclusion of a program to (1) assess the impact on fishery
resources of incidental harvest by the shrimp trawl fishery of the Gulf
and South Atlantic, and (2) development of technological devices or
other changes to fishing operations necessary to minimize incidental
mortality of bycatch in the course of shrimp trawl activity, etc.
Because this program has been the principal vehicle under which
research and data collection has been carried out, the Council
recommends that this program be extended and funded for another 3
years.
gulf of mexico red snapper research (section 407)
The research provided for has been completed. This section also
provides, in Subsection (c), that a referendum be conducted by the
National Marine Fisheries Service (NMFS) of persons holding commercial
red snapper licenses, to determine if a majority support proceeding
with an IFQ program and in Subsection (d) makes the recreational red
snapper allocation a quota and provides for closure of the fishery when
that quota is reached. The Council recommends that both subsections be
rescinded. The recreational fishery closure is having severe adverse
economic impacts on the charter and head boat sectors. This year that
fishery is projected to close on August 29. As the red snapper stock is
being restored, the size of fish increases each year and the closure
comes earlier each year, e.g., November 27 in 1997 to August 29 in
1999.
collection of economic data [section 303(b)(7)]
Situation.--Language throughout the MSA specifies the collection of
biological, economic, and sociocultural data to meet specific
objectives of the Act and for the fishery management councils to
consider in their deliberations. However, Section 303(b)(7)
specifically excludes the collection of economic data, and Section
402(a) precludes Councils from collecting ``proprietary or confidential
commercial or financial information.'' However, NMFS should not be
precluded from collecting such proprietary information so long as it is
treated as confidential information under Section 402. Without this
economic data, multi-disciplinary analysis of fishery management
regulations is not possible, preventing NMFS/Councils from satisfying
the requirements of the Act and of the Regulatory Flexibility Act
(RFA). Economic data is required to meet the requirements of RFA and
other laws, yet MSA restricts the economic information that can be
collected under the authority of the MSA.
Recommendation.--Amend the Act to eliminate these MSA restrictions
on the collection of economic data. Amending Section 303(b)(7) by
removing ``other than economic data'' would allow NMFS to require fish
processors who first receive fish that are subject to the plan to
submit economic data.
Discussion.--Removing this current restriction will strengthen the
ability of NMFS to collect necessary data and eliminate the appearance
of a contradiction in the law requiring economic analysis without
allowing the collection of necessary data. NMFS and the Councils need
data to be able to comply with RFA, and we should not be prohibited
from requiring it.
confidentiality of information [section 402(b)]
Situation.--Section 402 replaced and modified former Sections
303(d) and (e). The SFA replaced the word ``statistics'' with the word
``information'' expanded confidential protection from information
submitted in compliance with the requirements of an FMP to information
submitted in compliance with any requirement of the MSA, and broadened
the exceptions to confidentiality to allow for disclosure in several
new circumstances.
Recommendation.--The following draft language clarifies the word
``information'' in 402(b)(1) and (2) by adding the same parenthetical
used in (a), and deletes the provision regarding observer information.
The revised section would read as follows (additions in bold):
(b) Confidentiality of Information.
``(1) Any information submitted to the Secretary by any person in
compliance with any requirement under this Act and that would disclose
proprietary or confidential commercial or financial information
regarding fishing operations or fish processing operations shall not be
disclosed, except:
a. To Federal employees and Council employees who are responsible
for fishery management plan development and monitoring;
b. To State or Marine Fisheries Commission employees pursuant to an
agreement with the Secretary that prevents public disclosure of the
identity or business of any person;
c. When required by court order;
d. When such information is used to verify catch under an
individual fishing quota program; or
e. When the Secretary has obtained written authorization from the
person submitting such information to release such information to
persons for reasons not otherwise provided for in this subsection, and
such release does not violate other requirements of this Act.''
The Secretary shall, by regulation, prescribe such procedures as
may be necessary to preserve the confidentiality of information
submitted in compliance with any requirement under this Act and that
would disclose proprietary or confidential commercial or financial
information regarding fishing operations or fish processing operations,
except that the Secretary may release or make public any such
information in any aggregate or summary form which does not directly or
indirectly disclose the identity or business of any person who submits
such information. Nothing in this subsection shall be interpreted or
construed to prevent the use for conservation and management purposes
by the Secretary or with the approval of the Secretary, the Council, of
any information submitted in compliance with any requirement or
regulation under this Act or the use, release, or publication of
bycatch information pursuant to paragraph (1)(E).
observer programs
Reaffirm support to give discretionary authority to the Councils to
establish fees to help fund observer programs. This authority would be
the same as granted to the North Pacific Council under Section 313 for
observers.
congressional funding of observer programs
Situation.--Currently, the Secretary is not authorized to collect
fees from the fishing industry for funding of observer programs.
Funding of observer programs has been through MSA or MMPA
appropriations.
The lack of adequate appropriations to run observer programs has
resulted in
statistically inadequate observer programs that do not satisfy the
monitoring requirements of the statutes. This is of particular concern
with regard to observer requirements that are a requirement or
condition of an ESA biological opinion or a condition of a take
reduction plan or take exemption under the MMPA. In addition, funding
is taken from extremely important recovery and rebuilding programs to
pay for the observer requirements. Consequently, investigations into
fishing practices or gear modification (or other areas that would
actually prevent the lethal take from occurring or causing serious
injury in the first place) cannot proceed.
Recommendation.--If the MSA is not amended to authorize the
Secretary to collect fees from the fishing industry, then those
fisheries that are required to carry observers as a condition of
biological opinion under ESA, or as a condition of a take exemption
under the MMPA, should be funded through the Congressional
appropriations directed toward fisheries management under the MSA.
defining overfish and overfishing [section 3(29)]
Currently, both overfished and overfishing are defined as a rate of
fishing mortality that jeopardizes the capacity of a fishery to produce
maximum sustainable yield (MSY) on a continuing basis. The
Administration proposed redefining these to be consistent with NMFS'
guidelines in the guidelines for National Standard 1. The Council
opposes this change and feels no change is needed.
state fishery jurisdiction
The Council supports language in the Act to establish the authority
of the states to manage species harvested in the exclusive economic
zone (EEZ) that occur in both the State territorial waters and the EEZ,
in the absence of a council fishery management plan similar to the
language specified for Alaska in the last amendment to the Act.
enforcement
The Council supports the implementation of cooperative state/
Federal enforcement programs patterned after the NMFS/South Carolina
enforcement cooperative agreement. While it is not necessary to amend
the Act to establish such programs it is consistent with the changes
needed to enhance management under the Act to suggest to Congress that
they consider establishing and funding such cooperative state/Federal
programs.
council member compensation
The Act should specify that Council member compensation be based on
the General Schedule that includes locality pay. This action would
provide for a more equitable salary compensation. Salaries of members
serving in Alaska, the Caribbean, and Western Pacific are adjusted by
COLA. The salary of the Federal members of the Councils includes
locality pay. The DOC has issued a legal opinion that prohibits Council
members in the continental U.S. from receiving locality pay; therefore,
Congressional action is necessary.
emergency rule vote of nmfs regional administrator on the council
Proposal.--Modify the language of Section 305(c)(2)(A) as follows
(new language bolded):
(A) The Secretary shall promulgate emergency regulations or interim
measures under paragraph (1) to address the emergency or overfishing if
the Council, by unanimous vote of the members (excluding the NMFS
Regional Administrator) who are voting members, requests the taking of
such action; and . . .
Currently, the NMFS RA is instructed to cast a negative vote even
if he/she supports the emergency or interim action to preserve the
Secretary's authority to reject the request. The Council believes that
Congressional intent is being violated by that policy.
disclosure of financial interest and recusal
Proposal.--Modify the language of Section 302(j)(2) as follows (new
language bolded):
(2) Each affected individual must disclose any financial interest
held by:
(A) that individual;
(B) the spouse, minor child, or partner of that individual; and
(C) any organization (other than the Council) in which that
individual is serving as an officer director, trustee, partner, or
employee; in any harvesting, processing, or marketing activity that is
being, or will be, undertaken within any fishery over which the Council
concerned has jurisdiction, or any financial interest in essential fish
habitat (EFH).
The Council feels an interest in EFH should be treated from an
ethical point of view, the same as an interest in fishery operations,
in determining whether a Council member should abstain from voting. The
effect of this action would be to exclude the Council member who held
interests in/or related to EFH from the provisions of Section 208 of
title 18, USC, which would prevent that person from voting on habitat
protection issues. However, if he/she were able to file a disclosure
notice under 302(j) of the MSA they could vote unless that action would
substantially change the financial interests of the member. This action
would put them on the same basis as a person having an interest in a
commercial harvesting, processing, or marketing activity.
______
Magnuson-Stevens Act (MSA) Reauthorization Issues Council
Chairmen's Recommendations
rescinding the congressional prohibitions on ifqs (or itqs)
Currently Section 303(d)(1) of MSA prohibits a Council from
submitting or the Secretary approving an IFQ system before October 1,
2000. Section 407(b) prohibits the Gulf Council from undertaking or
continuing the preparation of a red snapper individual fishing quota
(IFQ) or any system that provides for the consolidation of permits to
create a trip limit before October 1, 2000. If the reauthorization
process is completed in 1999, the Council chairmen support rescinding
those provisions before the year 2000 deadline. The chairmen also
oppose extending the moratorium on IFQs.
regional flexibility in designing ifq systems
The Council chairmen are philosophically opposed to fees that are
not regional in nature and dedicated by the Councils, and are concerned
over the ability of the overcapitalized fleets to pay fees. However,
they do support the National Academy of Science (NAS) recommendation
that Congressional action allow the maximum flexibility to the Councils
in designing IFQ systems and allowing flexibility in setting the fees
to be charged for initial allocations, first sale and leasing of IFQs
[MSA Sections 303(d)(2-5) and 304(d)(2)].
coordinated review and approval of plan amendments and regulations
The Sustainable Fisheries Act (SFA) amended Sections 304(a) and (b)
of the MSA to create separate sections for review and approval of plans
and for review and approval of regulations. This has resulted in the
approval process for these two actions proceeding in different time
periods, rather than concurrently as before the SFA Amendment, which
also deleted the 304(a) provision allowing disapproval or partial
disapproval of the amendment within the first 15 days. The Council
chairmen and the Timely Review Panel recommend these sections be
modified to include the original language allowing concurrent approval
actions for plan amendments and regulations and providing for the
initial 15-day disapproval process.
regulating non-fishing activities of vessels
The Council chairmen recommend that Section 303(b) of MSA be
amended to provide authority to Councils to regulate non-fishing
activities that adversely impact fisheries or essential fish habitat
(EFH) by vessels. One of the most damaging activities to such habitat
is anchoring of large vessels near habitat areas of particular concern
(HAPC) or other EFH (e.g., coral reefs, etc.). When these ships swing
on the chain deployed for anchoring in 100 feet, 20 to 70 acres of
bottom may be plowed up by the chain dragging over the bottom.
Regulation of this type of activity should be allowed.
collection of economic data [section 303(b)(7)]
Situation.--Language throughout the MSA specifies the collection of
biological, economic, and sociocultural data to meet specific
objectives of the Act and for the fishery management councils to
consider in their deliberations. However, Section 303(b)(7)
specifically excludes the collection of economic data, and Section
402(a) precludes Councils from collecting ``proprietary or confidential
commercial or financial information.'' However, NMFS should not be
precluded from collecting such proprietary information so long as it is
treated as confidential information under Section 402. Without this
economic data, multi-disciplinary analysis of fishery management
regulations is not possible, preventing NMFS/Councils from satisfying
the requirements of the Act and of the Regulatory Flexibility Act
(RFA). Economic data is required to meet the requirements of RFA and
other laws, yet MSA restricts the economic information that can be
collected under the authority of the MSA.
Recommendation.--Amend the Act to eliminate these MSA restrictions
on the collection of economic data. Amending Section 303(b)(7) by
removing ``other than economic data'' would allow NMFS to require fish
processors who first receive fish that are subject to the plan to
submit economic data.
Discussion.--Removing this current restriction will strengthen the
ability of NMFS to collect necessary data and eliminate the appearance
of a contradiction in the law requiring economic analysis without
allowing the collection of necessary data. NMFS and the Councils need
data to be able to comply with RFA, and we should not be prohibited
from requiring it.
confidentiality of information [section 402(b)]
Situation.--Section 402 replaced and modified former Sections
303(d) and (e). The SFA replaced the word ``statistics'' with the word
``information'' expanded confidential protection from information
submitted in compliance with the requirements of an FMP to information
submitted in compliance with any requirement of the MSA, and broadened
the exceptions to confidentiality to allow for disclosure in several
new circumstances.
Recommendation.--The following draft language clarifies the word
``information'' in 402(b)(1) and (2) by adding the same parenthetical
used in (a), and deletes the provision regarding observer information.
The revised section would read as follows (additions in bold):
(b) Confidentiality of Information.
``(1) Any information submitted to the Secretary by any person in
compliance with any requirement under this Act and that would disclose
proprietary or confidential commercial or financial information
regarding fishing operations or fish processing operations shall not be
disclosed, except:
a. To Federal employees and Council employees who are responsible
for fishery management plan development and monitoring;
b. To State or Marine Fisheries Commission employees pursuant to an
agreement with the Secretary that prevents public disclosure of the
identity or business of any person;
c. When required by court order;
d. When such information is used to verify catch under an
individual fishing quota program; or
e. When the Secretary has obtained written authorization from the
person submitting such information to release such information to
persons for reasons not otherwise provided for in this subsection, and
such release does not violate other requirements of this Act.''
The Secretary shall, by regulation, prescribe such procedures as
may be necessary to preserve the confidentiality of information
submitted in compliance with any requirement under this Act and that
would disclose proprietary or confidential commercial or financial
information regarding fishing operations or fish processing operations,
except that the Secretary may release or make public any such
information in any aggregate or summary form which does not directly or
indirectly disclose the identity or business of any person who submits
such information. Nothing in this subsection shall be interpreted or
construed to prevent the use for conservation and management purposes
by the Secretary or with the approval of the Secretary, the Council, of
any information submitted in compliance with any requirement or
regulation under this Act or the use, release, or publication of
bycatch information pursuant to paragraph (1)(E).
enforcement
The Council chairmen support the implementation of a cooperative
state/Federal enforcement programs patterned after the NMFS/South
Carolina enforcement cooperative agreement. While it is not necessary
to amend the Act to establish such programs it is consistent with the
changes needed to enhance management under the Act to suggest to
Congress that they consider establishing and funding such cooperative
state/Federal programs.
council member compensation
The Act should specify that Council member compensation be based on
the General Schedule that includes locality pay. This action would
provide for a more equitable salary compensation. Salaries of members
serving in Alaska, the Caribbean, and Western Pacific are adjusted by
COLA. The salary of the Federal members of the Councils includes
locality pay. The DOC has issued a legal opinion that prohibits Council
members in the continental U.S. from receiving locality pay; therefore,
Congressional action is necessary.
observer program
Reaffirm support to give discretionary authority to the Council to
establish fees to help fund observer programs. This authority would be
the same as granted to the North Pacific Council under Section 313 for
observers.
essential fish habitat
The 1996 MSFCMA required the Councils to identify and describe EFH,
but gave little direction on how to designate EFH. The definition of
EFH, i.e., ``those waters and substrate necessary to fish for spawning,
breeding, feeding or growth to maturity,'' allows for a broad
interpretation. Data on species' relative abundance and distribution
for each life history stage was interpreted in a risk-averse manner, as
directed by the interim final rule. This led to EFH designations that
were criticized by some, as being too far reaching. ``If everything is
designated as essential then nothing is essential,'' was a common theme
throughout the EFH designation process, on a national and regional
scale. Either the EFH definition should be modified, or the guidance on
how to use different types of data should be more specific.
Data restrictions also hampered the EFH designation process. In the
short-term, additional data could be used to refine the EFH
designations. The MSFCMA also requires that EFH designations are
reviewed every 5 years, which adds an additional burden to NMFS and the
Councils and creates long-term and short-term funding and process
needs. This review requirement should be eliminated.
interim actions
Section 305(c) should be changed to allow adoption of interim rules
for any of the 10 National Standards, not just to ``. . . reduce
overfishing . . .'' under National Standard 1.
rebuilding periods
The Councils should have greater latitude for specifying rebuilding
periods than is provided under the national standard guidelines, which
are based entirely on biological considerations. The social and
economic factors should be given equal or greater consideration in
determining schedules that result in the Greatest Net Benefit to the
Nation.
redefine ``overfishing''
Problem: MSY-based definition of overfishing:
MSY is an outdated and possibly inappropriate concept for
fisheries management;
Determining accurate estimations of MSY requires fishing
at a range of effort, including well beyond the point of MSY;
MSY does not reflect the difficulties in estimation nor
the dangers of using it as a management objective;
MSY changes over time due to environmental and other
conditions, that may not directly be related to SPR;
Adopting (or relaxing) various management measures may
also change the resulting MSY.
Proposal.--The definition for overfishing should be broadened and
made more flexible to accommodate other methods to assess overfishing
that may be more appropriate based on the nature of the fishery and
type and availability of data. For example it may be more appropriate
to define overfishing based on the spawning biomass, exploitation
rates, etc.
receive money from any state or federal government organization
Problem: Council can only receive funds through the Department of
Commerce/NOAA/NMFS:
The Councils work with other government organizations to support
research, workshops, conferences or to procure contractual services. In
Hawaii, examples include: Department of State and MHLC4; Department of
the Interior and Seabird Workshop; State of Hawaii Office of Hawaiian
Affairs and demonstration projects. In each of these cases, complex
dual contacts, timely pass troughs and unnecessary administration/grant
oversight were involved to complete the task.
Proposal.--Give Councils authority to receive money or support from
other local, State and Federal Government agencies and non-profit
organizations. This would be consistent with the existing provision of
the MSA Sec. 302 (f)(4) that requires the Administrator of General
Services to provide support to the Councils.
bycatch issues
Problem.--Inconsistent definition of bycatch between Atlantic and
Pacific. In the Atlantic, highly migratory species harvested in catch
and release fisheries managed by the Secretary under 304(g) of the MSA
or the Atlantic Tunas Convention Act are not considered bycatch where
in the Pacific they are.
Proposal.--HMS in the Pacific managed under a Western Pacific
Council FMP that are tagged and released alive under a scientific or
recreational fishery tag and release program should not be considered
bycatch.
Note.--There is an inconsistency between the MSA definition of
bycatch and the NMFS Bycatch Plan. NMFS definition is much broader and
includes marine mammals and birds and retention of non-target species.
The Council chairmen prefer the MSA definition.
The Council chairmen also wish to retain turtles in the definition
of ``fish'' because of their importance in every region and especially
in past and possibly future fisheries pursued by indigenous peoples of
the Western Pacific Region.
fmp review program
Problem.--In the review of recommended management measures, NMFS
has failed to adequately communicate to the Councils perceived problems
in a timely manner.
Proposal.--Mandate that NMFS consult with the Councils before
disapproving FMPs, amendments or rule changes under frameworking
procedures.
emergency rule vote of nmfs regional administrator on the council
Proposal.--Modify the language of Section 305(c)(2)(A) as follows
(new language bolded):
(A) The Secretary shall promulgate emergency regulations or interim
measures under paragraph (1) to address the emergency or overfishing if
the Council, by unanimous vote of the members (excluding the NMFS
Regional Administrator) who are voting members, requests the taking of
such action; and . . .
Currently the NMFS RA is instructed to cast a negative vote even if
he/she supports the emergency or interim action to preserve the
Secretary's authority to reject the request. The Council chairmen
believe that Congressional intent is being violated by that policy.
mafmc at-large seat
The Council chairmen recommend that an additional At-Large seat be
added to the MAFMC along with funding for that purpose. If such a seat
was added, most of the time it would likely be filled by the State of
North Carolina. This would allow the State to have both a recreational
and commercial representative on the MAFMC.
Senator Snowe. Thank you.
Mr. Delaney.
STATEMENT OF GLENN ROGER DELANEY, U.S. COMMISSIONER,
INTERNATIONAL COMMISSION FOR CONSERVATION OF ATLANTIC TUNAS
Mr. Delaney. Thank you.
Madam Chair, as one of the three Commissioners appointed by
the President to ICCAT, I am very grateful for the opportunity
to provide testimony on the implementation of the Sustainable
Fisheries Act, with particular respect to Atlantic highly
migratory species of fish. It is not often that these species
get this level of attention, and I greatly appreciate that.
I would also say that if your votes this morning were to
reduce my taxes, it was well worth our time to sit here and
wait for you. [Laughter.]
Senator Snowe. We are getting there.
Mr. Delaney. For the record, ICCAT is the International
Commission for Conservation of Atlantic Tunas, comprised of 27
members, representing over 40 nations. ICCAT conducts research
and sets international conservation regulations for such
species as Atlantic swordfish, the various billfish species,
and the five major species of Atlantic tunas.
Given that our time is our brief, I would like to make some
very simple points: because Atlantic highly migratory species
are so important, and because the biology and fisheries for
these species are so unique, these species must continue to be
treated under the Act separately and differently from those
species under regional council authority. In fact, I believe
those distinctions need to be further clarified and
strengthened.
But, first, Atlantic highly migratory species are important
to the economy of our fishing communities. The ex-vessel value
of commercial fisheries for these species is about $100
million, involving over 10,000 vessels from Maine to Texas.
This value is comparable to such major fisheries as Atlantic
sea scallops. I might note that it has provided an important
alternative source of income for New England groundfishermen.
U.S. recreational fishermen take 100,000 trips each year to
fish for these species, spending $200 million at billfish
tournaments alone. The biology of these fish is also very
unique. A bluefin tuna can make a 4,200 mile transatlantic
migration in 50 days, due in part to its ability to regulate
its body temperature as much as 10 degrees above that of the
water. Swordfish are ubiquitous in the Atlantic, migrating vast
distances and depths, following currents, temperature
gradients, and even the cycle of daylight.
The fisheries for these species are also unique, and among
the most distant water of all. U.S. Atlantic swordfishermen may
travel 8 or more days just for the opportunity to compete side
by side with ships from 20 nations, all fishing on the same
stocks. When they return to port, our fishermen have to compete
with the 80 nations that export swordfish to the U.S. market.
Nevertheless, as important as these species are to the
United States, the reality is that the total U.S. catch of all
ICCAT-managed species represents less than 5 percent of the
total harvest of these species by all ICCAT nations. This is
perhaps the most important distinction from other U.S.
fisheries, because it means that the United States cannot
conserve, manage or rebuild Atlantic highly migratory species
unilaterally.
Consequently, U.S. policy has long recognized that
multilateral cooperation throughout the range of these species
is essential to
effective conservation. I believe this reauthorization provides
the opportunity to strengthen this policy through greater
linkage of domestic management to U.S. international policy
objectives and obligations at ICCAT. I would like to provide
two specific examples.
First, section 304(e), and other sections of the Act,
should be clarified to specifically reflect the policy set
forth by Madam Chair, Senator Breaux, and other members of this
committee in a January 1998 letter to NOAA, providing extensive
clarification of congressional intent regarding the SFA. I
quote from this letter:
Finally, the law makes clear that U.S. regulatory measures,
including rebuilding schedules for fisheries managed under an
international agreement to which the United States is a party,
must be consistent with the recommendations or regulatory
measures adopted under the agreement.
As you stated, this policy should be clarified not only in
section 304(e), but through the Act, where appropriate.
My second example regards section 304(g), which sets forth
plan development provisions specific to highly migratory
species. I believe this section should be clarified to ensure
that our domestic implementation of ICCAT conservation measures
reflects the explicit intent of U.S. Commissioners as to how
such measures are applied to U.S. fishermen and women.
I draw the analogy to congressional intent in legislative
history to which NMFS rightly looks when implementing fishery
legislation. However, when NMFS implements fishery agreements
made at ICCAT, there is no analogy to such legislative history
that documents the Commissioners' intent. This is a problem
because, as an ICCAT Commissioner, I have two fundamental
responsibilities: first, to protect the resource; and, second,
to protect the best interests of U.S. fishermen and women, both
commercial and recreational.
What and how the Commissioners negotiate depends heavily on
our knowing how a particular conservation measure will be
implemented domestically and how it will affect the lives and
families of U.S. fishermen in their communities back home.
Unfortunately, domestic implementation of our ICCAT
conservation obligations has not always reflected the express
intent of the Commissioners on some very key issues. This
undermines the role of the Commissioners, and will limit our
ability to be the aggressive conservation leaders at ICCAT we
have become in recent years.
I would also note that it has led to a number of lawsuits--
I think there are nine now--for the highly migratory species
plan--on one plan alone.
I believe that if there is specific Commissioner intent
associated with a specific ICCAT obligation, and that intent is
not inconsistent with the Act, then such intent should be
reflected in the relevant implementing plans and regulations.
In closing, I would be grateful for the opportunity to work
with the Committee to develop an appropriate process and
provision to address this concern. I would be happy to respond
to any questions you may have. I would also like to
particularly thank Madam Chair and the other members, Senator
Breaux and Senator Kerry, and others of this Committee, who
have been very supportive of our efforts to solve the many
problems at ICCAT and to try to make ICCAT work.
You have committed your time and efforts to understand
these fisheries and the ICCAT process, and have even committed
the time of your staff to directly participate in our meetings.
This has been a great contribution, and I know all the
Commissioners greatly appreciate it. Thank you very much.
[The prepared statement of Mr. Delaney follows:]
Prepared Statement of Glenn Roger Delaney, U.S. Commissioner,
International Commission for Conservation of Atlantic Tunas
Madam Chair, Senators, ladies and gentlemen, as one of the three
U.S. Commissioners appointed by the President to ICCAT, I am grateful
for the opportunity to provide testimony on the implementation of the
Sustainable Fisheries Act with respect to Atlantic Highly Migratory
Species of fish.
For the record, ICCAT is the International Commission for the
Conservation of Atlantic Tunas which is a 27-member forum representing
over 40 nations including the U.S. Its charge is to conduct research
and to conserve and manage commercial and recreational fisheries for
highly migratory species throughout the Atlantic Ocean. These include
swordfish, the billfish species--Blue and White marlin, Sailfish and
Spearfish, and the Atlantic tunas including: Bluefin, Bigeye,
Yellowfin, Skipjack and Albacore. ICCAT also collects important catch
data on species of oceanic sharks such as blue, porbeagle, mako and
thresher.
The Sustainable Fisheries Act was indeed a remarkable achievement
by Congress and this Committee in particular. It was perhaps the most
comprehensive review and revision of the Act ever accomplished.
Nevertheless, due in part to our experience with the implementation of
the SFA to date, and due in other part to the fundamental reality that
fisheries research, conservation and management are forever dynamic,
still further revisions will be necessary. This certainly holds true
for the highly migratory species policy and provisions of the Act and
so I am very pleased to have this considered as part of the process.
Given that my time is very brief, I would like to make some very
simple points: that highly migratory species are very important; that
highly migratory species biology and fisheries are very unique; and,
because of this, highly migratory species must continue to be treated
in the Act in a manner that is very distinct from those fisheries under
Regional Council authority. In fact, I believe those distinctions need
to be further clarified and strengthened.
First, I would like to present a few facts from the NMFS socio-
economic data regarding the economic importance of these fisheries.
By my own estimates commercial fisheries for Atlantic
highly migratory species have an ex-vessel value of about $100 million
involving over 10,000 vessels from Maine to Texas. This accounts for
about 5 percent of the ex-vessel value of total U.S. catch of all
finfish species and is comparable in value, for example, to the total
value of the New England Sea Scallop fishery as well as to the Atlantic
and Gulf of Mexico menhaden fishery, one of the largest volume
fisheries in the U.S.
NMFS has literally issued 20,194 permits to U.S.
commercial and recreational fishermen just to fish for Bluefin Tuna,
and this fishery has provided an important alternative source of income
to the currently depressed New England groundfish economy.
There are nearly 400 permitted U.S. pelagic longline
vessels with over 1,400 crew members supporting about 3,500 shoreside
jobs, and NMFS has issued permits to over 200 U.S. dealers just to
handle their $19 million (ex-vessel) swordfish catch.
NMFS estimates U.S. recreational fishermen spend 100,000
fishing trips per year targeting these large pelagic fish. Billfish
tournament anglers alone spend nearly $200 million each year which
equates to about $4,000 per billfish caught.
Fresh Atlantic swordfish and tuna are among the most
expensive seafood dishes in the most expensive restaurants in America.
At times, the best quality U.S.-caught Atlantic Bluefin Tuna have sold
for over $25,000 at the Tsukiji fish market in Tokyo.
As I stated, HMS are also very different--their biology is
different and their fisheries are different. In terms of biology:
Bluefin Tuna have been documented to make a 4,200-nautical
mile trans-
Atlantic migration in as few as 50 days and those tagged this summer
off Maine and Massachusetts by Dr. Molly Lutcavage of the New England
Aquarium will likely show up off Iceland, in the Sargasso Sea, or in
the Mediterranean.
Although everyone knows fish are cold blooded, Bluefin
Tuna are actually able to regulate their body temperatures as much as
10 degrees above the water temperature. This adaptation has allowed
this species to extend its range far beyond that of tropical and semi-
tropical tunas.
Swordfish are virtually ubiquitous in the North and South
Atlantic Ocean, migrating vast distances as they follow currents and
temperature gradients. And, unlike nearly all other U.S. fishery
resources, highly migratory species are the apex predators of the
marine ecosystem. They tend to be long lived and reproduce at a
relatively late age.
In terms of the fisheries:
Compared to most other U.S. fisheries, which occur
nearshore and well within the U.S. EEZ, some HMS fisheries are among
the most distant water of all. Some of you may have come to appreciate
just how distant after reading the recent best-seller ``The Perfect
Storm''.
U.S. Atlantic swordfishermen may travel 8 or more days in
relatively small vessels just to reach their fishing grounds where they
then have to compete side-by-side with fishing ships from 20 or more
nations all fishing on the same stocks. If and when they make it back
home, our swordfishermen then have to compete with the 80 nations that
export swordfish to the U.S. market.
Finally, although these fisheries are very important to
the U.S. in terms of our fisheries economy and recreation, the total
U.S. catch of all ICCAT-managed species represents less than 5 percent
of the total harvest of these species by all ICCAT fishing nations.
This is perhaps the most critical difference because it means that,
unlike nearly all other U.S. fish stocks, the U.S. cannot conserve,
manage or rebuild any Atlantic highly migratory species unilaterally.
Instead, U.S. policy recognizes that effective conservation and
management of these species can only be achieved on a multilateral
cooperative basis throughout their range.
Based on this policy and our experience with the implementation of
the SFA, I believe there needs to be an even clearer and stronger link
made in the Act between our international policy objectives for HMS and
the resulting domestic implementation. I will provide two specific
examples.
First, as you will recall Madam Chair, there had been an extensive
debate with NMFS as to the proper interpretation of the section 304(e)
rebuilding provisions as they related to HMS. Thanks to the
interpretations provided by you, Senator Breaux and other members of
this Committee, we have thus far prevented the `tail from wagging the
dog' in terms of having domestic fishery management plans preempt and
dictate U.S. international policy at ICCAT. Still, I believe this
reauthorization process provides an opportunity we should take to
clarify your intent in the statute as so well stated in your and
Senator Breaux's January 28, 1998, letter to Terry Garcia, and I quote:
Finally, the law makes clear that U.S. regulatory measures,
including rebuilding schedules, for fisheries managed under an
international agreement to which the United States is a party
must be consistent with the recommendations or regulatory
measures adopted under the agreement.
This policy also needs to be strengthened in section 304(g), which
includes the fishery management plan development provisions that are
specific to highly migratory species. In that subsection, I believe a
stronger linkage of plan development to what I will call `Commissioner
intent' is needed.
I draw the analogy to the notion of Congressional intent in
legislative history to which the Administration rightly looks when
promulgating plans and regulations to implement fishery legislation.
Though not binding, it provides critical guidance to the agency.
However, when NMFS promulgates fishery management plans and regulations
to implement our obligations under ICCAT agreements, there is no
analogy to such legislative history that documents ``Commissioner
intent''.
Why is this a problem? When I go to ICCAT as a Commissioner I
believe I have two fundamental responsibilities: (1) to protect the
resource, and (2) to protect the interests and maximize the benefits to
U.S. fishermen. Both are weighty responsibilities that all the
Commissioners take every seriously.
When we make proposals and negotiate with other nations at ICCAT,
and enter the United States into international conservation
obligations, it is always with the best interests of U.S. fishermen,
both commercial and recreational, in the forefront of our minds. What
and how we negotiate depends heavily on our having a reasonably strong
degree of confidence as to how a particular conservation measure will
be implemented by the U.S., how it will be applied to the various U.S.
fishery sectors and, thus, how it will affect the lives and families of
U.S. fishermen back home.
Unfortunately, domestic implementation of our ICCAT conservation
obligations has not always reflected the express intent of the
Commissioners on some key issues. This makes me very uncomfortable. Not
knowing what effect our negotiations and agreements will have on U.S.
fishermen and their coastal communities seriously undermines our role
as Commissioners. Ultimately, I think it will limit our ability to be
the aggressive conservation leaders at ICCAT we have been in recent
years. I think it has also led unnecessarily to some of the costly
litigation now facing the agency.
Of course, this is not to suggest that the Commissioners should be
in a position to preempt the policies of the Act or the usual
prerogatives of NMFS. However, if there is specific Commissioner intent
associated with a particular ICCAT obligation, and that intent is not
inconsistent with the policies and provisions of the Act, then I
believe the Act should ensure that such intent is ultimately reflected
in the relevant plans and regulations. I would be grateful for the
opportunity to work with the Committee to develop an appropriate
process to address this concern.
Finally, I would like to briefly raise some further issues for your
consideration regarding provisions of the Act as they relate to
Atlantic highly migratory species.
(1) national standard 1 and the definitions of ``overfished'' and
``overfishing''
I think the use of MSY as a goal is as useful as any of the
reference points regarding the condition of a fish stock. However, I
think the Act could reflect a better understanding of what it is, what
the underlying assumptions are, and what its limitations are. I think
there is a generally held misconception that any fishery that is not
continuously producing the maximum sustainable yield is somehow in
imminent danger of collapse. As a result, I think the Act is fairly
conservative in its application of this concept.
This issue relates to the definitions of ``overfishing'' and
``overfished''. I don't think these two terms should be used in the
same definition. I think it is appropriate to use MSY as a reference
point to define a fishery as ``overfished'' with the meaning that the
stock is not producing the greatest yield it could and that our goal
should be to gain the greatest yield, in terms of fishing mortality,
that we can from a fish stock. But, this has more to do with maximizing
the benefits of a fishery resource to the U.S. than it does to the
actual protection of a fish stock from decline.
In my view, the concept of ``overfishing'' relates more to the
issue of sustainability. Fisheries can be perfectly sustainable at
yields that are less than the maximum so long as there is an
equilibrium between the stock inputs of recruitment and growth, and the
stock outputs; natural and fishing moralities. In my view, overfishing
is not occurring if the level of fishing mortality is sustainable--
meaning that fishing and natural mortality are in equilibrium with the
sum of growth and recruitment. There is no decline of the stock under
that circumstance. The definition of overfishing should reflect a
fishing mortality rate that when combined with the natural mortality
rate is not in equilibrium with growth and recruitment and, as a
result, is causing the stock to decline by weight or numbers of fish.
I would note there is probably some low level of stock biomass that
represents a critical level below which a stock might collapse because
the reproductive potential has been reduced too far. But, above such a
threshold, I think it might be worth reevaluating how we define these
terms and how we apply them as either absolute standards or goals.
Finally, I would note that a fundamental assumption of MSY is that
environmental parameters are constant. As we know from fishery science,
however, physical parameters such as temperature, salinity, sunlight,
nutrients, and currents in estuarine, coastal, demersal and pelagic
environments have perhaps the most profound effect on recruitment,
growth and natural mortality.
Why this can be a problem is that MSY is sometimes based on
historical data on fisheries during times when environmental parameters
were almost certainly different than they are today. As a result, it
may not even be possible today for a stock to achieve an MSY calculated
from data on a fishery 20 or 30 years ago--even at a fishing mortality
level of zero. My suspicion is that this may be the situation we face
with western Atlantic Bluefin Tuna.
In a similar line of thought, I think it is also unclear within the
field of fishery population dynamics whether the individual species of
a given fishery ecosystem can all achieve the species-specific MSY
simultaneously. When codfish and haddock stocks are low, we can predict
a relatively high MSY for dogfish. But if those stocks rebound, can we
expect to achieve the same MSY for dogfish while simultaneously
achieving high yields of codfish and haddock? Probably not.
Again, the stringency the Act holds itself to MSY should be
considered. The point in time at which an MSY for a stock is determined
relates heavily to the complex relationship between prevailing
environmental parameters and ecosystem dynamics. As such, should it be
an absolute standard, or should it be a general goal? And, should the
Act consider a fishery's sustainability in addition to whether it is
producing the absolute maximum sustainable yield in weight or numbers
of fish?
(2) national standard 2
The best available science for highly migratory species is
inadequate. For example, for the past 16 years, ICCAT has managed the
Bluefin Tuna as two separate stocks based in part on the premise that
one of these two stocks spawns exclusively in the Mediterranean and the
other in the Gulf of Mexico. Now the U.S. is tagging fish of spawning
age and size that are frequenting vast areas of the central Atlantic/
Sargasso Sea areas at the very same time our science tells us they
should be spawning.
Sixteen years of managing the species based on fundamentally-
incorrect assumptions may well have caused significant but unknown
economic harm to U.S. fishermen and may have seriously compromised our
ability to effectively manage this species. The bottom line is we need
more science. We need more dollars for science. Satellite pop-up
archival tagging is a good start and this needs to be substantially
expanded for many ICCAT species.
Finally, the General Accounting Office is currently performing a
comprehensive study on NMFS implementation of this national standard. A
careful review of the results of this study when available may provide
important guidance to the Committee for further revisions to the
statute in this context.
(3) national standard 8
Socioeconomic data on U.S. fisheries is generally inadequate to
support proper implementation of this new national standard. The
situation with respect to Atlantic highly migratory species is
certainly no exception. A greater commitment of agency resources to the
collection and proper analysis of socioeconomic data is needed. Proper
application of the requirements of the Regulatory Flexibility Act would
also help to satisfy the requirements of this national standard.
The General Accounting Office is currently performing a
comprehensive study on NMFS implementation of this national standard as
well. A careful review of the results of this study when available may
also provide important guidance to the Committee for further revisions
to the statute in this context.
(4) national standard 9
This standard requires fishery management plans to minimize bycatch
to the extent practicable. Bycatch is a tough issue for highly
migratory species fisheries--both commercial and recreational. However,
please be aware that much of the U.S. bycatch of highly migratory
species is ``regulatory'' bycatch--meaning fish that are required by
NMFS regulation to be discarded by U.S. fishermen. I believe this
approach needs to be seriously reevaluated. Does it make sense to first
require a fisherman to discard certain fish and then subsequently to
establish bycatch reduction requirements on those same regulatory
discards? I believe it is only logical that a national standard policy
that requires minimization of bycatch should preclude the widespread
use by the agency of regulatory discard requirements to achieve
conservation goals. More creative management is needed.
(5) section 304(g) highly migratory species advisory panels
This section requires the Secretary to establish for each highly
migratory species fishery management plan an advisory panel under
section 302(g). Section 302(g)(4) requires each such advisory panel to
``be balanced in its representation of commercial, recreational, and
other interests''. NMFS has established two such advisory panels; one
for ``Atlantic highly migratory species'' and one for ``Atlantic
billfish''. Two issues need to be considered. First, whether the
appointment of only one commercial fishing representative to the
billfish advisory panel meets the statutory test for ``balanced''. The
second issue relates to the fact that, although this is not set forth
in the statute, NMFS often combines these two panels for meetings to
secure input on both plans. The net result of this combination is a
very different ``balance'' of interests than that of the two advisory
panels held separately. Again, it is unclear if such combined meetings
and the procedures thereof meet the statutory test for ``balanced''.
Thank you again for this opportunity to present my views. I look
forward to working with the Committee on these and other important
issues. I would be happy to respond to any questions at this time.
Senator Snowe. Thank you very much, Mr. Delaney.
Mr. Hinman.
STATEMENT OF KEN HINMAN, PRESIDENT, NATIONAL
COALITION FOR MARINE CONSERVATION, ON BEHALF OF THE MARINE FISH
CONSERVATION NETWORK
Mr. Hinman. Thank you. Good afternoon, Madam Chair.
My name is Ken Hinman. I am President of the National
Coalition for Marine Conservation. I have been working on
marine fisheries management issues professionally for over 20
years, since shortly after passage of the Magnuson Act in 1976.
I have served on numerous council advisory panels, as well as
the ICCAT Advisory Committee. Recently, I was proud to serve as
a member of the NMFS Ecosystems Advisory Panel that Dave
Fluharty mentioned earlier.
I am appearing before you today on behalf of the Marine
Fish Conservation Network, of which I am co-chair. I appreciate
this opportunity to present the views of the Network on
implementation of the Sustainable Fisheries Act by NMFS and by
the councils.
The Network is a broad-based coalition of more than 80
leading environmental groups, commercial and sport fishermen,
and marine scientists that came together 6 years ago to seek
reform of the Nation's fisheries laws.
Enactment of the SFA in 1996 represented a sea change in
the way marine fish are to be managed in the United States.
No longer would short-term economic concerns be used to
allow overfishing, postpone rebuilding and to sacrifice future
economic benefits. Overfished stocks would be rebuilt as soon
as possible to healthy and productive levels, and kept there.
