[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]



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

=======================================================================

                                HEARING

                               before the

      SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

                                 of the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                               __________

                   SEPTEMBER 11, 1997, WASHINGTON, DC

                               __________

                           Serial No. 105-39

                               __________

           Printed for the use of the Committee on Resources



                                


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                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey               NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California           BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee       DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado                PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California        ENI F.H. FALEOMAVAEGA, American 
WAYNE T. GILCHREST, Maryland             Samoa
KEN CALVERT, California              NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California         SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming               OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho               FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington              CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto 
WALTER B. JONES, Jr., North              Rico
    Carolina                         MAURICE D. HINCHEY, New York
WILLIAM M. (MAC) THORNBERRY, Texas   ROBERT A. UNDERWOOD, Guam
JOHN SHADEGG, Arizona                SAM FARR, California
JOHN E. ENSIGN, Nevada               PATRICK J. KENNEDY, Rhode Island
ROBERT F. SMITH, Oregon              ADAM SMITH, Washington
CHRIS CANNON, Utah                   WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas                   CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania          DONNA CHRISTIAN-GREEN, Virgin 
RICK HILL, Montana                       Islands
BOB SCHAFFER, Colorado               RON KIND, Wisconsin
JIM GIBBONS, Nevada                  LLOYD DOGGETT, Texas
MICHAEL D. CRAPO, Idaho

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director
                                 ------                                

      Subcommittee on Fisheries Conservation, Wildlife and Oceans

                    JIM SAXTON, New Jersey, Chairman
W.J. (BILLY) TAUZIN, Louisiana       NEIL ABERCROMBIE, Hawaii
WAYNE T. GIL.CHREST, Maryland        SOLOMON P. ORTIZ, Texas
WALTER B. JONES, Jr., North          FRANK PALLONE, Jr., New Jersey
    Carolina                         SAM FARR, California
JOHN PETERSON, Pennsylvania          PATRICK J. KENNEDY, Rhode Island
MICHAEL D. CRAPO, Idaho
                    Harry Burroughs, Staff Director
                    John Rayfield, Legislative Staff
                 Christopher Sterns, Democratic Counsel



                            C O N T E N T S

                              ----------                              
                                                                   Page

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

Statement of Members:
    Abercrombie, Hon. Neil, a Representative in Congress from the 
      State of Hawaii............................................     3
    Crapo, Hon. Michael D., a Representative in Congress from the 
      State of Idaho.............................................     4
    Farr, Hon. Sam, a Representative in Congress from the State 
      of California..............................................     5
    Pallone, Hon. Frank, a Representative in Congress from the 
      State of New Jersey........................................     3
    Saxton, Hon. Jim, a Representative in Congress from the State 
      of New Jersey..............................................     1
        Prepared statement of....................................     2
    Young, Hon. Don, a Representative in Congress from the State 
      of Alaska, prepared statement of...........................    36

Statement of Witnesses:
    Schmitten, Rolland A., Assistant Administrator for Fisheries, 
      National Marine Fisheries Service..........................     5
        Prepared statement of....................................    37

Additional material supplied:
    Code of Conduct..............................................    65
    Implementation Plan..........................................    91
    Memorandum to Subcommittee members...........................    54
    News article.................................................    52



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

                              ----------                              




        House of Representatives, Subcommittee on Fisheries 
            Conservation, Wildlife and Oceans, Committee on 
            Resources, Washington, DC.
    The Committee met, Pursuant to notice, at 10:30 a.m. in 
room 2133, Rayburn House Office Building, Hon. Jim Saxton 
(chairman of the subcommittee) presiding.