Bycatch, a serious but largely unaddressed problem in many
fisheries for many years, would be assessed and minimized.
Essential fish habitat, the biological foundation of all of our
fisheries, would be identified and protected from degradation
from both fishing and non-fishing activities.
Unfortunately, what began with such promise in 1996 has
failed in many ways to live up to that promise in 1999. The
Network was the primary advocate of the conservation reforms of
the SFA. Utilizing our member organizations, active in every
region of the country, we have evaluated the revised fishery
management plans and FMP amendments submitted to NMFS by the
councils. We forwarded our report, evaluating the councils'
response to the SFA, ``Missing the Boat,'' to this Subcommittee
in February.
Since then, we have been actively involved in evaluating
the NMFS review of the SFA implementation amendments, and have
found their response lacking in several key areas. The councils
commonly adopted rebuilding plans with the longest recovery
periods permitted under the law, instead of rebuilding
overfished stocks in as short a period as possible. By pushing
recovery schedules to the absolute limit, given the scientific
uncertainties involved in making projections on rebuilding, we
are concerned that the recoveries could and, in some cases, are
likely to take much longer than 10 years.
Short-term overfishing is illegally allowed in several
fisheries. The NMFS National Standards guidelines regulations
allow overfishing of some fish stocks to occur in mixed-stock
fisheries unless the stock will be driven to extinction.
To address these concerns, the Subcommittee may wish to
prohibit overfishing of every stock in a mixed-stock fishery,
which would effectively overturn the mixed-stock exception;
mandate the application of the precautionary approach to
fisheries management by requiring that conservation and
management measures include a safety margin, to provide a
buffer against scientific uncertainty and the risk that
rebuilding schedules will not be met.
Of the amendments submitted to NMFS to date, none contain
any new measures to minimize bycatch. NMFS has allowed the
councils to ignore the bycatch requirements by approving the
vast majority of these deficient bycatch amendments. To date,
only five of 22 amendments where NMFS has issued a decision
have been disapproved.
To address these concerns, Congress may wish to refine the
definition of bycatch to more specifically address the root
causes--nonselective fishing practices resulting in
uncontrollable fishing mortality. Second, Congress must
strengthen the national policy in the Magnuson-Stevens Act to
avoid bycatch in marine fisheries, not just deal with the
discards. Finally, amend the Act to require fishery managers to
establish bycatch reduction targets and schedules to meet these
targets.
A bright spot in the otherwise mediocre response to the SFA
was the identification of essential fish habitat. Across the
board, councils engaged in a thorough information-gathering
process, solicited much public input, and produced documents
that should help protect EFH.
But all of the councils failed to conduct comprehensive
assessments of fishing impacts on EFH. Every council failed to
adequately reduce the harmful effects of fishing on EFH. NMFS
has approved all but three of these inadequate EFH amendments.
To address these concerns, the Subcommittee may wish to
consider an amendment to the Magnuson Act to require regional
fishery management councils to act to protect EFH from adverse
fishing impacts. To further encourage councils to take action,
amend the Act to prohibit the introduction of new fishing gear
or the opening of closed areas to prohibited fishing gear
unless EFH damage is minimized.
Finally, to ensure that EFH is protected from land-based
activities, the Subcommittee could enhance the NMFS EFH
consultation authority by requiring Federal agencies to ensure
that their actions are not likely to adversely affect EFH.
In regard to some more general fisheries management
concerns, the Network is concerned, as we heard from a lot of
others this morning, with the serious lack of comprehensive
fisheries data. The Subcommittee may wish to consider
addressing this problem in two ways.
First, in many parts of the country, inadequate fisheries
surveys are conducted because of a lack of funding. Inadequate
fishery-independent data is recognized as a major impediment to
sound fishery management of many fisheries. NMFS is attempting
to address these problems by purchasing four new fisheries
research vessels. Funding for the first is contained in its
fiscal year 2000 budget request. The Subcommittee should
support this request, as well as funding for fisheries surveys
generally.
The second way--and this is seconding what many of the
previous witnesses have endorsed, as well as Senator Kerry in
his opening remarks--is obtaining fisheries data through the
use of onboard observers. Observer-generated information can
provide the statistically significant and reliable information
necessary to meet the objectives of the Magnuson Act. To
improve observer coverage, Congress may consider amending the
Magnuson Act to establish a mandatory fishery observer program
for all federally-managed fisheries, and fund observer programs
with a user fee based on value and applied to all fish landed
and sold in the United States.
The regional councils are charged with the conservation and
management of the Nation's marine fish, which are held in trust
for all Americans. Unfortunately, the councils are dominated by
representatives of the fishing industry. To address this
concern, Congress may wish to amend the Magnuson Act to ensure
that councils are more broadly representative of the public
interest as they make decisions regarding the conservation and
management of public resources.
Last, we would like to take just a moment to react to some
of the reauthorization issues included in the testimony of the
council chairmen that was submitted for the record. While we
are supportive of certain of their suggestions, we have some
concerns with others. The council chairs are advocating
unconditionally that the moratorium on IFQ's not be extended.
The Network disagrees with an unconditional lifting of the
moratorium, believing instead that the moratorium should be
extended unless and until Congress satisfactorily establishes
the conservation standards the Network has identified as
necessary components of any IFQ program.
Standards must be adopted that, among other things, clarify
that IFQ programs do not create a compensable property right,
demonstrably provide substantial new conservation benefits to
the fishery, are of limited duration, and are reviewed
periodically by an independent body to determine whether they
are living up to those standards and, based on this review,
whether IFQ programs or quota shares would be renewed,
terminated, restructured or reallocated.
Finally, and maybe most importantly, the Network strongly
opposes the councils' suggestion that they be given greater
latitude in specifying rebuilding periods, and that economic
considerations be given equal or greater consideration. As I
stated earlier, the councils have fully utilized the latitude
provided them by consistently developing 10-year rebuilding
plans--the longest allowed under law. Allowing the councils
greater latitude in placing greater emphasis on short-term
economics will result in extending rebuilding periods even
longer. Instead of easing economic hardship, this would prolong
it.
I would like to second the remarks of Mr. Hill in the
previous panel that swift and deliberate action to rebuild
fisheries can provide far greater economic benefits in the long
run than to take incremental and baby steps, and prolong the
economic hardship through a protracted recovery period.
I have probably gone over my limit, so I will wrap up my
comments here, and thank you for allowing the Network the
opportunity to address these concerns. I would be happy to
answer any questions. Thank you.
[The prepared statement of Mr. Hinman follows:]
Prepared Statement of Ken Hinman, President, National Coalition for
Marine Conservation
Good morning Madame Chair and Members of the Subcommittee, my name
is Ken Hinman. I am President of the National Coalition for Marine
Conservation. I am appearing before you today on behalf of the Marine
Fish Conservation Network (Network), of which I am Co-Chairman. I
appreciate the opportunity to present the views of the Network on
implementation of the Sustainable Fisheries Act (SFA) by the National
Marine Fisheries Service (NMFS) and the regional fishery management
councils (councils). The Network is a broad-based coalition of more
than 80 leading environmental groups, sport and commercial fishermen,
and marine scientists that came together 6 years ago to seek reform of
the nation's fisheries laws. Overall, our member groups represent more
than two million Americans.
The Network is unique in that it represents both environmentalists
and fishermen. In fact, the commercial and recreational fishermen that
are Network members are some of the strongest conservationists you will
find. That is what makes the Network truly unique, fishermen working
hand in hand with environmentalists to conserve marine fish for future
generations.
Enactment of the SFA in 1996 represented a sea change in the way
marine fish are to be managed in the United States. No longer would
short-term economic concerns be used to allow overfishing and postpone
rebuilding. Overfished stocks would be rebuilt as soon as possible.
Bycatch, the catch of non-target species, would be assessed and
minimized. Essential Fish Habitat (EFH), critical to the long-term
sustainability of U.S. fish, would be identified and protected from
degradation resulting from both fishing and non-fishing activities.
Unfortunately, what began with such promise in 1996 has failed to live
up to that promise in 1999.
The Network was the primary advocate of the conservation reforms of
the SFA, including mandates to prevent and stop overfishing, rebuild
overfished stocks, minimize bycatch, and protect essential fish
habitat. As such, we are very concerned that the SFA is implemented as
Congress intended. Utilizing our member organizations active in every
region of the country, we have evaluated the revised fishery management
plans (FMPs) and FMP amendments submitted to NMFS by the councils. We
forwarded our report evaluating the councils' response to the SFA
entitled Missing the Boat: An evaluation of fishery management council
response to the Sustainable Fisheries Act to the Subcommittee in
February 1999.
Since then, we have been actively involved in NMFS's review of the
SFA implementation amendments and have found their response lacking in
several areas. Below is a listing of our primary areas of concern.
overfishing
The SFA requires that FMPs contain a new definition of overfishing,
setting both maximum fishing mortality levels and minimum population
size thresholds. For species determined to be overfished, it requires
that FMPs include conservation measures designed to rebuild the stocks
to maximum sustainable yield (MSY) within a prescribed period. The
plans must include provisions to restore the population to MSY in less
than 10 years, unless the biology of the species dictates a longer
rebuilding period, in which case recovery should be ``as short as
possible.''
Network Issues
The councils commonly adopted rebuilding plans with the
longest recovery periods permitted (10 years), instead of rebuilding
overfished stocks in as short a period as possible.
Short-term overfishing is illegally allowed in several
fisheries, e.g., Atlantic Sea Scallops, Monkfish, and Black Sea Bass.
NMFS's National Standard Guideline regulations allow
overfishing to occur in mixed stock fisheries, unless the stock will be
driven to extinction. This ``mixed stock'' exception has allowed
certain councils to sanction overfishing of severely depleted fish
stocks, e.g., Boccacio Rockfish on the west coast.
There are several legislative options to address these concerns
that the Subcommittee may wish to consider as it develops legislation
to reauthorize the Magnuson-Stevens Act. First, prohibit overfishing of
every stock in a mixed stock fishery, which would effectively overturn
the ``mixed stock exception.'' Second, prohibit overfishing of each
population of an overfished species to prevent even short-term
overfishing. Finally, mandate the application of the precautionary
approach to fisheries management by requiring that conservation and
management measures include a safety margin to provide a buffer against
scientific uncertainty, thus guarding against inadvertent overfishing.
Caution is particularly important given the fact that the status of 544
species of managed fish is currently unknown. This level of uncertainty
is an accident waiting to happen.
bycatch
The SFA requires councils to establish a standardized reporting
methodology to assess the amount and type of bycatch in managed
fisheries. The Act also requires councils to adopt conservation and
management measures that avoid bycatch and minimize the mortality of
unavoidable bycatch.
Network Issues
No council established a required standardized bycatch
reporting system.
Of the amendments submitted to NMFS to date, none contain
any new measures to reduce bycatch.
NMFS has allowed the councils to ignore the bycatch
requirements by approving the vast majority of these deficient bycatch
reduction measures (to date, only 5 of 22 amendments where NMFS has
issued a decision have been disapproved).
To address these concerns, Congress may wish to refine the
definition of bycatch to more specifically address the root causes and
effects of this problem and its harmful effects on fish populations and
marine ecosystems, non-selective fishing
practices. Second, Congress must strengthen the national policy in the
Magnuson-Stevens Act to avoid bycatch in marine fisheries. Finally,
amend the Magnuson-Stevens Act to require fisheries managers to
establish bycatch minimization standards and schedules to meet those
standards.
essential fish habitat (efh)
The SFA requires councils to describe, identify, and conserve EFH
for each managed species. The Act also requires councils to assess the
impacts of all fishing activities on EFH and minimize any adverse
impacts. Further, the SFA requires NMFS to identify Federal activities
that may adversely impact EFH and provide recommendations to those
agencies on ways to minimize or mitigate those adverse impacts.
Network Issues
All of the councils failed to conduct comprehensive
assessments of fishing impacts on EFH.
Every council failed to adequately reduce the harmful
effects of fishing on EFH. Only two councils (North Pacific and South
Atlantic) adopted any measures to protect EFH from fishing, and those
measures do not adequately protect all EFH within each council's
jurisdiction.
NMFS has approved all but one of these inadequate EFH
amendments (it recently disapproved the fishing impacts on EFH sections
for three of the Mid-Atlantic Council's FMPs). In other cases, NMFS has
appropriately disapproved amendments for not assessing the impacts of
all fishing activities under a council's jurisdiction, while at the
same time approving wholly inadequate assessments of certain fishing
activities. For example, it disapproved parts of the Gulf of Mexico's
amendment for not assessing all fishing gear, but approved a cursory
analysis of shrimp trawling.
The one bright spot in the otherwise mediocre response to
the SFA was the identification of EFH. Across the board, councils
engaged in a thorough information gathering process, solicited much
public input, and produced documents that should help protect EFH.
In an effort to appease development interests, NMFS is
preparing expedited and consolidated EFH consultation procedures. The
Network is concerned that these new procedures will not result in
enhanced protection of EFH, as envisioned by Congress.
To address these concerns, the Subcommittee may wish to consider an
amendment to the Magnuson-Stevens Act, to require regional fishery
management councils to act to protect EFH from adverse impacts from
fishing. To further encourage councils to take action, amend the Act to
prohibit the introduction of new fishing gear or the opening of closed
areas to prohibit fishing gear unless EFH damage is minimized. Finally,
to ensure that EFH is protected from land-based activities, the
Subcommittee could enhance the EFH consultation authority by requiring
Federal agencies to ensure that their actions are not likely to
adversely impact EFH.
general fisheries management concerns
Fisheries Data
The Network has several other concerns with Federal fisheries
management. One of the most serious is the lack of comprehensive
fisheries data. Fisheries management decisions are too often made
without adequate information. In many parts of the country, inadequate
fisheries surveys are conducted because of a lack of funding. For
example, west coast fisheries surveys are only conducted once every 3
years. In other fisheries, managers rely on self-reporting by
fishermen. This type of data is often of questionable accuracy because
it is used to enforce quotas and assess bycatch; fishers may have a
tendency to under report. Finally, not all fishing sectors are
adequately assessed, often because of the difficulty in conducting
assessments. For example, the catch of party fishing boats--vessels
carrying from 20 to more than 100 recreational fishers--is not being
quantified. This is a fast-growing sector of recreational fishing whose
potentially significant catches must be quantified and included in
calculations of fish stock abundance.
The Subcommittee may wish to consider addressing this problem in
two ways. First, ensure that adequate funds are available for fisheries
independent assessments of fish population size. Fishery independent
data is essential to providing unbiased indices of abundance for stock
assessments, which are too often based on self-reported fishery-
dependent data. Inadequate fishery-independent data is recognized as a
major impediment to sound fisheries management. NMFS is attempting to
address these problems by purchasing four new fisheries research
vessels, funding for the first is contained in its fiscal year 2000
budget request. The Subcommittee should support this request as well as
funding for fisheries surveys generally.
Another way to increase funding for fisheries surveys is to earmark
a portion of outer continental shelf (OCS) revenues for fisheries data
collection. As you know, there are several legislative proposals before
the Congress to distribute OCS revenues to states. The Network has not
taken a position in support of, or opposition to, any particular bill.
However, we would like to encourage you to set aside at least $50
million annually for the collection of fisheries data. Such funds
should be available for the conduct of projects in both State and
Federal waters. These programs should be undertaken jointly by NMFS and
the three interstate marine fisheries commissions. Such cooperative
programs will ensure that the data collected is consistent among the
states and useful to Federal fisheries managers. An example of such a
program is the Atlantic Coast Cooperative Statistics Program which is
conducted cooperatively by NMFS and the Atlantic States Marine
Fisheries Commission.
The second way to obtain fisheries data is through the use of on-
board observers. Observers are essential to monitoring and minimizing
bycatch as well as collecting other important fisheries information.
Fisheries managers recognize the need for objective observation and
data collection to effectively manage marine fish and fisheries.
Managers' abilities to address the problems of overfishing, bycatch,
and degradation of fish habitat are limited because they do not have
accurate and reliable information on a fishing vessel's catch,
including bycatch and discards. Observer generated information can
provide the statistically significant and reliable information
necessary to meet the objectives of the Magnuson-Stevens Act, including
monitoring, analyzing, and reporting bycatch and discards, landings,
and fishing impacts on EFH.
To address these problems, the Congress may amend the Magnuson-
Stevens Act to: (1) establish a mandatory fishery observer program for
all federally-managed fisheries; and (2) fund observer programs with a
user fee based on value and applied to all fish landed and sold in the
United States.
Regional Fishery Management Councils
The regional fishery management councils are charged by the
Magnuson-Stevens Act with developing FMPs and FMP amendments for the
managed species under their jurisdiction. Therefore, the councils were
responsible for developing SFA implementation amendments, and as we
pointed out in our report, they all ``missed the boat.'' While much of
the blame can be placed at the feet of NMFS for the regulatory and
other guidance that it provided, the councils are also responsible for
not adequately addressing the requirements of the SFA. The Network
believes that the councils' dismal response to the SFA is at least in
part due to their composition. Although the councils are charged with
the conservation and management of the nation's marine fish, which are
held in trust for all Americans, the councils are dominated by
representatives of the fishing industry. Interests of the general
public, as well as non-consumptive users of marine fish, such as
divers, are not adequately represented on the councils.
Marine fish are public resources. Decisions regarding their
management should be made in the public interest, not simply the
economic interest of a few in the fishing industry. Accordingly,
representatives of the public interest must sit on regional fishery
management councils.
To address this concern, Congress may wish to amend the Magnuson-
Stevens Act to ensure that councils are more broadly representative of
the public interest as they make decisions regarding the conservation
and management of public resources. Additionally, Governors should be
required to consult with conservation groups before nominating
individuals to a council.
network reaction to reauthorization issues raised by the council
chairmen
The Network has reviewed the reauthorization issues raised by the
council chairmen. While the Network is supportive of certain of these
suggestions, we have significant concerns with others. Below is a
listing of our concerns.
Rescinding the Congressional Prohibitions on Individual Fishing Quotas
(IFQs) or Individual Transferable Quotas (ITQs)
The council chairs are advocating, unconditionally, that the
moratorium on IFQs not be extended. The Network disagrees and believes
that the moratorium should be extended unless Congress satisfactorily
addresses all of the Network's conservation principles. Standards must
be adopted that, among other things, clarify that IFQ programs: (1) do
not create a compensable property right; (2) demonstrably provide
substantial new conservation benefits to the fishery; (3) are of
limited duration, not to exceed 5 years; and (4) are reviewed
periodically by an independent body to determine whether they are
living up to these standards.
Regulating Non-Fishing Activities of Vessels
The council chairs have requested additional legal authority to
regulate non-
fishing activities of vessels that adversely impact EFH. The Network
supports this proposal. However, we find it ironic that the councils
would ask for additional authority to protect EFH when none of the
councils have used their existing authority to adequately reduce the
harmful effects of fishing on EFH. To justify their proposal, the
council chairs point out that anchor chains can damage 70 acres of
bottom habitat. While that is a significant area of impact, it pales in
comparison to the area impacted by fishing activities. In New England,
scientists from the University of Connecticut have found that the
40,806-square kilometer bottom of Georges Bank is ``plowed'' by bottom
trawls and dredges between two and four times per year. Given the much
greater area impacted by fishing activities, we hope that this request
for new authority represents a renewed emphasis by the councils to
protect EFH.
Observer Program
The council chairmen have asked that they be given discretionary
authority to establish fees to help fund observer programs modeled
after the authority granted to the North Pacific Council. The Network
strongly supports observer programs. However, we differ from the
council chairs in that we believe that mandatory observer programs
should be established in all fisheries to provide statistically valid
and reliable information for monitoring, analyzing, and reporting
bycatch and discards, landings, and fishing impacts on EFH. Moreover,
we believe that such programs should be industry funded.
essential fish habitat
The Network strongly objects to the council chairs suggestion that
the legal definition of EFH be modified in order to narrow its
geographic scope. The legal definition of EFH is: ``those waters and
substrate necessary to fish for spawning, breeding, feeding, or growth
to maturity.'' The key to the definition is how ``necessary'' is
interpreted. The councils and NMFS could have interpreted the area that
is ``necessary'' to be smaller. However, they chose to identify EFH in
a precautionary manner and designated fairly large areas as EFH. Given
the general lack of information on EFH this is appropriate. As more and
better information becomes available, the areas identified as EFH can
be narrowed. The definition of EFH does not need to be changed for this
to happen.
Rebuilding Periods
The Network strongly opposes the councils' suggestion that they be
given greater latitude in specifying rebuilding periods and that
economic considerations be given equal or greater consideration. As I
stated earlier, the councils have fully utilized the latitude provided
them by consistently developing 10-year rebuilding plans--the longest
allowed under current law. Allowing the councils greater latitude and
placing greater emphasis on economics will result in extending
rebuilding periods even longer. Extending rebuilding periods beyond
that which is biologically feasible, thus allowing overfishing to
continue in the short-term, increases the chances that overfished
stocks will not be rebuilt. Instead of easing economic hardship, it
prolongs it. The best way to minimize the economic impact of fisheries
conservation measures is to insure the long-term stability of fish
stocks. Extending rebuilding periods past the current limit of 10 years
will perpetuate the boom and bust cycles that have characterized our
fisheries.
Redefine ``Overfishing''
The council chairs have stated that they believe that there are a
number of problems with basing the definition of overfishing on maximum
sustainable yield (MSY). While the council chairs have not made a
specific proposal to modify the definition of overfishing, we are
concerned that they seem to be blaming the use of MSY for the large
number of fish that are defined as overfished. This is akin to shooting
the messenger when you don't like the message. The Network opposes any
changes to the definition of overfishing. The National Standard
Guidelines allow the use of ``alternatives to specifying MSY'' when
data is insufficient to estimate MSY directly. In addition,
deficiencies in the data upon which MSY based can, and should, be
addressed through the use of uncertainty buffers. Under such a system,
MSY would be lowered to guard against uncertainty, thus protecting fish
stocks from being overfished because of errors in estimating MSY.
Thank you for allowing the Marine Fish Conservation Network the
opportunity to discuss implementation of the Magnuson-Stevens Act. The
Network looks forward to working with the Subcommittee as it reviews
implementation of the SFA by NMFS and the councils, and develops
legislation to reauthorize the Magnuson-
Stevens Act. I am prepared to answer any questions members of the
Subcommittee may have.
Senator Snowe. Thank you.
I want to thank you all of you for your testimony.
Mr. Hinman, let me just begin with you. You say that no
council has defined EFH's, essential fish habitats, you are
saying adequately or what?
Mr. Hinman. No. Actually, we complimented them on their
identifying and defining EFH.
Senator Snowe. They just did not define it appropriately or
the scope of it?
Mr. Hinman. It was their actions to protect EFH from the
effects of fishing activities in particular that most
disappointed us. Because, in nearly all cases, they did not
take any action. That is probably the single thing that the
councils, under their authority, can do to protect habitat, is
to regulate fishing impacts.
Senator Snowe. But you admit that they probably do not have
enough information or accurate data to make those decisions,
and that there would be obviously the problem that has been
already raised, about being almost too broad? Now, you might
not think so. You might think that is fine. But in the event
that it is too broad and it does have an impact on an industry,
should not there be an ability to sort of narrow the scope of
the area, the geographic area?
I think NMFS is attempting to do that in its own way.
But would it require more information, more data? I will
ask Mr. Swingle to comment, too, since he serves on a council,
on how they have handled that issue. But what would you
recommend, short of something that is wrenching to the
industry? Obviously, this is a new area and one that should be
appropriately addressed--no question about it.
Obviously, I think we have to look in the entire area, and
habitat is very important to the survival and the health of the
species. But it also could entail being a much broader area
that creates other problems.
Mr. Hinman. What we wanted was at least a good-faith effort
on the part of the councils to address this problem. I think,
in some cases, there is information available that was
overlooked. There is certainly truth to the fact that in a lot
of cases better information is needed.
Unfortunately, the councils in most cases did not even take
the trouble to assess those situations, to try to draw together
a plan on how they were going to obtain that information that
was necessary to make these decisions. So I do not think they
even made a good-faith effort, and they really tried to duck
this issue.
I do not know that this is a matter of the scope of the
definition of EFH. I think it is a matter of determining the
impacts of the fishing gear on specific habitats. If those
impacts are severe enough that they are having detrimental
impacts on the resources, this is not just a resource issue. It
becomes a fishery management issue and a fishing industry
issue.
Many members of this Network that I am speaking on behalf
of today are commercial and sport fishermen and associations on
both coasts, who agree with us and feel very strongly that the
EFH implementation did not go far enough and it was not
aggressive enough, because their incomes, their jobs and their
industries depend on that habitat.
Senator Snowe. Does the EFH definition in the current Act
allow for the consideration of the impact of fishing gear on
the habitat?
Mr. Hinman. It requires consideration of the impact, yes.
Senator Snowe. So the councils have the ability to include
that?
Mr. Hinman. Yes.
Senator Snowe. Did any of the councils?
Mr. Hinman. There was some cursory attempts to do that,
yes.
Senator Snowe. Mr. Swingle, the Gulf of Mexico Council
approached this issue.
Mr. Swingle. Yes. I would like to point out, the litigation
that is going on really is from the American Ocean Campaign and
the same charge is made against the Gulf Council, the New
England Council, the Caribbean Council, the Pacific Council,
and the North Pacific Council, of being delinquent in their
duty of regulating gear that might affect the habitat.
I think part of the problem is the group that Mr. Hinman
represents is not aware, at least, of what has been done in the
past in that type of management. Having been, the State Fishery
Director of Alabama, we regulated the use of trawls in a large
number of areas to protect habitats or to protect other
resources. That has always occurred at the State level.
Our council has drawn a zone from the Florida Keys to the
Mexican border, in which three types of gear are prohibited.
One of these is roller trawls, which I guess they call rock
hoppers in the New England area. So, overall, there is probably
about on the order of 40,000 square miles where that gear is
prohibited. We also establish habitat areas of particular
concern under our council, where bottom-type gear was
prohibited for operating in that area because it might damage
coral or other resources. I am sure that those types of actions
over the 22-year period of the councils were taken by other
councils.
So I do not think, really, Mr. Hinman's group has really
gone back and assessed all the amendments done by all the
councils to really establish what has or has not been done.
Mr. Hinman. Yes, I will respond to that.
Senator Snowe. Mr. Hinman.
Mr. Hinman. Actually, I am aware of things that were done
prior to the implementation of the Sustainable Fisheries Act. I
am also aware that the Gulf Council, when it was not required
to, I think it was one of the earlier movers in putting
together a habitat committee and addressing habitat issues. But
that is not the issue.
The issue is that since passage of the Sustainable
Fisheries Act and the requirement to take a more vigorous and
more aggressive approach to protecting habitat from these kind
of threats, the councils chose to rely on past actions as
adequate and sufficient in meeting the requirements of the Act.
We do not believe that they are. There were still a lot of
problems and a lot of threats outstanding. There was not a
good-faith effort to address those.
It kind of reminds me of when the Ecosystems Advisory
Panel, when we took Congress' first step of trying to assess,
to the extent ecosystem principles were being applied by all of
the councils, we requested from the councils, OK, what are you
doing, how are you applying these principles? Almost to a one,
they all came back trying to characterize almost all kinds of
management that they were doing as ecosystems management. It
was really just trying to pass off what has already been done
as being adequate and that we really do not need to do anymore.
We always end up coming out as if we are just focusing on
the negative. But the negative is the problem. We do not need
to sit here and congratulate the councils for the things that
they have done in the past. What we want to do is to make sure
that the things that still remain to be done, that still are
very important to our fisheries and to rebuilding them, are
done.
Senator Snowe. Mr. Delaney, you referred to the fact that
the rules and regulations that are implemented by NMFS do not
reflect oftentimes the intent of the agreements that have been
negotiated by you as a Commissioner to ICCAT. Could you further
elaborate and give us examples as to which areas there is a
disconnect between the agreements and the rules and regulations
that are ultimately promulgated by the Department?
Mr. Delaney. Yes, I will. I appreciate that question.
As I said, when we are negotiating internationally, we have
to account for the protection of the resource as well as the
best interests of U.S. fishermen. We have to be thinking
simultaneously about the effect of our conservation
recommendations on the fish and the effect on U.S. fishermen.
We often discuss among the Commissioners our specific intent as
to how a measure should be applied, how will we apply this to
our own fishermen, before going forward with making a
commitment and obligating the United States in the form of an
international agreement at ICCAT.
It is with that understanding, that confidence, that we
protected the interests of U.S. fishermen, that I feel I can go
forward in negotiating and obligate the United States into that
agreement.
Unfortunately, I have observed a number of cases where
those very explicit discussions have taken place which were not
ultimately reflected in plans and regulations. I jotted down a
few.
In 1997, we had a very specific understanding of how a
particular ICCAT vessel monitoring system would be applied to
the domestic pelagic longline fishery. The agreement for the
pilot program was that it would apply to 10 U.S. vessels or 10
percent of the U.S. high seas fleet. This is the fleet that
fishes offshore, beyond our exclusive economic zone. The
contrary result was that NMFS required equipment to be
installed on 100 percent of the fleet, both inshore and
offshore. The result is another lawsuit.
Another example is with regard to bluefin tuna, which is
close to home for you. We just went through a process in 1998,
where our agreement on the rebuilding of bluefin tuna resulted
in a net increase of 43 tons for the United States. Our
discussions among the Commissioners was that these 43 tons
should be appropriately distributed in a proportional manner
among each of the different U.S. gear sectors, as were other
provisions that we agreed to that year. The result was that one
particular gear group was singled out for not receiving any of
that tonnage, and the remaining was distributed among all the
other gear types.
I am not here to advocate for any particular gear group.
The point was that it was a very, very explicit discussion that
was not reflected in the plan. It had to go through a rather
elaborate process afterwards to clarify that intent. Another
lawsuit was filed. I think the problem will ultimately be
resolved, but what an incredible waste of time, energy and
money.
We need a process that documents the Commissioners' intent
so that we feel comfortable that when we go to ICCAT and make
those commitments, that will be the way it is carried out back
home. Perhaps there needs to be a Commissioners' report, some
analogy to legislative history that you produce in the
legislative process. I would like to work with your Committee
on that.
Senator Snowe. Do they seek your input?
Mr. Delaney. Actually, the Sustainable Fisheries Act does
have a provision, in 304(g) I believe, that does require
consultation with the U.S. Commissioners in the development of
plans. I have to say that in my own personal experience,
although I often offer my own unsolicited opinions on different
issues before the agency, I have never had my opinion as a
Commissioner solicited in terms of how to develop a plan or a
regulation that was implementing an ICCAT agreement--never. The
process does not exist.
Senator Snowe. How long have you been Commissioner?
Mr. Delaney. I am going into my fifth-year cycle, 5 years.
Senator Snowe. They have never solicited my opinion?
Mr. Delaney. No. But, in fairness, I have given my opinion
unsolicited. [Laughter.]
Senator Snowe. Well, it is a good thing you are assertive.
Mr. Hinman. I can attest to that.
Mr. Delaney. But there is no process set up for it
whatsoever.
Senator Snowe. There is no process, and obviously there
should be. It is unfortunate that it even has to be required or
that it is necessary. But it does not make sense. If you are
spending all your time representing the United States in
negotiating these agreements and it is not reflected in how it
is implemented at home, it just clearly does not make any
sense.
Well, that is something we will work with, in the
reauthorization process, to ensure that communication takes
place, if we have to require it. I think it is regrettable that
it is even necessary, but it may well be. Because it is not
right, nor fair, and it puts our fishermen at I think a
competitive disadvantage, in the final analysis.
Mr. Delaney. Indeed. Thank you.
Senator Snowe. Yes, Mr. Hinman?
Mr. Hinman. Yes, I wanted to comment on that, if I might.
There is one aspect of consistency with the Sustainable
Fisheries Act and international fisheries management, in this
case, under ICCAT, that I would like to address. That is the
requirement in the SFA to minimize bycatch.
Bycatch is a serious problem in our highly migratory
species fisheries. It is also a problem that must be--not just
legally, but as a practical matter--must be addressed
domestically. ICCAT cannot tell us how to modify our gear, what
areas to close, how to change fishing practices, how to
reallocate quotas. It does not do that. Those are domestic
decisions. This is a problem that we have to address ourselves.
It is also something that has been undermining the
effectiveness and the recommendations of ICCAT, because we have
not dealt with it sooner. There are ICCAT recommendations on
minimum sizes, where because we have not dealt with non-
selective fishing practices, we end up discarding all those
fish that we are meant to protect. We also have fisheries where
ICCAT recommendations applying to landings are meant to control
mortality in the billfish fisheries, where a great majority of
the mortality is bycatch mortality. Because we have not
addressed that, we are not controlling that mortality.
I do not believe that such measures are inconsistent with
management under ICCAT or ICCAT recommendations. In fact, they
are very consistent, and will help achieve ICCAT
recommendations without disadvantaging U.S. fishermen. They are
also something that only we can do. We cannot push that kind of
decision making and resolving that problem into the
international arena.
Senator Snowe. Mr. Swingle, again, can you respond to the
issue of the bycatch in the definition that is in the current
Act? As you heard from Mr. Hinman's testimony, he is saying
none of the amendments that have been submitted to numbers by
the council contain any new measures to reduce bycatch--
according to his testimony.
Mr. Swingle. In the case of ours, that would be correct.
What we did is operated outside that amendment and went forward
with an amendment, prior to submitting our Sustainable
Fisheries Act amendments, that addressed bycatch in the shrimp
fishery for the area from Apalachicola, FL to the Mexican
border. We required bycatch reduction devices in the trawls
used in that fishery. That was implemented in May 1998.
We are currently developing an amendment to the shrimp
plan, again, to address bycatch for the Eastern Gulf of Mexico.
That one probably will be implemented next year.
We did evaluate the extent of bycatch for all of our
fisheries. A lot of them, basically, have almost none--like the
spiny lobster and stone crab fisheries. Probably the biggest
problem that we may have is in regulatory discards, that we
have created. In requiring minimum size limits, we have created
bycatch, or regulatory discards, levels that, for instance, in
the recreational fishery for red snapper are on the order of 60
percent of all fish caught are thrown back overboard. In the
case of the two major grouper fishes off Florida, the
recreational sector is throwing back 85 percent of the fish.
So all of this results in some release mortality. We are
not quite sure how to address alleviating those levels of
regulatory discards in those fisheries. It does not really
matter if that return rate is that high as long as the fish
survive. But the survival of the fish is a function of the
water depth that they were taken from. The deeper the water,
the less the survival rate is.
So we are not quite sure how to address those issues. We
may at some point in time, the ideal system would be that if
you fish beyond 20 fathoms, you kept all your fish, regardless
of what size they were. If you fished inshore, then you would
have to return all undersized fish because they would probably
survive. But that has a lot of complications in that type of
system, as well.
Senator Snowe. Mr. Delaney.
Mr. Delaney. Since the issue of bycatch in the context of
ICCAT was brought up by Mr. Hinman, I would just like to
clarify a couple of points. First of all, ICCAT does address
the issue of bycatch. I would first note that we do have what I
believe is a failed policy at ICCAT to try to protect juvenile
fish, regardless of the species. We have it almost across the
board where we have minimum sizes. Minimum sizes, we found, are
just not internationally enforceable.
So, increasingly, ICCAT has started to focus on
alternatives to reduce the bycatch of small juvenile fish. This
is on the strong advice of our scientific committee, the SCRS
at ICCAT, which has urged us, in almost all species, to reduce
the mortality of juvenile fish in order to help us restore and
rebuild the stocks.
The alternative that we are finding more and more
attractive is the development of time-area closures. Rather
than have the policy of regulatory discards, which is exactly
what I just referred to as minimum size requirements--which I
find to be totally inconsistent with the National Standard to
reduce bycatch while simultaneously requiring bycatch and
discards, it is an inconsistent policy that needs to be
addressed. But, again, the alternative that we are looking at
is time area closures. Already, ICCAT, contrary to what Mr.
Hinman said, has moved in the area of bycatch, by restricting
the use of different gears for different times and areas,
particularly in the Gulf of Guinea, which we have identified as
a mass nursery area for a number of the important tuna species
that are managed by ICCAT.
Interestingly, the U.S. swordfish fleet, pelagic longline
fleet, is working very closely now with the recreational
stakeholders in pelagics and highly migratory species to
develop a very large time area closure proposal in the U.S. EEZ
that would address small swordfish bycatch, and also billfish
bycatch and the bycatch of other species, as well. So that is
the direction that our industry and ICCAT prefers to the
concept of regulatory discards, where fishermen are forced to
waste fish.
They cannot avoid the catching of the fish with the type of
gear that is employed. I know there are questions about non-
selectivity of the gear, but the reality I face at ICCAT is
that pelagic long-lining is the gear that is used throughout
the world, throughout the globe. That is what I have to deal
with, that reality, and other types of gear, as well.
So that is the direction I would like to see things go.
ICCAT does have the capacity to do that. I still think the
United States should take approaches that are consistent with
international approaches, so that we do not disadvantage our
own fishermen by taking actions that are more adverse to their
interests than what are being pursued internationally.
Senator Snowe. Well, to that point, Mr. Hinman, what would
you recommend, banning fishing gear having an impact on
bycatch, in reference to the point that he made with respect to
swordfish?
Mr. Hinman. Right. As a preface to answering that very
specific question, I did want to--I thought it was very ironic
that the U.S. swordfish industry and ICCAT have come around to
realizing that the minimum size in the swordfish fishery is not
effective and results in regulatory discards when those were
the only two bodies in this country, in this world, that in
1991, when that was made a regulation, thought otherwise,
thought that this would be effective, thought it would protect
juvenile swordfish. Everybody else said this is just going to
result in discarding these fish.
The other thing is that this alternative to the minimum
size is not a recent thing. In that very first recommendation
on the minimum size, ICCAT included a recommendation that
countries take other actions, including time and area closures
to protect juvenile fish. The U.S. swordfish industry resisted
doing that. If they are now talking this year seriously about
that, I think that is great. But that is 7 years later, when we
have already discarded 30,000 to 40,000 juvenile swordfish
every year in the duration because this measure does not work.
Also, I think it points up both what Mr. Swingle and Mr.
Delaney said about--the regulatory discard issue points up--the
need to address the root cause of bycatch, which is non-
selective fishing practices. It is not just dealing with
economic discards and finding markets for them. It is not just
dealing with regulatory discards and changing the regulations
in order to allow them to keep them. I mean, is that the
answer?
If the mortality is what we are trying to reduce--and that
is very often the case in the serious bycatch problems--we have
to change fishing practices. That has to be dealt with. Just
focusing on the discard issue, and whether it is regulatory or
economic, is not bringing us to that answer.
As far as the specific question of what would I do, ban
this gear, I am speaking here today on behalf of the Marine
Fish Conservation Network, which does not have a position on
that, other than that appropriate measures should be taken,
under the Magnuson Act to minimize bycatch in the U.S. longline
fisheries, and that there are proposals out there, that have
been made for years and that are being discussed at this time,
to enact time and area closures and some other measures. We are
hoping that they are going to be implemented, implemented soon,
and that they are not just token measures, but they will solve
this problem.
Senator Snowe. Well, I appreciate your testimony.
Obviously, we will be following up with each of you on a number
of these issues as we go through the course of this
reauthorization. But I think it has been very helpful to hear
the respective views, even if some of them are divergent. It
obviously provokes discussion and ideas in terms of what we
need to focus on as we pursue the reauthorization in the course
of the next few months.
So I really do appreciate your presence here today and for
traveling here, to be here. So I thank all of you.
This concludes the hearing. But before I do adjourn, I
would ask unanimous consent that the hearing record remain open
for 10 legislative days, so that the Subcommittee may accept
additional testimony, questions from Senators, or any other
information that the Subcommittee may want to include in the
hearing record.
Without objection, so ordered.
The hearing is adjourned. Thank you.
[Whereupon, at 1:30 p.m., the hearing was adjourned.]
A P P E N D I X
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Thomas R. Hill
Question 1. The National Marine Fisheries Service (NMFS) and the
Councils have begun to identify a subset of essential fish habitat
(EFH) called ``habitat areas of particular concern.'' This subset
targets critical areas such as places of spawning aggregations. Should
these ``habitat areas of particular concern'' be the true focus of
NMFS's implementation of EFH? Please explain.
Response. The statutory definition of essential fish habitat (EFH)
is ``those waters and substrate necessary to fish for spawning,
breeding, feeding or growth to maturity'' (16 U.S.C. 1802 Sec. 3).
Based on the guidelines provided by the National Marine Fisheries
Service (NMFS) in the Interim Final Rule (FR 62(244):66531--66559) and
the information available to the Councils and NMFS, EFH was designated
rather broadly in most cases. The broad designations resulted in EFH
designations covering large expanses of area, from the coastline out to
the limit of the exclusive economic zone (EEZ). These broad
designations, while not necessary ideal, were necessary to meet the
statutory definition.
The advantages of the broad designations include ensuring that all
habitat necessary to a fish throughout its life-cycle is included and
addressed and giving the Councils and NMFS discretion over the focusing
of their attentions to areas known to be particularly important while
not neglecting other areas that may also be important. There are some
disadvantages, however, including the ``watering down,'' so to speak,
of the perceived importance of the EFH designations. It is also
difficult to address all impacts to EFH when most of the coastline and
EEZ are designated as EFH.
In the Interim Final Rule, NMFS suggested that where sufficient
information exists fishery management plans (FMPs) identify ``habitat
areas of particular concern'' (HAPCs) within EFH. The Rule goes on to
describe several criteria that should be met for an area to be
considered for an HAPC designation. The New England Council's
interpretation of the intent of the HAPC designation is to identify
those areas that are known to be important to species which are in need
of additional levels of protection from adverse impacts.