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

    Mr. Saxton. Let me just remark at this point. We are able 
to move through business expeditiously here as we just did, and 
with a great deal of dispatch. And the reasons therefore have 
nothing to do with us as members, except that we have been 
smart enough to hire good staff. And I would just like to take 
this opportunity to thank all of those who are responsible for 
that kind of organization. The staff are extremely important to 
us, and I hope everyone here recognizes that fact.
    All right, we have another agenda here.
    We will at this point reconvene the Subcommittee for 
purposes of the hearing. The purpose of today's hearing is to 
fulfill the subcommittee's oversight responsibility over our 
nation's valuable fisheries resources, and the government 
agency that oversees these resources is the National Marine 
Fisheries Service, known as NMFS.
    Let me ask unanimous consent at this point that Mr. Tierney 
and Mr. LoBiondo, be permitted to join us on the committee 
dais.
    Hearing no objection, it is so ordered.
    Let me just state that I think this is an extremely 
important hearing. Mr. Abercrombie and I at the outset of this 
year, made a very simple request to the Full Committee 
Chairman, that the name of our Subcommittee be changed from the 
Fisheries, Wildlife and Oceans Subcommittee to the Fisheries 
Conservation, Wildlife and Oceans Subcommittee. That change was 
made, and while it added only one word to the title of our 
subcommittee, to me it was a very important change. And to the 
extent that we are able to reflect that name change in our 
subcommittee, we will be successful.
    It is my view that the agency that oversees Fisheries 
Management, NMFS, has two missions, and that they are 
sometimes, maybe very often, at odds with each other. On the 
one hand, NMFS must generate the greatest economic benefit 
possible from our na-

tion's fishery resources; while on the other it is charged with 
conserving these very same fish for future generations.
    These dual competing missions appear to cause declines in 
fisheries throughout the EEZ. The Congress has witnessed, for 
example, decline of New England groundfish, salmon in the 
Northwest, redfish in the Gulf of Mexico, and sharks along the 
Atlantic Coast.
    As Chairman of the Fisheries Conservation Subcommittee, it 
is my goal to find ways to get NMFS on the correct path toward 
fisheries conservation. Some questions that come to mind here 
are, is the Department of Commerce the appropriate place to 
house an agency that must work to conserve fisheries? Is there 
a more appropriate department where this agency can more easily 
fulfill its missions? Should these missions be changed or 
limited in some way?
    Members of the Subcommittee have questions about specific 
issues within their regions, states, and districts, that 
deserve thoughtful and comprehensive answers. I am confident 
that today's witness, Mr. Rolland Schmitten, the Assistant 
Administrator of Fisheries of NMFS, will do his best to 
disclose as much accurate information on each unique situation 
as possible.
    I have requested that he bring along his experts, so that 
the Subcommittee today can fully air all issues of importance 
to Members, and not have to wait for followup answers by mail. 
I look forward to a productive hearing, and thank Assistant 
Administrator Schmitten and his staff for being here with us 
today.
    I now turn to the Ranking Member, the gentleman from 
Hawaii.
    [The prepared statement of Mr. Saxton follows.]

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

    Good morning. The Subcommittee will come to order. The 
purpose of today's hearing is to fulfill this Subcommittee's 
oversight responsibilities over our Nation's valuable fishery 
resources and the government agency that oversees these 
resources--the National Marine Fisheries Service, also known as 
NMFS.
    It is my view that the agency has two missions at odds with 
each other. On one hand, NMFS must generate the greatest 
economic benefit possible from our Nation's fishery resources 
while, on the other hand, it is charged with conserving these 
very same fish for future generations. These dual competing 
missions appear to cause declines in fisheries throughout the 
Exclusive Economic Zone. The Congress has witnessed, for 
example, the decline of New England groundfish, salmon in the 
Pacific Northwest, redfish in the Gulf of Mexico, and sharks 
along the Atlantic coast.
    As Chairman of the Fisheries Conservation Subcommittee, it 
is my goal to find ways to get NMFS on the correct path toward 
fisheries conservation. Some questions that come to mind here 
are: Is the Department of Commerce the appropriate place to 
house the agency that must work to conserve fisheries? Is there 
a more appropriate department where this agency can more easily 
fulfill its missions? Should these missions be changed or 
limited in some way?
    Members of the Subcommittee will have questions about 
specific issues within their regions, states and districts that 
deserve thought and comprehensive answers. I am confident that 
today's witness, Rollie Schmitten, the Assistant Administrator 
for Fisheries of NMFS, will do his best to disclose as much 
accurate information on each unique situation as possible. I've 
requested that he bring along his experts so that the 
Subcommittee today can fully air all issues of importance to 
Members and not have to wait for follow-up answers by mail.
    I look forward to a productive hearing and thank Assistant 
Administrator Schmitten and his staff for coming.

  STATEMENT OF THE HON. NEIL ABERCROMBIE, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF HAWAII

    Mr. Abercrombie. Thank you very much, Mr. Chairman. I have 
some interest in this parochially. The Western Pacific Fishery 
Management Council, West Pac, the National Fishery Service and 
Long Line Fishing Industry, have worked together to establish a 
current 3-year VMS pilot program, the vessel monitoring system, 
in the Hawaii--long-line fishing area for tuna and sword fish. 
This was the first large scale test of vessel monitoring 
technology in the U.S. domestic fishery, and I am hoping that 
we are learning from it, we will have implications planet-wide.
    The experience, I believe, gained by the National Marine 
Fishery Service and WSPAC, the Management Council on the 
Western Pacific, during this part of the program, has placed 
them in a position, I believe, of international leadership in 
the area of developing reliable and desirable tools for 
fisheries in management. I believe the pilot program has taught 
a lesson, that anyone who decides to utilize a vessel 
monitoring system for fisheries management, must be willing to 
make a long-term commitment, in terms of personnel and funding.
    So during the hearing, Mr. Chairman, my concern is that the 
3-year project is scheduled to end in December of this year, 
and I would like to know whether or not the National Marine 
Fishery Service is planning on including the necessary funding 
in its 1998 budget to continue the program; whether it is a 
priority and whether the National Marine Fishery Service is 
considering the consequences if we terminate funding for this 
program, in regards to the management of the fisheries.
    My point, Mr. Chairman, is that we have made an initial 
investment. I believe the facts will demonstrate that this 
investment has already produced results that in line with what 
Mr. Farr was speaking of, the implications are worldwide, and 
that we need to make a long-term commitment to the program. I 
cite that at some length, and specifically to you in my opening 
remarks, because, even though it could on the surface be seen 
as referencing only a particular project in my area of the 
world, I believe that as I indicated, the implications are in 
fact worldwide and that this is a pioneer effort, one which I 
believe needs to be continued. So I will be interested in 
pursuing that.
    I also, Mr. Chairman, have a series of questions--far too 
many to be gone into during the time allowed during the 
hearing--which I would like to be able to submit for answers, 
commentary, observations, by the National Marine Fisheries, or 
appropriate bodies, institutions, individuals, in more detail 
fashion, in a written form, for the perusal of the committee 
and staff. Thank you.
    Mr. Saxton. Thank you, Ranking Member.
    Mr. Gilchrest, do you have an opening statement?
    Mr. Gilchrest. No.
    Mr. Saxton. Mr. Pallone, Mr. Farr. Mr. Pallone.

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

    Mr. Pallone. Thank you, Mr. Chairman. Again, I want to 
thank you for holding this Oversight Hearing on NMFS, and I 
also want to thank Mr. Schmitten for testifying. I wanted to 
express my concern with NMFS, and the drafting of these new 
guidelines for the implementation of the new sustainable 
Fisheries Act, SFA, the National Standards.
    As you are aware, the Secretary of Commerce and the 
regional councils will use these guidelines in their 
preparation of fishery management plans, and these guidelines 
are extremely important in the context of council-drafted 
management plans, as well as the Secretary's management plans 
for highly migratory species. It is essentially simple to see 
that these guidelines are imperative to successful 
implementation of the sustainable Fisheries Act.
    It has been brought to my attention that NMFS draft 
guidelines may have erred in its interpretation of 
congressional intent, and undercut the fundamental goals of the 
new act. For example, the need to end overfishing, and also 
minimize by-catch. And I am also concerned with NMFS handling 
of bluefin tuna, particular the--angling--category.
    Up until the beginning of August this year there was 
angling category allocation of four school bluefin tuna per 
vessel, and one large school or medium, or small-medium per 
vessel per day. But at the start of September, when most 
fishermen fish for bluefin in my district, a new bag limit was 
implemented at two school bluefin tuna per vessel per day, and 
three large school small- mediums per day, per vessel.
    Due to the traveling and feeding patterns of small 
bluefins, fishermen and owners of fishing vessels have told me 
that it is rare to find large and small-medium bluefin in the 
same school. They told me that a vessel is likely to catch 
small bluefin in one area in time, and catch large and small-
medium in another area in time.
    The allocations set by NMFS have affected many fishermen 
and fishing vessels within my district. Due to financial cost 
there was no incentive for fishing vessels to book tuna trips, 
and several fishermen in my district lost money. It has been 
suggested to me that maybe it is time that NMFS allow for one 
fish, per man, per vessel. Unfortunately, this issue cannot be 
solved today, and I understand that, Mr. Chairman. I do ask, 
however, that Mr. Schmitten and NMFS properly address this 
issue next year, when setting new allocations for the bluefin 
fishery. And again, I want to thank you, Mr. Chairman, and Mr. 
Abercrombie for holding this hearing.
    Mr. Saxton. Mr. Crapo.