In most cases, there is not sufficient information regarding the
ecology or effects of impacts to warrant an HAPC designation. In fact,
the result of an evaluation of information on all eighteen New England
Council-managed species was that only two HAPC designations were made
as part of the Council's omnibus EFH FMP amendment. These two HAPC
designations were limited to a small portion of the northern edge of
George's Bank, based on the documented importance of habitat found in
this area for recently settled juvenile Atlantic cod, and several
rivers in Maine, based on the important genetic legacy held by the
remaining native Atlantic salmon that utilize those rivers.
While these areas are known to be particularly important for these
two species, they are not the only areas or habitat types believed to
be necessary for the fish to spawn, breed, feed or grow to maturity
(e.g., the juvenile Atlantic cod HAPC does not address areas important
for cod eggs, adults, or larger juveniles). Also, there has not been
enough information to identify similarly important areas for the other
sixteen species managed by the New England Council. As more research is
conducted, we may someday be able to identify additional HAPCs for
other species. This does not, however, preclude the need for or
appropriateness of the current EFH designations. As more information
becomes available, the New England Council envisions revising its EFH
designations. In many cases, this will involve a refining of the EFH to
include smaller areas. This activity will most likely be accompanied by
the designation of additional HAPCs--places either more important to a
critical life history stage (an ecological ``bottleneck'') or
threatened by an activity with a specific adverse impact.
Essentially, the HAPC designations, in conjunction with the EFH
designations, provide a tiered prioritization for Council and NMFS
action and attention. The EFH designations serve as the backdrop of the
Council's habitat management program, identifying the range of habitats
and areas important in some way to one or more life history stages of
one or more species. These designations demonstrate the importance of
much of the ocean waters and substrates to a variety of species. They
also serve to indicate that activities that affect habitat may have
wide ranging effects and implications for commercially important
species. The HAPC designations, layered on the EFH designations, serve
to identify particular places either critically important for the
survival of fishery species or particularly sensitive to the effects of
human activities.
Using this tiered approach, the Councils and NMFS may identify
areas where certain activities should not occur at all (HAPCs), other
places where they can occur if certain criteria are met (EFH), and
other places where they can occur unrestricted (everywhere else). HAPCs
should not replace the EFH designations but, in conjunction with them,
can make stronger NMFS's and the Councils' implementation of the EFH
process intended by the Congress.
Question 2a. Since the date of the hearing, the Secretary raised
the cod trip limit from 30 lbs. to 100 lbs. per day. The 100 lbs. limit
will be effective until Framework 31 is approved. As part of Framework
31, the New England Fisheries Management Council has recommended a 400
lbs. per day limit.
Do you believe that raising the trip limit to 400 pounds per day
will alleviate some of the adverse impacts which occurred under the
lower trip limits?
Response. Raising the trip limit will alleviate some of the adverse
impacts of the lower trip limit. The following summarizes the impact of
Framework 31:
It will not have a significant impact on the annual fishing
mortality rate of Gulf of Maine cod, even if you assume that cod not
landed under the lower trip limit is ``saved'';
It will result in positive net revenues to the vessels in the Gulf
of Maine of approximately $500,000;
It will mitigate some of the social impact of forced discards that
was manifested in the outrage expressed by fishermen at Council
meetings and in their correspondence;
It will improve the data used in assessing stock status, by
allowing for a better accounting of fishing mortality since reliable
data on discards is unavailable;
It will forestall a discarding problem on George's Bank cod and
avoid a repetition of the situation that occurred in the Gulf of Maine;
It will close a loophole in the trip limit/days-at-sea system that
enables vessels to target cod, land large overages of the trip limit
and run their days-at-sea clock to account for the overage. This
strategy is not only counter to the intent of the stock-rebuilding
program, it distorts the data on overall fishing effort because some
vessels use allocated days-at-sea that they otherwise might not use.
Question 2b. Do you believe that sensible trip limits are the only
measures needed to provide adequate protection for cod stocks or are
other measures necessary?
Response. No, trip limits, appropriately set, are only part of the
management program needed to protect and rebuild cod stocks. The
management plan in place for the multi-species fishery includes days-
at-sea controls, gear restrictions (mesh size, modified trawl
configurations, and limits on the number of hooks and gillnets fished),
and area closures. Other methods not currently in use in this fishery
such as quotas (TACs), are also effective in controlling mortality in
fisheries around the country.
The current strategy has proven successful for some of the multi-
species stocks in the relatively short time since Amendment 7 was
implemented where nature has cooperated with good recruitment even
though some of those stocks were at critically low levels only four
years ago. The delay in rebuilding of cod stocks can be attributed to
several factors, including poorly designed management measures which
allowed the fishery to exceed it mortality rated by 50% to 200% for
several years in a row, (which will be addressed by the Council with
Framework 31, the upcoming annual adjustment framework and Amendment
13), poor recruitment, and record-low survival of pre-recruits. These
latter two are outside of the direct control of the Council.
Question 3a. NMFS has been criticized for its lack of compliance
with the Regulatory Flexibility Act. Other agencies, such as the
Environmental Protection Agency, are required to convene small business
advocacy review panels for each rulemaking that will have a significant
economic impact on small businesses.
Please explain the impact that inadequate consideration of socio-
economic factors has had on fishing communities that you represent.
Response. The Council has been criticized for not considering
socio-economic impacts on the fishing communities, however, another
frequently heard criticism is that the Council spends too much time
considering these factors to the detriment of conservation.
The underlying problem is that when fish stocks are severely
depressed, the need to substantially reduce fishing levels to meet
National Standard 1 of the Magnuson-Stevens Act requires large fishing
reductions that cannot avoid having severe negative short-term impacts
on fishing communities.
No consideration of socio-economic issues fundamentally lessens
this problem, however, the Council can ensure that the burden of
achieving conservation goals is fairly distributed. This is not easy in
a climate of despondency over Magnuson-Stevens Act stock rebuilding
guidelines, severe cutbacks in fishing and uncertainty about the
future. All meaningful actions are criticized by any group negatively
impacted.
The Council fully understands that mandated fishing reductions,
often greater than 50%, will reduce good-paying jobs both on the water
and shoreside, and will damage fishing community economic independence
and well-being in the short-run. In the long run, responsible action
will preserve these benefits to the greatest extent possible.
The Council spent years developing limited access and fishing
effort reduction plans for the major fisheries for groundfish, scallops
and monkfish, not to mention the foundation for the current state-
federal lobster management efforts. None of these efforts have been
popular, but there's recognition that not addressing overfishing would
be not only worse, but irresponsible.
During the development of all Council plans there has been
extensive public and scientific debate over the efficacy of quotas,
mesh regulations, area closures, gear limitations, limited access,
days-at-sea reductions and other proposals. As a result, the Council
believes that it has given great consideration to socio-economic
factors in selecting management alternatives. Major management
problems, however, have no widely accepted solutions that
simultaneously meet Magnuson-Stevens Act goals and avoid severe short-
term impacts on fishing communities.
Many of the provisions that appear to make fishery management plans
too complicated have been implemented to allow flexibility to different
types of fishing activity.
Question 3b. Please explain in detail how a similar panel process,
such as the one utilized by the EPA, could aid NMFS in bringing
economic impact analysis to the forefront of fisheries decision-making.
Response. Unlike many businesses affected by EPA actions, almost
all fishing operations and shore-side businesses are small business
entities, the focus of the Regulatory Flexibility Act. As a result, all
scoping meetings, public hearings, and the extensive array of meetings
of the Council, industry advisory panels, species committees, stock
assessment workshops, plan development and monitoring committees, and
ad-hoc workshops provide opportunity for regulated small entities to
participate in the decision-making process to a much greater extent
than panel processes of most federal regulatory agencies. In 1998
alone, the Council held or was represented at an estimated 200 meetings
that provided affected user groups opportunities for participation.
Council procedures require biological, economic and social impact
analysis, to the extent that information is available, of all
management options under consideration. These analyses are mandated to
be available to the public for review and comment before the Council
votes on any course of action. Additionally, 10 of 17 voting Council
members have insights into to the economic impacts of management
measures as a result of their personal experience in the commercial and
recreational fishing industries.
The most difficult problem facing the Council is not making use of
socio-economic analyses but solving allocation disputes among competing
interest groups.
The Council is expanding the Stock Assessment and Fishery
Evaluation Report to include economic impact analyses and industry
management proposals. The report provides impacted entities with
scientific information, proposed management options and impact analyses
as early as possible in the management process.
The New England Council has long supported increasing the
collection of and improving fisheries and economic data. It recognizes
that the many analyses are limited by the data currently available. It
has tasked its newly formed Social Sciences Advisory Committee,
comprised of independent economists and other social scientists, to
report on how to improve social, economic and community impact
analyses. The committee will present the report to the public at the
November 16-18, 1999 Council meeting.
Question 4. The New England Fishery Management Council has been
criticized for its inability to manage meetings in a civilized manner.
This has created an environment in which people may be too
uncomfortable to actively participate. As a result, some proposed
management measures may not receive adequate consideration. Please
comment on your experiences at Council meetings in this regard.
Are there examples of effective management proposals that have been
set aside in favor of inadequate, but more popular measures?
What has been the result of such decisions?
Response. It is true that over the course of the last two years,
there have been several unfortunate outbursts by a few members of the
fishing community at New England Council meetings. I would characterize
these incidents as outside of the norm, though I would be the first to
admit that fisheries management in New England is a lively environment.
Most Council meetings in the past have been, and will continue to be
conducted in a business-like and orderly manner.
I will emphasize, however, that as the new Chairman, I have made a
strong commitment to Council members to establish an environment that
ensures public opportunity to comment, but retains the dignity of the
Council. Additionally, we have scheduled a special closed meeting of
the Council at the end of October to review our meeting procedures,
address problems and develop an improved process where necessary.
I do not believe that the Council has made any management decisions
that involve setting aside an effective proposal in favor of one that
is ``more popular''. The Council may have not acted on any number of
proposals that would clearly get the job done because they were
associated with very serious negative economic and social impacts on
some fishermen and the communities in which they reside, or required
allocation decisions which the industry and the Council collectively
could not agree. Instead, the Council has consistently sought to craft
management measures that would be effective in addressing resource
conditions while minimizing those impacts. I must point out that a
number of communities in southern Massachusetts have been far more
negatively affected than most other areas in New England as the result
of the Council's actions.
In some cases, the management measures selected by the Council may
not have been as effective as others, but in all these instances we
have developed additional measures to address any outstanding problems.
Again, no simple straightforward solutions have been available, and the
Council has sought to balance resource conditions and the economic and
community impacts that accompany our actions. I believe it is important
to point out that despite some errors, the Council remains on target
with its ten-year rebuilding programs for most stocks.
Question 5. Some groups have criticized the New England Council for
not using information and recommendations submitted by its advisory
committees. Please explain how the Council should use the
recommendations of such committees in the decision-making process.
Response. The Council not only uses its advisory panels, but also
solicits proposals directly from industry when developing yearly
adjustments to all our fishery management plans. The chair of each
panel brings the recommendations of the respective panel directly to
the Council for consideration. Their advice is considered, particularly
in the context of whether its recommendations meet the management
objectives of the action contemplated. If the panel's recommendations
do not meet the objectives, the Council is not likely to adopt their
proposals. In the case of the Atlantic Herring and FMP for Scallops,
however, the advisory panels were very active in the development of the
plan, and worked with the plan objectives as guiding principals. As a
result, many of their recommendations were incorporated into the final
FMP.
Question 6a. Some question whether it is appropriate to continue to
use Maximum Sustainable Yield as the target for fisheries management.
Please explain whether you think that there are any modifications to
the management process, which would make MSY a reasonable goal.
Response. The Councils may need more flexibility to adopt
responsible biological goals, when setting biomass targets and yield
objectives in a multi-species complex. The potential targets and
objectives could be identified as ranges, rather than a single target
at an optimum biomass level (BMSY). Allow for this would
help Councils to accommodate natural variability and allow them to set
biomass targets that are consistent with aggregate stock combinations.
Others species, on the other hand, may add value by maintaining a
low, but still risk adverse, biomass level. The current law does not
allow this flexibility. It allows the Councils to set optimum yield
(OY) for a group of interrelated species, provided that the policy does
not exceed MSY for any one species.
Species falling into this category could have low recreational and
commercial value, compared with other species in a fishery. To maintain
this species at MSY conditions (i.e. above BMSY), it might
require another more valuable species to be underutilized or worse yet
unavoidably increase regulatory discarding. The species may also play a
role in the productivity of other more highly valued species and
therefore it would be preferable to keep a predator with low value at
lower biomass levels yet not risk stock collapse. In this case, a
rebuilding program might also force a Council to shut down a commercial
species with low value for as much as ten years to achieve the
rebuilding objectives. A domestic fishery that relies on foreign market
may have little prospects for recovering in ten years, once the
rebuilding objectives are met. In our experience, spiny dogfish may be
a case in point.
In another respect for some species, for example, it might be
preferable to maintain a high biomass (i.e. a large population with
large fish) to support recreational fisheries. The current law allows
Councils to achieve this goal, but it does not achieve the maximum
yield in purely biological terms (i.e. MSY).
Question 6b. Please outline alternatives to MSY as a target for
management.
Response. I support setting biomass targets that achieve sound,
risk adverse, biological targets. I also support setting maximum
fishing mortality thresholds that prevent unsustainable or risk-prone
fishing. Yield goals in this case, would be allowed to vary and
accommodate natural variation and long-term trends. MSY, on the other
hand, is actually an estimate of the maximum productivity of a resource
where catch balances the maximum surplus production when the stock is
at optimum biomass levels.
Basing management decisions purely on achieving MSY (or some high
fraction of MSY) could be a risk-prone strategy. One example of this is
a problem the New England Council is now considering, that is the
question of fishing capacity. Thus, if the Councils use MSY as an
objective, mistakenly believing that stock biomass is at the optimum
level when in fact it is not, then on average stock biomass will
decline whether biomass is above or below the optimum level. In either
case, surplus production declines and is less than MSY. If the MSY
policy continues while the stock is declining, believing that the stock
will naturally recover, the MSY-based management policy could reduce
the biomass to still lower levels and require a new rebuilding program.
MSY management objectives could, therefore, give people a false
sense of stability, even though natural variation requires that yield
change to balance the resource's dynamic productivity. In lieu of MSY,
the Council prefers a maximum fishing mortality threshold that prevents
long-term unsustainable policies and a biomass target, set as a range,
which allows flexibility to meet risk adverse social and economic
objectives. With regard to rebuilding objectives, it would be
preferable and easier to predict short-term goals (i.e. a percent
increase in stock biomass over one, two, or three years) rather than
achieving a theoretical optimum biomass levels ten years out during a
rebuilding program. The latter policy (the one now required by law)
causes the Councils to set current management regulations based largely
on recruitment that is highly variable and often measured with high
uncertainty. The current policy can cause short term negative effects
to achieve uncertain long-term goals. The uncertainty in the long-term
objectives can also make management policies that depend on achieving
them unsuccessful in the long run.
Question 6c. How do you view ecosystem management as it relates to
the management of species at maximum sustainable yield?
Response. As indicated in the question above (6a), the current law
may prevent the Councils from implementing some policies intended to
achieve ecosystem management objectives. At the present time, it is
very difficult to implement ecosystem management due to sparse
information that directly relates to current conditions. Ecosystem
management is rich in theory based on equilibrium principles, but there
is insufficient data to make ecosystem-based management decisions that
respond to dynamic conditions.
At present, we have single-species MSY estimates since there isn't
sufficient information to relate the productivity of one species to the
abundance and productivity of many other predators, competitors, and
prey and include the interactions between them. Such a system would
require an intensive, real-time data collection system to identify the
interrelationships and the potential outcomes from management of
dynamic conditions. Just quantifying the impact of predatory species
like striped bass, cod, and sharks has proven very difficult.
On a more pragmatic basis, achieving MSY for all species in an
ecosystem may not be possible. Due to natural variation, some
proportion of those species will be at low biomass levels due to
natural events and require rebuilding. The programs needed to rebuild
some of these species could require other more abundant species to be
underutilized, especially with the added objective of minimizing
discard mortality. As a result of the complex dynamics, it may be
unrealistic to continuously achieve MSY for any individual species much
less than for all species simultaneously. This and the undefined
interactions between related species, means that MSY for a group of
species must be less than the sum of MSY for each species considered
individually.
Response to Written Questions Submitted by Hon. Ernest F. Hollings to
Thomas R. Hill
Question 1. Due to the Magnuson-Stevens Act's requirement that
Council members be knowledgeable or experienced regarding the fisheries
within the Council's geographic area of responsibility, Council members
may have a personal or financial interest in the fishery that they are
managing. Over the years, the Magnuson-
Stevens Act has been revised to require that Council members disclose
any financial interests in the harvesting, processing, or marketing of
fishery resources under the Council jurisdiction held by that person,
any relative, or partner or recuse themselves from voting on Council
decisions that would have a ``significant and predictable'' effect on
any personal financial interest.
Have the conflict of interest provisions we enacted in the 1996
Sustainable Fisheries Act solved the problem or is there more work to
do?
Response. There is more work to do. Without a doubt, the Regional
Fishery Council concept is the best way to manage fisheries. The
Council process enlists the help of credible community organizations,
fishermen, and the public, publishes its procedures for all to
understand, listens to all input and maintains a consistent process.
More work needs to be done with the Council member appointment process.
The Council membership is supposed to reflect different sectors of the
industry and consider what's the best for the fisheries resource and
the nation as a whole. The industry perception of what happens at
Council meetings is quite the opposite.
Question 2. Some have suggested not allowing individuals with
current fishing interests serve on the Councils. Do you support such a
change? How would it affect the quality and function of the Councils?
Response. I do not support such a change. However, I do believe
that significant improvements in the membership, function, and
effectiveness of the Councils can be achieved by changing the make-up
of the voting members. I suggest that the Council voting membership
consist of greater diversity of representation by scientists, managers,
public policy experts, fishermen (recreational and commercial), and
environmentalists. I believe the broader member make-up would
facilitate better decisions, which are not based on parochial interests
but rather on knowledge and experience. Major decisions would be
evaluated not only on community impacts, fairness, enforceability, and
bycatch, but also on whether the decision adds to or takes away from
the public interest.
Question 3. How are non-fishing interests such as environmental
interests represented on the Councils? Is that representation adequate?
Response. The New England Council has representation by the
environmental community. We have a voting Council member who is an
employee of the Environmental Defense Fund. An employee of the Wildlife
Conservation Society chairs our Science and Statistical Committee. An
employee of the Conservation Law Foundation chairs our Social Sciences
Advisory Committee. Lastly, we have assigned another employee of the
Conservation Law Foundation to several of our advisory panels. As
addressed in the above question, I believe this group, as others should
have representation on the Council. At present, we have one Council
member representing an environmental interest out of a total of
seventeen voting members.
Response to Written Questions Submitted by Hon. John F. Kerry to
Thomas R. Hill
Question 1. Dr. Fluharty, you tell us that the North Pacific
Council has closed more than 15,000-square nautical miles to bottom
trawling in order to protect king crab habitat, reduce crab bycatch,
and reduce gear conflicts. We have some of the same concerns in New
England on Georges Bank, where-Mr. Hinman tells us that bottom trawls
are used over 40,000 square kilometers of bottom habitat.
What lessons can we draw from the North Pacific to help us address
fish habitat issues in New England?
Response. An important consideration to keep in mind is one of
scale. While the North Pacific Council has closed more than 15,000
square nautical miles to bottom trawling, this represents only little
more than three percent of their management area. The New England
Council, on the other hand, has closed 7,700 square nautical miles to
bottom trawling year-round on George's Bank and in the Gulf of Maine,
with another 13,000 square nautical miles closed to bottom trawling
during a portion of the year in the Gulf of Maine. The year-round
closures on George's Bank represent approximately 40% of the fishing
grounds--a significantly larger proportion of the management area
closed than in the North Pacific.
One significant difference between the two regions is that the New
England closures were all implemented for stock recovery reasons other
than habitat, while the North Pacific closures specifically were
implemented to protect habitat from the impacts associated with bottom
trawling. Even so, all management measures proposed in New England
receive a thorough review and evaluation for any potential adverse
impacts to essential fish habitat (EFH) that may be associated with the
proposed measure.
Thus, any proposed action which could adversely impact EFH
contained within the current closed areas (the entirety of these areas
has been designated as EFH for one or more species) is reviewed and the
habitat-related implications are considered. For example, this past
spring the Council evaluated proposals to allow a program of limited
access to a closed area for scallop fishing. The final access program
restricted scallop fishing to a portion of the closed area where the
potential adverse impacts to EFH from scallop fishing would be
minimized.
While the New England Council still has much to do to better
understand and address the impacts of fishing activities on fish
habitat, we are moving along a similar path as the North Pacific
Council.
______
Response to Written Questions Submitted by Hon. Max Cleland to
William M. Daley and Penelope D. Dalton
The Committee did not receive responses to the following questions.
Question 1. What is the National Marine Fisheries Service's (NMFS)
stance on Congress lifting the Individual Transferable Quotas (ITQ)
moratorium imposed by the 1996 amendments?
Response. None.
Question 2. How does NMFS recommend implementing the
recommendations of its Fishing Information System/Vessel Registration
System Report to Congress? And, in the absence of additional funds, how
would NMFS restructure their existing data collection systems or other
operations to enhance data collection as recommended in the report?
Response. None.
Question 3. What would NMFS think about revisiting Section 306 to
further extend State authority to apply to vessels fishing in the
adjacent EEZ, to all coastal states, not just the State of Alaska?
Response. None.
Question 4. On another subject, isn't NMFS over-reaching the intent
of Congress as expressed in the Act by listing all species found in the
EEZ?
Response. None.
Question 5. Further, doesn't this contravene Section 306 pertaining
to State Jurisdiction of vessels in the EEZ for which there is no
fishery management plan. or for which the Council has delegated to the
State the authority to manage?
Response. None.
Question 6. Finally, there is an issue that is of particular
concern to my State that I hoped you could address for me, specifically
relating to shark management. My question is how NMFS can suspend 100
percent observer coverage on the drift gillnets when the regulation is
in effect?
Response. None.
Question 7. Relating to this issue, should the management of Highly
Migratory Species (HMS) be given back to the Councils? If not all of
the HMS species, then at a minimum, sharks?
Response. None.
______
Response to Written Questions Submitted by Hon. Ernest F. Hollings to
William M. Daley and Penelope D. Dalton
Question 1a. For a few years now, the State of South Carolina has
been working with the National Marine Fisheries Service (NMFS) on a
joint enforcement program.
What benefits has this program had for enforcement in South
Carolina waters? Has close cooperation with the state allowed NMFS to
leverage its resources?
Response. None.
Question 1b. What would it take to expand this program to other
states?
Response. None.
Question 2a. Last Friday, the (attached) lead editorial in my
hometown paper the Charleston Post and Courier congratulated the South
Carolina Department of Natural Resources for stepped up enforcement of
federal recreational fishing limits. Rampant violations were found--one
angler was caught with more than 4 times the legal limit for vermillion
snapper. One cooler on one ``head boat'' contained 311 fish despite the
per person limits aboard the such boats.
Attachment
[From The Post and Courier, Friday, July 23, 1999]
Welcome Fishing-Limit Push
Intensified enforcement of state and federal recreational-fishing
limits is good news for responsible anglers.
Those fishermen already know that any violation of those
regulations on the size and number of fish could lead to costly fines--
and if they don't have enough cash to post bond, even a trip to jail.
That's sufficient motivation to obey the law.
But responsible anglers share a more long-range motivation for
limiting their catches: Widespread compliance with these sensible
restrictions enhances the prospects for a bright fishing future.
Fortunately, South Carolina is naturally blessed with numerous
saltwater and freshwater fish species. Unfortunately, overfishing
threatens to squander that blessing. Many of our species, their
populations dwindling have become vulnerable.
And when S.C. Department of Natural Resources officers caught a
single angler with 89 vermilion snapper (more than four times the limit
of 20 allowed for two days of fishing) Tuesday, it was clear that he
wasn't showing the proper concern for that vulnerability. Because of
the greedy few who threaten to spoil the fishing fun for the rest of
us, DNR is stepping up its efforts to apprehend and punish violators.
Our Lynne Langley reports that officers found evidence of rampant
violations at a Mount Pleasant dock this week in coolers containing 311
fish (including red snapper, red porgy, sea bass, sharks, amberjack,
dolphin finfish, triggerfish, scamp grouper and 247 vermillion snapper)
caught aboard a ``head boat.'' Such vessels take paying anglers out for
up to 24 hours.
Some reportedly abandoned their coolers in order to evade the legal
consequences. Other fishermen paid fines of up to $425 apiece.
Ignorance of the law is no excuse--especially on those ``head
boats,'' which regularly distribute the legal limits in written form
and even announce them on board. DNR also will focus on smaller,
private boats. And at a time when many anglers, worried about dwindling
fish stocks, have resorted to the catch-and-release method (a self-
imposed limit of zero), those who exceed legal limits can expect scant
sympathy on land or sea.
DNR Communications Director Mike Willis has given fair notice: ``We
will be going up and down the coast. Officers can show up anywhere, any
time.''
All anglers should remember that warning--and remember why it's
necessary.
How reliable can the recreational catch data be if such violations
are regularly occurring? What can we do to get better recreational
data?
Response. None.
Question 2b. Other than stepped up enforcement action and
cooperative programs like the NMFS/South Carolina enforcement program,
what can be done to keep ``head boats'' within the law?
Response. None.
______
Response to Written Questions Submitted by Hon. Ernest F. Hollings to
Maggie Raymond, Thomas R. Hill, Richard B. Lauber, and David Fluharty
Question 1a. Due to the Magnuson-Stevens Act's requirement that
Council members be knowledgeable or experienced regarding the fisheries
within the Council's geographic area of responsibility, Council members
may have a personal or financial interest in a fishery that they are
managing. Over the years, the Magnuson-Stevens Act has been revised to
require that Council members disclose any financial interests in the
harvesting, processing, or marketing of fishery resources under the
Council jurisdiction held by that person, any relative, or partner and
recuse themselves from voting on Council decisions that would have a
``significant and predictable effect'' on any personal financial
interest.
Have the conflict of interest provisions we enacted in the 1996
Sustainable Fisheries Act solved the problem or is there more work to
do? Please explain.
Response. None.
Question 1b. Some have suggested not allowing individuals with
current fishing interests serve on the councils. Do you support such a
change? How would it affect the quality and function of the councils?
Response. None.
Question 1c. How are non-fishing interests such as environmental
interests represented on the councils? Is that representation adequate?
Response. None.
______
Response to Written Questions Submitted by Hon. John F. Kerry to Maggie
Raymond, Thomas R. Hill, Richard B. Lauber, and David Fluharty
Question 1a. Tom Hill has stated in his testimony that it is
essential to set hard total allowable catch (TAC) limits if we are to
achieve our management objectives in New England. The North Pacific
Council, along with all other Councils, have set hard TACs, but the New
England Council has not.
Mr. Lauber and Dr. Fluharty, why did your Council decide to set
hard TACs?
Response. None.
Question 1b. How could you manage your fishery consistent with the
SFA if you did not use hard TACs? What are the problems you would
encounter?
Response. None.
Question 2a. Dr. Fluharty, you tell us that the North Pacific
Council has closed more than 15,000 square nautical miles to bottom
trawling in order to protect king crab habitat, reduce crab bycatch,
and reduce gear conflicts. We have some of the same concerns in New
England on George's Bank, where Mr. Hinman tells us that bottom trawls
are used over 40,000 square kilometers of bottom habitat.
Is the North Pacific Council working with fishermen to develop
innovative ideas for gear improvements to mitigate these habitat
impacts?
Response. None.
Question 2b. What lessons can we draw from the North Pacific to
help us address fish habitat issues in New England?
Response. None.
______
Response to Written Questions Submitted by Hon. John F. Kerry to
Penelope D. Dalton
Question 1a. We have provided a fair amount of money to NMFS to
address economic impacts and fisheries research needs in New England,
specifically $5 million in emergency funding, and an addition $1.88
million for cooperative research. Further, the Senate Appropriations
bill would provide $8 million for cooperative management. One of the
most strongly felt needs is for observers to document bycatch levels of
cod in the Gulf of Maine. In addition, we have been encouraging NMFS to
work cooperatively with our fishermen in management and on research
projects.
How are the available monies now being used to assist with research
and build confidence with our fishing communities?
Response. None.
Question 1b. What are the obstacles to improving cooperative
fisheries management and research both in New England and elsewhere?
Response. None.
Question 1c. Can you point to successful cooperative efforts in the
New England region or in other areas of the country that could provide
the basis for regional or national cooperative management approach?
Response. None.
Question 2a. The report recently issued by the NMFS Ecosystem
Principles Advisory Panel advocates amending fishery management plans
to incorporate ecosystem approaches in accordance with a Fisheries
Ecosystem Plan.
Do NMFS and the Councils have sufficient funds to undertake such a
project? NMFS has estimated that a fishery-dependent data collection
system alone would cost approximately $50 million.
Response. None.
Question 2b. How much of this work is already being in your SFA
implementation efforts?
Response. None.
Question 2c. Do you foresee the need for legislative changes to
implement this recommendation?
Response. None.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Panel I (Administration Witnesses)
Question 1. Maximum Sustainable Yield (MSY) is considered by many
fisheries experts to be an outdated and possibly inappropriate concept
for fisheries management. Determining accurate estimations of MSY
requires fishing at a range of effort, including well beyond the point
of MSY, and adopting or relaxing various management measures may change
the resulting MSY. Further, MSY changes over time due to environmental
and other conditions.
Does NOAA believe that a broader definition of overfishing is
needed to allow other methods of assessing overfishing based on the
nature of specific fisheries and the currently available data on them?
If so, how do you recommend changing the current definition of
overfishing within the Magnuson-Stevens Act?
Response. None.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Panel II
Question 1. Mr. Swingle, you pointed out in your written testimony
that while the work of the councils has increased dramatically due to
the requirements of the Sustainable Fisheries Act, the budget request
for the councils has increased a mere 2.3%.
Do the councils have adequate financial resources to carry out
their work? If not, what is being left undone due to financial
constraints?
Response. None. What would you recommend as an appropriate level of
council funding, compared to current funding?
Response. None.
Question 2. Mr. Hinman, you have pointed out that ``no council
established a required standardized bycatch reporting system'' since
the passage of the Sustainable Fisheries Act.
What would the establishment of such a system entail in terms of
data collection, technical operations, and funding?
Response. None.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Penelope D. Dalton
Question 1. In your testimony, you stated that two distinct review
processes exist for fishery management plans and plan amendments and
the publication of agency regulations. You further state that this
creates a disconnect for public opportunities to comment. Please
explain in detail the resulting effect and how it should be addressed
in the reauthorization language.
Response. None.
Question 2a. The Sustainable Fisheries Act requires each highly
migratory species advisory panel to be balanced in its representation
of commercial, recreational, and other interests. The Billfish Advisory
Panel, however, has approximately 11 representatives from the
recreational sector and only one from the commercial sector.
Please explain in detail the extent to which the Billfish Advisory
Panel considers issues related to commercial fishing, such as pelagic
longlining.
Response. None.
Question 2b. Please explain the agency's definition of ``balance''
as it was used in the selection of members to serve on the Billfish
Advisory Panel.
Response. None.
Question 2c. There are two advisory panels to cover HMS issues. The
HMS panel covers highly migratory species, such as bluefin tuna and
swordfish. The only other advisory panel is the Billfish panel. Why was
the Billfish AP established separately and what effect has it had on
the development of other HMS policies?
Response. None.
Question 3a. The Regulatory Flexibility Act mandates that agencies,
such as NMFS, consider the potential impact of their regulations on
small businesses. The Office of Advocacy in the Small Business
Administration has notified NMFS that there has been a consistent
failure to acknowledge a ``significant economic impact'' when the
agency makes proposals.
During the hearing, you stated that NMFS has devoted additional
resources to address compliance with the Regulatory Flexibility Act
(RFA). Please explain in detail what resources NMFS has used to date,
including the number of employees and the specific area of expertise
for each employee dedicated to compliance with the RFA.
Response. None.
Question 3b. You further stated that NMFS has requested $1 million
in the FY 2000 budget to improve economic data collection. Please
explain in detail how this funding will be utilized for on-the-ground
data collection projects.
Response. None.
Question 3c. What further resources will be necessary in order to
fully incorporate economic analysis into agency decisions?
Response. None.
Question 3d. Please explain in detail how NMFS can improve its
regulatory process so that small fishing businesses receive adequate
consideration under National Standard 8 and the Regulatory Flexibility
Act.
Response. None.
Question 3e. In the 1996 amendments of the Regulatory Flexibility
Act, OSHA and EPA were required to convene small business advocacy
review panels for each rulemaking that will have a significant economic
impact on a number of small businesses. To date, this panel process has
resulted in higher compliance with economic information requirements of
the Regulatory Flexibility Act. How would a similar panel process
assist NMFS in its consideration of economic impact analyses in
fisheries decision-making?
Response. None.
Question 3f. In implementing National Standard 8, does NMFS take
into account the cumulative social and economic impacts of previous
fishery regulations when it proposes to create additional measures?
Please explain.
Response. None.
Question 4a. Observers on vessels have provided an effective way to
manage the bycatch of both untargeted fish and marine mammals.
Please explain in detail which fisheries successfully utilize
observers and what bycatch is reduced through observer coverage. Please
provide a list of fisheries that do not currently have adequate
observer coverage but could benefit by such a program.
Response. None.
Question 4b. Since adequate observer coverage does not exist in
several New England fisheries, such as scallops and groundfish, what
other measures is NMFS employing to help minimize bycatch?
Response. None.
Question 4c. Maine fishermen have expressed their serious concerns
about marine mammal interactions and groundfish bycatch in the New
England herring fishery. The fishery management plan for herring
includes a provision for the use of observers. Please explain in detail
why NMFS has not implemented an observer program for this fishery and
provide a schedule for expected implementation of observers in this
fishery.
Response. None.
Question 5a. The Magnuson-Stevens Act provides 10 National
Standards that are supposed to be followed by the councils when making
management proposals. Proposals are submitted to NMFS for review to
ensure that they adhere to the statutory mandate. NMFS is then supposed
to send all or portions of the proposal back to the council if NMFS
finds that it does not fulfill the Magnuson-Stevens mandate. It is this
system of review that is supposed to ensure that the councils take the
necessary actions.
Proposals from the New England Council, particularly those related
to groundfish, have been noted as not adhering to the National
Standards. However, the proposals have not been sent back to the
Council. Please explain NMFS' procedure for deciding which proposals to
send back to the councils.
Response. None.
Question 5b. Please explain in detail why the use of a running
clock was judged as contrary to the National Standards and thus not
allowed in the New England monkfish fishery, yet was allowed in the
Northeast multispecies fishery.
Response. None.
Question 6. The fiscal year 1999 Omnibus Appropriations bill
provided $5 million in disaster relief to mitigate the collapse of the
New England groundfish fishery. That bill was signed in law on October
21, 1998. When will this money be dispersed by NMFS?
Response. None.
Question 7a. At the hearing, Terry Garcia, Assistant Secretary for
Oceans and Atmosphere said a final rule prohibiting the use of spotter
planes in the General and Harpoon Categories of the Atlantic Bluefin
Tuna fishery would be implemented ``sooner rather than later''.
Please explain in detail what Mr. Garcia meant by ``sooner rather
than later'' and explain when the final rule prohibiting the use of
planes will be implemented.
Response. None.
Question 7b. Should fishery management decisions be based on how to
defend against a lawsuit? If not, please explain in detail how the
decision-making process at issue has not been based on how to defend
against a lawsuit.
Response. None.
Question 7c. Since you were sued two years ago on a similar rule,
please explain why the agency has been unable to prepare a legally
defensible rule to date?
Response. None.
Question 8. The Sustainable Fisheries Act authorizes the Secretary
or Councils to establish rebuilding schedules longer than 10 years if
the fish is managed under an international agreement. Please explain in
detail how NMFS interprets this provision with regard to the 20-year
rebuilding plan for bluefin tuna, adopted by ICCAT last year and with
regard to a rebuilding plan for swordfish, which will be a major topic
at the 1999 ICCAT meeting.
Response. None.
Question 9a. The U.S. Commissioners to ICCAT represent the United
States and negotiate the U.S. position at ICCAT. NMFS is responsible
for the domestic implementation of the agreements negotiated by the
Commissioners. These agreements are a critical element of NMFS
management of highly migratory species.
At what step in the regulatory process are the views and intent of
the U.S. Commissioners taken into account when developing the domestic
implementing regulations for highly migratory species pursuant to the
international agreements?
Response. None.
Question 9b. Would NMFS support a formal consultation process with
the U.S. Commissioners during the development of the domestic
implementing regulation?
Response. None.
Question 10a. In 1990, Congress amended the Magnuson-Stevens Act to
place highly migratory species under the direct management of the
Secretary. Some have suggested, however, that authority over such fish
be moved back to the regional council level.
Do you support such a move or can the current Secretarial process
be improved sufficiently to be effective?
Response. None.
Question 10b. What suggestions do you have to improve the
management of highly migratory species?
Response. None.
Question 11a. Implementation of the essential fish habitat
provisions of the Sustainable Fisheries Act has raised a number of
concerns. Some are concerned about the scope, complexity and cost.
Others believe that NMFS has not been aggressive enough. Despite
receiving many critical comments on the interim rule, NMFS has not
moved forward with a final rule.
When do you expect to publish a final rule?
Response. None.
Question 11b. Please describe any proposed changes to the interim
final rule?
Response. None.
Question 12a. NMFS has also been working to identify ``habitat
areas of particular concern''.
Please explain in detail how ``habitat areas of particular
concern'' are different than currently defined areas of essential fish
habitat.
Response. None.
Question 12b. Under what authority has NMFS developed this new
designation?
Response. None.
Question 12c. What type of regulatory measures does NMFS plan to
implement in these areas of particular concern?
Response. None.
Question 13a. The National Academy of Science has recommended that
Congressional action allow flexibility to the Councils in designing
individual fishing quota programs.
Should Congress establish criteria for Councils to use in
developing IFQ programs?
Response. None.
Question 13b. If so, do you have any recommendations for the
criteria?
Response. None.
Question 14a. Some question whether it is appropriate to continue
to use Maximum Sustainable Yield as the target for fisheries
management.
Please explain whether you think that there are any modifications
to the management process which would make MSY a reasonable goal.
Response. None.
Question 14b. Please outline alternatives to MSY as a target for
management.
Response. None.
Question 14c. How do you view ecosystem management as it relates to
the management of species at maximum sustainable yield?
Response. None.
Question 15. The fishery management plan for highly migratory
species requires Atlantic pelagic longline vessels to pay for and carry
Vessel Monitoring System (VMS) equipment. Please explain how this
requirement meets National Standard 8 and it differs from the use of
VMS on Pacific pelagic longline vessels.
Response. None.
______
Prepared Statement of the North Pacific Fishery Management Council
introduction
The Sustainable Fisheries Act of 1996 (SFA) added many new
requirements to the Magnuson-Stevens Fishery Conservation and
Management Act. Some apply across the board to all regional fishery
management councils. Some apply specifically to the North Pacific
Fishery Management Council (the Council). The following report
summarizes actions the North Pacific Council has taken to meet the new
requirements. The lead for responding to each of the requirements may
be the Council or the National Marine Fisheries Service (NMFS). On most
issues, there is shared responsibility for getting the job done by the
required deadline. In order to compare each section below to the
specific provisions in the SFA, we have included page references which
are to the red copy of the Magnuson-Stevens Act, NOAA Technical
Memorandum NMFS-F/SPO-23, dated December 1996. In summary, the Council
and NMFS have responded to each of the required provisions of the SFA--
most actions are complete, while a few others are in the iterative
stages of development and implementation. During 1997 and 1998 the
Council (and staff) spent a major portion of its time developing
amendments to its fishery management plans to respond to these
mandates. These amendments have strengthened the fishery management
process in the North Pacific and helped to ensure the long-term
viability of the fisheries off Alaska.
section 3: definitions (pp. 4-11)
SFA added twelve new definitions (e.g. bycatch, economic discards,
essential fish habitat, fishing communities, individual fishing quotas,
overfishing, regulatory discards, etc.) and revised several others,
most notably optimum yield (OY), which now cannot exceed maximum
sustainable yield (MSY). NMFS reviewed the Council's fishery management
plans (FMPs) and regulations and found that, except for ``individual
fishing quota'', none of the definitions was contained in the FMPs or
regulations. Therefore, NMFS notified the Council by letter on February
20, 1997, that no revisions were needed. It was noted that OY is
defined in the groundfish plans as a numerical range, which is still
consistent with the new definition in the SFA. Although the definition
of OY strictly speaking may not need revision, the Council needs to
review each OY and ensure it does not exceed MSY. Progress on this
review and revision is further explained below in reference to Section
303(a)(3)--OY and MSY specification.
section 302(e, i, j): sopp update to reflect new procedures (pp. 51-56)
The SFA revised several Council procedures relating to the
transaction of business, procedural matters, and disclosure of
financial interest and recusal. The Council approved revisions to its
Standard Operating Practices and Procedures on February 7, 1997. The
revised SOPP was submitted to NMFS on February 12, 1997, and
subsequently withdrawn on advice that NMFS is withdrawing the Council
Administrative Handbook. Revised SOPPs are nevertheless in preparation
and expected to be filed and published by end of 1999.
section 303(a): new required provisions of fmps (pp. 58-60)
There are new fishery management plan requirements that relate
principally to the following five areas: (1) essential fish habitat;
(2) overfishing and stock rebuilding; (3) bycatch reporting and
minimization, (4) recreational and charter sector descriptions and
allocations, and (5) fishery impact statements as they relate to
impacts on fishing communities. Additionally, Section 303(a)(3) on the
specification of MSY and OY, though unchanged, needs to be considered
to ensure that OY does not exceed MSY. Conforming plan amendments were
to be submitted by October 11, 1998 (see PL 104-297, sec. 108(b), M-S
Act Section 303 note at top of p. 64).
Status: See individual amendments below.
section 303(a)(3) oy and msy specification (p. 58)
The SFA did not amend this section directly, but because the
definition of OY was revised to not exceed MSY (Section 3(28), p. 9),
each FMP OY needs to be examined and revised if necessary to conform
with this new definition. The Council has processed changes to OY as
amendment 7 to the BSAI crab FMP, and amendments 6 to the salmon and
scallop FMPs. These three FMPs defer management to the State of Alaska.
These plan revisions were approved in June 1998 and are now in place;
the proposed rule for the salmon plan revisions are being prepared for
Secretarial review.
Regarding the groundfish fisheries, the Council has submitted and
the Secretary has approved amendments 56 to the GOA and BSAI groundfish
FMPs. They redefined overfishing and acceptable biological catch, but
did not revise MSY and OY, which are numerical ranges in each plan.
Trailing revisions of OY and MSY, as they relate to the overfishing
definitions and minimum stock size threshold, may be considered in the
future.
Status: Council actions complete on groundfish, crab, salmon, and
scallops; all revisions except for salmon overfishing have been
approved by Secretary.
section 303(a)(7): essential fish habitat (p. 59)
Councils are required to describe and identify essential fish
habitat (EFH) based on the NMFS guidelines established under Section
305(b)(1)(A), and to minimize to the extent practicable adverse effects
on such habitat caused by fishing. NMFS published EFH guidelines as an
Interim Final Rule on December 19, 1997. The Council has moved ahead
with processing amendments to its five fishery management plans, Gulf
of Alaska (GOA) groundfish, Bering Sea and Aleutian Island (BSAI)
groundfish, BSAI king and Tanner crab, scallops, and salmon. The latter
three plans defer management to the State of Alaska. The Council also
is describing EFH for various non-plan species such as herring,
halibut, forage fish, and GOA crab. The final Council decision on
identifying and describing EFH was made in June 1998, and the EFH
amendments have been approved by NMFS.
A second new EFH requirement is to minimize to the extent
practicable adverse effects on EFH caused by fishing. The Council
already has enacted many measures such as closed areas to certain
gears, mainly directed at controlling bycatch of crab, halibut, herring
and salmon in the groundfish fisheries. To varying degrees, they also
reduce the impact of fishing on EFH. The Council has implemented one
additional mitigation measure, closure of the Cape Edgecumbe pinnacles
off Sitka, an area critical to ling cod and rockfish recruitment. Other
mitigation measures may be proposed and developed during the annual
call for groundfish proposals this summer, where the Council has
requested proposals to identify habitat areas of particular concern
(HAPC).
Status: Council action complete on EFH amendments and approved by
Secretary. Council will consider future proposals for habitat areas of
particular concern, and will further consider impacts of fishing
activities on EFH.
section 303(a)(10): overfishing (p. 59)
This provision requires addition of overfishing criteria, measures
to prevent overfishing, and if necessary, measures to rebuild stocks
identified as approaching overfished or are overfished. NMFS initially
reported on overfished stocks to Congress on September 30, 1997. No
North Pacific Council stocks were identified as overfished, although
Tanner (bairdi) crab stocks have subsequently been classified as
overfished under the new definitions. An aggressive rebuilding plan for
bairdi crab has been developed and is scheduled for approval by the
Council this fall. The Council has taken final action on new
definitions of overfishing for each of its five fishery management
plans: salmon, scallop, BSAI crab, BSAI groundfish, and GOA groundfish
to conform to the National Standard guidelines published in the Federal
Register on May 1, 1998. The plan amendments have been submitted to
NMFS well ahead of the October 11, 1998 deadline.
Status: Council action complete--awaiting Secretarial approval for
salmon overfishing definitions.
section 303(a)(11): bycatch reporting and minimization (p. 60)
The Council has implemented many measures to restrain and reduce
bycatch and bycatch mortality of non-groundfish species in the
groundfish fisheries over the past twenty-three years. However, to
further comply with the new mandate in this section the Council, in
summer 1997, put out a special call for proposals to reduce bycatch.
Responses were reviewed by the Council in September 1997, and the
following proposals (with proposer identified) were chosen for further
development:
1. Ban on-bottom trawling for pollock in the BSAI (Alaska Marine
Conservation Council);
2. Lower chinook bycatch limit in trawl fisheries from 48,000 to
36,000 salmon, and implement other measures to reduce chinook bycatch
(Yukon River Drainage Fisheries Association);
3. Create an individual vessel checklist program, similar to
harvest priority, and provide for a reward fishery (Alaska Marine
Conservation Council);
4. Create a halibut mortality avoidance program (Groundfish Forum);
and
5. Reevaluate halibut discard mortality and implement quick release
mechanisms such as grid sorting (United Catcher Boats)
Plan amendments for proposals 1 and 2 were approved by the Council
in 1998. Details of the remaining three proposals are being developed
further by a special committee, with number 4 being developed further
under an experimental fishing permit by industry participants. The
Council believes the above actions, combined with existing bycatch
management measures, satisfy the new requirements of the SFA, though it
will consider fully any new proposals that may help to better address
the bycatch issue.
Concerning bycatch reporting, NMFS and the Council believe that
observer reports, as applied through the blend catch accounting system,
provide sufficiently accurate information on bycatch in the groundfish
fisheries to conform with the new requirements of the SFA. Only for
chinook salmon bycatch in BSAI pollock fisheries does there remain
concern over accuracy of the data. To address those concerns, the
Council in April 1998 added options to the analysis of chinook bycatch
reductions that could increase observer coverage to 100 percent on
vessels over 60 ft. in length when fishing in an area known for high
bycatch, and provide for vessel monitoring systems on vessels fishing
for pollock. The Council has also requested NMFS to report further on
the accuracy of basket sampling for salmon and other measures to ensure
accurate enumeration of catch.
The scallop, BSAI crab, and salmon plans defer management to the
State of Alaska. The scallop fisheries are monitored with observers.
The main bycatch of concern in the scallop fishery is crab, and the
scallop plan contains provisions to close fisheries when crab bycatch
caps are reached. Crab bycatch is closely monitored by the State of
Alaska to determine mortality, size frequency, shell-age, and injuries.
Additionally, halibut bycatch and discarded scallop bycatch are
monitored closely through the at-sea observer program. Bycatch
information is being added to the scallop fishery management plan along
with the definitions of overfishing, MSY and OY, as part of amendment 6
which was approved by the Council in 1998. Additional bycatch
mitigation measures are not being contemplated for the scallop fishery.
The crab FMP designates bycatch measures as category 3 measures
which are deferred to the State of Alaska. The State has an extensive
observer program for crab and has adopted seasons, escape rings,
biodegradable panels, mesh size, and maximum entrance size requirements
to reduce bycatch and associated mortality of non-target crab in the
directed crab pot fisheries. These measures complement Council efforts
to reduce crab bycatch in other fisheries, and are consistent with
National Standard 9, which states that conservation and management
measures shall, to the extent practicable, minimize bycatch and to the
extent bycatch cannot be avoided, minimize the mortality of such
bycatch. Bycatch information on the crab fisheries is summarized in the
crab FMP. Additional bycatch mitigation measures are not being
contemplated by the Council for the BSAI crab FMP.
The salmon FMP covers a multitude of salmon fisheries managed
directly by the Alaska Department of Fish and Game or through the
Pacific Salmon Commission. Management decisions take into account the
mixed stock nature of the fisheries which often is the basis for heated
allocational disputes. Aside from recognizing the mixed stock nature of
the fisheries, the Council is not contemplating any additional measures
concerning bycatch or bycatch mitigation in the salmon fisheries beyond
the chinook bycatch cap reduction described above. The Council is
working on measures to control bycatch of salmon in the Bering Sea and
Aleutian Islands groundfish fisheries as noted above, but not on
bycatch measures for the directed salmon fisheries.
Status: Council action complete to date, but will continue to
consider bycatch reduction and mortality measures including individual
vessel incentives.
section 303(a)(5.12-14): recreational and charter fisheries
descriptions and allocations (pp. 59-60)
The only significant recreational fishery under direct Council
management is for halibut. That fishery has no fishery management plan.
It is managed biologically by the International Pacific Halibut
Commission, and the Council has authority over allocative and limited
entry issues. Even though there is no formal fishery management plan,
many of the types of data required by the SFA were presented in the
analysis performed on the halibut charterboat industry, completed in
1997. Further action to establish a guideline harvest level (GHL) for
the guided sport halibut fishery is scheduled for early next year.
Future analyses on recreational halibut issues will include to the
extent available the types of information identified in Section
303(a)(5, 12-14).
Status.--Future analyses will incorporate this information as
necessary and appropriate.
section 303(a)(9)(a): include fishing communities in fishery impact
statements (p. 59)
The Council already incorporates information on affected fishing
communities in its fishery management plan amendment analyses as
appropriate, and will continue to do so, particularly when fishery
allocations are considered. Examples of recent efforts in this regard
include comprehensive community profiles for 126 coastal communities in
Alaska and the Pacific Northwest, and a Social Impact Assessment
associated with recent major actions including inshore/offshore pollock
allocations and license limitation programs.
Status: Future analyses will incorporate this information as
available. The Council, through its Social and Economic Data Committee
and NMFS, is also developing a more programmatic data collection
program for baseline community impact information.
section 303(d)(4): north pacific loan program (pp. 63, 67, and 120)
Development of a North Pacific Loan Program is guided by three new
provisions added by the SFA. Uncodified section 108(g) on p. 120
compels the North Pacific Council to recommend, by October 1, 1997, a
loan program to guarantee obligations for sablefish and halibut IFQ
purchases by entry level and small boat fishermen. The guarantees shall
be based on a fee program developed in accordance with Section 304(d)
on p. 67, and funds allocated as provided in Section 303(d)(4) on p.
63.
The Council took final action in recommending a loan program in
September 1997. The process was then put on hold pending resolution of
several issues, most notably the availability of funds to implement the
program, and uncertainty in NMFS and NOAA GC regarding the appropriate
form of the submittal package, more specifically whether an FMP
amendment and/or implementing regulations would be required. Some of
these issues were resolved by March 1998, and the Council wrote to NMFS
on March 9, 1998, formally requesting agency action to implement the
loan program. On March 26, 1998, NMFS wrote to the Council approving
the loan program and stating that no further action was required by the
Council to implement the program. Under the current arrangement, the
loan program will be supported by special appropriations, unrelated to
any fee program, for 1998. The fee program is being developed by NMFS
and is scheduled for implementation in 2000 (see Section 304(d)(2)
below). To base the loan program on the fee program, when implemented,
may require additional action by the Council to amend its FMPs for
groundfish and regulations for halibut (which has no FMP). NMFS and
NOAA GC need to provide guidance to the Council on further actions.
Status: Council action complete. NMFS has implemented loan program
based on appropriated funding. Further loans will depend on additional
funding through the fee plan being developed by NMFS.
section 304(d)(2): fees on ifq/cdq programs (p. 67)
This section directs NMFS to establish fees up to 3 percent on IFQs
and community development quotas (CDQs). NMFS is preparing the fee
program as a secretarial amendment to the groundfish FMPs. A discussion
paper was provided by NMFS to the Council at the April 1998 Council
meeting. The Council established a committee to work with NMFS on
further development of the fee program and reviewed an implementation
plan for the fee program in late 1998. Implementation is expected in
year 2000.
Status: Council action has been completed using a committee to
advise NMFS on program structure and implementation. Fee program now
awaiting implementation by NMFS.
section 305(i): community development program (pp. 78-80)
This section requires the Council to establish CDQ programs for
groundfish and crab in the Bering Sea and Aleutian Islands. The Council
already had approved a multispecies CDQ program in June 1995 along with
provisions for a groundfish and crab license limitation program. The
amendment package was submitted for Secretarial review on June 3, 1997
as amendment 39 to the BSAI groundfish plan, amendment 41 to the GOA
groundfish plan, and amendment 5 to the BSAI crab plan. The amendments
were formally approved by NMFS on September 12, 1997 and are now in
effect.
Related to this section is the existing pollock CDQ program in the
BSAI. It was due to expire at the end of 1998. In June 1998, the
Council took final action on continuing the pollock CDQ program and
melding it with the multispecies CDQ program. It has now been
implemented, with revised percentages as mandated by the American
Fisheries Act.
Status: Council action complete.
section 313(f, i): four-year reduction in economic discards and report
on full retention (p. 103, 105)
Section 313(f) requires the Council to submit measures to reduce
economic discards for a period of not less than 4 years. The Council
has complied by submitting amendments 49 to the BSAI and GOA groundfish
FMPs, requiring full retention of pollock and Pacific cod in all
groundfish fisheries beginning in 1998, and adding full retention of
BSAI rock sole and yellowfin sole and GOA shallowwater flatfish in
2003. These amendments were approved by NMFS on September 3, 1997 for
the BSAI and on October 29, 1997 for the GOA, and implemented on
January 1, 1998. They will reduce economic discards of groundfish very
significantly from pre-1998 levels. Discards of pollock and Pacific cod
have been significantly reduced already, from 8.2 percent to 1.6
percent and from 8.6 percent to 2.2 percent respectively. Full
retention requirements for selected rockfish species were recently
approved by the Council as well. At this time there are no plans to
develop such measures for other Council FMPs, all of which defer
significant management to the State of Alaska.
Section 313(i) requires the Council to submit to the Secretary by
October 1, 1998, a report on the advisability of requiring full
retention and utilization. The report shall address the projected
impacts of such requirements on participants in the fishery and
describe any full retention and utilization requirements that have been
implemented. Because the Council has already approved and implemented a
full retention and utilization program for the groundfish fisheries,
beginning in 1998, the emphasis of that report focused on the first-
year performance of the fisheries under the new requirements and
lessons learned.
Status: Council action complete.
section 313(g): bycatch reduction incentives (p. 104)
The Council may submit a system of fines in a fishery to provide
incentives to reduce bycatch and bycatch rates. Though discretionary,
the Council has a committee developing a vessel bycatch allowance
system to place the onus for responsible fishing at the individual
vessel level. This committee reported to the Council in June 1998, but
has been on hold pending resolution of monitoring/legal issues with
regard to accounting for individual bycatch quotas.
Status: Council action pending.
section 313(h): total catch measurement (p. 104)
This section requires the Council by June 1, 1997 to submit
measures to ensure total catch measurement in each fishery under its
jurisdiction that will ensure the accurate enumeration, at a minimum,
of target species, economic discards, and regulatory discards. By
January 1, 1998, the Council and Secretary are required to submit a
plan to Congress to allow for weighing, including recommendations to
assist such processors and processing vessels in acquiring necessary
equipment, unless the Council determines that such weighing is not
necessary to ensure total catch measurement.
The Council and NMFS already have a long history on efforts to
provide for total catch measurement in North Pacific fisheries. For the
groundfish fisheries, catch reporting is based on weekly processor
reports, observer reports, and NMFS' blend system that estimates catch
over the entire fishery. Fish delivered ashore are weighed, and
observed, at the processing station. For the offshore catcher processor
and mothership fleet, catch is measured volumetrically and transformed
into catch weight using various algorithms and density coefficients.
The Council and NMFS have been working together since the early 1990's
to improve catch estimation and reporting, beginning with the
comprehensive observer program approved by the Council in 1989 and
implemented for the 1990 fisheries.
By 1992, the observer program had been up and running for two
years, the Council had just finished addressing the extremely
contentious issue of allocations of pollock between the inshore and
offshore sectors, and the first CDQ program had been approved for
pollock in the BSAI. In resolving the inshore-offshore issue,
significant debate revolved around how much pollock each sector was
harvesting and how much pollock and other species were being discarded.
Attention focused on the ability of then current catch measurement and
reporting systems to provide accurate data. Thus, in January 1992, the
Council commenced a special initiative to further improve catch
information, by requesting development of a regulatory amendment that
would require accurate estimation and reporting of total catch by
species, either by weighing or volumetric measurements, and
installation of communications systems capable of daily interactive
reporting of harvest and observer data. By April 1993, the amendment
had been prepared, and in June 1993, the Council took final action,
recommending that catcher-processors in the pollock CDQ fisheries carry
two observers and provide certified receiving bins for use in
volumetric estimates of the catch, or provide tamper-proof scales to
weigh all fish prior to sorting and discard. NMFS implemented
regulations on May 16, 1994 requiring CDQ pollock vessels to either
provide certified bins for volumetric estimates of catch or scales to
weigh catch.
In a separate initiative in October 1994, the Council approved a
requirement for all processors in the directed pollock fishery to weigh
all pollock harvest on a scale, intending that the program be
implemented within two years. Various technical problems arose in
finding scales that performed accurately at sea and in funding scale
inspectors that would ensure accurate performance by the scales once
installed. The Council was briefed periodically by NMFS in 1995 an
development of scale requirements and NMFS published an advanced notice
of proposed rulemaking on February 20, 1996, stating its intent to
require weighing of all fish on pollock processing vessels. In April
1996, NMFS informed the Council that certified scales would be needed
before the new multispecies CDQ program, passed by the Council in June
1995, could be implemented.
In February 1997, NMFS emphasized once again to the Council that
certified scales would be needed before the multispecies CDQ program
could commence. NMFS described the funding that would be needed to
commence such a program. In response, the Council wrote to NOAA on
February 13, 1997, urging funding for the certified scale program so
that the new CDQ programs could commence. NMFS published a proposed
rule on June 16, 1997 that responded to comments received on the
February 20, 1996 advanced notice. It established the ground rules for
testing and certifying scales and performance and technical
requirements in an At-Sea Scales Handbook, but did not require specific
processors or vessels to use certified scales. NMFS then notified
industry and the Council again that it would require certified scales
in the multispecies CDQ fisheries that were scheduled to begin late in
1998. On February 4, 1998, a final rule was published establishing
testing and certification procedures. Those catcher processors that
intend to operate in the multispecies groundfish CDQ fisheries later in
1998 must have certified scales as well.
In direct response to the new Section 313(h) requirements, the
Council in June 1997 requested a report from NMFS on the accuracy and
precision of groundfish catch reporting, and from the Alaska Department
of Fish and Game (ADF&G) on salmon, crab and scallops. ADF&G and NMFS
reported to the Council in February 1998. ADF&G concluded that its
harvest enumeration methods for all scallop, salmon, crab, and
groundfish species managed under FMPs were adequate to meet the
requirements of the Magnuson-Stevens Act. NMFS presented a detailed
report on groundfish reporting and several recent studies of their
catch estimation procedures. The Council's Scientific and Statistical
Committee (SSC) received a full-day presentation in February 1998 on
NMFS catch and bycatch estimation. The SSC commended NMFS for its work
to improve catch estimation and to document protocols and procedures,
and then encouraged further work in that direction. The SSC provided
specific recommendations for further improvements, but concluded in
general that ``. . . existing measures for observer, reporting, and
monitoring requirements provide for a reasonable system of total catch
and bycatch estimation. In many respects, the system in place is better
than any found around the world.'' The SSC stated its intent to review
catch estimation each February.
The Council then proceeded to take three actions in February 1998.
First, it moved to initiate an analysis for a plan amendment for catch
management measures in the pollock and yellowfin sole fisheries in the
BSAI with an analysis of two options: (1) a certified bin program, and
(2) a scale program. In recognition of limited availability of NMFS
personnel to conduct the analysis, the Council did not set a deadline,
but noted that although a fully developed amendment would not be
prepared in the near future, the Council would need to report to
Congress on this new initiative and work underway. Second, the Council
requested NMFS to prepare a matrix of current measures used in each
fishery and a framework plan to improve total catch estimation over
time, and report back at a future meeting as staff availability
allowed. Third, the Council asked NOAA General Counsel to provide a
legal opinion on whether the Council was meeting the requirements of
SFA. These initiatives will be the subject of further Council
discussion in 1999 and 2000.
Status: Council action complete, except for ongoing analysis of
catch measurement and refinements in future years. SSC will review
annually each February and provide recommendations to Council.
appendix: russia report (p. 120)
By September 30, 1997, the Council was required to submit to
Congress a report describing the institutional structures in Russia
pertaining to stock assessment, management, and enforcement for fishery
harvests in the Bering Sea, and recommendations for improving
coordination between the U.S. and Russia in managing and conserving
Bering Sea, resources of mutual concern. The report, entitled ``Russian
Far East Fisheries Management,'' was submitted on September 30, 1997.
Status: Council action complete.
In addition to the above specific provisions, the Council and
Council staff also contributed reports and information to the National
Academy of Science (NAS) reports on IFQs and CDQs.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
David Fluharty
Question 1. The National Marine Fisheries Service (NMFS) and the
Councils have begun to identify a subset of essential fish habitat
(EFH) called ``habitat areas of particular concern.'' This subset
targets critical areas such as places of spawning aggregations. Should
these ``habitat areas of particular concern'' be the true focus of
NMFS's work on EFH implementation?
Response. I would like to respond to this key question in several
ways.
First, Essential fish habitat (EFH) under NMFS regulations to
implement the SFA describes the habitats occupied by all of the life
stages of fisheries managed under the MSFCMA. In relatively few cases
can the NMFS and the Councils fully describe these habitats as
specified by the Act. Thus, there remains an enormous amount of work to
implement the Congressional mandate. Full implementation of this
mandate is a prerequisite to understanding the relationships of fish
and habitats. With respect to the habitats of spawning aggregations of
fish, this is only one component of EFH. Thus, I would argue that it is
not a surrogate for the habitat areas of particular concern (HAPC).
[Parenthetically, I had a recent conversation with a key Senate
staffer (Trevor McCabe) for the SFA who informed me that it was
Congressional intent that HAPC would be closer to the definition of EFH
than the broad brush interpretation taken by NMFS. The plain language
of the SFA, however, leads me to agree with the NMFS in its drafting of
implementing regulations. EFH does encompass the full life history
range of managed species. HAPC is a subset of that area. It is more
than a semantic debate--there are significant biological and management
differences that affect management choices].
Second, my observation is that HAPCs are being developed by west
coast fishery management councils to be unique areas of EFH where
unique or rare aggregations of habitat exist. In some cases, these
habitats are exceptionally productive or diverse. In other cases they
are habitats of non-managed species, like cold water corals,
biologically consolidated soft sediments, etc. that could be harmed by
fisheries. Thus, it appears that a hybrid has developed through NMFS
interpretation of Congressional intent. With all due respects to
Congressional drafters, I would argue that the NMFS interpretation of
EFH and HAPC is appropriate and should be allowed to adjust the intent
of Congress that is not clearly expressed in the SFA. Biologically, the
NMFS interpretation works well in the Council management context.
Third, I firmly believe that the intent of Congress and the efforts
of the NMFS will converge in the implementation of HAPC. Congress
should supply the financial and human resources support and the
political leadership to fully implement EFH [this includes the fishing
effects components of the SFA].
Fourth, and finally, the EFH and HAPC efforts by NMFS under the SFA
are very much needed initiatives to lay out what is known about the
relationships of fish and their habitats in a fishery management
context. This work is a prerequisite for eventual management of
fisheries spatially and temporally in ways that will lessen fisheries
effects and promote sustainability. This work is also a prerequisite
for starting to utilize the knowledge of the ecosystem that is
currently available, e.g., in the proposed Fishery Ecosystem Plan
recommended by the NMFS Ecosystem Principles Advisory Panel, Report to
Congress on Ecosystem-Based Fishery Management www.nmfs.gov/sfa/
reports.html.
Question 2. Several non-fishing interests have expressed concern
that the EFH consultation requirement is duplicative of other federal
consultation requirements and will result in unnecessary delays of
projects. Do you have any suggestions which would address the concerns
of such non-fishing interests?
Response. I would agree that the EFH consultation requirements are
redundant to the comments required under the National Environmental
Policy Act and the Fish and Wildlife Coordination Act. Still, used
judiciously by the Councils and NMFS, the modest consultation
requirements do not impose an onerous burden. The fisheries managers
should be allowed, as a matter of public responsibility to request a
clarification of the intent of project proposers when fish habitat
interests are at stake.
As written, the consultation authority is extremely modest and
lacking in teeth. An agency can go forward with an action that
adversely affects fish habitat. The NMFS and the Councils are not given
authority, other than moral suasion, to reject projects. The
opportunity to initiate a formal dialogue could contribute to a
positive outcome [achieved by voluntary means] in terms of habitat
protection In terms of my analysis, the NEPA and FWCA opportunities,
have statutorially stronger provisions.
Through a combination of consultations, proposers of actions that
could negatively affect fish habitat are put on notice that their
actions are in conflict with other federally supported and protected
activities. A political balancing of interests would have to be
brokered. I do not expect that the requirements would require
unnecessary delays in projects. This is because the proponent of any
large project substantially affecting fish habitat would be expected to
be able to conform to the very reasonable review process deadlines in a
timely manner. If I recall correctly, the whole process envisioned
would transpire over a period of two or three months. No permit
authority is provided the NMFS.
Non-fishing interests were late in recognizing that Congress was
drafting this legislation (SFA). They are alarmed that it passed the
Senate and the House with overwhelming majorities but they are
overreacting in terms of the strength and enforceability of the
provisions.
Question 3a. Some question whether it is appropriate to continue to
use Maximum Sustainable Yield as the target for fisheries management.
Please explain whether you think that there are any modifications
to the management process which would make MSY a reasonable goal.
Response. In short, MSY has been rejected by fishery scientists as
a management goal since the mid-1970s. Still, it is an easily
understood and reasonably easily quantified standard depending on the
definition used. In fishery management situations where harvests
allowed are above MSY there is a clear need to employ the concept. The
SFA does this by requiring that all Councils and NMFS not exceed this
concept.
Beyond the SFA, the use of MSY is still criticized. The fundamental
critique is easy to understand. If one constantly manages for the
``maximum'', one is constantly pushing the limits. In fishery
management, there are enormous uncertainties in recruitment, survival
and fishing effects, including the effects of unreported harvests.
Thus, it is precautionary to harvest at less than the MSY when one
considers difficult to quantify levels of uncertainty in the fisheries
management data.
The appropriate management target level for harvests is somewhat
controversial in scientific circles but it certainly lies below MSY
except for some species, like crab and small pelagic species, where
environmental conditions and highly variable recruitment make MSY-type
management irrelevant. Unfortunately and fortunately, Congress has, at
least, tied the hands of Councils to not exceed MSY. Now there is a
need to make for a more sophisticated directive. I offer the expert
discussion of the Scientific and Statistical Committee of the NPFMC
Minutes (10/14/99) as an indication of the direction that Congress must
work. This is a direct empirical response to the general problem. [See
below].
comments on the nmfs guidelines
The NMFS Guidelines were set up to implement the stronger language
in the Magnuson-Stevens Act regarding overfishing. The SSC has
previously commented on the problems with these Guidelines and is
discouraged that NMFS has not seen fit to revise these guidelines to
cure the flaws previously identified and to allow consideration of
alternative approaches that take advantage of modern science. [The
Congressional direction tends to define stocks that are a slight amount
below MSY as overfished when, if fact, this standard is traditionally
quite reasonable as a target to achieve. A pound under MSY is
considered overfishing, when, in fact, it is well within the range of
appropriate management.] Consequently, the SSC believes that strict
adherence to the NMFS Guidelines is problematic for several reasons.
A. Fish populations fluctuate widely due to a variety of reasons.
One of the most important is recruitment fluctuations due to change in
the environment. Setting an MSST [Minimum Stock Size Threshold] that
balances conservation concerns with efficacious management is very
difficulty in these circumstances.
B. Using BMSY/2 as the lower bound for the MSST is fairly arbitrary
and is based on population dynamics concepts that are about 50 years
old. The use of such a high value may be draconian in its effect and
induce unnecessary management action in light of naturally fluctuating
stocks.
C. The use of a fixed 10-year period for evaluating rebuilding is
also arbitrary. It also conveys the impression that we can predict
where the population will be ten years hence and ignores where the
population currently is in the definition of overfished.
D. Uncertainty in stock projections is not explicitly considered
and the notion of risk is ignored.
E. The requirement to set an MSST that can ``recover'' to a target
biomass while being fished at F(ofl) is baffling. By definition, F(ofl)
is defined as a fishing rate which, if continued, is likely to
jeopardize a stock's long-term productivity. This is clearly
inconsistent with the National Guidelines that seem to expect this same
fishing rate to also promote stock recovery.
F. There is strong potential for public confusion concerning the
term ``overfished''. Stocks with wide natural swings in abundance will
be classified as ``overfished'' with minor or no contribution from
fishing. Under this definition, there are probably hundreds of species
that were ``overfished'' and these are species that went extinct long
before humans walked the planet. No rebuilding plan, no matter how
stringent, would have ``rebuilt'' these species. All of this is to say
that the public's expectation of rebuilding must be tempered with an
understanding of ecological possibilities. Since these are often
largely unknown, the SSC feels it is appropriate for primary
conservation emphasis to be on avoiding ``overfishing.''
Question 3b. Please outline alternatives to MSY as a target for
management.
Response. Please take note of the above critique. Fundamentally,
the issue is that strict adherence to MSY allows managers to select the
highest possible rate of fishing from a statistically derived range of
target levels. This inevitably leads to a decline in harvests over
time. Selection of the lower range of target level would remedy this
problem but that tends to be unacceptable to the fishing fleet.
Experience on the NPFMC indicates that conservative fishing rates tends
to allow rebuilding of stocks and sustainable yields for most species.
The species like crab for which recruitment fluctuates wildly in
response to environmental conditions is not susceptible to this model.
Many different conservative reference points could be defined less than
MSY.
Question 3c. How do you view ecosystem management as it relates to
the management of species at maximum sustainable yield?
Response. We are far from being able to define what is meant by
ecosystem sustainable yield but it is likely to be a target that is
below MSY for any single component of the ecosystem. Ecosystem
components vary through time in response to environmental variability.
Maintaining the complex interactions of a species within an ecosystem
requires that it is not over-stressed by harvest of other measure.
Question 4. Based on experiences in the Pacific Northwest with
cooperatives under the American Fisheries Act, do you believe that
Congress should look at similar cooperative agreements for other
fisheries? Please explain.
Response. The ability to form cooperatives has been available to
U.S. fishing interests since 1934. It is a little realized alternative
available to rationalize fisheries. The general intent of the Act was
to allow harvesters to join into an association to process their catch
independently of previous sole buyer arrangements that gave them a low
price. The Pacific hake cooperative off Washington, Oregon and
California and the pollock cooperatives off Alaska are based on another
type of cooperative where a sector of the industry seeks a
determination from the Department of Justice of whether or not its
agreement is in restraint of trade. These cooperatives are dramatically
reducing the amount of effort in the sector of the fishery, increasing
product yields from a given quota, avoiding bycatch, improving safety
and yielding higher revenues.
The American Fisheries Act (AFA) cooperatives for inshore
processors and catcher vessels falls into yet another arrangement--one
mandated under the AFA to include processors and harvesters in a
cooperative. In theory, these are potentially able to deliver the
benefits of a cooperative form by sharing the benefits of a fishery
equally, but there is much skepticism about the way they are structured
in the AFA over the balance of bargaining power. At the present time
(1999) the cooperatives are in the process of formation for the fishing
season in the year 2000. Based on recent analysis, the balance of
negotiating power lies in the onshore processing sector at the expense
of the harvesters. The key provisions that enforce this imbalance are
the requirement that harvesters may only form cooperatives with the
processor to whom they have delivered the majority of their catch in
the previous year and the requirement that to change cooperative units,
a harvester would have to spend one year in the open access fishery.
The effect of these two requirements conspire to make leaving a
cooperative extremely expensive to a harvester and thereby reducing
harvester freedom of movement in a market.
Despite these flaws in the AFA style cooperative, there are
potentially many models whereby quota can be allocated to sectors of a
fishery acting in a cooperative arrangement. Such arrangements have the
potential to achieve rationalization of the fisheries and increase in
value.
Question 5. The National Academy of Sciences recently published a
report titled Sharing the Fish. Please comment on it findings and
recommendations.
Response. This is a tall order. Suffice it to say that the key
question that Congress posed concerning whether or not the regional
fishery management councils should be allowed, as appropriate, to
develop Individual Transferable Quotas as fishery management measures,
was answered in the affirmative. Thus, the moratorium on development of
ITQ type programs should be allowed to lapse in October 2000 as
specified in the legislation. Councils should have the ITQ in their
tool kits to use when conditions warrant.
The NAS/NRC study committee made numerous recommendations that
Congress should consider concerning ``sidebars'' for Councils when they
apply ITQs but stopped short of actual design of a system of or
guidelines for application of ITQ programs in fisheries. My abstraction
of the findings would indicate that Congress has the opportunity to
provide guidelines that avoid ITQ programs that allocate windfall
profits to harvesters, limit the concentration of IFQ, collect rent
from the IFQ holder on behalf of the public owner of the resource, etc.
I am convinced by the NASINRC analysis that much more use of this
approach can be beneficial in fisheries management but I am also
convinced that it is not the only approach that can be applied. Other
approaches like license or effort limitation, moratoria, marine
reserves, cooperatives, etc. can also be used. The fundamental issue is
regional choice of the appropriate mechanism.
______
Response to Written Questions Submitted by Hon. Ernest F. Hollings to
David Fluharty
council representation
Due to the Magnuson-Stevens Act's requirement that Council members
be knowledgeable or experienced regarding the fisheries within the
Council's geographic area of responsibility, Council members may have a
personal or financial interest in a fishery that they are managing.
Over the years, the Magnuson-Stevens Act has been revise to require
that Council members disclose any financial interests in the
harvesting, processing, or marketing of fishery resources under the
Council jurisdiction held by that person, any relative, or partner and
recuse themselves from voting on Council decisions that would have a
``significant and predictable effect'' on any personal financial
interest.
Question 1. Have the conflict of interest provisions we enacted in
the 1996 Sustainable Fisheries Act solved the problem or is there more
work to do? Please explain.
Response. I am a member of the NPFMC who has no financial stake in
the outcome of any fishery which I manage. This makes me an ideal at-
large representative in a situation where there are many fishery
interests competing for a seat at the table. As an honest broker, I am
trusted to vote for good fishery management in a fair and impartial
manner taking into account all of the interest I represent. While each
of the interests would prefer to have the seat I occupy to be filled by
someone with their interests, there is a recognition that having a
neutral party is better than having a representative from an opposing
interest in the seat.
That said, I do not bring as much fishery expertise to the Council
process as any of the potential interests who could occupy my seat.
Despite my academic credentials and analytical capacities, I am reliant
on interactions with the fishing industry to develop an understanding
of the detailed considerations of how fisheries regulations can work
for or against practical results in fisheries management. In the nearly
six years I have served as a Council member, I have come to know and
respect my industry colleagues.
Frankly, I do not think that the SFA amendments regarding Council
representation changed any interest conflict problems substantially.
There are relatively few fisheries in the NPFMC where any individual or
firm controls a 10% interest. Thus, the standard in the SFA as defined
in NMFS regulations is not very restrictive. Still, I find that the
Council process is one with many competing interests. Even when a
Council member argues for and votes his or her personal benefit, it
should be remembered that the vote is only one out of eleven (in our
case) and that votes are very seldom decided on that close a margin.
Our Advisory Panel has 23 members representing nearly the full
panoply of interests in the Council process. Even their votes are
seldom decided on the basis of a single individual.
More important from my perspective is the obligation through the
Oath of Office of Council members to uphold the national interest in
the federal fisheries. In our area, not surprisingly, there is a strong
bias toward regional, as opposed to national, benefit being promoted.
Given the difficulty of analyzing net national benefit, the Council
generally errs on the side of allocation of benefits sub-optimally.
Because over 50% of the U.S. catch occurs in NPFMC waters, this can
have significant implications. Even more vexing is the problem of loss
of regional benefit by ill-perceived local benefits.
Therefore, I am not as concerned about individual holdings in a
fishery as I am about the overall result achieved. From 1976 to the
present, I have been a skeptic of a Council process dominated by
individual fishing interests. Gradually, I have come to respect the
enormous contribution that is made by the countervailing power of
fisheries interests to reign in on other fishing interests. Overall, I
have confidence that inclusion of these individual interests adds an
essential dimension of empirical knowledge to the process.
It may be beneficial to include additional non-fishery interests in
Council membership to bring into discussion other values than strict
fishery values but there should not be a very wide divergence from the
influence of those actually participating in the fisheries. Otherwise,
the process could lose credibility and all manner of enforcement and
compliance problems could arise.
It is somewhat odd that I, as an employee of a very large academic
institution, am held to a higher standard for recusal than a fishery
member of the NPFMC. I must recuse myself whenever a contract with the
University of Washington is under consideration even though I am not
part of a research proposal or other activity before the Council.
Question 2. Some have suggested not allowing individuals with
current fishing interests to serve on the councils. Do you support such
a change? How would it affect the quality and function of the councils.
Response. As noted above, I consider active participants in the
fisheries as essential members of the Council and am convinced that the
countervailing conflicts among fishing and processing interests lead to
a certain balance in the outcomes of Council actions. Disallowing
direct fisherman participation would severely constrain the use of
local knowledge. It may also put decisions in the hands of people who
lack respect and appreciation of the impacts of allocation decisions.
In the fully occupied fisheries of today, an allocation from one sector
to another is like picking pockets. There needs to be a strong
biological or conservation justification for such a measure and that is
extremely hard to ground-truth unless there is direct participation.
Question 3. How are non-fishing interests such as environmental
interests represented on the councils. Is that representation adequate?
Response. On the NPFMC there is only one environmental
representative in a formal position on the Advisory Panel and on the
Council Ecosystem Committee, although there is a general desire to make
sure that environmental interests are accommodated by representations
when necessary. Many environmental interests are working within the
process in the NPFMC through participation in all aspects of the
Council process. Clearly, commercial fisheries interests are the
dominant voice in council deliberations. Sport charter fishing has
reached the Council agenda but it has not been accorded a Council seat
[only AP seat]. On that basis, it is fair to say that environmental and
sport fishing interests are underrepresented in the Council system.
______
Response to Written Questions Submitted by Hon. John F. Kerry to
David Fluharty
fishing quotas
Tim Hill has stated in his testimony that it is essential to set
hard total allowable catch (TAC) limits if we are to achieve our
management objectives in New England. The North Pacific Council, along
with all other Councils, have set hard TACs, but the New England
Council has not.
Question 1. Why did your Council decide to set hard TACs?
Response. The NPFMC set hard TACs from the very beginning of the
implementation of the FCMA. I was not a part of the Council
deliberation process but I believe it derived, in this area, from the
prior efforts of the International North Pacific Fisheries Council, a
multinational entity that sought to control catches on the high seas in
the North Pacific. After declaration of national jurisdiction, the
scientific protocol of stock assessments carried over to national
jurisdiction. For much of the first decade, U.S. scientists set TACs to
regulate foreign fisheries. Gradually, as foreign harvesting evolved
into joint ventures and finally to a totally domestic fleets, the
scientific stock assessment tradition has carried over. Based on this
tradition, and the experience of fisheries managed by gear
restrictions, I am convinced that the TAC approach to management is
what has sustained fisheries in the NPFMC area. It presents a hard cap
on effort. In the NPFMC area we have insisted on observers to account
for the TAC and other bycatch. We have counted all removals of a
species against that cap. Scientifically, it is a directly measurable
index of what the fishery is doing. Never has the NPFMC chosen a TAC
above that recommended by the Plan Teams and the Scientific and
Statistical Committee.
Besides the use of a TAC by species, we cap the total harvests
(removals) in the Bering Sea/Aleutian Islands at 2,000,000 metric
tons--much less than the sum of the TACs based on scientifically
justified allowable biological catch. By most fishery management
standards, we harvest at a low rate. We have fish.
Question 2. How would you manage your fishery consistent with the
SFA if you did not use hard TACs? What are the problems you would
encounter?
Response. I cannot imagine how to manage the NPFMC fisheries by any
other methods than a TACs. Management by effort control has many well-
documented pitfalls. In my experience, the unwillingness to employ TACs
is either based on an unwillingness to restrain the fisheries to a
sustainable level or the incapacity to survey and calculate an
independent stock assessment. The latter is true for many developing
countries. It is not the case in the United States.
The problems that we would likely encounter would be the
dissipation of economic rents in excess capacity. Towing a net of a
certain mesh size around and around in the ocean may produce a
commercial catch but it in no way matches the catch rates when fishing
on abundant fish under a TAC. A mesh restriction means that a large
portion of those fish too large to pass through the net get caught. Are
these larger individuals important genetically or with respect to
population structure? Most likely. If TACs are not used in management,
it seems that one is substituting a less effective program to restrain
catches.
bottom trawling
Dr. Fluharty, you tell us that the North Pacific Council has closed
more than 15,000 square nautical miles to bottom trawling in order to
protect king crab habitat, reduce crab bycatch, and reduce gear
conflicts. We have some of the same concerns in New England on George's
Bank, where Mr. Hinman tells us that bottom trawls are used over 40,000
square kilometers of bottom habitat.
Question 3. Is the North Pacific Council working with fishermen to
develop innovative ideas for gear improvements to mitigate these
habitat impacts?