  STATEMENT OF THE HON. MICHAEL D. CRAPO, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF IDAHO

    Mr. Crapo. Thank you, Mr. Chairman. I will be brief. I 
appreciate you coming for the hearing today, Mr. Schmitten and 
Mr. Chairman. I appreciate you for holding this.
    As you both know, I am very concerned about the activities 
of the agency, with regard to the Pacific Northwest salmon, and 
the recovery efforts underway there, with regard to salmon and 
steel head. I have strong concerns about the direction the 
agency appears to be going, and about the management. This is 
not a specific comment on the managers, because I think they 
are trying their hardest in working hard with us. But I 
believer there is some significant issues with regard to how 
the issue is being managed, that I would like to review with 
you in the hearing today, and I look forward to the opportunity 
when that time comes. Thank you.
    Mr. Saxton. Mr. Farr.

 STATEMENT OF THE HON. SAM FARR, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Farr. Thank you, Mr. Chairman. As we get into the 
hearing I am going to be asking more specific questions, but I 
share Mr. Pallone's and others concerns, that the intent of 
Congress has not been reflected in the proposed regulations. I 
think we are most egregious, abusive it is, that you have 
interpreted the law where it says shall, and made that 
permissive upon the councils, and I do not think that was the 
intent, nor is it what the law says, and I will be asking some 
more questions about that. But thank you, again, Mr. Chairman, 
for having this hearing, and the hearings that you had during 
the recess.
    Mr. Saxton. Thank you. You are now going to hear from our 
witness, Mr. Schmitten, and Mr. Director, I understand you 
would like to take a few minutes more than 5 minutes, which is 
the normal allotted time. So proceed. We are interested in what 
you have to say this morning.

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

    Mr. Schmitten. Well, thank you very much, Mr. Chairman, and 
good morning to the members. I am Rollie Schmitten, known as 
Assistant Administrator for Fisheries, and I am delighted to be 
here, because I think it is this type of exchange that will be 
very beneficial to the agency and to hear your views. I will 
come back and answer the questions that have already been 
raised, but I will wait and see that after my comments.
    I would like to start with introducing some of the 
important people within National Marine Fishery Service that 
will help with those answers you have asked for, and I will 
begin with the person on my left, who is our new Deputy 
Director, Dr. David Evans.
    David is replacing Dr. Nancy Foster, who has now become 
NOAA's Assistant Administrator for NOS, National Ocean Service. 
Dave was the deputy of NOS before he joined us, and he is a 
physical oceanographer from the University of Rhode Island, and 
we are really proud to have him with us.
    To my right, Dr. Gary Matlock, the Director of the Office 
of Sustainable Fisheries, and he will certainly assist with 
handling many of your management questions.
    And you ask that we have a budget expert, and we have our 
Acting Division Chief for Budget, Mr. Alan Risenhoover, on my 
far left. Many of you have known Alan from his previous role, 
and that is our head of Congressional Affairs.
    Mr. Chairman, this is a bit of an unusual hearing, and you 
can tell by the briefing book and the size of that book we have 
like clear cut the last remaining old growth in the west, but 
we have spent a lot of time in preparing for this hearing. I 
have submitted to the Subcommittee a fairly lengthy statement. 
I will disregard that in brevity, and just provide a synopsis 
of my comments.
    I do think this is a great opportunity for the agency, and 
we will share some progress. And I want to share some 
successes, because so often we focus on the calamity, the 
crisis in fisheries; there are successes as well. But I think 
most important to discuss the issues that are important to you 
and your constituents.
    As the chairman outlined in his comments, these are indeed 
challenging times for those of us that are involved in this 
very important sector of our culture and economy. We are the 
one of many of the world's coastal countries that are coping 
with the challenges that the fisheries' failures can bring, 
however, we will be among the biggest beneficiary by making the 
very difficult decisions necessary to transition to sustainable 
fisheries. And that truly is our goal. And, Mr. Chairman, I 
support the word, conservation that you have put paramount.
    I have talked to my colleagues in other countries--I have 
just come from Mexico--and the United States is certainly 
identified as a leader in the area of conservation. And I am 
pleased to be the head of an agency that plays a pivotal role 
in shaping the future in the marine fisheries, not only for 
this nation, but for the world.
    As a global society we are relatively new at managing 
fisheries; not at catching fish, but at managing fisheries. Our 
ability to catch fish in salt water has existed for a long 
time; much longer than our ability to control harvest. In fact, 
serious management by the United States of its marine fisheries 
really only go back 20 years, and that goes back to the passage 
of the Fisheries Conservation and Management Act, which we know 
as the Magnuson Act. That was the first comprehensive Federal 
legislation to address this subject. And at the time it was 
felt very revolutionary; probably still is in its scope and its 
vision. And it certainly is being copies around the world; 
Peru, Mexico, Canada. Many countries are looking at our system.
    But it was identified as correcting the negative impacts 
foreign fishermen were having on our stocks, without a lot of 
thought or a lot of caution of really what was happening to the 
domestic fishing capacity once the foreigners had been removed.
    By the 1990's we had achieved our goal of Americanizing our 
domestic fisheries, yet the secondary goal of the Fisheries 
Conservation Management Act to stop over-fishing was far from 
met. I am not even sure it was even addressed at that point.
    The notion that over-fishing could, and indeed has 
occurred, was just being realized throughout the world's 
fishing community.
    Mr. Saxton. Mr. Schmitten.
    Mr. Schmitten. Yes, sir?
    Mr. Saxton. Excuse me. Could you turn off the light so that 
he can--Thank you.
    Mr. Schmitten. Thank you, Mr. Chairman.
    We now realize that fishing can and has already had 
profound effects on marine stocks; just look at New England. 
But in the face of increasing competition and diminishing 
economic returns, a concept of reducing catch in the short-term 
for improving long-term sustainability, has generally been met 
with very stiff opposition.
    An economically unhealthy fishing industry can not afford 
mandatory catch reductions, even temporarily. Resulting stock 
declines have often been met with even more unsustainable 
fishing effort. And this situation of excess fishing capacity 
has further been exacerbated by the application of technology 
advances, in the finding and catching a fish.
    Now the agency is now faced with the daunting task of 
stopping and indeed reversing, for many fisheries, the 
expansion of our capabilities to capture fish. This reality has 
brought about major changes in our fisheries management 
philosophy, and is addressed in our new strategic plan, which 
you should have before you, Mr. Chairman. But it is 
interesting, when taking over the head of this agency that we 
did not have a long-term, let alone a short-term strategic 
plan, and we have now put one out.
    We recently completed our programmatic priorities, which 
are embraced in this plan. It is designed to guide the agency 
for the next 5 years. The plan is grounded in the knowledge 
that the agency must pursue an aggressive conservation oriented 