Response. The short answer is, yes, the NPFMC is working with
fishermen to develop innovative ideas for gear improvements to mitigate
fishing impacts. In the closed areas, the Council has placed relatively
little effort on gear modifications because the elimination solves all
of the problems. One effort using Geographic Information System (GIS)
technology has shown that a relatively pure catch of yellowfin sole can
be obtained in one area of the red king crab area. Otherwise the
yellowfin sole fishery has a relatively high bycatch. Under a strict
management protocol this area is opened to allow a trawl fishery.
The fishing industry has adopted and paid for a program known as
Sea State to monitor daily bycatch of various species and uses the
information to move fishing effort from high bycatch areas to low
bycatch areas. This occurs outside of the areas closed to trawling. The
industry has taken this proactive approach because the NPFMC policies
would shut down the fishery based on bycatch of prohibited species
before the TAC was met. With very high levels of observer coverage, it
is difficult for harvesters to fish in areas closed to trawling or to
discard bycatch. The combination of these efforts makes for a well-
managed fishery that works.
In recent action, the NPFMC has required that all pollock fishing
be done using mid-water trawls. This decreases impacts on the sea
bottom immensely. The pollock fishery is one of the largest in the
United States, so this is a non-trivial exercise.
The one major effect of closing large areas to trawling for
purposes of crab protection is that the area of trawl fishing is
concentrated. But concentrated in areas with low bycatch of crab and
other species. Unfortunately, it is also concentrated in the vicinity
of Steller sea lion rookeries and haulouts. The Council has been forced
to close substantial areas to provide additional protections for
Steller sea lions. Not surprisingly, a management measure made in one
location for very good reasons may be connected to another issue of
equal importance.
Question 4. What lessons can we draw from the North Pacific to help
us address fish habitat issues in New England?
Response. This is a difficult question as I am unfamiliar with New
England. I will hazard several observations. The first is to reduce the
overall exploitation rates on the major fish stocks and that will help
them to recover. To the extent that other species of fish or
invertebrates are dependent on habitat that is affected by trawling, it
is critical to examine the interactions using GIS. Based on those
analyses, it may be possible to identify key areas for protection of
habitat for crab or scallop fisheries but which are not that important
for cod fishing. Such areas could be restricted from trawling. Finally,
effort based approaches to fisheries management are doomed to failure.
Trip limits are a prime indicator of excess capacity. Sincere efforts
must be made to reduce excess capacity. That reduces impacts on habitat
and feeds back into the fisheries.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Wayne E. Swingle
Question 1. The National Marine Fisheries Service (NMFS) and the
Councils have begun to identify a subset of essential fish habitat
(EFH) called ``habitat areas of particular concern.'' This subset
targets critical areas such as places of spawning aggregations. Should
these ``habitat areas of particular concern'' be the true focus of
NMFS' work on EFH implementation? Please explain.
Response. The identification of habitat critical to certain life
stages of the fish stocks and designating them as habitat areas of
particular concern (HAPCs) seems to be the next logical step in
protecting EFH. It would be most helpful to the management process if
NMFS and the National Ocean Survey (NOS) could focus part of their
research program on delineating these areas. The use of HAPCs is not a
new concept. The Gulf and South Atlantic Councils established HAPCs in
1984 to protect pristine coral areas from the impacts of gear fished on
the bottom, while simultaneously prohibiting harvest of stoney coral
and sea fans. The coral HAPCs established off Florida and Texas total
390 square nautical miles. Through our shrimp fishery management plan
(FMP) we permanently closed shrimp nursery grounds off Florida (3,652
square nautical miles) and seasonally closed nursery grounds off Texas
for 45 to 60 days (5,475 square nautical miles). Subsequently we have
(in 1994) prohibited all fishing in a spawning aggregation site for
mutton snapper (11 square nautical miles) and (in 1999) proposed
establishing two marine reserves at gag grouper spawning aggregation
sites (219 square nautical miles). Identification of the importance of
these areas to the life stages of the stocks we managed has required
rather extensive at-sea sampling over many years. As we gain better
biological information on the life histories of our fishery stocks, we
recognize that there are other unique areas critical to production from
these stocks. But to identify the location, scope, and importance of
these areas will require additional research by NOS and NMFS.
Question 2a. NMFS has been criticized for its lack of compliance
with the Regulatory Flexibility Act. Other agencies, such as the
Environmental Protection Agency, are required to convene small business
advocacy review panels for each rulemaking that will have a significant
economic impact on small businesses.
Please explain in detail how a similar small business advocacy
review panel process, such as the EPA's, could assist NMFS in bringing
economic impact analysis to the forefront of fisheries decision-making?
Response. The Council already has its own advisory panel for every
fishery in the Gulf that has a management plan. The membership of these
panels mostly comes from the affected industry. These panels look at
proposed Council actions from various angles, including impacts on
their respective businesses which generally fall within the SBA's
definition of small entities. At the time these panels review Council
plan amendments, the reviewed documents contain an analysis of impacts,
inclusive of impacts on small business entities. If this analysis finds
that the Council's proposed regulatory action has a significant impact
on a substantial number of small entities, an Initial Regulatory
Flexibility Analysis (IRFA) is included in the reviewed documents. If
the reviewed Council actions are contained in a regulatory amendment,
these panels are presented with various documents, including the report
of the Council's Socioeconomic Panel, to aid them in reviewing
potential Council actions.
Even before the enactment of the Small Business Regulatory
Enforcement Fairness Act in 1996 which made the Regulatory Flexibility
Analysis judicially reviewable, the Gulf Council has already been
conducting an analysis of impacts on small business entities, including
an IRFA where appropriate, which the advisory panels review. In this
regard, the impacts of Council actions on small business entities are
reviewed on a routine basis.
If more emphasis is needed to address the regulatory impacts on
small business entities, the operating procedures governing the various
advisory panels may be slightly modified to stress their task of
reviewing impacts on small business entities.
Question 2b. Does the Gulf of Mexico Council receive an adequate
amount of socio-economic data to consider in the development of fishery
management measures. If not, please explain the impact that inadequate
consideration of such factors has had on the decision-making process at
the Council.
Response. The Gulf Council is generally provided with economic data
which can provide an assessment of the general direction, if not the
magnitude, of effects of management measures under consideration. Some
measures require more refined data, such as financial information of
directly affected vessels and dealers in certain areas in the Gulf or
the recreational value of fish or fishing trip, that are usually not
available. Most of the economic information in this regard are mainly
based on input from the public through oral and/or written testimonies
to the Council. In addition to these data that are not available, there
is little or no information on fishing communities and their level of
dependence on fisheries under Council consideration. This lack of
information has at times hampered the Council in determining which of
the regulatory measures that achieve the same objective provide the
least negative or most positive impacts on fishing participants.
Question 2c. Please outline any suggestions that you may have for
improving socio-economic data collection measures which would maintain
an appropriate level of confidentiality.
Response.
i. Conduct cost and returns studies on vessels and primary fish
dealers, at least every 5 years.
ii. Include socio-economic questions in the applications for
permits.
iii. Require logbooks now administered on permitted commercial
vessels to include information on operating costs of vessel fishing
operations.
iv. Collect more detailed dealer-level price information (e.g., by
size category) on major managed species.
v. Collect more detailed information on imported fish products.
vi. Conduct Gulfwide study profiling various fishing communities
around the Gulf.
Question 3a. Other regional fishery management Councils have been
criticized for their inability to manage meetings in a civilized
manner. This has created an environment in which people may be too
uncomfortable to actively participate. As a result, some proposed
management measures may not receive adequate consideration.
Has the Gulf of Mexico Council had similar experiences?
Response. During the 23 years I have served the Council I can
recall only one issue where some of the persons attending public
hearings and the Council session were probably reluctant to testify.
This was related to an alternative proposal in 1990 by the Council to
close the exclusive economic zone (EEZ) off the central Gulf coast
(i.e., Florida panhandle through Louisiana) to commercial shrimp
fishing in May, June, and July, concurrent with the annual closure off
the Texas coast. The proposal was an alternative for reducing trawl
bycatch of juvenile red snapper by area closure, instead of bycatch
reduction devices (BRDs). The public hearings were attended by about
4,500 persons and the final Council session by about 500, most of whom
were opposed to the idea. I am sure some proponents of the closure were
reluctant to testify. The Council concluded the adverse impacts greatly
outweighed any benefit from the closure.
Question 3b. Please explain how the Gulf of Mexico Council
facilitates an atmosphere which enables people to speak freely during
meetings.
Response. The Council provides all persons wishing to testify an
equal opportunity, and normally limits such testimony to either 5 or 10
minutes per person. After each person testifies, Council members ask
them questions to clarify the points they were making, or about their
fishing operations. This question and answer period does two things: it
assures the persons the members were listening to their testimony, and
it brings out information useful to the Council in making its decision.
The Council is always willing to extend its session into the evening
hours to allow more testimony or to rearrange the agenda items the next
day for such an extension.
Question 4. Industry representatives have criticized the Councils
for not using information and recommendations submitted by Advisory
Committees. Please explain how the Gulf of Mexico Council incorporates
the recommendations of such committees into its decision making
process.
Response. The Council utilizes two management processes; (1) plan
amendments and; (2) regulatory amendments to specify the total
allowable catch (TAC) for certain stocks and the management measures
necessary to constrain the catch within the TAC (e.g., quotas, bag
limits, size limits, seasons, etc.). In the regulatory amendment
process the industry advisory committee or advisory panel (AP) is
provided the stock assessment documents, the Stock Assessment Panel
(SAP) report, which provides an acceptable biological catch (ABC) range
and the Socioeconomic Panel (SEP) report which examines the social and
economic impacts of setting TAC at various levels within the ABC range.
The reports are provided to the AP at intervals of 2 to 4 weeks in
advance of their meeting and are presented at these meetings by the
chairmen of the SAP and SEP. Based on this information the AP develops
its recommendations to the Council. The Scientific and Statistical
Committee (SSC) develops its recommendations to the Council
independently based on the same data.
In the plan amendment process the draft amendment is provided to
the AP (and SSC) for review during the period the Council is holding
public hearings, unless the amendment is controversial, in which case,
the AP usually reviews the amendment twice before final Council action.
At the AP (and SSC) meetings Council staff presents the plan amendment.
In both processes the recommendations of the AP are reviewed and
acted upon by the management committee with oversight responsibility
for that stock. The management committee recommendations are
subsequently acted on by the Council. Usually some of the AP
recommendations are accepted by the Council and some are not. The same
is true of SSC recommendations, some of which may conflict with the AP
recommendations.
Question 5a. Some question whether it is appropriate to continue to
use Maximum Sustainable Yield (MSY) as the target for fisheries
management.
Please explain whether you think that there are any modification to
the management process which would make MSY a reasonable goal.
Response. MSY as a verbal concept is not an unreasonable goal.
However, there are a number of computational problems in arriving at a
reliable numerical value for MSY. For Graham-Schaefer and other stock
production models that yield an estimate of MSY in biomass it is
unusual that all of the conditions of the model can be met. Where there
are multiple types of commercial gear used and a large recreational
component in the total catch it is pure guess work on how to treat the
effort for each of these components in order to have a single effort
component to shape the MSY curve.
The long-term equilibrium yield from a stock will vary depending on
the minimum size limit and other selectivity factors. For example the
fishery for red drum, which is a major recreational fishery, has always
been pursued on the first 3 to 4 year classes which occur in state
estuarine waters. This results in an equilibrium yield (or MSY
estimate) much lower than would be the case if the fishery were pursued
on the adults in federal waters. The adults, while making a nice
trophy, are not very desirable for human consumption because as they
age parasite infestation increases. Surely the intent of Congress is
that MSY be the lower value consistent with the historical fishery,
even though that may be 2 or more times less than the MSY for harvest
of adults only.
NMFS in their letter of June 14, 1999 (attachment 1) to the South
Atlantic Fishery Management Council (SAFMC) which disapproved spawning
potential ratio (SPR) proxies for MSY in their Sustainable Fisheries
Act (SFA) Amendment, stated that ``the national standard guidelines
require biomass-based estimates for MSY.'' Actually, the national
standard guideline provides for other alternatives for expressing MSY
when data are insufficient for specifying MSY directly, i.e., biomass-
based MSY. Recent attempts by NMFS to determine a biomass-based MSY for
red snapper illustrate the problem of arriving at a reliable estimate
in terms of pounds. The current stock assessment has 6 estimates of MSY
ranging between 37 and 204 million pounds depending on the assumptions
used in the model. This same model analyses provide 6 estimates of the
biomass associated with MSY ranging from 3.5 to 4.7 billion pounds.
None of these seem to be realistic MSY estimates consistent with past
maximum landing levels, which suggest MSY should be on the order of 30
million pounds or likely less. Apparently the models do not take into
account that the size of the standing stock and MSY for red snapper is
limited by the amount of habitat with reefs since red snapper
congregate on reefs. The estimates of the biomass associated with MSY
(standing stock at MSY) are particularly unrealistic. This illustrates
that it is probably unrealistic to use a biomass-based MSY for some
stocks.
Question 5b. Please outline alternatives to MSY as a target for
management.
Response. Because of the problems cited above I feel a much better
standard for most of our stocks would be to use a static spawning stock
biomass per recruit (SSBR) proxy for MSY. NMFS is probably correct that
the use of SPR based on fecundity (egg production) is not appropriate
as a proxy, in that for many stocks there is no direct relationship
between eggs produced and MSY. This is because most stocks
overcompensate by producing many more eggs than is necessary to produce
MSY. However, since SSBR is biomass-based parameter, it not only seems
appropriate to use as a proxy for MSY but also to be an allowable
alternative for MSY suggested under the national standard guidelines.
The computation of the SSBR is more straightforward and reliable. If it
is used as a proxy for MSY, then optimum yield (OY) should also be
stated in terms of SSBR, but at a higher level to be precautionary in
setting the harvest target.
Question 5c. How do you view ecosystem management as it relates to
the management of species at maximum sustainable yield?
Response. We currently manage some stock-complexes as an ecosystem.
For example, for the grouper complex (15 stocks) we set annual
commercial quotas for the shallow-water and deep-water grouper
complexes. The bag limits for the recreational sector are aggregate bag
limits for all grouper species. This is because usually neither the
commercial or recreational sectors can fish for a single species
without harvesting other grouper species. Observer data for longline
vessels targeting grouper indicate they commonly take about 85 species
of other reef fish and sharks as bycatch. Similarly, the recreational
fishermen targeting grouper catch other species. This makes it almost
impossible to manage each of these interrelated stocks separately at a
MSY level. What we have done for Nassau grouper and jewfish stocks,
which are classified as overfished, is to prohibit any harvest or
possession. This, while not completely eliminating fishing mortality,
does significantly reduce it. Anecdotal information from divers
indicate the jewfish stocks are recovering. Nassau grouper were
overfished in the Caribbean Sea and are very rare in the Gulf.
questions for panel iii
2. Adequacy of Council Funding
Mr. Swingle, you pointed out in your written testimony that while
the work of the councils has increased dramatically due to the
requirements of the Sustainable Fisheries Act, the budget request for
the councils has increased a mere 2.3 percent.
Question 1. Do the councils have adequate financial resources to
carry out their work? If not, what is being left undone due to
financial constraints?
Response. No, the Councils have not had adequate financial
resources to do a good job of carrying out their work since the early
to mid- 1980's. In the fiscal years 1977 through 1984 the allocations
to the 8 Councils was sufficient not only to cover the administrative
costs of their operations, but it also provided programatic funding
which was used largely to get the information the Councils needed to
carry out their management responsibility. These programatic funds made
up 20 to 25 percent of the Councils' expenditures in the first several
years and were gradually reduced to about 15 percent during the early
1980's, essentially ceasing to exist after 1984. The flexibility these
funds provided to the Councils allowed them to do a much better job
with smaller technical staffs. Our Council, for example, during the
1977-1981 period was concurrently developing 11 draft FMPs, each one
requiring about 2 years for completion. Most of these were developed by
contracting with academic institutions, Sea Grant programs, or private
consulting firms. There was flexibility to have social impact analyses
completed and even determinations of the coastal communities most
dependent on commercial fishing. There was flexibility to have detailed
environmental impact statements prepared and most importantly the
flexibility to have analyses completed of management data sets needed
for the FMPs or amendments to the FMP. In addition to the analyses and
information obtained by these programatic funds, NMFS was also
providing similar data and analyses, so the system was more efficient
than it is now and much of the socioeconomic information was better.
The Councils, of course, like any governmental entity, live within
the funding allocated to them. To give you an idea how tight the
current budget is, the Mid-Atlantic Fishery Management Council needed
$90,000 to cover the cost of the additional member position created by
the SFA, and the other Councils could not agree to readjust their
budgets to cover that cost.
What is being left undone is that amendments to address rebuilding
schedules for overfished stocks and other SFA issues, such as bycatch,
are proceeding at a slower pace because budget limits the number that
can be done each year. But more importantly even though the Council
still makes its decisions on the best available scientific information,
that information base is not as good as it should be or was. This is
particularly true of the information related to social impact analyses
and true of the information for economic analyses. Our Council, in the
past 4 years, has been able to fund only two social impact analyses of
limited scope and two biological analyses. Currently NMFS has no
technical capability in the social sciences that can be used to
generate this information or the impact analyses. The reduction in NMFS
FTE personnel has even adversely affected their capability to complete
all the stock assessments we need, and flexibility is needed to
contract for some of these studies.
Question 2. What would you recommend as an appropriate level of
council funding, compared to current funding?
Response. Over the past 4 years, the Council chairmen and executive
directors have met with NMFS headquarter staff to discuss the next
federal budget under development, as it relates to both NMFS and
Council needs. For the FY 2000 budget the Councils recommended to NMFS
that their allocation be set at 15 million dollars. That represents a
15 percent increase over the FY 1999 allocation to the Councils. The
Councils based the recommendations partially on the need to regain some
programatic funding to restore their flexibility in carrying out the
management responsibilities.
______
Attachment I
U.S. Department of Commerce,
St. Petersburg, FL, June 14, 1999.
Mr. Pete Moffitt, Chairman,
South Atlantic Fishery Management Council,
Charleston, SC
Dear Mr. Moffitt: This letter is to emphasize the importance of
addressing in a timely manner the steps that must be taken by the
National Marine Fisheries Service (NMFS) and The South Atlantic Fishery
Management Council to bring the fishery management plans of the South
Atlantic Region into full compliance with the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-
Stevens Act). As you know, NMFS disapproved the rebuilding schedules
for all grouper species, red snapper, and red drum. The disapproved
schedules must be reconsidered and estimated based on the time required
to recover to BMSY in the absence of fishing mortality and
the generation time of the species. I have asked the Southeast
Fisheries Science Center (Center) to provide the Council with
rebuilding schedules consistent with the national standard guidelines
to replace those that were disapproved. I have also requested
rebuilding schedules for wreckfish, golden tilefish, and gray
triggerfish, which were classified as overfished in the 1998 NMFS
report to Congress. The new rebuilding schedules will be provided to
the Council before the September Council meeting. I ask the Council to
take action in September to implement these new rebuilding schedules
either through framework action or plan amendment.
I have also notified the Center that additional analyses to develop
biomass-based overfishing definitions will be required for other
stocks. NMFS partially approved the overfishing targets and thresholds
that were submitted by the Council on the basis that the stock status
determination criteria were incomplete and did not totally fulfill the
new requirements of the Magnuson-Stevens Act. The national standard
guidelines require biomass-based estimates for maximum sustainable
yield (MSY), the stock biomass associated with MSY (BMSY),
and the minimum stock size threshold (MSST), in addition tot he fishing
mortality-based spawning potential ratios (SPR) provided by the
Council. These biomass-based reference points will be provided to the
Council through the scheduled stock assessment and scientific review
panel processes. In the interim, the Council should continue to based
management decisions on the SPR reference points partially approved in
the Sustainable Fisheries Act (SFA) amendment. For some stocks, such as
king mackerel, Spanish mackerel, and red porgy, the biomass-based
estimates have recently been provided.
In an April 19 letter, the Council requested modifications to the
SFA amendment. There is no mechanism for NMFS to incorporate these
modifications after submission of the final amendment by the Council.
These modifications must be implemented through appropriate framework
procedures or plan amendment.
I am committed to working with the council to implement rebuilding
schedules and biomass-based reference points. This is a challenging
task in the South Atlantic Region due to the number of managed stock
and the lack of scientific information. I look forward to a close
association with the Council in the future.
Sincerely yours,
William T. Hogarth, PhD.,
Regional Administrator.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Glenn Roger Delaney
Question 1. Do you believe that NMFS sufficiently recognizes the
fact that the U.S. harvests only a very small percentage of each of the
Atlantic highly migratory species (HMS) and that the U.S. can not
unilaterally rebuild any HMS stock? Please explain in detail.
Response. In the months immediately following the enactment of the
Sustainable Fisheries Act the answer to this question was that NMFS
definitely did not sufficiently recognize this fact in practice. Given
that the head of NMFS was then also the U.S. Government Commissioner to
ICCAT, it is unclear what the ``official'' position of the agency was
at that time. Nevertheless, initial NMFS statements and briefings
before Congress and the industry constituencies indicated that at least
the Highly Migratory Species Division, General Counsel and the Office
of Sustainable Fisheries intended to pursue an interpretation of
section 304(e) that would subject ICCAT-managed species to completely
unrealistic and unachievable, unilateral rebuilding schedules. This
interpretation was in direct contradiction to my understanding of the
Congressional intent behind section 304(e)(4)(a) which I believe
recognizes that multilateral cooperation is the fundamental reality of
HMS management and policy.
Fortunately, as cited in my testimony, the key fishery policy
leaders and SFA authors in Congress, including Senator Snowe and
Senator Breaux, provided a clear statement of Congressional intent with
respect to the application of section 304(e) rebuilding schedules to
HMS species. This, together with many months of meetings, discussions
and correspondence resulted in the agency ultimately deferring the
rebuilding scenarios for bluefin tuna and swordfish to ICCAT. It is not
clear if this deferral was a de facto result of the timing of ICCAT
action or that, indeed, the agency had been persuaded to adopt the
correct interpretation of the SFA.
It appears today that NMFS policy decisions and interpretations of
law are increasingly dominated by considerations of pending or
anticipated litigation. Considerations of what is best for the fish and
fishermen have been subverted to analyses of litigation costs and
probability for success. Given the uncertainty as to NMFS future
actions and interpretations of this law, I reiterate the recommendation
made in my testimony that these provisions and all others in the Act
that relate to HMS should be amended to clarify and strengthen the
policy that highly migratory species management in the U.S. cannot be
pursued by NMFS unilaterally but, instead, must be pursued through
international cooperation at ICCAT. I would be pleased to have the
opportunity to work with the Committee on specific measures to achieve
this objective.
Question 2. During the hearing, you discussed the lack of formal
consultation between NMFS and the U.S. Commissioners regarding
implementation of domestic regulations based on ICCAT agreements.
Please provide the Subcommittee with recommendations which would
improve this situation.
Response. As a result of changes made by the Sustainable Fisheries
Act, section 304(g)(1)(A) of the Magnuson-Stevens Act already requires
the Secretary to ``consult with and consider the views of commissioners
. . . appointed under [ICCAT] in the process of preparing a fishery
management plan or plan amendment with respect to any highly migratory
species''. Once again, I believe the Congressional intent behind this
provision was to ensure that the intent of the negotiators with respect
to domestic implementation of ICCAT recommendations be fully considered
and reflected in NMFS regulations.
Unfortunately, section 304(g)(1)(A) has been insufficient as
written to achieve an adequate level of Commissioner input into the
development of plans, plan amendments or regulations that implement
ICCAT recommendations. As my testimony indicates, I have never been the
subject of such a consultation in five years as Commissioner nor have
my views ever been formally solicited in this capacity. Furthermore, I
have witnessed a number of important situations in which explicit
Commissioner intent as to the domestic implementation of an ICCAT
recommendation was not reflected in a resulting regulation. The
consequence of ignoring explicit Commissioner intent with respect to
domestic implementation of ICCAT recommendations is to seriously
undermine the credibility of the Commissioners and their ability to
effectively negotiate on behalf of legitimate U.S. interests.
In addition to those examples mentioned in my testimony, I would
like to add the following two examples to the record in which explicit
Commissioner intent was ignored in the resulting implementing
regulations.
First in the context of the 1996 ICCAT recommendation regarding
western Atlantic bluefin tuna, a provision was included obligating the
U.S. to adopt measures designed to reduce dead discards of bluefin
tuna. During the development of this measure while at the 1996 ICCAT
negotiations held in San Sebastian, Spain, and before such provision
was agreed to by the U.S., the U.S. Commissioners and the leadership of
the NMFS agreed on a handshake that the U.S. implementation of this
provision would include a relaxation of the current 1-fish landing
limitation imposed on the U.S. incidental category (longline fishery)
fishing in the Atlantic areas (not the Gulf of Mexico). This
understanding was reaffirmed in subsequent meetings and discussions
between myself, the other U.S. Commissioners and NOAA/NMFS leadership.
As was agreed, the objective of allowing multiple landings in the
Atlantic area was to enable this fishery to ultilize more fish and
discard less fish, while remaining within its U.S. incidental category
quota. It was well recognized by those in these discussions that the
arbitrary 1-fish limit was actually causing much of the U.S. bluefin
tuna dead discard problem and that this was a terrible, unnecessary
waste of a fishery resource. It was also recognized that this arbitrary
limit was substantially preventing the incidental category from
rightfully landing its U.S. category quota allocation. The
Commissioners intent to relax the 1-fish limit would have met our
obligations to reduce dead discards under the specific ICCAT provision,
and would have enabled the U.S. to reduce waste and bycatch, and
rationalize the domestic management of the U.S. longline fishery.
Nevertheless, the resulting regulations implementing the 1996
agreement did not include any relaxation of the 1-fish limit that was
causing our regulatory discards in the first place. Instead, the
regulations included a closed fishing area specifically designed to
reduce the incidental category's overall catch of bluefin tuna and
thereby, indirectly, reduce discards above the 1-fish limit.
Maintaining the 1-fish limit and imposing a closed fishing area was
completely inconsistent with the Commissioner's intent and I feel I
personally lost a great deal of credibility as a U.S. Commissioner with
the U.S. delegation and affected constituencies as a result.
The second instance again involved a U.S. obligation to manage dead
discards of bluefin tuna. In the 1998 meeting of ICCAT, the U.S.
Commissioners developed, in cooperation with NMFS personnel and
scientists, the rebuilding plan for western Atlantic bluefin tuna that
was ultimately adopted (with modifications) by ICCAT. As part of that
plan, the U.S. was allocated a dead discard allowance of 68 tons.
Following extensive consultations within the U.S. delegation, the
Commissioner's explicit intent was for the dead discard allowance to be
distributed proportionately among each of the U.S. fishery sectors so
that each sector could be individually held accountable for its
discards. This was intended to provide each sector with an incentive to
further reduce discards.
This proportionate sector distribution approach was very similar to
that which the Commissioners recommended for the distribution of the
additional 43 tons of directed U.S. quota as mentioned in my testimony
and stemmed from the same discussions at the ICCAT meeting in Santiago
de Compostella, Spain. Neither was followed by NMFS when they initially
issued the implementing regulations (HMS FMP) and only the 43 ton
directed quota distribution problem has been fixed subsequently. There
has been no distribution of the dead discard allowance to each of the
U.S. sectors. The Commissioner's specific intent to provide sector
accountability and an incentive to reduce discards within each sector
was ignored. Again, my credibility as a Commissioner has suffered as a
consequence and this makes it much more difficult to negotiate ICCAT
measures in the future if I cannot be sure how they will be imposed on
my own fishermen.
It is clear from these experiences that a more formal and explicit
process is needed to ensure that the intent of the U.S. Commissioners
regarding domestic
implementation of ICCAT measures is ultimately reflected in U.S.
regulations. The Commissioner's credibility within the U.S.
constituencies and thus, their ability to be effective negotiations on
behalf of the U.S. is at stake.
My recommendation to improve this situation is basically to get the
Commissioner's intent in writing and to require NMFS to follow this
intent unless it is clearly inconsistent with other provisions of the
Act. Thus, I would specifically recommend that the Atlantic Tunas
Convention Act (ACTA) be amended to include a provision that requires
the U.S. Commissioners to submit to the Secretary a joint written
report by a date certain following each ICCAT meeting. Such report
should include any specific recommendations and advice of the
Commissioners with respect to the domestic implementation of any ICCAT
recommendation that affects U.S. fishermen. Particularly important
should be an explanation of how the Commissioner's intent for domestic
implementation was relevant in their drafting of the recommendations
and negotiations with other ICCAT Parties.
Further, section 304(g) of the Magnuson-Stevens Act should be
amended to require the Secretary to review this report and follow such
recommendations (unless they are inconsistent with the Act) before
drafting any fishery management plan, plan amendment or regulation, to
implement such ICCAT recommendation.
Consideration of this report by the Secretary should include a meeting
with the Commissioners to review the document. Any of the
Commissioner's recommendations or advice not followed by the Secretary
should be noted in writing in the Secretary's subsequent actions (e.g.
proposed rule) with explanations of the reasons therefor. The analogy
is somewhat to section 304(a) under which the Secretary reviews the
input of the Councils and basically follows the Council's
recommendations unless such recommendations are determined to be
inconsistent with the national standards, other law, etc. I would be
pleased to work with the Committee in drafting specific provisions to
achieve this objective.
Question 3. Some question whether it is appropriate to continue to
use Maximum Sustainable Yield as the target for fisheries management.
a. Please explain whether you think that there are any
modifications to the management process which would make MSY a
reasonable goal.
b. Please outline alternatives to MSY as a target for management.
c. How do you view ecosystem management as it relates to the
management of species at maximum sustainable yield?
Response. Since I was invited to be a witness in my capacity as a
U.S. Commissioner to ICCAT, I will try to limit my responses, when
relevant, within the context of ICCAT and HMS species. I would also
note that I addressed some aspects of these questions about MSY in my
written testimony under ``further issues'' (1).
The management process of using the concept of MSY (MSC) at ICCAT
as the goal of our management efforts is a reasonable one. It is not
unreasonable to strive to achieve the greatest number of tons of fish
from a resource as we can on a sustainable basis. Our job is to
maximize benefits from fishery resources yet protect them from
depletion. It is, perhaps, not the only reasonable goal that could be
adopted, but it is what the Convention adopted many years ago.
What is not reasonable is for a management process to treat every
fishery as if it were in a state of extreme biological crisis if it is
not producing this absolute maximum sustainable amount of fish at any
given time, and to require draconian economic and social sacrifice to
achieve this absolute maximum in some completely arbitrary time frame.
That is, in fact, what the Act currently does through the linkage of
the flawed definitions of overfished/overfishing to the arbitrary
rebuilding provisions of 304(e).
As stated in my testimony, overfished may mean ``not producing
MSY'', but is that really the key conservation concern? Is the maximum
really a valid conservation objective? Do we have to achieve the
maximum in order to have an acceptably healthy resource? Is management
a failure if we are not at the maximum? I think not.
I believe ``overfishing'' is what really matters and is what should
drive management decisions regarding fishing mortality. However, that
term should not be defined as it currently is in the context of some
estimate of MSY based on historical data, but should be re-defined in
terms of an evaluation of the current sustainability of the fishery.
Management decisions should be based on determinations of whether the
fishery is at equilibrium between sources of mortality balanced by
growth and reproduction. Overfishing is when fishing and natural
mortality exceed the level necessary to achieve this equilibrium.
Thus, I believe the valid conservation concerns or ``targets'' are,
for the population to be:
(1) above a species-specific minimum threshold of abundance, and
(2) at equilibrium (sustainability).
Such a minimum threshold should account for the unique growth and
reproductive characteristics of each species and provide a significant
buffer above that level where the population is so low it collapses.
Above a minimum threshold of abundance, achieving the maximum
sustainable yield, and in what time frame, are really social and
economic issues. Once such conservation targets are met, then I think
we can develop social and economic targets and consequent management
strategies on a fishery by fishery basis regarding if and when MSY
should be achieved. Or, perhaps we can focus more on maximizing or
optimizing the economic yield at various sustainable biological yields
above the minimum threshold. After all, considering many fishery and
market issues, is MSY necessarily equal to the maximum economic yield
(MEY)?
What is also unreasonable is to ignore the fundamental, inherent
weaknesses in the models that produce estimates of MSY and rely on them
blindly and rigidly as a ``Holy Grail'' of sorts. There are many, many
variables that are not accounted for in estimating a theoretical MSY
that can have a profound effect on the reality of a population. Among
these are environmental such as climatological factors that may exhibit
long term cycles and have profound effects on natural mortality,
reproduction and growth.
Perhaps most important of all, are the effect that dynamic
ecosystem relationships have on natural mortality, growth and
reproduction of a species. We tend to develop estimates of MSY for a
single species based on historical measures of population levels at
times when other important species in the same ecosystem may not have
been under exploitation or were at either historical highs or lows in
their own right. The relative levels of abundance of predator and prey
species, as well as of species that directly compete for the same prey,
have a profound effect on the total biomass and, thus, MSY a population
can attain at any given time. How to account for these in an adequately
predictable way, however, seems well beyond our present scientific
capability.
In conclusion, I believe long term management strategies based
strictly on an absolute requirement to achieve admittedly weak
estimates of MSY within completely arbitrary timeframes are not the
basis for a successful fishery management policy. This is essentially
the U.S. domestic policy now reflected in the Magnuson-Stevens Act with
respect to fisheries determined not to be producing MSY (overfished)
and which are, therefore, required to be ``rebuilt''.
The alternative of evaluating the current or near-term
sustainability (equilibrium analysis) of a fishery on a relatively
frequent basis combined with a process that is flexible enough to
accommodate rapid responses in managing fishing mortality (F) would be
better. The timing of applicable management measures and of stock
assessments for each fishery must reflect the unique biology of the
species. The rebuilding plans we have developed at ICCAT for Atlantic
bluefin tuna and North Atlantic swordfish are more similar to this
approach than our rigid domestic approach. Such a short-term strategy
can still have a long term goal, and that goal could still be to reach
some percentage of an estimate of MSY, as it is in ICCAT, or it could
be something else that is perhaps more responsive to social and
economic interests.
______
Statement of Arni Thomson, Executive Director, Alaska Crab Coalition
The Alaska Crab Coalition (``ACC'') appreciates the opportunity to
provide this statement to the Subcommittee concerning implementation of
the 1996 amendments (Sustainable Fisheries Act, P.L. 104-297) to the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.
1801, et seq.). The importance to the ACC of those amendments is
reflected by the record of formal statements provided for no fewer than
six congressional hearings, the first of which was held in early 1992.
The ACC is a trade association representing the owners of 60
offshore crab catcher vessels. Most ACC members are classed as small
independent businesses, and each is financially dependent upon the crab
fisheries of the Bering Sea/Aleutian Islands (``BSAI''). The ACC also
represents an additional 60 companies, as associate members, that
provide services and equipment to the fleet.
summary
For members of the ACC, implementation of the 1996 amendments to
the Magnuson-Stevens Act has been a matter of life and death, in the
truest sense, as well as an issue of economic survival and recovery. As
the Senate Floor debate on the 1996 amendments made clear, National
Standard 10 (16 U.S.C. 1851(a)(10)) to promote safety of life at sea
was conceived with the BSAI crab fisheries foremost in mind. In fact,
that new National Standard had its inception in a proposal to Congress
by the ACC and like-minded organizations, the Fishing Vessel Owners
Association (``FVOA'') and the Deep Sea Fishermen's Union (``DSFU'').
Implementation of the 1996 amendments providing for improved
fisheries conservation, including the control of wasteful bycatch, and
for enhanced fisheries habitat protection, also has been vitally
important to the ACC. National Standard 9 (16 U.S.C. 1851(a)(9)) to
minimize bycatch and bycatch mortality, and the new habitat protection
provisions of the 1996 amendments (16 U.S.C. 1853(a)(7)), had their
origins in proposals of the ACC, FVOA, and DSFU.
In view of the fact that fishing for crab in the BSAI is the most
dangerous occupation in the United States, and in light of the fragile
condition of important BSAI crab resources and the economic dependence
of ACC members on crab fishing, it is easily understood why the ACC has
been a strong advocate of improved safety, resource conservation, and
habitat protection. The severe impacts of large-scale industrial bottom
trawling on crab resources and their benthic environment were major
concerns to which the 1996 amendments responded. By the same token,
those amendments provided impetus to efforts of the ACC directed at
remedial reductions in crab quotas and at necessary closures to allow
crab rebuilding in the long-term interest of the fishermen who depend
upon this resource for their economic survival.
The ACC's assessment of the 1996 amendments' effectiveness in
addressing the fundamental issues of safety, resource conservation, and
habitat protection would be wholly positive, were it not for two,
critically important factors. First, those amendments included a
moratorium on new individual transferable quotas (16 U.S.C.
1853(d)(1)), thus legislatively consigning the BSAI crab fisheries to
other management systems. The ACC believes that ITQs would have
provided the single most effective means of promoting safety, resource
conservation, and habitat protection, by reducing capacity in the
greatly overcapitalized BSAI crab fleet to sustainable levels. The
destructive race for crab would have been decisively brought to a
close, as fishermen would have been allowed to harvest their individual
quotas without the loss of life due to the combined pressures of severe
weather and hard work at an intense pace for long hours. Longer soak
times for pots, allowing juvenile and undersize female crab escape
mechanisms to work, would reduce bycatch and bycatch mortality. In a
slower-paced fishery, there would be fewer pot lifts, thus reducing
bycatch mortality due to exposure of juvenile and female crabs to
multiple captures, on-deck handling, and changes in water temperature.
Faced with ongoing pressures to reduce pot limits as a solution for
overcapitalization and without ITQs and multi-species directed crab
fisheries, ACC's efforts directed towards conservation and rebuilding
are severely handicapped. However, the ACC is encouraged that, in
testimony before the House Subcommittee on Fisheries Conservation,
Wildlife and Oceans on July 22, 1999, the Chairman of the New England
Fishery Management Council, on behalf of all the chairmen of the
regional councils, called for the termination of the ITQ moratorium.
Second, the 1996 amendments did not provide an effective
alternative to ITQs for the reduction of excessive fishing capacity.
Nearly three years after enactment of the buyback provisions of the
Magnuson-Stevens Act, and despite legislation enacted last year to
stimulate regulatory implementation, final regulations have not been
promulgated. Consequently, a buyback remains out of reach. Testimony by
NMFS in the above-referenced congressional hearing stated that the
absence of final regulations, which are under review, industry may
proceed with the development of ``buyout plans''. The industry group
formed to pursue the BSAI crab license buyback has long since completed
the task of developing a plan, as the NMFS well knows, having reviewed
and extensively commented on that document and having received a final
revision. The ACC believes that the continued delay on the needed final
regulations is unfortunate, because in the absence of ITQs, a license
buyback could contribute to the reduction of excess harvesting capacity
in the BSAI crab fisheries.
The ACC hopes that, as Congress approaches the further
reauthorization of the Magnuson-Stevens Act, there will be active
consideration of what can be done to address the severe problems that
continue to plague the BSAI crab fisheries due to continued
overcapitalization. The ACC cannot help but envy the halibut and
sablefish ITQ program established prior to imposition of the moratorium
by the 1996 amendments. Moreover, the many BSAI crab fishermen and
their families are extremely sensitive to the fact that the BSAI
pollock fishermen and processors have greatly benefited from the
subsidized buyback and the special cooperatives provided by the
American Fisheries Act (``AFA''). Title II, P.L. 105-277. These
measures have eliminated excess capacity and allow the establishment of
de facto individual quotas for 110 catcher vessels and 20 catcher
processors, with no fixed limits on ownership of quotas. It also
established the first limited entry system for processors (restricting
shorebased processing and marketing of pollock to seven entities).
Dedicated crab fishermen, who are prohibited by the AFA from crossing
over into the pollock fisheries, deeply resent the fact that the AFA
pollock industry has used its vastly enhanced economic and political
power to pressure the North Pacific Fishery Management Council
(``NPFMC'') and the National Marine Fisheries Service (``NMFS'') for an
increased and permanent presence in the already heavily overcapitalized
BSAI crab fisheries. Despite clear congressional intent, as reiterated
in recent Senate correspondence, implementation of AFA protections
(``sideboards'') for the dedicated crab fleet has been, and continues
to be, problematical.
The bottom line is that BSAI crab fisheries remain subject to the
anachronistic and all-too-obviously failed management system which
forces fishermen to race for fish at the risk of their lives, and to
the detriment of the resources, in marginal economic conditions. Due to
the moratorium on ITQs and to deficiencies of the license buyback
provisions of the Magnuson-Stevens Act, as well as to pressures on
fisheries managers by the AFA pollock industry, losses of lives and
livelihoods in the BSAI crab fisheries do, indeed, remain major
challenges.
The members of the ACC, and Bering Sea crab fishing vessel owners
in general, are mostly small business entities, struggling to survive
in the crushing grip of not only problems of safety and resource
conservation, but in the midst of consolidation and aggregation of
ownership of processing facilities in the region. This dynamic of
consolidation has contributed to the demise of a number of fisheries in
the Alaska region. (See the Federal Investment Task Force (``FITF'')
Report to Congress, specifically comments pertinent to the North
Pacific region, pages 182-187.) The inception of Statehood for Alaska
allowed the adoption of measures for the State-regulated fisheries that
limited the extent of the control of the processing industry over those
fisheries, and promoted conservation of the resource, and the
independent small businesses that harvest those resources. There is no
corresponding feature of the federal management system for the BSAI
crab fisheries. Indeed, the AFA ties harvesting vessels to BSAI pollock
processors, among which are the major BSAI crab processors, through
single market cooperatives. This consolidation of market power by the
processors in the pollock sector spills over into the crab sector.
The FITF Report states, ``Excess capacity of fishing fleets is one
of the most pressing problems confronting U.S. fishery managers. Excess
capacity causes economic waste and over harvesting of resource
stocks.'' Page 15. Because the problem of excess capacity is common to
virtually all Alaskan fisheries, and because the AFA has uniquely
altered the BSAI fisheries complex, the ACC urges action by Congress
that is both general in application and specific to the BSAI fisheries:
The moratorium on ITQs should be allowed to expire by its
own terms.
The Magnuson-Stevens Act should be amended--
to require that each fishery management council,
within a statutorily provided time, analyze fisheries in its
region to determine whether there is excess harvesting capacity
and propose to the Secretary specific fishery management
measures for the reduction of such capacity to sustainable
levels;
to ensure that license and vessel buyback provisions
are implemented in a timely and practicable manner;
to provide a framework for fishermen's cooperatives
that are suited to the conditions of the BSAI crab fisheries;
and
to prohibit the unfair and unreasonable
participation of 42 AFA pollock vessels in the BSAI crab
fisheries, and provide protection for BSAI crab fishermen from
excessive market power of AFA processors.
the bsai crab fisheries in context--industry, resources, policies,
laws, and regulations
Well before the enactment of the 1996 amendments, it was clear that
the BSAI crab fisheries could not be addressed in isolation from other
fisheries of the area. In 1965, the Bristol Bay Crab Pot Sanctuary was
established by agreements reached in the preceding year with Japan and
Russia to prevent bottom trawling by vessels of those nations from
damaging the valuable crab populations and their habitat. In 1981,
early in the ``Americanization'' of the fisheries of our 200-mile zone,
U.S. groundfish trawl vessels were exempted from the bottom trawl
conservation measures, and invaded the fragile crab nursery, with far-
reaching consequences for the crab resources and the nascent domestic
crab fishing industry.
From the inception of the ACC in 1986, the organization engaged in
efforts to control the, by then, enormous bycatch of crab in the
burgeoning domestic industrial groundfish trawl fisheries and to
improve conservation in the directed crab fisheries. To these ends, the
ACC sought improved scientific observation and analysis of both the
groundfish and crab fisheries, as well as remedial management measures.
A limited trawl closure area to protect female and juvenile king and
tanner crabs and regulatory caps on trawl bycatch of crab were
initiated and refined, and crab fishing gear was improved. Notably, the
1990 amendments to the Magnuson-Stevens Act reflected and consolidated
research, bycatch reduction, and habitat protection initiatives
undertaken by the ACC.
In 1992, at the outset of the reauthorization process leading to
the enactment of the 1996 amendments, the ACC called to the attention
of Congress the need to build further upon the 1990 amendments, in
response to the continuing impacts of trawl bycatch on the crab
resources and of trawl gear on the crab nursery areas. The ACC noted
that, while the groundfish trawl fisheries continued to inflict direct
costs on the crab industry by reducing its present and future harvests,
the crab fleet, which was legally required to utilize highly selective
fixed gear, did not impose such costs on the trawlers.
The ACC pointed to the need to address the escalating problems
presented by overcapitalization in the BSAI crab fleet, including the
horrific losses of life in what had become the most dangerous
occupation in the United States. Statements provided by the ACC for
congressional hearings also called attention to the results of the 1992
United Nations Conference on Environment and Development and the 1992
Cancun International Conference on Responsible Fishing, which focused
on sustainable fisheries and responsible fishing, respectively, and
identified excessive fleet sizes, insufficiently selective gear, and
habitat degradation as critical challenges to the world's fisheries.
The ACC took note of the fact that the United States Government had
assumed a leading role in those conferences.
As observed by the ACC in its testimony during the 1996 amendments
process, the ``fishing derbies'' that resulted from too many fishermen
chasing too few fish were accountable for both poor safety of life at
sea and poor conservation of resources, and contributed to habitat
degradation. In its 1993 testimony, the ACC urged that the full array
of limited entry measures be available to remedy the conditions of the
BSAI fisheries, and called for specific statutory provisions to limit
and reduce excess fishing capacity.
In 1994, the halibut and sablefish fisheries, in which open access
derbies had been so costly to the fleet and the resources, were
transformed with the adoption of ITQs. By 1995, it became clear that
this management system held real promise for the other overcapitalized
fisheries of the BSAI. The benefits of ITQs in the BSAI crab fisheries
would extend not only to safety and conservation, but also to improved
economic conditions. ACC testimony provided the rationale for ITQs:
Improved safety. Fishermen would be in the position to
slow down the pace of their fishing activities. They would be able to
fish when the weather conditions would not present unacceptable
hazards.
Improved resource conservation. With a slower pace of
fishing, selectivity in targeting resources and sorting catches would
be vastly improved. Discards, and the mortality of discards, would be
reduced. Individual quotas would provide an incentive to fishermen to
engage in practices that would enhance stock rebuilding.
Improved individual accountability. With individual
quotas, fishermen would feel, and would be, more accountable for their
conduct. Responsible fishing would be the rule, not the exception, as
each quota holder would have a tangible share of the resource.
Improved economic efficiency. Transferable ITQs would
provide a market-based, industry buy-out program for the
overcapitalized fisheries, with no expenditures of public funds for the
retirement of excess harvesting capacity. By leading to a reduction of
fleet size through consolidation of quotas, the vessels remaining in
the fisheries would achieve improved operating efficiency, while at the
same time, caps on quota shares held by individuals and businesses
would prevent undue concentration of fishing privileges.
Increased value of the tax base and new source of fees.
With an economically sound fishery, profitability would improve and,
thus, the revenue base would expand.
Reduced gear conflict. With less gear deployed on the
grounds at any given time, conflict with other gear types would be
reduced.
Improved product quality and added value. A slower-paced
fishery would allow the more careful handling of the catch to preserve
quality, to develop value-added products, to improve competitiveness
against high quality imported fishery products, and to increase
acceptance in quality- conscious export markets.
Improved markets. Fishermen and processors would be able
to coordinate the harvest and delivery of product to respond to market
demand.
In the waning hours of the 1996 legislative process, when a general
moratorium on future ITQs appeared inevitable, the ACC urged that an
exception be made for fisheries having the very worst safety,
conservation, and economic problems. The ACC implored Congress to
consider the fact that, according to the United States Coast Guard,
crab fishing in the BSAI claimed lives at the rate of 7 per year during
the 10-year period, 1987-1996 in a fleet comprised of fewer than 2,000
fishermen. Based on the U.S. Government statistical base, this
translated to an annual average of 350 out of 100,000 workers, compared
to an average annual rate per 100,000 of 7 for all U.S. occupations, 71
for all U.S. fisheries, and 250 for the former halibut derbies. The ACC
also pointed out that the crab resources of the BSAI were at
historically low levels of abundance, which accellerates the race for
fish and fishery-related fatalities. The ACC noted the annual net
revenues of the average, dedicated BSAI crab fishing vessel had
plummeted to approximately $6,000.
When it became apparent that, despite these safety, conservation,
and economic conditions, ITQs would be proscribed for the BSAI crab
fisheries, the ACC supported provisions that would authorize a buyback
of crab licenses. The ACC urged, successfully, that authorization for
license buybacks should not be removed from the legislation. Several
latent/speculative vessels are big producers in the lucrative pollock
fishery, and other vessels are dependent on cod fisheries. Restriction
of buybacks to vessels would have effectively precluded the use of this
management device in the BSAI crab fisheries, due to the prohibitively
high cost involved.
Since enactment of the 1996 amendments, the conditions in the BSAI
crab fisheries have remained poor, and have even declined. After two
years of lower fatalities in these fisheries, the number has already
jumped back to historical levels, with 7 deaths, including one major
marine casualty, thus far this year. Due to the limitations of the
management system, the 1999 opilio fishery was not conducted in a
manner that could provide for safety of human life in severe weather
conditions with the intense race for economic survival.
As for the resources, while there is the expectation of some
movement toward recovery by the Bristol Bay red king crab, bairdi are
severely depressed, and indeed, are deemed overfished under applicable
provisions of the Magnuson-Stevens Act. Bristol Bay red king crab and
opilio resources remain under heavy pressure, and are subject to deeper
declines, as a consequence. Allowable catches, set forth below, reflect
this phenomenon.
----------------------------------------------------------------------------------------------------------------
Red King Bairdi Opilio
----------------------------------------------------------------------------------------------------------------
1990................................. 20,245,815............. 64,200,000............. 160,000,000
1991................................. 17,058,224............. 31,500,000............. 325,200,000
1992................................. 8,034,018.............. 35,100,000............. 313,000,000
1993................................. 14,495,197............. 16,900,000............. 229,200,000
1994................................. no fishery............. 7,600,000.............. 148,000,000
1995................................. no fishery............. 4,200,000.............. 74,000,000
1996................................. 8,380,000.............. 2,000,000.............. 65,710,000
1997................................. 8,900,000.............. no fishery............. 117,300,000
1998................................. 14,850,000............. no fishery............. 243,300,000
----------------------------------------------------------------------------------------------------------------
As shown by the figures that follow, revenues to individual vessels
have fallen off dramatically in the major BSAI crab fisheries over the
past several years.
1990: 1,263,529; 1991: 963,576; 1992: 960,765; 1993: 1,107,497;
1994: 1,078,656; 1995: 937,469; 1996: 661,581; 1997: 553,857; 1998:
704,242.
By contrast, the conditions in the halibut and sablefish ITQ
fisheries have much improved. The fisheries are safer, the resources
are robust, and the fishermen have secured a business environment that
provides a considerable measure of stability that now enables long term
planning, in contrast to conditions of chaos and uncertainty,
characteristic of today's derby fisheries in the BSAI crab fisheries.
These kinds of conditions are rapidly leading to the demise of the
American fisherman as a small businessman. See Statement of Robert
Alverson, Manager, Fishing Vessel Owners Association, before the Senate
Subcommittee on Oceans and Fisheries, July 29, 1999, which provides a
detailed analysis of the benefits of the halibut/sablefish individual
quota program.
In the groundfish fisheries upon which the affected trawl vessels
depend, economic conditions, while somewhat difficult, have been far
superior to those in the BSAI crab fisheries. Were the case otherwise,
a large number of those vessels would have participated both regularly
and recently in the BSAI crab fisheries. More to the point, the AFA has
provided much-improved conditions for the pollock trawlers.
Even prior to the AFA, the financial situation of the groundfish
trawlers was superior to that of the dedicated BSAI crabbers. Total
BSAI groundfish trawl revenues in 1995 and 1996 were $373,400,000 and
$332,500,000, respectively.\1\ The BSAI trawl groundfish average ex
vessel revenues in 1995 and 1996 were $2,062,983 for 181 vessels and
$1,731,770 for 192 vessels, respectively. See Economic Status of the
Groundfish Fisheries Off Alaska, 1996, Socioeconomic Task, November 21,
1997. (These are the most recent figures available to the public.)
---------------------------------------------------------------------------
\1\ This decrease was not due to resource conditions, but was a
consequence of the market.
---------------------------------------------------------------------------
Post-AFA trading in pollock co-op transferable quotas has produced
a benchmark value of $ 10,000,000 per point of total allowable catch.
Thanks to the AFA, the fleet and the processors have been revitalized
by the increase in efficiency from consolidation of fishing capacity
through statutorily authorized co-ops, the vastly increased financial
equity of marketable fishing quotas, and a 37% increase in the
allocation to the vessels serving shoreside processors made possible by
a subsidized buyback.
The dramatic contrast between conditions in the halibut/sablefish
longline fisheries and the pollock trawl fisheries, on the one hand,
and the BSAI crab fisheries, on the other hand, can only be explained
by differences in management systems that affect the levels of fishing
capacity relative to allowable harvests. In short, the halibut/
sablefish fisheries have ITQs, the pollock fisheries have de facto
ITQs, but the crab industry has neither.
Within the constraints of the management tools available in the
post-1996 amendments legal environment, fisheries managers have been
able to address overcapitalization of the BSAI crab fisheries only
incrementally, while the halibut/sablefish fisheries and the BSAI
pollock fishery have been able to downsize and consolidate virtually
overnight. This has been exceedingly costly to the dedicated crab fleet
and to the crab resource.
By way of background, it will be recalled that, in 1976, the
Secretary of Commerce established conditional fishery status for king
crab, which was intended to slow the entry of new vessels into the
fishery. However, due to strong opposition by shorebased pollock
processors, focused on reallocating the pollock resource to their
facilities and delaying limited access programs for federal fisheries
off the coast of Alaska, it was not until June 29, 1995, that the NMFS
approved fishery management plan amendments that first established a
moratorium on entry of vessels into the BSAI fisheries. This groundfish
and crab moratorium required that, in order to participate, a vessel
have recorded landings of one of the covered species between January 1,
1988 and February 9, 1992. Effective January 1, 1996, vessels were
required to have a moratorium permit, and the number of vessels
eligible to participate in the BSAI crab fisheries was thus limited to
approximately 759. Under a license limitation program (``LLP'') adopted
by the NPFMC on June 17, 1995, and approved by the Secretary of
Commerce on September 12, 1997, but not to be fully implemented until
2000, the authorized number declined to 365. (There are also 62 small
vessels licensed to fish only in the Norton Sound king crab fishery.)
An LLP amendment, adopted by the NPFMC on October 9, 1998, but
remaining subject to approval by the Secretary of Commerce, and not to
be effective until 2000, would reduce the number to 320.\2\ AFA
sideboards adopted by the NPFMC on June 13, 1999, but also subject to
approval by the Secretary of Commerce, and not to be effective until
January 1, 2000, would further reduce the fleet size to 275 for red
king crab and 265 for opilio and bairdi.
---------------------------------------------------------------------------
\2\ Section 202 (a)(6), P.L. 105-1277 precludes, subject to future
reconsideration by the appropriate council and the Secretary of
Commerce, the reentry into United States fisheries of certain vessels
that had participated in therein, but been registered under foreign
flag. This affected approximately [insert] vessels that had been
otherwise eligible to participate in the BSAI crab fisheries. See also
section 617, P.L. 105-277.
---------------------------------------------------------------------------
The history of actual vessel registrations are reflected below.
----------------------------------------------------------------------------------------------------------------
Red King Bairdi Opilio
----------------------------------------------------------------------------------------------------------------
1990................................. 240.................... 255.................... 220
1991................................. 302.................... 285.................... 250
1992................................. 381.................... 294.................... 254
1993................................. 292.................... 283.................... 273
1994................................. no fishery............. 183.................... 253
1995................................. no fishery............. 196.................... 235
1996................................. 196.................... 196.................... 228
1997................................. 258.................... no fishery............. 235
1998................................. 275.................... no fishery............. 235
----------------------------------------------------------------------------------------------------------------
Even with the approval of the AFA sideboards, the maximum level of
capacity in the crab fleet would remain excessive. As the chart
immediately above shows, the actual vessel registrations have often
been fewer than permitted by the various limiting regulations. Yet,
clearly, resource conditions have not supported safe, sustainable, and
economically viable fisheries at these levels of actual effort.
As pointed out above, the failure of the Department of Commerce to
promulgate final regulations for implementation of section 312 of the
Magnuson-Stevens Act has effectively precluded the establishment of any
industry-funded buyback. In the absence of authorization for the
establishment of ITQs, this has been a particularly serious
disappointment. Even the much-advertised leadership of the United
States at the very recent global conferences on fishing fleet
overcapitalization has not been translated into a decisive management
response to the continuing crisis in the BSAI crab fisheries.
The ACC notes the enormous expenditure of time and effort by the
Capacity Reduction and Buyback (CRAB) Group, an organization of BSAI
crab fishing vessel owners, to lay the groundwork for a license
buyback. CRAB:
commissioned, in June and August 1997, and submitted
to the NPFMC and NMFS, detailed analyses of the requirements of
section 312 and other applicable law;
conducted industry surveys, in June and November
1997, to determine the viability of a buyback;
commissioned, and provide to the NPFMC and to the
NMFS, on September 26, 1997, an economic study of the BSAI crab
fisheries and options for a license buyback;
provided to the NMFS, on October 6, 1997, at its
request, a draft of implementing regulations;
obtained congressional action in support of
implementation of section 312 of the Magnuson-Stevens Act,
including a Senate letter to the Administrator of the NMFS on
March 4, 1998, a Senate letter to Secretary Daley on April 21,
1998, a statutory deadline for publication of proposed
regulations (section 207(g), P.L. 105-277), and the required
funding authorization for a BSAI crab license buyback (section
120, P.L. 105-277);
produced and submitted to the NMFS, on September 23,
1997, a detailed buyback business plan, which was subsequently
revised to reflect responses to agency comments and published,
on July 13, 1998, by the NPFMC for comment by the participants
in the BSAI crab fisheries;
formally commented on the proposed regulations
published by the NMFS on February 11, 1999;
testified on several occasions before the NPFMC on
developments in the pursuit of a buyback; and
briefed the NMFS and interested Members of Congress
on the industry survey results and business plan.
It is important to note that the NPFMC, by letter dated October 10,
1997, asked the NMFS to move forward with the process for establishment
of a BSAI crab license buyback. In a response dated April 16, 1998, the
NMFS stated, ``We appreciate the Council's support of the crab
initiative. We regard your letter as a statutory request for a buyback
in this fishery.''
The FITF Report notes that the effects of latent capacity and the
shift of effort from one fishery to another are major concerns that
must be addressed in the design of effective buyback programs. The
report states:
However, these and other concerns are clearly understood by
those designing new buyback programs, especially the industry-
funded buyback proposed for the . . . fishery for crab in the
Bering Sea and Aleutian Islands. If buyback programs are to
contribute to the goals set out in the Magnuson-Stevens Fishery
Conservation and Management Act, they must be carefully
designed by members of the specific regional fisheries.'' [Page
105.]
It bears emphasizing that, notwithstanding the efforts of industry,
the extraordinary assistance of Congress, and the positive action of
the NPFMC, the close cooperation of the NMFS Financial Services
Division with the CRAB Group, and the formal response of the NMFS to
the NPFMC request, the Commerce Department published, on February 11,
1999, unworkable proposed regulations for buybacks, and evidently
remains at an undetermined distance from promulgating the final rules,
without which the BSAI crab license buyback cannot go forward.
Further pursuit by BSAI crab fishermen of a license buyback in the
absence of practicable, final regulations would be difficult to
justify. Whether there remain in the industry the financial resources
and the energy level to continue the pursuit of a license buyback is
open to question. It is clear, however, that momentum must be regained,
if a buyback is to be considered a serious option. This can only
happen, if the Commerce Department demonstrates that it is, at long
last, prepared to implement, without further delay and in a practicable
way, the law that Congress passed almost three years ago.
ITQs remain the long-term objective of the ACC. The rationale
provided the Congress during the last reauthorization process applies
today. Indeed, the experience of the past three years has shown that
ITQs, or their functional equivalent in the form of specially
authorized cooperatives, can and do deliver solutions where other
management systems have demonstrably failed. And, of course, there has
been no industry-funded buyback anywhere to measure against the harsh
realities of the BSAI fisheries, although the preparatory work of the
CRAB Group has shown that its proposal has promise. The interest in the
proposed buyback has been intensified by the initiative to request that
Congress provide a statutory framework for a cooperative that would
allow fishermen access to multiple markets, along the lines of the
``Dooley-Hall'' proposal being analyzed by the NPFMC.
The ACC respectfully requests that Congress reflect carefully upon
these facts: the BSAI crab fisheries constitute the most dangerous
occupational environment, and suffer from some of the most depressed
renewable resources, in the United States. Even in the face of severe,
immediate, and prolonged financial hardship, dedicated BSAI crab
fishermen support strong conservation measures. Yet, the BSAI crab
industry finds itself deprived of the highly successful fisheries
management tools that Congress has made available to other fishermen of
the BSAI. With each year that goes by in the absence of effective
management, the cost escalates in lives, resources, and livelihoods.
The ACC also respectfully asks Congress to consider the outcome of the
Individual Fishing Quota Report mandated by the 1996 amendments (16
U.S.C. 1853(f)) and first released, in prepublication form, by the
National Research Council on December 18, 1998. In the view of the ACC,
the report demonstrates the advantages of ITQs and well justifies
allowing the moratorium on them to expire, in accordance with the terms
of the 1996 amendments, on October 1, 2000 (16 U.S.C. 1853(d)(1)(A)).
The problems of overcapitalization are common to many fisheries.
However, the AFA has given rise to unique circumstances in the BSAI
fisheries complex. Both general and specific remedial legislative
action is needed. Accordingly, the ACC urges that Congress do the
following:
Allow the moratorium on ITQs to expire in accordance
with its terms;
Amend the Magnuson-Stevens Act to--
Require that each fishery management council, within
a statutorily provided time, analyze fisheries in its region to
determine whether there is excess harvesting capacity and
propose to the Secretary of Commerce specific fishery
management measures for the reduction of such capacity to
sustainable levels;
Ensure that license and vessel buyback provisions
are implemented in a timely and practicable manner;
Prohibit the unreasonable and unfair participation
of 42 AFA pollock vessels in the BSAI crab fisheries, and
provide protection for BSAI crab fishermen from excessive
market power of AFA processors.
Congress has the opportunity in the present reauthorization cycle
to ensure that the BSAI fisheries complex as a whole will, at long
last, be responsibly managed. History has demonstrated what can be
expected, if Congress does respond decisively to this challenge.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Ken Hinman
Question 1a. Your testimony described the Marine Fish Conservation
Network as a ``broad-based coalition of more than 80 leading
environmental groups, sport and commercial fishermen, and marine
scientists.''
Please describe how the Network developed its testimony, including
a general description of any communications Network staff had with
members of the Network.
Response. The Network's testimony was developed by its Executive
Committee and Executive Director, based on the principles and positions
adopted by the Network's Board of Advisors. The Board consists of two
commercial fishing groups, two recreational fishing groups, six
regional conservation organizations, and ten national environmental
groups. We have two New England members on our Board: Conservation Law
Foundation and the Cape Cod Commercial Hook Fishermen's Association.
All of the Board's policy positions have been endorsed by the larger
Network. Additionally, every Network member is encouraged to share
their comments and opinions regarding Network positions, documents, and
policy statements.
Question 1b. In the Network's preparation and production of Missing
the Boat and the related Briefing Book for Congress, how did the
Network reconcile any differing views among its members?
Response. The Missing the Boat report was developed by regional
members of the Network. The Executive Committee and the Executive
Director served a coordinating role in putting the regional pieces of
the report together. A similar process was followed for the Briefing
Book. Differing views were resolved through negotiations conducted via
emails and conference calls.
Question 2a. During the hearing you were critical of the councils'
progress to date with regard to essential fish habitat (EFH).
If the entire Exclusive Economic Zone of the United States were to
be designated as EFH, do you believe that the most critical habitats
would receive the actual protection intended for them by the
Sustainable Fisheries?
Response. I do not believe that the entire Exclusive Economic Zone
has been designated as EFH. As I discussed in my testimony, the Network
believes that the regional councils and NMFS have identified EFH in an
appropriately precautionary manner by designating fairly large areas as
EFH. This approach is appropriate for several reasons. First, there are
at least 844 federally managed fish species, and each with four life
stages, e.g., eggs and larvae, juvenile, adult, spawning; therefore,
EFH needs to be identified for at least 3,376 fish species life stages.
When that large number of life stages is coupled with the large
geographic ranges of many of these species, it is not surprising that
large areas have been designated as EFH. Second, given the general lack
of knowledge on the amount of habitat that is required to support
certain stocks sizes, it is foolish to eliminate areas from protection
without scientific justification. Habitat loss and degradation are
often irreversible; therefore, it is critical that caution is exercised
in identifying EFH. As more and better habitat information becomes
available, EFH can, and should, be narrowed.
Despite assertions to the contrary, broad designations of EFH will
not undermine EFH protection efforts. Rather, broad designations of EFH
provide enhanced EFH protection because NMFS is better able to consider
the type of habitat impacted, the degree of impact, and the area of
impact when evaluating whether a federal action will adversely impact
EFH. If NMFS was limited to only evaluating, and commenting on,
activities that impact critical habitats, activities that impact large
areas of less critical habitat would be excluded. Overall fisheries
habitat protection would be diminished under such a program.
The NMFS essential fish habitat regulations allow for the
designation of rare, threatened, or ecologically important areas as
habitat areas of particular concern (HAPCs). The Network supports the
designation of HAPCs as a means to focus EFH protection efforts without
compromising EFH protection generally.
Question 3. Several non-fishing interests have expressed concern
that the EFH consultation requirement is duplicative of other federal
consultative requirements and will result in unnecessary delays of
projects. Does the Network have any suggestions which would address the
concerns of such non-fishing interests?
Response. The Network does not believe that the EFH consultation
requirement is duplicative of other federal consultation requirements,
because none of those requirements directly address impacts to
fisheries habitat. A specific requirement to evaluate the impacts of
federal actions on fish habitat is necessary to more effectively
protect such habitat. To streamline the EFH consultation requirement,
NMFS is developing procedures to combine the EFH requirements with
existing consultation procedures such as those required under the
National Environmental Policy Act or the Clean Water Act. The Network
supports these streamlining efforts, as long as they still allow for
specific evaluations of EFH impacts.
Question 4. In your testimony, you stated that placing greater
emphasis on economics will result in extending rebuilding periods even
longer. Given the current state of some fishing communities, such as
those associated with the traditional groundfish fleet in New England,
please explain in detail why the socioeconomic impacts of fisheries
regulations and law should receive additional emphasis.
Response. The Network believes that the socioeconomic impacts of
fishing regulations and laws should not receive greater emphasis. Past
emphasis on economics by the councils and NMFS has directly lead to the
depleted state of many of our fish stocks. The best way to protect
fishermen and fishing communities is to save the fish. Allowing short-
term overfishing to occur is a risky practice which often leads to
fisheries collapses. The current problems in the Gulf of Maine and the
Pacific coast are directly attributable to the councils and NMFS not
taking aggressive action to address overfishing and rebuild overfished
stocks. Overfishing was allowed to continue until the stocks were in
such bad condition that draconian actions were necessary to rebuild
these stocks. If those councils and NMFS had taken the necessary steps
to adequately address overfishing years ago, much of the current
economic pain could have been avoided.
Question 5a. Some question whether it is appropriate to continue
use of Maximum Sustainable Yield as the target of fisheries management.
Please explain whether you think that there are any modification to
the management process, which would make MSY a reasonable goal.
Response. The SFA requires that all fish populations be maintained
at levels capable of producing at least that population's maximum
sustainable yield (MSY). The optimum yield from a fishery should be
less than the MSY, according to the Act, in order to enhance long-term
social, economic, and ecological benefits. Because there are many
unknowns and uncertainties in fisheries data and stock assessment
science and in our understanding of interspecies relationships, the
Network believes the Act should be modified to incorporate the
precautionary approach. This approach, established in international law
and endorsed by the U.S., requires that catches be set conservatively,
with adequate buffers to reduce the risk of overfishing.
Question 5b. Please outline alternatives to MSY as a target for
management.
The SFA does not make MSY the target for management. Instead, it is
the absolute maximum that can be removed from a stock of fish. The
target is optimum yield. As stated above, prudent management requires
that optimum catch levels be set more conservatively than MSY. The
Network at this time is not proposing an alternative to MSY, however,
like many in the fisheries and scientific communities, we are reviewing
its applicability and examining alternatives.
Question 5c. How do you view ecosystem management as it relates to
the management of species at maximum sustainable yield?
Ecosystems-based management requires that optimum yields for all
species be justified considering ecological factors and the integrity
of the ecosystem, including key predator and prey relationships. Using
MSY as a management target for any single species risks adverse impacts
on associated species. An adequate conservation buffer in the setting
of species-specific catch levels is necessary for the protection of
marine ecosystems.
3. bycatch reporting system
Mr. Hinman, you have pointed out that ``no council established a
required standardized bycatch reporting system'' since the passage of
the Sustainable Fisheries Act. What would the establishment of such a
system entail in terms of data collection, technical operations, and
funding?
Response. A standardized bycatch reporting system would have as its
objective a full accounting of all sources of non-target and non-
landings mortality in the fishery. Because the nature and operation of
each fishery is different, each reporting system must be designed and
implemented in accordance with the needs of that particular fishery. A
mandatory observer program should be paid for by the fishing industry,
through a fee based on the value of landings.
______
Statement of Hon. Ron Paul, U.S. Representative from the State of Texas
Ladies and Gentlemen of the Senate, distinguished Members of the
Commerce Committee, I am writing today regarding the reauthorization of
the Magnuson-Stevens Act.
As a Member of Congress from a Gulf Coast Congressional District I
represent a significant number of individuals who engage in fishing
activities in federal waters. Residents of my district undertake
fishing activities for both recreational and commercial purposes.
Moreover, the indirect impact that these activities have upon Gulf
Coast economies can scarcely be overstated. Seafood providers,
restaurants in general, the tourist lodging industry, and many others
are adversely impacted when federal fishing regulation runs amuck.
Since coming back to Congress in 1997 my office has been deluged of
complaints and concerns regarding the activities of the United States
Coast Guard, and most especially the National Marine Fisheries Service,
(NMFS) in respect to the enforcement of various provisions of the
Magnuson-Stevens Act (the Act). From my observations I think it is safe
to say that:
(A) the ``scientific basis'' of NMFS rule promulgation has come
under serious and sustained criticism from both the scientific
community and the fishing industry.
(B) The Gulf Fisheries Management Council has had serious
disagreements with NMFS regarding interpretation of the Act.
(C) The Gulf States have had disagreements with NMFS over issues of
rule promulgation and enforcement.
(D) NMFS has consistently ``changed the rules in the middle of the
game'' making it extremely difficult for every segment of the
fisheries' sector to plan their activities, thus raining havoc on the
Gulf Coast economy.
(E) NMFS has certainly not won a strong positive reputation here in
Washington, nor in the fishing communities. The agency's tactics are
dictatorial, heavy-handed and have resulted in many complaints. The
agency routinely ignores Member requests for information, summarily
ignores Member wishes and has even caused its jurisdiction to be
challenged, as in the instance of the Columbia River Salmon.
To the Members of the Committee, I can only suggest that there are
many challenges that those of us concerned with these issues must face.
Personally, I suggest a more permanent solution rests in the
decentralization of these issues. In other words, the states must be
granted more authority to deal with these issues. One specific
suggestion I have made to the states is that they explore a multi-state
compact to engage in the rearing of Red Snapper ``in captivity.''
It has been my observation that the problems with fisheries
regulations cut across sectors, and species, and every other line of
demarcation within the fisheries. My worst fears were confirmed when I
received reports of a meeting that my staff attended earlier in the
year. The Small Business Administration hosted a discussion of
regulatory problems in the fisheries and the room was packed. In fact
the phone lines were all taken up as well, as many fisheries'
representatives from all across the nation attended. The
representatives of the SBA were overwhelmed by the attendance, and by
the frank and disturbing testimony which the representatives
consistently provided. In short, it was made quite obvious that there
is a serious problem with the federal government's fisheries
regulations.
I will not expand upon my early comments about the wisdom of
passing regulations down to the states, but I will say that as long as
this Congress deems it wise to pass federal laws relative to fisheries
we must be much more explicit and specific with what we pass. Further,
we must do everything in our power to tilt the balance in favor of our
people, as opposed to the current system of excess delegation of our
authority to administrative agencies.
To wit, I suggest the following items be included in any Magnuson-
Stevens reauthorizing legislation which this body might pass:
(1) Set the recreational fishing season for red snapper as year-
round in federal waters;
(2) Set the size for recreational red snapper fishermen at 15-inch
minimum in federal waters;
(3) Set the maximum bag limit for recreational red snapper at four
in federal waters;
(4) Expressly allow the ``sale'' of part of the commercial red
snapper quota (TAC) to recreational fishermen; and
(5) Language making legal expenses reimbursable to any entity that
successfully battles against any regulation promulgated as a result of
the act.
While such items will still leave many Americans far short of the
ideal situation, they will provide a small step in the right direction.
This is a step which will permit us to increase the freedom of
fishermen and enhance the economic stability and viability of the
fishing industry and those involved in related ventures on the gulf
coast and in other coastal communities across America.
Thank you for holding these important hearings and for your
consideration of these ideas.
______
Response to Written Questions Submitted by Hon. Olympia J. Snowe to
Maggie Raymond
Question 1. The National Marine Fisheries Service (NMFS) and the
Councils have begun to identify a subset of essential fish habitat
(EFH) called ``habitat areas of particular concern.'' This subset
targets critical areas such as places of spawning aggregations. Should
these ``habitat areas of particular concern'' be the true focus on
NMFS' work on EFH implementation? Please explain.
Response. Our concerns regarding the designation of EFH and/or
``habitat areas of particular concern'' (HAPC) are caused by (1) the
criteria used to define EFH and/or HAPC and (2) the measures that may
or may not be developed to ``protect'' those areas.
The Council has been instructed (by NMFS guidelines) to use areas
of high productivity as a proxy for EFH. The consequence of this advice
is that all areas of productivity, and especially the areas of highest
productivity, are then subject to closure to the fishery in order to
``protect'' EFH.
The habitat provisions of the Sustainable Fishing Act require the
Councils to ``mitigate the impacts of fishing gear'' on EFH, despite
the fact that there is very limited information regarding negative
impacts of fishing gear on EFH. This has created a vehicle for the
anti-fishing agenda to insist that ``precautionary'' measures be taken
to severely restrict the use of certain fishing gears, despite a lack
of evidence that those gears cause or have caused an ``identifiable
adverse effect on EFH.'' This has also created a way for users of
certain gear types to call for the eradication of their competitors'
gear type preference.
We believe that the SFA should be amended to define the Councils'
responsibilities as the development of measures that would ``mitigate
the impacts of fishing gears on the productivity of areas identified as
EFH or HAPC,'' and to ``mitigate the impacts of pollution and
development on the productivity of EFH or HAPC.''
Question 2. Since the date of the hearing, the Secretary raised the
cod trip limit from 30 lbs. to 100 lbs. per day. The 100-lb. limit will
be effective until Framework 31 is approved. As part of Framework 31,
the New England Fisheries Management Council has recommended a 400-lbs.
per day limit. (a) Please explain the impact of 100-lbs. limit on Maine
groundfish fleet and cod discards. (b) Do you believe that raising the
trip limit to 400 lbs. will alleviate some of the adverse impacts which
occurred under the lower trip limits. Please explain. (c) Do you
believe that sensible trip limits are the only measure needed to
provide adequate protection for cod stocks or are other measures
necessary? Please explain.
Response. The 100-lb./day cod trip limit is well below any
reasonable ``bycatch'' level, and this has and will continue to result
in wasteful discard. A 400-lb./day limit is a more reasonable
``bycatch'' level, and as such can be used to discourage a directed
fishery for cod and avoid wasteful discard of bycatch.
Our members believe that closure of specific areas (as specific as
possible to minimize the size and time length) during times of spawning
aggregation should be the cornerstone of every fishery management plan.
The known spawning areas for cod happen to be in the fishing areas
closest to the shore in the Gulf of Maine. Unfortunately, this fact of
nature makes closing those areas an extremely difficult burden for
those fishing vessels and communities most dependent on the near shore
fishing areas.
Question 3. Please explain the impact on your organization of the
delay in distribution of the $5 million disaster relief funding.
Response. NMFS has determined that 50 vessels from Maine are
eligible for participation in the disaster relief funding. Several of
our members qualify. Most are reluctant to participate.
Our members do enthusiastically support the concept of
``cooperative'' research between the fishing industry and scientists,
however this program is not structured to achieve that objective.
Participants must first complete a rather lengthy application, then
commit to participate in some undefined research project sometime in
the future. Our members are reluctant or unwilling to commit to a
program that does not, upfront, define the details of the type of
project or the project schedule.
In short, we believe the program was poorly designed to meet the
objective of spending $5 million taxpayer dollars on cooperative
research.
Question 4. NMFS has been criticized for its lack of compliance
with the Regulatory Flexibility Act. Other agencies, such as the
Environmental Protection Agency, are required to convene small business
advocacy review panels for each rulemaking that will have a significant
economic impact on small businesses. (a) Please explain the impact that
inadequate consideration of socio-economic factors has had on the
fishing communities you represent. (b) Please explain in detail how a
similar panel process, such as the one utilized by the EPA, could aid
NMFS in bring economic impact analysis to the forefront of fisheries
decision-making.
Response. The New England Fishery Management Council has
consistently, and we believe inappropriately, used the ``framework
adjustment'' process to circumvent the requirement to conduct socio-
economic and Regulatory Flexibility Act analyses required by law. The
framework adjustment mechanism is an abbreviated rule-making process
designed to ``fine-tune'' fishery management plans, as needed. The NMFS
has approved eight separate framework adjustments to the Multispecies
Plan since the approval of Amendment 7 (1996); several of these have
had significant economic impact, none of them have been adequately
analyzed.
While I am personally unfamiliar with the panel process used by the
EPA, we strongly encourage your exploration of adoption of this process
for NMFS rulemaking.
Question 5. The New England Fishery Management Council has been
criticized for its inability to manage meetings in a civilized manner.
This has created an environment in which people may be too
uncomfortable to actively participate. As a result, some proposed
management measures may not receive adequate consideration. (a) Please
comment on your experience at Council meetings in this regard. (b) Are
there examples of good management proposals that have been set aside in
favor of inadequate, but more popular, measures? Please explain. (c)
What has been the result of such decisions?
Response. I have on many occasions found the absence of decorum at
Council meetings to be personally intimidating and not conducive to
critical thinking. The meetings surrounding the development and passage
of Framework 27 (to the Multispecies Plan) are the best example. Not
only was police presence necessary to maintain a semblance of civility,
but several meetings dragged on until very late hours (some as late as
midnight). Framework 27 was implemented in May 1999 and by June 1999
the measures proved to be inadequate when the trip limit was lowered to
30 lbs./day. It is impossible for Council members to adequately
consider and evaluate the implications and ramifications of their
decisions in a hostile atmosphere.
Question 6. Some question whether it is appropriate to continue to
use Maximum Sustainable Yield as the target for fisheries management.
(a) Please explain whether you think that there are any modifications
to the management process, which would make MSY a reasonable goal. (b)
Please outline alternatives to MSY as a target for management. (c) How
do you view ecosystem management as it relates to the management of
species at maximum sustainable yield?
Response. While MSY is a fundamentally flawed principle, we believe
that some of the problems with using MSY as a target have been
exacerbated by the changes the SFA made to the overfishing definition
and the rebuilding schedules.
We believe that improvements could me made by: (1) amending the
definition of overfishing to reinstate the ``long term'' capacity of a
stock or, stock complex to produce MSY; (2) amending the requirement to
rebuild ``as soon as possible'' to ``as soon as practicable''; and (3)
eliminating the 10-year provision or amending it so it can be extended
when a stock is projected to rebuild at the proposed fisheries
mortality rate.
A particularly good example of the practical problems associated
with the new overfishing definitions is the current situation with
Georges Bank haddock. In 1994, over 6,000 square miles of fishing area
were closed to protect (among other species) Georges Bank haddock. As
recently as August 1999, the NEFMC issued a press release describing
the status of Georges Bank haddock in these terms:
Adult stock biomass has increase fourfold since 1993 and is
at its highest levels since the early 1980s. Stock biomass is
expected to increase from low mortality and favorable
recruitment in 1998. The 1998 year class appears to be the
largest in twenty years, enabling stock recovery more quickly
than previously thought.
However, the status of Georges Bank haddock has been reassessed
using the new SFA overfishing definition, and the Multi-species
Monitoring Committee report (due Nov., 1999) will advise that the total
allowable catch for Georges Bank haddock for the year 2000 must be
zero, in order to comply with the new overfishing definition.
______
Response to Written Questions Submitted by Hon. John F. Kerry
to Maggie Raymond
Question 1. Tom Hill has stated in his testimony that it is
essential to set hard total allowable catch (TAC) limits if we are to
achieve our management objectives in New England. The North Pacific
Council, along with all other Councils, have set hard TACs, but the New
England Council has not. Mr. Lauber and Dr. Fluharty, why did your
Council decide to set hard TACs? How could you manage your fishery
consistent with the SFA if you did not use hard TACs? What are the
problems you would encounter?
Response. While this question is directed specifically to Mr.
Lauber and Dr. Fluharty, I feel it is important to point out that the
NEFMC has recommended a hard TAC for atlantic herring. A hard TAC may
be appropriate for management of the herring fishery but only because
that fishery is, usually, a single species fishery. The NEFMC has not
used hard TACs in the multispecies fishery because the status of one
species, e.g. Gulf of Maine cod, could then eliminate a fishery on a
much healthier stock, e.g. witch flounder.
______
Prepared Statement of William M. Daley, Secretary,
U.S. Department of Commerce
As always, I appreciate the opportunity to discuss fish with all of
you. I recall one of the first conversations I had with your colleague
Senator Lott. The Majority Leader told me that when I think of him, I
am to think fish.
Frankly, I think fish when I think of most of you. I do not have to
tell this Subcommittee about the value our fishing industry provides to
this country. You all represent some of our finest coastal states and
fisheries.
I have had the pleasure of being with many of you in your states. I
have met fishermen on their home turf: shrimpers on the Gulf,
scallopers in New England, and salmon fishermen in Alaska. And I have
met with many of them here in Washington.