policy toward fisheries management; identify clear priorities; 
and link these goals for the agency's operational and budget 
priorities. And I am proud to tell you that our strategic plan 
is one of the first in government to meet the requirements of 
the Government Performance and Results Act, the GPRA, which 
actually shifted the focus of the performance measures from 
activity-based objectives to result based objectives. And we 
did not develop the plan in a vacuum, which so often happens in 
this world that we live in. But it was developed with the help 
and the advice for the people that we serve.
    The plan has three broad strategic goals; build sustainable 
fisheries, recover protected resources, and then a focus on a 
health coastal habitat.
    Mr. Chairman, you probably know it, but let me just tell 
you how big a business fisheries really are. In 1996 the 
commercial landings in the U.S. by the United States fishermen 
were 9.6 billion pounds, with an ex-vessel value of $3.5 
billion.
    There are over 300,000 direct jobs, and if you increase the 
jobs by those that process and service those products, it is 
well over a million people.
    U.S. consumers spent $41 billion in fisheries products in 
1996, with an increase in our GNP by $21 billion. But if we 
were to follow a conservation-directed maximum sustained yield 
process for all our fisheries, we would accrue an additional $4 
million of benefit.
    I do not want to leave out the opportunity of mentioning 
the recreational impacts on our fisheries. This is a growth 
area. It is estimated that over 300 million fish are being 
caught by our men and women that are fishing in marine waters. 
Eight million fishermen are currently fishing--64 million 
trips--and they contribute between $5 and $7 billion dollars to 
the annual economic benefits of this nation. Recreational 
fisheries is the second most popular outdoor sport in the 
nation.
    Currently we find a situation in which more and more 
vessels are racing to catch fewer and fewer fish. This trend 
makes fishing more hazardous, allocation decisions certainly 
more contentious, and by-catch problems greater. And there is 
probably no better example of the current situation in the U.S. 
than that of Atlantic bluefin tuna.
    And I was hoping I could share this with Mr. Pallone, but 
these fish are sought from Maine to Texas. They are sought by 
both commercial and recreational fishermen, who use a variety 
of gear. The internationally established quota is 1,350 metric 
tons for the entire U.S., all of which is dedicated to 
scientific monitoring; which supports around 10,000 commercial 
vessels and permits, and 15,000 recreational vessels.
    If you accrue all that, that boils down to representing 
less than one half of one fish per permit per year. That is 
what all these people are fishing for, and the growth is 
exponential as far as permits. Consequently, the regulations 
that we apply become the focus of public debate, various 
interest groups, challenge their adequacies, and we are faced 
with an increasing number of legal challenges on our 
regulations.
    The quest to achieve the sustainability and rebuild our 
fisheries has been greatly enhanced with your amendments to the 
Sustainable Fisheries Act, the Magnuson-Stevens Fisheries 
Conservation and Management Act. You have given us the tools 
that we need to move forward and meet our mandate.
    The Act reflects the U.S. commitment to apply the same 
principles nationally as we have been espousing around the 
world in the international community. In the FAO the code of 
conduct for responsible fisheries, we have used conservation as 
the standard. The straddling stocks, we have used conservation 
as a standard. High seas drift nets, again the United States 
promoted conservation. So it is good to have these 
underpinnings to do the very same thing at home.
    Mr. Chairman, I think that shifting the burden off of the 
resource, and certainly working for a precautionary approach is 
what we are attempting to do. That is reflected in a recent 
court decision--a very important one--out in New England, from 
a Federal district court, that dealt with our Amendment 7 to 
the groundfish plan. In his final decision the judge wrote, 
``it is appropriate therefore, for the Secretary to be 
conservative in dealing with the issues of conservation, and in 
the face of uncertainty to take more strenuous measures, even 
though they may unfortunately have short-term dramatic negative 
effect on the fishing industry.'' A court has said, what you 
are attempting to do by promotion of conservation is the right 
thing to do.
    With a sound foundation in science information, the agency 
is much better able to meet its commitments of sustainable 
fisheries. For example, optimum yield for each fishery must be 
set two or less than MSY. Over-fishing is statutorily defined, 
and over-fish fisheries must be identified and rebuilt within a 
10-year timeframe. I think that the Act clearly recognizes that 
sustainability of fisheries depends critically on the 
sustainability of a fish.
    Mr. Chairman, just to conclude, I have assigned the 
implementation of the Sustainable Fisheries Act as the agency's 
highest priority, at least for the next 2 years and longer if 
necessary. We have committed the necessary funds, the fiscal 
needs, the human resources, and re-programmed all of our 
activities within the flexibility that we have under the law; 
to attempt to implement this act is our highest priority.
    We have also done this in an transparent fashion. You can 
tune onto the Web page today, and you can see our Sustainable 
Fisheries Act programs and track our progress. It is updated 
every week. And so the public can track what we are doing.
    Mr. Chairman, just in concluding, I do not want to leave 
the committee with a feeling that everything is a crisis out 
there; to leave you with a very bleak picture of our national 
marine fisheries, because that is not necessarily the case.
    Let me cite some successes, because I think you deserve 