One of my finest experiences as Secretary of Commerce is becoming
familiar with our fishing communities, and appreciating their
contributions. Of understanding how the U.S. commercial fish industry
generates more than $25 billion to our economy and employs 300,000
people. We are the fifth largest fishing nation, and our exports are
valued at over $3 billion. It is an important recreational resource for
millions of saltwater anglers.
It is my support for this resource--and the people it supports--
that brings me here.
With me is Penny Dalton, NOAA's Assistant Administrator for
Fisheries. She will discuss the reauthorization of the Magnuson-Stevens
Fishery Conservation and Management Act--now in its 23rd year. I would
like to briefly put this all in context.
It's easy to look at the past decades and see failure. Many
important fish stocks are under great pressure. And we don't know
enough about the health of even more.
We do know our fishing grounds can be rebuilt to support far more
fishing than they do today. Scientists estimate we could increase our
catches 60 percent if we manage them better.
At the same time, we must recognize it took 20 years of poor
management and good-intentions-gone-wrong to bring us to where we were
in 1996, when the Magnuson Act was overhauled into Magnuson-Stevens.
This Administration is committed to the philosophy embodied in the
Act. I believe the best way to restore our fisheries and sustain a
growing economy is through the combined participation of public,
business, and government interests.
We must apply the best science--including economics and social
sciences--to help fishing communities move from traditional fishing
management to newer, sustainable approaches.
I have strongly encouraged NOAA, the Councils, and all the
stakeholders to take advantage of the flexibility of Magnuson-Stevens
to develop creative solutions and partnerships.
I have learned through my regulatory actions as Commerce Secretary
there is no one-size-fits-all solution. Each case has its own set of
unique circumstances, conflicts and challenges. Resolving these is not
easy. These are contentious issues, as you well know. But the fact is,
if we fail to come together, we will not have fishermen or fish left.
Frankly, I think this is an important test of sustainable development.
Despite the challenges, I see hope in a number of small, recent
successes. I think with Magnuson-Stevens we are getting back on track
to build sustainable fisheries.
Let me illustrate, if I may, with the progress we are making with
scallops in the Northeast. The first directive of Magnuson-Stevens is
to end overfishing and rebuild fish stocks. In 1994, we were very
concerned about groundfish and scallops off of New England. We took the
aggressive--and painful--step of closing large areas to all fishing.
Then, in late 1998, we learned that after over 4 years of closure,
scallop stocks were recovering. In other words, the closure was working
to rebuild scallop stocks and it was time to start rebuilding the
scallop fishery.
While Magnuson-Stevens directs us to rebuild fisheries, it also
says: use the best science available when we act. Though we knew that
scallops were on the way back, our science was not detailed enough to
act on it. Also, many raised concerns about starting up scalloping
again. Scalloping disturbs the bottom and can have lots of bycatch of
groundfish that still needed protection. It looked like yet another
contentious issue.
So, the first thing we did was ask for, and listen to, the advice
of constituents. Soon we came together around a shared goal--scallop if
possible, while protecting other fish and the habitat.
Then everyone contributed to a solution. We built an extraordinary
partnership with industry and the academic community to find out
exactly where the scallops were healthy and what areas could be
reopened for scalloping. Also, we talked to industry about a management
approach that would let scallopers catch scallops if they controlled
their bycatch.
For our part, we developed a new way to fund independent observers.
And I asked the Council and NOAA to make sure the regulatory process
kept moving. Magnuson-Stevens is clear that the Council process is key
to making management decisions. But that does not mean we can't find
ways to make it flexible and responsive to urgent needs.
I am pleased to say scallopers are fishing within a formerly closed
area of Georges Bank nearly 9 months earlier than scheduled. In the
last 6 weeks, the fleet has landed more than 2 million pounds of
scallops worth nearly $10 million. They are making money, without
compromising long-term sustainability. It is good news for the economy,
and good news for the environment.
My point is that the Magnuson-Stevens Act works. It does not need
major changes at this time. What we need, is to continue to work
collaboratively and creatively.
No question, we want to work with this Committee on addressing
outstanding issues, like individual transferable quotas, and observer
programs. We feel there is a need to collect more economic data to
better understand and manage our fishery resources. Penny will point
all of this out in her testimony.
And let me assure the Members of this Committee that I understand
when we try new approaches, even though they may be incremental, there
are often serious concerns from your constituents back home.
So, I want to work with you, to take into account these concerns as
we move forward with developing and implementing the legislation.
Thank you for asking me here, and I ask that my remarks be included
for the record.
______
Statement of Guy Martin, Counsel, Essential Fish Habitat Coalition
Madam Chairman, Members of the Committee, my name is Guy Martin,
and I am counsel representing the Essential Fish Habitat Coalition. The
Essential Fish Habitat Coalition is comprised of diverse non-fishing
resource and business interests including, the American Forest and
Paper Association, the Alaska Forest Association and the Association of
California Water Agencies. Through me these organizations want to warn
you of what we collectively see, as a new and virtually unlimited
federal program which we fear will extend an unprecedented level of
control over land use and private property in the nation. That federal
program is the ``Essential Fish Habitat'' program, or EFH.
Your constituents will soon be at your door to express their
concern with this program. Any one of your constituents, any private
property owners who need a federal permit, may soon feel the sting of
this new and expanding federal program. It doesn't really matter what
kind of federal permit your constituent might need. It could be a
permit from the Corps of Engineers for a development on the Mississippi
coast or it could be for a water diversion in California to irrigate a
field. It could be that your constituent want to expand her business
facility in Washington but before she does she needs a Clean Water
permit from EPA because rainwater runs off her parking lot into a
nearby ditch.
Getting a permit approved by a federal agency is not a pleasant
experience. But, if their property is in, near or might affect habitat,
as very broadly defined by the National Marine Fisheries Service, they
will enter a regulatory morass that can be the equal of Section 7 of
the Endangered Species Act. Their project will be going into
consultation with the National Marine Fisheries Service (NMFS) because
you may be affecting ``essential fish habitat.''
How did NMFS get this authority? They weren't given it--they took
it.
The term essential fish habitat or ``EFH'' comes from the 1996
amendments to the Magnuson-Stevens Fishery Conservation and Management
Act--a law designed primarily to address offshore commercial fisheries.
The Magnuson-Stevens Fisheries Act is administered by NMFS, an agency
in the Department of Commerce. NMFS also regulates endangered species
in the marine environment, and marine mammals like whales and dolphins.
All of these have the common theme--oceans and marine resources. NMFS
enforces the Fisheries Act, but eight Fishery Management Councils guide
it.
The Councils are composed of appointed members from the fishing
industry, state agencies dealing with fish, Indian tribes and in some
cases representatives of the environmental community. The Council
members fail to reflect any representation of land use or development
interests. There is virtually no representation of interests not
directly involved in fishing.
The Council system is very procedural and very administrative.
Councils meet frequently. they set up technical committees on issues
like fishing gear, quotas, and habitat. These committees often meet for
days and make recommendations regarding those issues to the Councils,
which themselves meet for days. The Councils then make recommendations
to NMFS, which conducts rulemaking on the proposals. Those rules, when
final, become part of Fishery Management Plans. These Plans govern the
behavior of participants in the fishery--the very interests that have
made the recommendations.
Plans cover many marine fish species--including anadromous species
like salmon--that are fished for commercial or sport purposes. A
species does not have to be rare, endangered, threatened, or even
subject to any particular risk. There are over 400 species of fish
subject to these Plans, including some you expect--like salmon,
halibut, swordfish--and others you would not--like the spiny dogfish (a
small shark), corals, etc.
Before the 1996 Fisheries Act amendments, this process was
relatively self-
contained. The interest groups involved in fishing activities
interacted with each other, fought and compromised with each other,
sued each other, and generally went on about their business. Now,
thanks to the EFH program being developed by NMFS, a wide range of
nonfishing activities including real estate development, forest
practices, mining, water supply, and agriculture are going to affected
by this process. Members of a Fisheries Management Council system that
does not represent, or reflect, their interests will regulate all of
these businesses and industries.
EFH was intended to be an information-gathering process-designed to
identify how fish habitat was being harmed. It was, as its name
implies, designed to cover habitat ``essential,'' or especially
important, to the fish species. Congress defined EFH as, ``those waters
and substrate necessary to fish for spawning, breeding, feeding or
growth to maturity.''
NMFS and the Councils, however, have taken this concept and greatly
extended, if not distorted, it. Four twists on the concept in the Act
are noteworthy:
First, NMFS interpreted EFH in its regulations to cover not only
the critically important habitat one would expect necessary to be
``essential,'' but instead concluded the designation should cover all
habitat necessary to a ``healthy ecosystem.''
Second, NMFS concluded that the term should not be limited to the
marine environment--the traditional realm of the Fisheries Act--but
should be extended to cover inland waters as well.
Third, having taken the step of pushing inland, NMFS announced the
need for ``watershed'' planning. Not only would rivers, estuaries, and
wetlands be covered, but all areas that could impact those waters,
including terrestrial habitat, would be included.
Finally, NMFS determined that it was not enough to cover waters
where fish currently are found, but also that EFH should cover areas
where fish historically were found.
NMFS took this expansive approach in its general regulations that
the Councils must follow. The Councils are now developing these
specific EFH designations following the NMFS guidance. This process is
ongoing now, and the results are shocking. Here are some examples:
The Pacific Fishery Management Council, governing fish
species off the coasts of California, Oregon, Washington and Idaho, has
proposed extensive inland habitat as EFH for salmon.
The North Pacific Fishery Management Council is proposing
to designate virtually every river that eventually touches the ocean as
EFH for salmon in Alaska.
The Mid-Atlantic Council, with the New England and South
Atlantic Councils, is proposing to designate the entire inland coast
from North Carolina to Florida for bluefish. This is just the southern
bluefish range.
The New England, Mid-Atlantic and South Atlantic Councils
have actually listed all of the estuaries and most of the major bays
and river basins on the east coast, areas like the Connecticut River
and Chesapeake Bay, for bluefish.
The Gulf Coast Council has effectively listed every bit of
the Gulf Coast, its wetlands, estuaries and rivers from the tip of
Florida to the border with Texas as habitat for brown shrimp.
These designations are extraordinarily broad. Essential fish
habitat has become all fish habitat. Remember, there are over 400 fish
species for which such designations must be made. The end result can
only be that EFH will be all waters everywhere a Fisheries Act species
is now, or previously has been, found.
The 1996 amendment requires federal action agencics--those that
decide whether to issue a permit or carry out a program--to ``consult''
with NMFS to determine what the impacts on EFH will be. NMFS, in turn,
``consults'' with the Councils. NMFS and the Councils submit
recommendations to the action agencies. If the action agencies don't
follow those recommendations, they must explain why in writing. In
short, a straightforward information-process was envisioned. The term
``consultation,'' however, is a term of art. As will be described, NMFS
has turned it into a complex, time-consuming, expensive process.
EFH consultation will be very similar to the cumbersome, detailed
consultation procedure of the Endangered Species Act. Section 7(a)(2)
of the Endangered Species Act (the ``ESA'') requires federal agencies
``in consultation with the assistance of the Secretary [of Commerce or
Interior]'' to ensure that ``any action authorized, funded, or carried
out by the Federal government is not likely to jeopardize the continued
existence of any listed species or result in the destruction or adverse
modification of critical habitat of an endangered or threatened
species.''
Pursuant to section 7(a)(2), a federal agency involved in an action
that ``may affect'' an endangered (or threatened) species generally
begins the consultation process by preparing a biological assessment
(``BA'') analyzing the anticipated effects on the listed species, or
initiating discussions with NMFS or the U.S. Fish and Wildlife Service
(``FWS''). The agency uses this process to determine whether the action
``is likely to adversely affect'' a species of critical habitat. If
this will happen, then formal consultation is required. As part of the
formal consultation, NMFS or FWS, issue a biological opinion (``BO'')
examining the proposed action and the anticipated impacts on the listed
species and determining whether there will be jeopardy to the species.
If the BO concludes that the proposed action will jeopardize a listed
species, the opinion will suggest ``reasonable and prudent
alternatives,'' if any, which NMFS/FWS believes will not cause jeopardy
to the species.
If the proposed activity is not likely to jeopardize the continued
existence of that species, USFWS may issue an incidental take
authorization along with the BO allowing the proposed activity to
proceed. If this type of ``taking'' is in compliance with a section 7
incidental take statement (``ITS''), then the activity will not violate
section 9's take prohibition.
The BO and take statement will also include reasonable and prudent
measures as defined as required actions, identified during the formal
consultation and included in the BO, which NMFS/USFWS determines are
necessary or appropriate to minimize the impacts of the incidental
take. Accordingly, the formal consultation develops and establishes
reasonable and prudent measures, terms, and conditions to minimize
anticipated incidental take, or, if necessary, reasonable and prudent
alternatives to eliminate the risk of jeopardy.
The consultation processes set forth in the proposed EFH
regulations are based on the process used for section 7 consultations.
In actuality however, the process proposed by NMFS is significantly
different from, and even in conflict with, the consultation process
used by federal agencies under section 7 of the ESA. The EFH process is
broader in many respects than the section 7 process and presents
consequential implications for private parties impacting water bodies
and associated areas containing EFH.
First, as noted earlier, the statute sets forth three separate
consultation or coordination processes. First, and most important,
federal agencies have a statutory requirement to ``consult'' with NMFS
on any activity, or proposed activity, authorized, funded, or
undertaken by the agency that may adversely affect EFH. Second, NMFS is
required to provide EFH recommendations on both federal and state
actions that could adversely affect EFH once the agency receives
information on these activities. This is not necessarily a part of the
consultation process; it applies independently to any information
received by NMFS. Finally, FMCs are authorized to review and comment on
any activities, or proposed activities, authorized, funded, or
undertaken by state or federal agencies that may affect the habitat,
including EFH, of any species under the FMC's authority.
The regulations set forth a complex scheme for federal agencies to
consult with NMFS. There are three possible procedures for a federal
agency to use in conducting an EFH consultation on an action. The
choice of procedures depends on the effects of the action on EFH. If an
action falls within a class of actions that NMFS has determined will
have only minimal effect on EFH, the agency could qualify for a
``General Concurrence'' and thus not be required to undertake a
consultation on an action. Alternatively, if an action will have
adverse effects, but these affects can be alleviated through minor
modifications, an agency may only be required to undertake an
abbreviated consultation. Finally, if an action may result in
substantial effects to EFH and/or will require detailed analysis to
allow EFH conservation recommendations to be developed, the agency will
have to undertake an expanded consultation, the most lengthy and
detailed of the consultation process options.
The interagency process set forth in the proposed rule also
incorporates elements of both the present process used for section 7
consultations and the NEPA evaluation process. For example, the rule
provides that, to reduce duplication and improve efficiency,
interagency consultation may be consolidated with interagency
coordination procedures required by other statutes, including NEPA, the
Fish and Wildlife Coordination Act, the CWA, and the Federal Power Act.
As an example, the rule notes that an agency preparing an EIS on an
action would not have to include a separate EFH assessment if the EIS
already specifically and fully evaluated the effect of the action on
EFH, noted that it was intended to function as an EFH assessment, and
was provided to NMFS for review.
The proposed rule states that the NMFS regional offices are to
develop procedures for identifying state actions that may adversely
effect EFH. These offices are also required to identify the most
appropriate method for providing EFH conservation recommendations to
the state agency.
When an activity that may adversely effect EFH requires
authorization and funding by both federal and state agencies, NMFS will
provide the state agencies with copies of the EFH conservation
recommendations developed as part of the federal consultation.
Finally, the rule provides that each FMC should establish
procedures for reviewing state or federal agency activities that may
affect habitat, including EFH of species under its authority. FMCs are
encouraged to identify activities of concern by directing staff to
track proposed actions, having the FMC habitat committee identify
activities of concern, and entering into an agreement with NMFS to
notify the FMC of activities, or similar procedures. The proposed rule
recognizes that federal and state actions often follow specific
timetables which may not coincide with the Council meetings and states
that FMCs may want to consider establishing abbreviated procedures for
the development of recommendations.
As noted above, section 7 of the ESA requires federal agencies to
ensure that ``any action authorized, funded, or carried out by the
Federal government is not likely to jeopardize the continued existence
of any listed species or result in the destruction or adverse
modification of critical habitat of an endangered or threatened
species.'' 16 U.S.C. Sec. 1536(a)(2). The consultation process under
this section is therefore predicated upon impacts to species listed as
threatened or endangered under the Act or on critical habitat. Listing
of species are final only after proper rulemaking procedures have been
followed by or NMFS, including considerable input from the public. See
16 U.S.C. Sec. 1533. Accordingly, a considerable amount of science is
accumulated about the species from the time of proposed listing to the
final listing to the final listing determination.
In contrast, the consultation process for EFH is predicated upon
adverse impacts to the habitat of all species covered under an FMP. 62
Fed. Reg. 19725. Most of these species are not listed under the ESA or
comparable state laws. Thus, the consultation process may be activated
by potential adverse impacts to areas occupied by many species that are
not otherwise protected under federal or state laws. The amount of
biological knowledge about the specific habitat needs of the species
triggering the consultation may often be marginal. NMFS is asking that
a risk-averse approach be used in designating EHH, and the EFH
consultation requirement will thus be very far-reaching.
Once an agency has determined that an action ``may affect''
federally listed species, a full, formal section 7 consultation will be
required only if the action is likely to adversely affect the species.
The mandate will then be to ensure that the action is not ``likely to
jeopardize the continued existence of any listed species.'' 16 U.S.C.
Sec. 1536(a)(2). By contrast, the consultation process under the
proposed rule is initiated to assess and respond to ``adverse'' effects
or impacts. The proposed rule does not define ``adverse'' effects or
impacts, but identifies various activities with the potential of
impacts to fish habitat sufficiently ``adverse'' to trigger EFH
consultation, including runoff, discharge, water diversions and
``conversion of aquatic habitat that may eliminate, diminish, or
disrupt the functions of EFH.'' Proposed Rule,
Sec. 600.810(a)(2)(ii)(C). While ``jeopardy'' is also not specifically
defined within the ESA or its implementing regulations, it is commonly
accepted to be, a much higher threshold than that suggested under the
proposed rule to require EFH consultation.
Section 7 of the ESA also requires federal agencies to ensure their
actions are not likely to ``result in the destruction or adverse
modification of critical habitat of an endangered or threatened
species.'' 16 U.S.C. Sec. 1536(a)(2) The ESA requires designation of
``critical habitat'' for listed species based on physical and
biological features essential to the conservation of the species and
according to the best scientific and commercial data available. Id.
Sec. Sec. 1532(4), 1533(b)(2). The ESA requires, however, that the
economic impacts of the proposed designation be considered prior to
making the critical habitat decision. Furthermore, critical habitat
designations are subject to proper rulemaking requirements, including
public notice and comment.
On the other hand, identifications of EFH are apparently
discretionary calls by the FMCs and not subject to any formal
rulemaking requirements such as public participation. Moreover, there
is no specific requirement for EFH determinations to be based on the
best scientific and commercial data available. Rather, the assessments
are to be made according to four ``levels'' of data, with the
presumption of the most protection given the species with the least
amount of data concerning their habitat requirements. Finally, there is
no requirement that economic impacts be given any consideration in
determining the presence of EFH. The proposed rule, in fact, states
that EFH will always include critical habitat and may be broader than
such habitat if ``restoration of historic [EFH] areas is feasible, and
[because] more habitat is necessary to support a sustainable fishery.''
Section 7 of the ESA allows the incidental taking of listed species
by federal agencies, including modifications of critical habitat which
actually kill or injure listed species. The incidental taking is
permitted so long as the agency follows the ``reasonable and prudent
measures'' included in a federal biological opinion which NMFS or USFWS
determine are ``necessary or appropriate to minimize the impacts of the
incidental take'' or ``eliminate the risk of jeopardy.''
Unlike the ESA, the proposed rule significantly expands the extent
and impact of the measures recommended by NMFS and the FMC for
activities which potentially impact EFH. For example, the interim rule
states that NMFS and the FMC are to provide recommendations to
``conserve and enhance'' EFH to state and federal action agencies. The
rule explains that ``EFH conservation recommendations'' may include
measures to ``avoid, minimize, mitigate, or otherwise offset adverse
impacts on EFH'' resulting from actions or proposed actions authorized,
funded, or undertaken by that agency. Unlike the requirements under the
ESA to merely minimize the impacts of an incidental taking or eliminate
the risk of jeopardy, it is clear the rule proposes to require
restoration of habitats, including stream areas containing historic
habitats, as a means to conserve and enhance potentially impacted EFH.
As discussed earlier, the ESA consultation process is triggered by
``any action authorized, funded, or carried out by the Federal
Government'' with sufficient impacts to listed species or their
critical habitat 16 U.S.C. Sec. 1536(a)(2). The proposed rule, however,
requires NMFS and the FMCs to review and recommend measures to conserve
and enhance EFH for both state and federal actions. Although the FCMA
treats this as a distinct function from consultation, NMFS appears to
be merging the consultation and recommendation/commenting functions.
Presumably, this will include everything from grazing leases on federal
lands to state timber harvesting permits. Notwithstanding the ``General
Concurrence'' exemption from EFH consultations, the proposed rule does
not clarify in any meaningful way how the NMFS or FMCs expect to review
the enormous number of federal and state permits processed which could
potentially impact EFH each year. Accordingly, many state and federal
permits could be stalled in the processing phase or risk challenges by
interested parties for failure to adequately follow the requirements of
the Magnuson Act.
This process will be on top of those that already exist, such as
NEPA environmental impact review, Coastal Zone Management Act
compliance, Endangered Species Act reviews, etc. Highlights include:
The duty of the action agency to prepare a detailed ``EFH
Impact Assessment.'' This could very well be like an EIS. When
a private applicant is involved, as when a federal 404 wetlands
permit is required, this duty will probably be passed to the
private party who will have the responsibility to pay for this
analysis and ensure it is complete.
Time deadlines exist, but, like the timeliness in ESA, the
agencies can easily get around them. As a result, the process
can greatly extend the time needed for federal permitting.
The recommendations of NMFS and the Councils will become
litigation fodder. Opponents of project development will be
able to sue based on these recommendations. This will
discourage action agencies from following any course other than
what is recommended by NMFS or the Councils, and NMFS and the
Councils will most likely recommend restrictions to protect
habitat without reference to the economic consequences.
If your state has any activity that requires federal approval and
is in EFH or affects EFH, you are covered. NMFS has made it clear that
it intends the Fisheries Act EFH program to cover nonfishing
activities. It has listed some of these: real estate development,
farming, timber-harvest, road construction, mining, water development,
and oil and gas.
Almost certainly this procedure will result in delays in getting
permits. The cost of getting permits will increase--due to delays, due
to the need to undertake consultation and prepare EFH assessments, due
to the inevitable slippage in deadlines that cover the federal
agencies, and due to the cost of complying with EFH restrictions.
Permits are likely to be subject to new restrictions. In some cases,
permits for activities are likely to be denied. And keep in mind, these
are not restrictions for species in danger of extinction, they are
restrictions to protect the habitat of all fished species, no matter
how plentiful.
EPH could be a new litigation tool for parties opposed to
development in these regions. For reference, take a look at what has
happened with the ESA and NEPA. Thus, even if you get a permit that can
be lived with, there is no guarantee a lawsuit will not be brought to
protect EFH, especially if a NMFS/Council recommendation is not
adopted.
All of this, everything I've discussed must be viewed in light of
the fact that NMFS has chosen to implement this program and impose
these new requirements without publishing a single final regulation. In
order to protect their decision-
making from review, NMFS has conducted everything we've noted in this
testimony under interim regulations. Public notice of the decisions of
the FMC's has been spotty, varied and without the regimen one expects
of a system designed and calculated to give the public notice of the
activities of government.
Any program instituted outside of Congress's intent, designed to
greatly expand an agency's authority, is something this Committee and
this Congress should be concerned about. This program has been designed
not to protect endangered and threatened species. This program has not
been designed to protect critically important habitat of species. This
program, quite simply, has been designed.
Ronald Baird, director of NOAA's National Sea Grant Program, made
NMFS's plans clear when he said last August, ``This is the most
significant piece of environmental legislation since the Clean Water
Act of 1972. The full implications of essential fish habitat are not
widely appreciated by the public. They will be shortly.''
______
Statement of Robert Alverson, Manager, Fishing Vessel Owners
Association
Mr. Chairman, on behalf of the Fishing Vessel Owners Association
(``FVOA''), I would like to thank you for the opportunity to provide
this statement. The FVOA is a trade association representing the owners
of 84 hook-and-line fishing vessels that operate in fisheries from
California to Alaska, and in the mid-Pacific Ocean. Our fisheries
include halibut, sablefish, and Pacific cod in the Bering Sea and Gulf
of Alaska, and sablefish off the coasts of Washington, Oregon, and
California, as well as albacore within and beyond the United States
Exclusive Economic Zone in the Pacific Ocean. Although I am, at
present, a member of the Pacific Fishery Management Council, and I am a
former member of the North Pacific Fishery Management Council, I
provide this statement solely in my capacity as Manager of the FVOA. I
note that the Deep Sea Fishermen's Union, which represents the crewmen
on vessels owned by FVOA members, has endorsed this statement.
summary
The FVOA and DSFU believe that the 1996 amendments to the Magnuson-
Stevens Fishery Conservation and Management Act (16 U.S.C. 1801, et
seq.) have provided, in several respects, the basis for improved
management of our nation's fisheries. The Act's National Standards on
safety (National Standard 10, 16 U.S.C. 1851(a)(10)) and bycatch
(National Standard 9, 16 U.S.C. 1851(a)(9)), are notable for the focus
that they have provided on critically important aspects of fisheries
management. The FVOA and DSFU were joined by the Alaska Crab Coalition
(``ACC'') in first proposing the enactment of these new National
Standards, and in securing wide support among Washington State and
Alaskan fishing industry organizations. The FVOA, DSFU, and ACC also
contributed to the development of conservation-related amendments to
the then Magnuson Act in 1990.
The habitat provisions of the 1996 amendments have contributed to
the progressive management of our fisheries. In particular, these
provisions have helped to draw attention to the need for actions to
reduce the impacts of trawling on the benthic environment, which serves
as nursery grounds for valuable species of fish. The FVOA, DSFU, and
ACC took the initiative among fishing industry groups to propose
habitat-related amendments during the process leading to the 1996
amendments.
Most importantly for the FVOA and DSFU, the 1996 amendments
preserved the Individual Fishing Quota (``IFQ'') program that had been
established for the halibut and sablefish fisheries off the coast of
Alaska. This program, after seven long years of preparation by the
North Pacific Fishery Management Council and the Department of
Commerce, ended the deadly and damaging open access fishing derbies.
IFQs have been the great success that their proponents had predicted
from the outset of the development of the program.
Based on the very favorable experience in the halibut and sablefish
fisheries, the FVOA and DSFU believe that individual transferable
quotas should be available for application to any fishery in the United
States Exclusive Economic Zone. Therefore, the FVOA and DSFRI urge
Congress to allow the statutory moratorium on individual quotas to
expire in accordance with its terms. 16 U.S.C. 1853(d)(1). This
position is strongly supported by the ACC, as well as by all the
regional fishery management council chairmen. Equally notable is the
fact that the report to Congress by the National Research Council of
the National Academy of Sciences, as directed by the Congress in the
1996 amendments (section 108(f), P.L. 104-297) definitively describes
the benefits of individual fishing quotas. Executive Summary,
Prepublication Copy, December 18, 1998.
The FVOA and DSFU also ask Congress to extend to the Pacific Region
the research plan provisions of the Magnuson-Stevens Act. 16 U.S.C.
1862. As discussed further, below, there is an urgent need for a
comprehensive observer program in the depressed groundfish fisheries
off the Pacific Coast. There is simply no other way to obtain reliable
data on bycatch of depressed, and even threatened, species. While there
is a reasonable expectation of some Federal funding for such a program,
fees on industry may become necessary. The fishing industry stands to
benefit from improved conservation of our public resources.
Consequently, the industry should be prepared to pay for the needed
observer program, if federal funding is inadequate or unavailable.
Playing Russian Roulette with our fisheries has proved disastrous to
important groundfish species and to the industry that has depended on
them. We must have observer data in order to manage our fisheries with
confidence that we are doing the right things.
Conservation
Replacement of the open access race for fish by the halibut/
sablefish IFQ program has resulted in improved conservation management.
The incidental catch of groundfish in the sablefish fishery has dropped
by 39 percent. Halibut mortality due to lost fishing gear has decreased
by 59.65 percent (translating to an average $3.5 million saving,
annually).
Incidentally caught sablefish is no longer discarded in the
directed halibut fishery. Sablefish in the western and central Gulf of
Alaska is now fully harvested, not only avoiding waste, but also
generating an economic gain for the industry (an average $3.93 million
gain, annually).
These improvements accord with the principal purpose of the
Magnuson-Stevens Act, which is conservation, and with a major objective
of that statute, minimizing bycatch and related mortality. 16 U.S.C.
1851(a)(1),(9).
Safety
Replacement of the open access race for fish by the IFQ Program has
greatly improved the safety of life in the halibut and sablefish
fisheries off the Alaskan coast. The former halibut fishing derby was
the second most dangerous occupation in the United States (preceded
only by the Bering Sea crab fisheries).
As noted above, the Magnuson-Stevens Act requires that fisheries
management promote the safety of human life at sea. 16 U.S.C.
1851(a)(10).
Communities
Community development quotas, which are integral to the halibut/
sablefish IFQ program, have assured isolated, low-income, Alaskan
native coastal communities a major source of employment and revenue. At
the same time, economic and social disruption of other communities has
been avoided; the top five halibut ports and the top four sablefish
ports remain the same as under the open access system. Small vessels
serving minor ports have been guaranteed their place in the fisheries,
and an industry fee-based loan program has been established for the
owners of those vessels and for new entrants to the fisheries. In
short, this IFQ program has increased the overall value of the
fisheries, making it possible to dedicate a portion to the poorest
communities, without adversely affecting the others.
The Magnuson-Stevens Act requires that fisheries management take
into account the interests of fishing communities. 16 U.S.C.
1851(a)(8).
Overcapitalization
Excess capacity in fisheries has been identified as one of the
fundamental causes of resource declines, unsafe conditions, lost
economic efficiency, and lower quality product. The halibut/sablefish
IFQ program has resulted in a reduction of the halibut fleet from 3,450
(1994) to 1,601 (1998). Restricted Access Management (``RAM'') Report,
NMFS, 1999. Conservation risk associated with fishing pressure on the
resources has declined radically. Unsafe conditions due to 24-hour
halibut derbies and 2-week sablefish seasons have disappeared, as
fishermen have gained the opportunity to conduct their operations in
periods of good weather during 8 months of the year. Longer seasons
have led to full-time employment on vessels and in processing plants,
and higher fish values have resulted in better lives for vessel owners
and crews. Slower paced fisheries have allowed much improved handling
of the catches, and thus, better quality product for the consumer.
The Magnuson-Stevens Act provides for consideration of economic
efficiency, and for reduction of excess fishing capacity. 16 U.S.C.
1851(a)(5), 1861a (a)-(e). It is reliably estimated that a government-
funded buyback achieving what was accomplished by the halibut sablefish
IFQ program would have cost the taxpayers approximately $318.8 million.
Greatest Overall Benefit to the Nation--Conservation, Safety,
Efficiency, Quality, Value
In addition to achieving improved conservation, safety, and
efficiency, the halibut/sablefish IFQ program has resulted in improved
product quality and higher product value. The slower paced fisheries
have translated to greater availability of higher quality product, in
particular, fresh halibut for 8 months, instead of a few days of the
year, and greater bargaining power for U.S. producers in the sablefish
export market. Landings of halibut provide a continuous supply of
product for 8 months, averaging about 12 percent of the harvest per
month. The same is true for sablefish. RAM Report, NMFS, 1999, page 12.
The Magnuson-Stevens Act requires that fisheries management achieve
the greatest overall benefit to the Nation. 16 U.S.C. 1851(a)(1); see
16 U.S.C. 1802 (28)(A).
review of the halibut/sablefish individual fishing quota program
When the North Pacific Fishery Management Council recommended
approval by the Secretary of Commerce of an IFQ system for the halibut
and sablefish fisheries, it was on the basis of an administrative
process involving extensive debate and intensive analysis. The Council
had considered an array of possible management responses to
conservation, social, and economic factors at work in the then open
access fisheries.
These factors were identified, as follows:
Allocation conflicts;
Gear conflicts;
Fishing mortality and other costs due to lost gear;
Bycatch loss of halibut and sablefish in other fisheries;
Discard mortality for halibut and other retainable species
in the halibut and sablefish fisheries;
Excess harvesting capacity;
Product quality, as reflected in halibut and sablefish
prices;
Safety of fishermen;
Economic stability in the fixed gear halibut and sablefish
fisheries and affected communities; and
Rural coastal community development of a small boat
fishery.
The Council ultimately determined that the IFQ system would be the
best management response to these factors. This paper addresses the
performance of that IFQ system in relation to those factors.
Allocation Conflicts
Allocation conflicts between the operators in the halibut/sablefish
fisheries generally were found in skirmishes involving halibut. Prior
to implementation of the IFQ program, the allocation issues centered
around manipulations of when specific area openings would take place in
order to advantage or disadvantage various groups.
In the Bering Sea/Aleutian Islands area, there evolved a series of
complex clearing procedures designed to make it more inefficient for
non-Alaskan-resident-operated vessels. This included such regulations,
in the Pribilof Islands area, as constraining trip limits and a
requirement that non-resident vessels deliver to Dutch Harbor. This, of
course, gave the local fishermen additional fishing time. Similar
clearing requirements were established for the Eastern Bering Sea, Area
4E, and the area known as Area 4B in the Aleutian Islands.
The annual meetings of the International Pacific Halibut Commission
(``IPHC''), were prolonged for hours on the question of when to have
the spring and fall 24-hour openings. Some of the issues that drove
this debate were as follows: Were the Canadian or the United States
fishermen going to open first to get an advantage on price; would the
spring opening conflict with the spring herring opening in southeast
Alaska; would the openings conflict with western peninsula salmon
seasons; would openings occur during big tides; would openings put
product at the docks in Alaska at the right time for the Sea Land
ships; would the fall opening conflict with the State of Alaska
sablefish openings; and would that opening conflict with the Russian
Orthodox holidays?
None of those issues, which were debated with emotion and zeal, has
arisen since the implementation of the IFQ program. When the IFQ
program was adopted, the onerous clearing requirements and trip limit
regimes in the Bering Sea district were removed (though there are still
clearing requirements they are not of an allocative nature). Former
Governor of Alaska, Walter J. Hickel, correctly observed of the IFQ
program, ``Ultimately the free market decides. . . .'' Letter from
Walter J. Hickel to Bob Alverson, August 27, 1997. All of the concerns
of when to fish or not to fish that the industry and fisheries managers
debated at length prior to implementation of the IFQ program, are now
the business decisions of each and every vessel owner, subject to
conservation management regulations.
Gear Conflicts
The supplemental environmental impact statement (``SEIS'') for the
halibut/sablefish IFQ program stated:
Although an IFQ program will tend to decrease gear conflicts
within the halibut and sablefish fishery, it may increase gear
conflicts between halibut or sablefish fishermen and other
fishermen by increasing the areas and length of periods in
which such conflicts can occur. For example, it is less costly
for trawlers to avoid the halibut grounds during brief halibut
openings than to avoid these areas most of the year. Similarly,
the areas and times with a high risk of gear conflicts are
easier to identify and avoid with the current intensive halibut
fishing periods than with an IFQ program. No attempt has been
made to estimate the magnitude of this effect. SEIS, page 2-7.
Halibut fishermen no longer have gear conflicts with sablefish
fishermen. The best sablefish grounds are usually located on the outer
continental shelf, or at about 350 to 600 fathoms. The halibut fishery
is conducted generally between 100 and 250 fathoms. The IFQ fishery
better allows the participants to target where the fish are located.
The time available for the fishermen to decide where and when to set
gear allows avoidance of other fishing operations, particularly now
that the grounds for halibut and sablefish are no longer saturated with
gear.
The statement, ``it is less costly for trawlers to avoid the
halibut grounds during the brief halibut openings, than to avoid these
areas most of the year'', is ironic, because the reverse has turned out
to be the case. It is very costly for trawlers to avoid halibut
grounds, because the trawl groundfish seasons have become very short.
This is particularly true in the Gulf of Alaska. Should trawlers
inadvertently get into a school of halibut or area where halibut gear
is set, the trawl fishermen do not have the time to make optimum
adjustments. If the trawlers had the time to make those adjustments,
the bycatch and potential gear conflicts could be further reduced.
As it stands, now, the longline IFQ fishermen have adequate time to
harvest their quota shares and can avoid most of the intense trawl
activity. In fact, the pacific cod fishery in the Gulf of Alaska has
been shortened, so that it ends about the time the March 15 IFQ
fisheries start, with the result that few, if any, gear conflicts have
been occurring with that directed fishery.
The openings set forth below were provided the trawl fleet in the
Gulf of Alaska during 1995 and 1999. The reader can easily see that
fishing time is now at a premium to the trawl fleet, as it was to the
halibut and sablefish fishermen prior to the IFQ program. The loss of
fishing gear, particularly someone else's, becomes a low priority, when
fishing time becomes a high priority.
------------------------------------------------------------------------
1995
------------------------------------------------------------------------
Pacific Cod..................... Western Gulf...... January 20 to
March 17
(inshore)....................... Central Gulf...... January 20 to
March 22
Pollock......................... Western Gulf...... January 20 to
February 2
.................. June 1 to June 2
.................. July 1 to July 2
.................. October 1 to
October 1 (12
hours)
Central Gulf...... January 20 to
January 24
.................. June 1 to June 5
.................. July 1 to July 5
.................. October 1 to
October 4
S.E. Alaska Pacific Ocean Perch. .................. July 1 to July 9
.................. Plus two days in
October
------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
1999 Sector Area in the Gulf of Alaska
----------------------------------------------------------------------------------------------------------------
Pacific Cod (Trawl).................... Inshore..................... 610 Opened 1/20/99 Closed 3/8/
99
Inshore..................... 620&630 Opened 1/20/99 Closed 3/
14/99
Offshore.................... 610 Opened 4/18/99 Closed 6/7/
99
Pollock (Trawl)........................ Inshore..................... 630 Opened 1/20/99 Closed 1/
27/99
Inshore..................... 610 Opened 1/20/99 Closed 1/
31/99
Inshore..................... 620 Opened 1/20/99 Closed 2/
17/99
Inshore..................... 640&650 Opened 1/20/99 Closed 3/6/
99
Inshore..................... 610 Opened 6/1/99 Closed 6/7/
99
Inshore..................... 630 Opened 6/1/99 Closed 6/10/
99
Inshore..................... 620 Opened 6/1/99 Closed 6/11/
99
----------------------------------------------------------------------------------------------------------------
In summary, the SEIS predicted less gear conflicts, and this has
occurred The SEIS' contemplation of IFQ harvesters having conflict
between one another has not occurred, largely because sablefish and
halibut operations take place at different depth strata, and because of
the 8 months of fishing time, halibut harvesters can afford to
communicate with their fellow fishermen and avoid each others' gear.
The same applies for sablefish harvesters. The conclusion of the SEIS
about trawlers has turned out to be just the reverse of actual
experience. The trawl derbies have increased the trawlers' cost of
avoiding gear conflicts.
Fishing Mortality and Other Costs Due to Lost Gear
The SEIS correctly predicted the following with regard to gear loss
and related fishing mortality:
There are several reasons why an IFQ program is expected to
decrease gear losses and the associated costs. First, it would
reduce the amount of gear that is on the grounds at any one
time, and therefore, reduce the amount of gear that becomes
tangled. Second, it would increase the willingness of fishermen
to take more time to avoid tangling gear and to retrieve lost
or tangled gear. It would do so by decreasing the opportunity
cost of the time required either to set gear so that it is less
likely to become tangled or to retrieve it. Third, it would
eliminate the current gear losses that occur because fishermen
set more gear than they can retrieve before the end of the
brief halibut openings. Finally, it would allow fishermen to
fish at a pace and in areas, time periods, and weather
conditions that decrease gear losses.'' SEIS, pages 2-6.
The SEIS stated, ``There are principally two types of costs
associated with gear losses in the halibut and sablefish fishery. There
are (1) cost of replacing lost gear, and (2) harvest forgone due to the
fishing mortality caused by the lost gear.'' (Id.) The SEIS estimated
that, in 19907 1,860 skates of gear and two million pounds of halibut
were lost. (Id.)
In its annual reports, under the category of waste, the IPHC
includes the mortality of halibut due to lost gear. In the 1994 Annual
Report, waste was recorded at 2.85 million pounds. The 1995 and 1998
Annual Reports recorded waste as 1.0 and 1.9 million pounds,
respectively. This represents a 48 percent average reduction in waste,
or an annual savings of approximately 1.4 million pounds of halibut.
This compares impressively with the 50 percent saving predicted by the
SEIS. Based on the 1999 Seward, Alaska price for halibut (approximate
average, $2.10/lb), the saving due to reduced waste is approximately
$2.94 million.
The lost fishing gear in the halibut derbies was primarily the
result of 4,000 to 6,000 vessels setting their gear all at the same
time, and the gear becoming entangled. Gear lost in this manner is a
thing of the past. The SEIS estimated the value of lost gear at $2.0-
$2.4 million per year in the halibut derbies. SEIS, pages 2-6. Under
the IFQ program, the vessels share the grounds over an 8-month season.
Gear can be lost due to the normal hang-up on the bottom, but the large
amounts of gear lost during the halibut derbies from gear conflicts has
come to an end.
There has also been a saving in the amount of gear purchases for
each vessel each season. It was not uncommon for vessels to pre-bait
and set 80 to 130 skates of gear during a derby opening. Vessels are
now fishing with 50 to 70 skates of gear. Additionally, the vessel
operators, prior to IFQs, used two different types of gear--one for
halibut and one for sablefish Many harvesters are now using their
sablefish gear to harvest the halibut quotas, further reducing gear-
related costs to the fleet.
The SEIS predicted a 50 percent reduction in gear needed to harvest
the same amount of fish. (SEIS, pages 2-7.) That document properly
predicted that significantly less gear would be set out.
The open access sablefish fishery had similar problems with lost
gear; however, the SEIS did not quantify the loss. It is reasonable to
conclude, based on the halibut experience, that the lengthened
sablefish seasons under the IFQ program have also resulted in lower
gear losses and associated resource mortality than prevailed in the
open access fishery.
In summary, fishing mortality of halibut due to lost gear has
resulted in at least a 48 percent reduction in waste recorded by the
IPHC, with a net benefit of $2.94 million annually to the fleet. The
IFQ program has resulted in much less gear being set to harvest the
quota.
Bycatch Loss of Halibut and Sablefish in Other Fisheries
Prior to the implementation of the IFQ program for sablefish and
halibut, the length of the seasons had shortened to a point of causing
chaos. The sablefish fishery had collapsed from a 9-month season to a
less than a 10-day fishery in the western Gulf of Alaska, and to a 5-
day season in southeast Alaska.
By 1994, the halibut fishery had become two 24-hour openings, one
in the spring and one in the fall. In the mid-1970's, the halibut
season had been 9 months. By the 1990's, when fishermen harvested
sablefish, they were required by regulation to throw away their
incidentally caught halibut, and during the halibut derbies, the
fishermen were required to throw away the incidentally caught
sablefish. The mortality associated with this regulatory bycatch was
deducted from the available commercial harvests.
The IPHC recorded the halibut mortality in the directed sablefish
fishery by the use of the observer program. The average halibut
mortality in the longline sablefish fishery for each of the five
seasons preceding the IFQ program was 1,816,000 pounds. The bycatch
mortality, after the IFQ program was implemented in 1995 was recorded
at 297,000 pounds. This represented an 84 percent reduction in halibut
mortality, or a reduction of 1,519,000 pounds annually. There have been
no updates in the NMFS data base since 1995, but there is no reason to
expect that the experience has changed since then.
The reduction resulted from a variety of several factors. Two of
the more important ones were: (1) the fishery slowed down, and juvenile
halibut were able to be released with better care, and thus with lower
mortality, and (2) the adult halibut were now allowed to be taken and
counted against the quota. (Juvenile halibut are not allowed to be
landed; they are defined as being less than 32 inches long.)
Similar information is not available to quantify what has taken
place with incidentally caught sablefish. The directed halibut fishery
is generally conducted in a shallower habitat than that in which the
sablefish are usually found, so the numbers of sablefish saved in the
halibut fishery would probably not be as great as the numbers of
halibut saved in the directed sablefish fishery. (The deep-water
sablefish habitat does, however, have substantial numbers of halibut in
the late winter and spring.) The important point is that the fleet is
now landing incidentally caught sablefish. That was not the case prior
to the IFQ program.
The reduction in halibut mortality in the directed sablefish
fishery of 1,519,000 pounds represents approximately a $3.2 million
gain to the longline fishermen, assuming an average 1997 price of $2.10
per pound. As noted above, prior to the IFQ program, this now-retained
bycatch was discarded and deducted from what might be available for
commercial harvest.
There has been an additional saving to the longline fleet with the
implementation of the IFQ program. Prior to 1995, the longline
sablefish fishery operated in the Gulf of Alaska with a halibut cap of
700 metric tons. Once this bycatch mortality was accounted for, with
the help of the observer program, the directed sablefish fishery was
closed. This had the effect in the western Gulf of Alaska, and at times
the central Gulf, of stopping the harvest of sablefish, in order to
protect halibut. The ability under the IFQ program to keep the
sablefish fishery open in the Gulf of Alaska in each of the years,
1995, 1996, 1997, 1998, and 1999, has allowed for the western Gulf of
Alaska harvest level to be fully achieved, and the central Gulf quota
to also be harvested. For 1997, in the western Gulf of Alaska, the
harvestable amount of sablefish quota shares amounted to 1,690,222
round pounds, representing an additional $3.93 million to the fleet.
(Price $3.70/dressed, 63 percent recovery.)
In summary, the IFQ program has allowed the fleet to recapture the
lost harvest of halibut that was occurring due to sablefish operations.
This gain amounts to an average of $3.2 million annually since the
inception of the IFQs. The program additionally allows for the full
harvest of sablefish in the western and central Gulf of Alaska,
providing an average annual gain of $3.93 million.
Discard Mortality for Halibut and Other Retainable Species in the
Halibut and Sablefish Fisheries
``Conservation and management measures shall, to the extent
practicable, (A) minimize bycatch and (B) to the extent bycatch cannot
be avoided, minimize the mortality of such bycatch.'' 16 USC
1851(a)(9).
Congressional interest and intent with respect to bycatch reduction
was clearly reflected in the Senate and House floor debates in the
104th Congress. Senator Stevens declared that, ``Under S. 39, the
councils will . . . be required to reduce the amount of bycatch in
every fishery around our country.'' (Congressional Record, September
18, 1996 at S10810). He also stated, ``We thought Americanization would
go a long way toward conserving the fishery resources of this Nation.
Foreign vessels have now given way to U.S. vessels that are capitalized
now far beyond what we ever envisioned in the seventies, and the
fisheries waste continues to get worse in many areas.'' Id. Senator
Murkowski stated, ``This will put us on the road to stopping the
shameful waste that is currently occurring in many fisheries.'' (Id. at
S10820.) Senator Gorton remarked, ``. . . I join my colleagues in
lauding those provisions that aim to reduce waste and bycatch in the
fisheries. . . .'' Id. at S10814.
On the House floor, Congressman Young, principal author of H.R. 39,
and Chairman of the committee of jurisdiction, stated, ``The reduction
of bycatch in our fisheries is one of the most crucial challenges
facing fisheries managers today.'' (Congressional Record, September 18,
1995 at H9116.) On passage of S. 39, he stated, ``. . . the bill
recognizes that bycatch is one of the most pressing problems facing the
continuation of sustainable fisheries. . . .'' (Congressional Record,
September 27, 1996 at H11438.)
Janet Smoker of Fisheries Information Services (``FIS'') completed
a review of the IFQ directed sablefish fishery in the Gulf of Alaska
relative to the retention of various species caught incidentally. The
FIS report examines the 1994 season against the IFQ seasons of 1995,
1996, and part of 1997. The following conclusions were based on the
North Pacific Fishery Management Council's observer program.
While conducting a directed fishery on sablefish, some of the
target catch is discarded. The retained sablefish has always been high,
according to the report. The retained sablefish in the directed
longline fishery for sablefish during 1994 was 96.8 percent (a number
that is hard to improve upon), and during the 1995, 1996, and 1997
seasons averaged 97.03 percent.
One observation concerning the small difference in retained bycatch
between the open access period and the IFQ fishery is that there has
been very little ``high grading'' in the IFQ fisheries, indeed, less
than in the pre-IFQ fisheries. High grading had been a concern with
respect to the IFQ program, when it was under development.
The SEIS noted several very important points relative to this
subject. Vessel profit would increase 6 percent, if sablefish under 4
pounds (eastern dressed weight) were discarded, but in so doing the
number of fishing days would increase 70 percent. SEIS, page 2-14. The
fishermen would have made more money, but would have worked many more
days.
The observer statistics compiled by FIS, which indicate a 97.03
percent retention of sablefish, suggests that the SEIS was accurate.
High grading, which means catching the 16 fish at least twice, is not
economical.
The FIS report also indicates that the directed sablefish fishery
during the 1994 season was retaining 75.5 percent of all groundfish,
inclusive of sablefish that was being caught. The next three seasons
under the IFQ program increased the total groundfish retention to 84.9
percent of all groundfish species. Discards of groundfish declined from
24.5 percent of the catch to an average of 15.03 percent of the catch,
representing a 39 percent reduction in discarded groundfish.
The retention of groundfish, not including sablefish, increased
from the 1994 season level of 25.7 percent to an average of 34.6
percent during the 1995, 1996, and 1997, seasons. This represented a 35
percent increase in groundfish retention, not including sablefish.
The halibut discards that occur during the directed sablefish
fishery have gone from 21.1 percent in 1994 to an average of 13.03
percent during the 1995, 1996, and 1997, seasons. This represented a 38
percent decline in halibut discards. Discards of halibut under the IFQ
program in the directed sablefish fishery are largely halibut that are
less than the legal size for retention.
The discards of rockfish and pacific cod in the IFQ fisheries are
significantly the result of the rockfish and cod quotas being achieved
during the race for fish in those fisheries, which then result in
regulatory discards for the remainder of the year for IFQ fisheries.
The majority of groundfish discards in the IFQ fisheries are flounders
and skates, for which markets have not yet been adequately developed.
In summary, according to the cited evidence and analysis through
1997, the retention of sablefish has remained in the 97 percent range
suggesting very little, if any, high grading. The discards of
groundfish in the directed sablefish fishery reduced 39 percent, for a
84.9 percent retention of everything caught. The fish currently
discarded are primarily skates and flounders for which markets are not
available. The halibut discards in the sablefish fishery declined 38
percent. The IFQ program has, therefore, helped reduce bycatch
significantly. Data for 1998 and 1999 are not available.
Excess Harvesting Capacity
The SEIS made a number of comments with regard to excess harvesting
capacity. ``The fact that there are too many vessels has been
identified as a problem.'' (SEIS, page 2-52.) ``The Council has
considered the introduction of a quota system as a means to enable
vessels to leave the industry to receive some recompense through the
sale of quota shares for so doing.'' Id. ``It is hoped that following
introduction, transfer of quotas will lead to less efficient vessels
leaving the industry.'' Id.
In 1994, the number of vessels participating in the sablefish
fishery opening numbered 1,139, and in the halibut fishery, 3,450. The
number of vessels participating in the sablefish fishery in 1995, 1996,
1997, and 1998, were 517, 503, 504, and 449 respectively. The
corresponding numbers of halibut vessels were 2,057, 1,962, 1,925, and
1,601. (RAM Report, NMFS, 1999, page 27.)
The reduction of vessels as envisioned by the SEIS is working and
is being accomplished without any Federal buy-back assistance. The
fleet is using the equity value of quota shares to buy itself out. The
FVOA estimates that, in order for the Federal Government to have
achieved a fleet reduction in the halibut fishery from 3,450 vessels in
1994, to 1,601 in 1998, a reduction of 1,849 vessels, it would have
cost at least $172,432 for each vessel and its potential harvest of
fish This means that the halibut fleet has self-rationalized itself in
the amount of $318,822,000 ($172,432 1,849 vessels) in 4
years, without any Federal assistance.
There are no mechanisms comparable to IFQ's in terms of cost
effectiveness in reduction of a fleet. The taxpayer cost of one New
England buy-out was $23 million, and the impact was minimal.
One of the options the North Pacific Fishery Council seriously
looked at, when it was considering whether to adopt IFQs for the
halibut fishery, was a license limited entry program that would have
reduced the halibut fleet from 5000 vessels to less than 1000 vessels.
This option would have provided no compensation to the 4000 vessel
operators eliminated from the fishery, and accounts, in large part, for
the adoption of the IFQ alternative.
Product Quality, as Reflected in Halibut and Sablefish Prices
The SEIS made numerous predictions regarding the expected effects
on product quality, the availability of fresh halibut, and ex-vessel
prices. One of the primary goals of the IFQ program was to provide high
quality fresh halibut on a continual basis. The 24-hour openings in the
derby fisheries limited the ability of fishermen and processors to
provide fresh halibut to brief periods of the year, and to very few
customers. For example, the Hotel Captain Cook, in Anchorage, Alaska,
had to import fresh halibut from Canada to supply its customers, even
though Alaska produced more halibut than did any other place in the
world. ``. . . I mention the Crow's Nest Restaurant in the Hotel
Captain Cook, which has a reputation of serving nothing but fresh
halibut. Prior to IFQs, most of the year we flew fresh halibut in from
Vancouver.'' (Letter from the Honorable Walter J. Hickel to Mr. Bob
Alverson, August 27, 1997.)
The SEIS had the following specific expectations with regard to the
IFQ program. First, the program would provide the flexibility in
scheduling landings that is necessary for fishermen and processors to
take advantage both of the latent year round market for fresh halibut
and the seasonal consumption patterns for sablefish, and to decrease
storage time and costs for the halibut and sablefish that are frozen.
Second, the program would increase the quality of landed halibut and
sablefish, by decreasing the opportunity cost of the time required to
assure that the catch is quickly dressed and cared for. Third, the
program would eliminate the brief, intensive openings that result in
such large concentrations of landings that unloading and processing
delays can decrease product quality and prices. (SEIS, page 2-4.)
Flexibility in scheduling landings to take advantage of a year-
round market for fresh halibut and seasonal consumption patterns is
evident from the IPHC monthly landing reports for the 1995 through 1998
seasons. (RAM Report, NMFS, 1999, page 12.) The fleet has spread its
landings over the entire time provided, all 8 months. This has allowed
the fresh fish market to absorb approximately 75 percent of the
harvest. The initial forecast by the SEIS was 50 percent. (SEIS, page
2-5.)
With regard to storage costs and savings, the SEIS stated, ``If 75
percent of landings currently are frozen and if an IFQ program would
result in only 50 percent being frozen, the cost savings in 1990 would
have been $4.2 million ($0.32 per lb. 25 percent of 52.6
million lbs.).'' (SEIS, page 2-5.) With 75 percent of the harvest now
going to the fresh markets, cold storage saving in terms of 1990
dollars is $9.8 million. ($0.32 per lb. 50 percent of
61,200,000 lbs. (1999 quota)). This saving thus is over twice that
forecasted by the SEIS. Additionally, in terms of product quality, the
SEIS assumed, on average, that halibut was frozen 6 months a year. This
is no longer the case, and the quality is, therefore, higher than
anticipated.
The SEIS stated, ``The price increase for sablefish is expected to
be less than for halibut, because the potential benefits from the fresh
fish market are probably less for sablefish''. (SEIS, page 2-5.)
The SEIS greatly underestimated the Japanese frozen market for
sablefish, and the marketing advantages that IFQs gave U.S. fishermen,
in terms of negotiating leverage in this foreign market. . . . (Harvest
guidelines have decreased as well, which has put an upward pressure on
prices.) Japan consumes over 97 percent of the U.S.- and Canadian-
harvested sablefish. Since the establishment of the IFQ program, the
sablefish price has steadily increased. The 1997 average price to
fishermen would conservatively be estimated at $3.70 per dressed pound.
The NMFS assumes a 63 percent recovery rate between dressed and round
sablefish, therefore in terms of round weight, the price would be $2.33
per pound.
The SEIS estimated that the round pound price for sablefish would
increase $0.05. That document stated, ``In 1991, this would have been a
$0.05 per pound round weight increase in the ex-vessel price or about a
$2.8 million dollar increase in ex-vessel value.'' (SEIS, page 2-5.)
The price for dressed sablefish in 1991, based on the SEIS, was
$1.59 per dressed pound or $1.00 per round pound. The 1997 round price
of $2.33 converts to a 1991 price of $1.98, using a consumer price
index regression of .849. In terms of 1991 dollars, the IFQ program
added $0.98 per round pound to the price of sablefish. In terms of the
allocated 1997 quota shares, the added value to the resource is
$29,629,207, in 1991 dollars. ($0.98 x 30,233,885 1997 round pounds)
The prediction of a $2.8 million gain, therefore, was very greatly
underestimated. In terms of taxes to the State of Alaska, under the 3.3
percent raw fish tax, the gain has been $957,000 per year on the
average, through 1997.
With respect to halibut the SEIS predicted the following: ``In
summary, it is estimated that an IFQ program would increase halibut ex-
vessel prices by $0.04 to $0.68 per pound. Given the 1990 landings of
52.6 million pounds, the resulting increase in the ex-vessel value of
the fishery would have been from $2.1 million to $35.8 million.''
(SEIS, page 2-5.)
The SEIS used a 1990 value for halibut at $1.78 per pound. The
prices for halibut since the IFQ program was initiated in 1995 has been
in the $1.90 to $2.40 range in the Seward Alaska area. Prices in the
Seattle area are generally 35 to 60 cents above Seward prices, largely
reflecting transportation costs. Assuming an average price for 1997 of
$2.25 per pound, and using a consumer price regression of .814, the
1990 value would have been $1.83 per pound. Hence the added ex-vessel
value to the industry in terms of 1990 dollars is approximately 5
cents. This would mean an added ex-vessel value to the fishermen of
$2.5 million. Consequently, although there has been, in fact, an
increase in price paid to the fisherman, the amount has been at the
lower end of the prediction.
It should be noted, however, that this value may be somewhat
misleading, in that the halibut industry has completely changed since
the implementation of the IFQ program. There are no more long lines of
fishing vessels waiting to deliver halibut. Processors no longer have
product stacked on their processing floors for days at a time because
freezers are too full. Halibut is now being flown to markets all over
the United States and Europe. Prior to the IFQ program, containers of
frozen halibut were transshipped to the Seattle area for
redistribution. Now, significant amounts of halibut are air freighted
out of Anchorage, Alaska. There has been an added cost in air
transportation to get good quality fresh fish to distant markets, which
does not readily appear as an additional value when only looking at the
price the fishermen receives. There are new businesses in air-
freighting as well as long-haul trucking out of Anchorage that were not
envisioned prior to the IFQ program.
The industry has been revolutionized, and the most important
quality aspect for halibut of the new system is shelf life. The better
the quality at the boat, the longer the fresh fish can be available to
consumers. The need for good quality to ensure shelf life for halibut
now is the driving force on prices paid to the harvesters. A letter
from Dory Seafoods states:
The majority of the high quality buyers want to know when was
the fish caught and how old will the oldest fish be when it is
received in the market place. Many buyers will not buy old
fish, or if given a choice, they will pay more for fresher fish
with a longer shelf life.
I believe the overall quality has improved on air shipments
out of Alaska. The fishermen have more time to dress, ice and
take care of the product on board the fishing vessels. In
addition, the processing plants are receiving smaller
quantities per day and, in most cases, are able to ship the
product out the same day as received. As a result, the halibut
is handled much quicker and received in the market place in
better shape than in pre-IFQ years. [Letter from Dory Seafoods
to Robert D. Alverson, August 28, 1997.]
There have been complaints from several shore-side processors that
they are not doing well under the IFQ program. It is clear that the raw
product cost has not changed very much for halibut from the 1990
prices. It is also evident that the frozen market nature of sablefish
makes all ports competitive for sablefish. More importantly, as shown
below, the landings per port have not changed materially. What the
fishermen do notice is that those processors that have available to
them good and reliable transportation, either air or long-haul trucking
routes out of such locations as Anchorage seem to be very competitive
for halibut. Those who have chosen as a business decision not to be
active in fresh fish marketing probably have lost market share.
Processors in western Alaska and the Dutch Harbor area have some access
to the fresh markets, but with more difficulty. In these areas, the
landed halibut generally reflects a frozen product price. In the case
of sablefish, the product must be frozen for export to Japan, and
therefore, all Alaskan ports with freezer capacity should be able to
participate in that fishery.
Sablefish is unique, in that the final destination is Japan or
other Asian markets. Sablefish has very few fresh fish sales. The
nature of the flesh quality and high oil content make it necessary to
freeze the product. The distribution of sablefish before and after IFQs
were implemented can be seen in the RAM reports. There has not been any
significant change in landings to particular ports of call. (NMFS 1999
IFQ Report.)
In summary, it is evident that quality has improved and halibut is
now available fresh throughout an 8-month period. Some of the
additional values to the fishermen, considering some of the predictions
of the SEIS, are $8.2 million in annual average savings in cold storage
costs for halibut; $2.5 million of additional annual average ex-vessel
value of halibut; and $29 million in added annual average export value
of sablefish.
The SEIS discussed savings in gear, food, bait, and fuel costs to
the fleet. That analysis estimated annual savings of $1.8 to $2.5
million for food; $3.1 to $4.0 million for fuel; $20.0 to $28.0 million
for opportunity cost of labor, and $9.2 to $11.7 million for fixed
costs. This statement does not attempt to quantify these actual
savings, although they have materialized in all of these categories.
These savings and additional values to the fleet have resulted in at
least a $75 million net average annual benefit to the industry.
Safety of Fishermen
The SEIS stated:
An IFQ program is expected to increase vessel safety by
reducing substantially the incentive fishermen have to
disregard factors that increase the risk of accidents. However,
due to a lack of reliable data and methodological problems, it
is hard to provide quantitative estimates on the linkages
between vessel safety and other factors, such as management
practices. (SEIS, page 2-3.)
In the recently released book, Fishing Vessel Safety, Blueprint for
a National Program, the National Research Council noted that commercial
fishing has one of the highest mortality rates of any occupation and
that safety has largely gone unregulated. (Page 142.) While attributing
a large portion of the safety issues to the vessel (e.g., its
structure, equipment, and crew), the authors did consider fishery
management practices to be one of three major external influences on
vessel safety. (Page 131.) Allocation conflicts have ``resulted in a
highly competitive operating environment in which fishermen may take
unnecessary risks to maintain their livelihood''. (Page 132.)
During the open access halibut ``derbies'' which predated the IFQ
program, many people lost their lives. In 1992, during the two-day
openings in the Gulf of Alaska, six people died.
In a report from the U.S. Coast Guard, by Captain B.I. Merchant,
September 6, 1996, there was comment on the safety record for the first
year of the IFQ program. The report focused on the derby years, 1992-
1994, and the first IFQ year, 1995. The conclusions were that search
and rescue attempts over the 8-month 1995 IFQ season were approximately
half the number recorded during the two or three 24-hour seasons for
each of the years, 1992, 1993, and 1994. Specifically, there were 15
search and rescue attempts in 1995, compared to 33 in 1994, and 26 in
1993.
The report stated:
Of note, is the fact that no lives were lost in the four
vessel sinkings that occurred during the 1995 IFQ season . . .
fishermen have been choosing periods of fair weather to fish.
This seems to confirm the premise that the I.F.Q. system
provides a framework where each master has the greatest
possible control over safety issues. (Page 1--Appendix 13)
In reports completed by Pacific Associates, a highly qualified
fisheries consulting organization, search and rescue cases for the
derbies from 1991-1993 were logged at 216, or an average of 30 per
derby opening. To date, after two and one-half seasons, there has been
one death during IFQ operations. Of the 22 vessel losses in 1996, due
to fire and sinking in Alaskan waters, only one vessel is identified by
the U.S. Coast Guard as an IFQ participant. The 1999 RAM Report states
relative to reflecting the following. In addition to its enforcement
responsibilities, the Coast Guard also monitors safety at sea, and
reports that, during the 1998 IFQ season, there were 11 Search and
Rescue (SAR) missions undertaken (fifteen in 1995, seven in 1996, and
nine in 1997). There were no sinkings in 1998 (four in 1997, two in
1996, and two in 1997), and two lives lost (none in 1995, two in 1996,
and one in 1997). In the 3 years prior to the IFQ fishery, there were
an average of 28 SAR missions, two vessel sinkings, and two lives lost
during the short derby seasons. Those deaths that have occurred since
the IFQ program began have not been due to heavy weather accidents.
Three of the deaths have occurred while the vessels were moored in
harbor.
As noted above, due to the high loss of life in commercial fishing
activities, the 104th Congress enacted, in section 106(b)(10) of the
Sustainable Fisheries Act, National Standard 10, which provides,
``Fishery conservation and management measures shall promote the safety
of human life at sea.'' 16 USC 1851(a)(10). Senator Patty Murray stated
during the Senate floor debate on S. 39, the Sustainable Fisheries Act:
. . . This race for fish creates serious safety
considerations in many fisheries. Under this race, fishers feel
compelled to keep fishing even when the weather or conditions
of the vessel or health of the captain or crew would suggest
otherwise. Unless fishery management plans provide
opportunities and incentives for fishers to sit out storms and
return to port for repairs or medical attention, lives will
continue to be lost. . . .
For this very reason we included promotion of safety of life
at sea in the National Standards of the Magnuson Act.
(Congressional Record, September 18, 1996 at S10818.)
Economic Stability in the Fixed Gear Halibut and Sablefish Fisheries
and Affected Communities
The Commerce Department, in approving the IFQ program, recognized
that the open entry fishery for halibut and sablefish had created an
extreme excess of capital investment. The Department observed that the
excess capital was causing instability and uncertainty in the fishery.
The SEIS states, ``However, once the adjustments are made, IFQs would
decrease uncertainty and increase the ability of fishermen and
processors to plan their participation in the halibut fishery.'' (SEIS,
page 2-13.)
Of the 7,992 different vessel owners who participated in the
halibut fishery between 1984 and 1994, 38 percent did so for
only 1 year while only 9 percent participated all 7 years. It
is estimated that 1,443 vessel owners participated in the fixed
gear sablefish fishery between 1985 and 1990. Of these, 45
percent participated in only 1 year and only 6 percent
participated all 6 years. (SEIS, page 2-13.)
This is the case in terms of both short and long-term
planning. In areas with only a few very short openings, if a
vessel breaks down, a fisherman might miss all or a substantial
portion of the season. Likewise, increased fishing effort does
not allow processors to plan for consistent or orderly
processing. The short-term discontinuities make planning
difficult. (SEIS, page 2-12.)
A further benefit of quota systems is deemed to be the degree
of certainty given to participants upon which to base their
investment and fishing decisions. It is argued that if people
are aware of the quantity of fish available to them that they
will be able to make soundly based decisions about the future.
(SEIS, page 2-54.)
The vessel owners are now able to fish and time their operations,
not only around bad weather, but also with a view to market
opportunity, so they can efficiently operate in other fisheries that
may otherwise have been unavailable to them because of brief, fixed
season openings. Prior to the IFQ program, thousands of vessels had
two, 1-day earning opportunities. Today, earning opportunities, through
consolidation, are creating stability within the harvesting sector.
Stability has been enhanced by the constraints on quota share
concentration, through the use of ownership caps, vessel caps, and
vessel classes. These were designed to prevent too great an
accumulation of quota share ownership by individuals in the fleet and
to ensure processors an adequate number of harvesting vessels.
Ownership caps and vessel cap limits are cited in the RAM report.
(Pages 15 and 16.)
The SEIS stated that, under the IFQ system, people would be able to
make sound business decisions about their future. The system was
designed to encourage transfers of quota within certain limits. It was
designed to encourage an owner-operated fleet. This was provided by
requiring new purchasers of IFQs to be on the vessels when the quota
shares were being fished. It is clear that the program is functioning
as designed. The owner-operator provision is providing stability for
crews and vessel owners who work on deck.
Some members of FVOA have chosen to sell, and others have chosen to
purchase, quota shares. The results are that for those who have chosen
to purchase, the owners and the crews are earning more. Those who have
sold out have received some compensation for their past investment and
efforts. The crews that have been displaced to date are those who were
participating in two, 1-day jobs. The SEIS states on this issue, the
following, ``In considering the employment effects of an IFQ program,
it should be remembered, that many fishermen take a break from other
fishing or non-fishing activities to participate in the halibut
fishery. Therefore, their alternative to participation in the halibut
fishery is not unemployment.'' (SEIS, page 2-10.)
In terms of stability for the local communities, there have been
some claims that the IFQ program has adversely affected the ports of
Kodiak and Dutch Harbor. The 1997 IPHC Annual Report list by port the
halibut landings as follows:
1. Kodiak: 20 percent, 9,103,000.
2. Homer: 12 percent, 5,242,000.
3. Seward: 9 percent, 3,876,000.
4. Dutch Harbor: 6 percent, 2,855,000.
5. Sitka: 6 percent, 2,800,000.
The RAM September 1997 report, page 50, shows that, in 1995 and
1997, the top five halibut ports remained the same as in 1994, and the
percentage of landings was similar.
With regard to sablefish, the SEIS did not provide analysis similar
to that for halibut, however, in looking at the 1990 data provided in
that document, four of the top five districts are still in the top five
for landings, when compared to the 1997 September RAM report, page 50.
1. Wrangel, Petersburg: 7,121,000 Lbs., 26 percent.
2. Sitka Borough: 6,131,000 Lbs., 22 percent.
3. Seward Borough: 4,302,000 Lbs., 15 percent.
4. Juneau Borough: 2,481,000 Lbs., 9 percent.
5. Kodiak Island Borough: 2,134,000 Lbs., 8 percent.
6. Aleutian West Borough: not available.
The IFQ program was designed to have a minimal impact on
communities, by preventing a massive redistribution of landings. This
was accomplished significantly with the 3-year qualification period of
1988, 1989, 1990, where there had to be a landing to qualify for any
poundage in one of these years. This helped ensure that quota holders
were still active and operating in the same location as was
historically the case. Clearly, this has been accomplished as shown by
the hard evidence of landing reports. An argument of economic
disadvantage to Kodiak or Dutch Harbor based on IFQ poundage being
delivered elsewhere, cannot be substantiated.
The instability of these communities is most likely the result of
the remaining pulse-type groundfish fisheries. The fishermen in the
Kodiak area have three, 3-day pollock openings; Pacific cod has barely
a 2-month operation. The landings in Kodiak were down between 1995 and
1996 by 160 million pounds; none of this reduction could be attributed
to the IFQ program.
Similarly, landings in Dutch Harbor were reduced by 105 million
pounds between 1995 and 1996. The argument that this was due to the IFQ
program is similarly insupportable. The 1999 RAM Report, pages 13 & 14,
show the same ports in the top 10 as in previous years for halibut and
sablefish.
Rural Coastal Community Development of a Small Boat Fishery
The SEIS made the following statements and conclusions regarding
rural coastal community development of a small boat fleet:
The Council wished to enhance the opportunities for rural coastal
communities to participate in the sablefish and halibut fisheries. It
was in pursuit of this objective that the western Alaska community
development program was inserted into the preferred alternative. (SEIS,
page 55.)
Opportunities for small communities will be enhanced by having
portions of total allowable catches set aside. (SEIS, page 55.)
Many of the constraints imposed on transferability have been
introduced to preserve a small boat fishery for sablefish and halibut.
(SEIS, page 55.)
The community development quota (CDQ) program was specifically set
up for western Alaska rural communities. The CDQ halibut quotas for
1997 amounted to 1,884,000 dressed pounds and 639,334 rounds pounds of
sablefish. In the halibut regulatory area of 4C, all of the CDQ quota
was harvested and landed by the local community and similarly for the
participants in area 4E.
The ex-vessel value of CDQ-landed halibut and sablefish for 1997
will be approximately $4,980,000 (Dutch Harbor price for halibut $1.90;
sablefish $3.60/dressed). The CDQ halibut and sablefish quotas thus are
a significant benefit to the coastal community of western Alaska and
the small vessels, which operate out of those communities.
The Gulf of Alaska's small boat fleet vessels, less than 35 feet in
length, have a secure position in the fisheries. The Secretary agreed
to certain transferability considerations, which placed the poundage
earned by initial recipients permanently in the vessel length category
operated by the initial recipients. This effectively prevents vessel
owners who operate vessels larger than this from purchasing and
absorbing quota traditionally landed by the small boat fleet.
The small boat fleet has been additionally enhanced with recent
amendments that allow quota share holders operating small vessels to
buy quota from larger vessel classes and fish that quota on the smaller
vessels. IFQ holders operating larger vessels cannot use smaller vessel
class quota on their larger vessels. This new provision gives smaller
vessels, which tend to operate close to shore, more purchasing
opportunity.
As noted above, the 1996 amendments to the Magnuson-Stevens Act,
provided for a government loan program funded, in part, from landing
fees of the IFQ participants. 16 U.S.C. 1853(d)(4). Those who can apply
for the loan are fishermen with little or no holdings of IFQs. The
amount per loan is limited to about 8,000 lbs. of resource, and anyone
holding or controlling 50,000 lbs. or more of quota is not eligible for
the loans. Congress chose to help out the crews and those fishermen
looking for upward mobility in the industry. This program should help
rural citizens who have few cash-generating industries.
In summary, owners of small vessels have a guaranteed pool of quota
and have the opportunity to gain more than their traditionally
allocated share. Rural communities, dependent on smaller vessels, have
been given compensating advantages over the communities dependent on
larger vessel classes. In addition, the loan program should improve
their ability to become an increasingly significant part of the
industry. The western rural communities have been provided an
allocation to ensure their participation in the adjacent coastal
waters.
conclusion
By any rational measure, the halibut/sablefish IFQ program has been
a great success. With this example firmly established, individual
transferable quotas should be available to fisheries managers
nationwide.
______
Statement of Kay H. Williams on behalf of Save America's Seafood
Industry Coalition
Madam Chairwoman and members of the Subcommittee, my name is Kay
Williams. I am Vice-Chairperson for Save America's Seafood Industry
Coalition. We have members in all five Gulf states. On behalf of Save
America's Seafood Industry Coalition, I would like to offer the
following comments for consideration in reauthorization of the
Magnuson-Stevens Fishery Conservation and Management Act.
gulf of mexico red snapper research (section 407)
The research provided for in this section has been completed. This
section provides, in Subsection (b) a prohibition, in Subsection (c)
that a referendum be conducted by the National Marine Fisheries Service
of persons holding commercial red snapper licenses, to determine if a
majority support proceeding with an IFQ program and in Subsection (d)
makes the recreational red snapper allocation a quota and provides for
closure of the fishery when the quota is reached. We support all of
section 407. Save America's Seafood Industry supports fair and
equitable regulations among all sectors of the Industry. Fishermen
should have a say in how to operate their business and IFQ/ITQ are not
good for all fisheries. With all of the problems, with the IFQ/ITQ
programs that are going on now, we should learn from these mistakes
before creating more.
our thoughts on council process/fisheries management
NMFS has become too authoritarian and unresponsive to Councils.
NMFS has embarked on a cyber-modeling agenda to the extreme,
unsupported by adequate empirical data. NMFS and its subcontractors
have been negligent in analyzing and interpreting collected data in a
timely fashion. The implementation process has become so laborious and
time consuming that management actions become delayed beyond effective
timelines. NMFS has misconstrued congressional intent in developing
``Guidelines''; for Magnuson-Stevens (SFA).
recommendations for sfa
Final action on any Council approved management action must be in
effect for a minimum of 3 years. This would include TACS, quotas, etc.,
unless overturned by ``Emergency Action.'' All Council actions
submitted to the Secretary of Commerce must be implemented within 1
year of their submission. For stocks that are demonstrably improving,
no more stringent regulatory actions can be taken without a \3/4\
majority Council vote, and never unilaterally by NMFS. NMFS science
should be based, wherever possible, on current empirical data. Where
data gaps exist, these should be given priority as research needs
within NMFS.
When NMFS projection models are deployed, they must first be tested
in the field and validated in real world ecosystems. Maximum
sustainable yields cannot be set at a level beyond the highest
historical catch levels of stocks which are deemed overfished.
Rebuilding periods of demonstrably improving stocks should be
determined equally by socio-economic as well as biological
considerations. The `` Guidelines'' developed by NMFS must be approved
by a majority of Councils.
recommendations for red snapper management (as part of sfa)
Red snapper should be considered as a special management species,
independent of the management regime of other species. This is
justified because of:
1. Its complex socio-economic parameters
2. The relationship with and impact on the shrimping industry.
3. The massive changes in available habitat with concurrent changes
in population dynamics.
4. The uncertain data base used in developing stock assessments.
5. The disagreement regarding effort data in red snapper harvest.
6. The historical failure of currently used red snapper projection
models to correctly predict stock health.
7. The inconsistent history of red snapper management measures.
8. The public distrust of current management practices.
Red snapper management should adopt the following regulations: (4
fish bag limit with a minimum 15-inch size limit with a 6-million pound
quota for the recreational sector, and a 14-inch size limit with a 6-
million pound quota for the commercial sector) for a minimum of 3 years
(through 2002). The red snapper stock is not in trouble. The
recreational and commercial sector has harvested their quota earlier
and earlier each year. The requested smaller size limit in the
commercial sector is necessary because of release mortality rates.
During this 3 year or longer period, research priority should be given
to alternative measures of management, employing more empirical and
less theoretical measures, and based on fishery independent data, to
ensure the continued rebuilding of this stock.
user fees
We do not support user fees. If you are going to allow user fees,
then in order to be fair and equitable, as stated in the national
standards, you would need to develop a system that establishes user
fees for the recreational sector.
conflict of interest
State Director's should not be allowed to have a vote on the
councils. The states receive funds from the Wallop-Breaux fund which
presents a potential conflict of interest. We do feel that they should
be allowed to participate in council discussions.
Thank you Madam Chairwoman and members of the Subcommittee for the
opportunity to share our opinions on this important legislation which
is up for reauthorization.
______
Fishermen's Finest, Inc.
Seattle, WA, July 27, 1999.
Hon. Olympia J. Snowe, Chair,
Oceans and Fisheries Subcommittee,
Committee on Cimmerce, Science, and Transporation,
Washington, DC.
Re: Oceans and Fisheries Subcommittee Hearing, July 29, 1999 Written
Testimony--Magnuson-Stevens Act Reauthorization
Dear Senator Snowe: My company manages four mid-sized head and gut
trawl and freezer-longline vessels operating in the fisheries of the
North Pacific. Thank you for inviting our company to submit testimony
for the committee to consider as it begins looking at the
reauthorization of the Magnuson-Stevens Act.
1. Congress should not encourage the privatization of the fishery
resource by encouraging Individual Fishing Quotas and American
Fisheries Act type allocations. We have long objected to building
fences and subdividing fisheries. We have consistently supported
approaches such as the North Pacific Council's Moratorium and License
Limitation programs over other limited-entry approaches. In accordance
with this, we have steadfastly encouraged policymakers not to pursue
individual fishing quota (IFQ) provisions which tend to benefit larger
more liberally capitalized companies rather than traditional fishing
vessel owners.
2. Congress should rectify the inequities caused by the American
Fisheries Act in a manner that does not hand out more special
privileges. In accordance with our conviction that allocating specific
fishery resource to individuals, especially on a species by species
basis, is harmful to traditional fishing vessel owners and operators,
we opposed the pollock management provisions of the American Fisheries
Act (AFA).
The American Fisheries Act (AFA) was enacted through a process of
negotiations between large factory-trawl and shore-based processing
plant interests. The primary effect of the AFA on our company has been
to deprive our vessels of access to the critical directed pollock
fishery. While our vessels' harvests were similar in size to many
catcher vessels', our eligibility to participate in the pollock fishery
was based on a comparison to large factory-trawlers, not mid-sized
vessels. The ``inconsequential'' pollock fishery catch of our vessels
during the AFA qualification period would have been worth nearly $2M
this year.
Our company has been significantly harmed by the denial of access
to the pollock resource. Our companies participated in the
``Americanization'' of the pollock and groundfish fisheries beginning
in the 1980's, but due to careful engineering of the AFA landing
qualification requirements, our vessels were cut out of the pollock
fishery by the AFA.
Currently there are several vessels seeking special relief from
Congress for the inequities of the AFA. Rather than grant more special
access for the few, we recommend the following approach for addressing
the harm caused by the AFA:
1. Allocate a small percentage (e.g.: 4 percent) of the directed
pollock quota to fishing vessels not otherwise qualified to fish, and
not specifically prohibited from fishing, under the AFA. This provision
would not affect the Moratorium or License Limitation programs already
approved by the North Pacific Fishery Management Council.
2. Provide that the fishing vessels (catcher vessels and H&G
vessels) harvesting this small quota pay the \6/10\ths of one cent
landing fee on directed pollock. Thus the fishing vessels will not be
reaping the benefit of a buyout paid for only by the catcher vessel's
named in the AFA.
3. Allow processors from any sector the right to process this open
access quota of pollock. This right would address at least some of the
concerns of the Fair Fisheries Coalition.
I appreciate the Committee's considering these comments during the
reauthorization of the Magnuson-Stevens Act.
Sincerely,
Rudy A. Petersen.
______
Proposal for Open Access Fishing Vessel Allocation of Pollock under the
American Fisheries Act
This proposal is intended to provide compensation to all
Moratorium/License Limitation Program qualified fishing vessels which
were barred from participating in the directed pollock fishery under
the American Fisheries Act (AFA).
1. Modify Sec. 206(b) of the AFA as follows:
``. . . the remainder of the pollock total allowable catch . . .
shall be allocated as follows:
(1) 48 percent to catcher vessels harvesting pollock for processing
by the inshore component;
(2) 38.4 percent to catcher/processors in the offshore component;
(3) 9.6 percent to catcher vessels harvesting pollock for
processing by motherships in the offshore component; and
(4) 4.0 percent to fishing vessels (as defined in Chapter 21 of
Title 46, United States Code) not eligible to harvest pollock under
Sec. 208 and not prohibited from harvesting pollock under Sec. 209.''
2. Modify Sec. 207(b)(1) of the AFA as follows:
``(1) shall be six-tenths (0.6) of one cent for each pound round-
weight of all pollock harvested from the directed fishing allowance
under section 206(b)(1) and (4); and''
summary
This proposal would provide a small open access quota for fishing
vessels (catcher vessels and head & gut vessels) not currently eligible
to conduct directed fishing allocations for pollock. These vessels
would be required to pay the buyout repayment fee levied on directed
pollock harvests.
The burden would be placed on the original AFA entitled sectors
proportionately. 4 percent is offered as an example of an equitable
allocation. No processing restrictions would be placed on this directed
catch.