this, and you need to be able to share these with your 
constituents. The recovery striped bass; not necessarily 
something we are solely responsible for, but we certainly were 
a part of.
    It was accomplished through host partnering with the states 
that are part of the Atlantic States Marine Fish Commission, 
and other agencies. But I can tell you what we have achieved. 
Our information records go back to the 1880's. This year 
science showed that there are more stripe as in any time of the 
history of this nation, so we can have successes.
    Gray whales. Gray whales after many years of protection 
under the Endangered Species Act, we were able to delist. There 
are over 22,000 gray whales. And I think it demonstrates that 
the Act can work both ways. People often say that the 
Endangered Species Act is a one track, one direction, piece of 
legislation, and that is not necessarily the case. Even the 
disaster in New England that developed over a 20-year timeframe 
resulted in this agency, with your support, taking some fairly 
dramatic measures. NMFS asked the Council to bring about its 
Amendments 5 and 7; and today, two of those three stocks are 
already showing signs of recovery. The recovery is happening 
quicker than our scientists expected, and it shows that we can 
bring about recovery. Alaska groundfish----
    Mr. Saxton. Mr. Schmitten, if you could begin to summarize. 
We have some members who would like to ask you some questions 
who have to leave.
    Mr. Schmitten. I will do that right now. Just Alaska 
groundfish, the largest fishery in the nation, by both volume 
and dollar, is stable, robust. The second largest fishery in 
this nation, shrimp in the Gulf of Mexico is stable.
    I will just conclude by saying, this is a wonderful 
opportunity, and it is probably more important that we focus on 
the issues that you have, and the issues that we may bring out. 
I have noted the questions on HMS and the national standards, 
and others, and at the appropriate time I will answer those 
too.
    Mr. Chairman, thank you for this chance.
    [The prepared statement Mr. Schmitten may be found at end 
of hearing.]
    Mr. Saxton. Thank you very much, Rollie, for a very 
articulate statement. The Committee will be operating under the 
5-minute rule this morning, at least for the first round of 
questions. And that will apply to yours truly as well. So we 
want to move as rapidly as we can to cover the issues at hand.
    Mr. Schmitten, you know from our previous conversations I 
have some reservations about our successes, primarily because 
the successes that we can point to follow disastrous 
situations, which our system appears to permit to occur.
    As an example, you gave a success I agree with, and I have 
used the example many times--it happens to be striped bass. The 
reason we were successful with striped bass is because we let 
the species crash, and now we have been successful in pumping 
life back into the species. And I am glad that we have those 
kind of successes, but I would be more pleased if we did not 
have to point to those successes because of our failures to 
begin with.
    You and I had a conversation a day or so ago, about these 
matters, and I appreciate the openness with which you address 
them. But it still leaves me asking the question--what is it 
that we can do as legislators to help you find a better way to 
prevent the difficult situations, which we seem to inevitably 
find ourselves facing.
    Of course, as you did, I could point to the groundfish 
situation in New England. I could also point to the striped 
bass situation that we have recovered nicely from. But also 
point to a situation involving Atlantic sharks, which the 
Department of Commerce helped to develop an economic incentive 
to take, and subsequently permitted the over-fishing of. I 
could also point to the redfish situation in the Gulf of 
Mexico, which I suppose is another success following a 
disaster, which we collectively permitted to occur.
    It just seems to me that there should be a better way for 
us to manage these resources, so we do not continually find 
ourselves trying to be successful in the recovery program for 
something we have allowed to occur.
    I think there is no better time to discuss this matter then 
now and to be able to look at those things that we have 
observed over the past, particularly from my point of view in 
the Atlantic, and I am sure from the Members' point of view in 
the Pacific, to talk about a situation in the historical 
context that I have just mentioned; and to talk about the 
coming situation with the herring fishery and the mackerel 
fishery in the Northeast.
    As probably everyone on this committee knows, we face a 
situation with regard to an underutilized species. Through 
government efforts and through private efforts, an economic 
incentive has occurred for new vessels to enter this fishery. 
We know that there are some small boats that are already in the 
fishery. We also know that there is at least one factory 
freezer trawler, which is preparing to enter the fishery. And I 
was struck earlier this week to read an advertisement in 
National Fisherman which I would like to read.
    It says, ``Wanted--captains, mates, engineers, deck hands, 
experienced. Has your job been lost to a buy-back? We have two 
freezer trawlers located in the U.S. east coast to fish herring 
and mackerel. We are looking to fill these positions; great 
opportunity, steady employment.''
    Now, you and I have discussed at length the situation 
involving the Atlantic Star. We also have made reference to 
other ships, which are--I believe, currently in the Northwest, 
although maybe they are not still in the Northwest, if you read 
anything into this advertisement--which are prepared to enter 
the fishery. We have also had discussions relative to what we 
can do to prevent the overfishing of these currently 
underutilized species.
    Part of that conversation leads to statements which you 
have readily and forthrightly made, that you cannot do anything 
to pre-

vent the overfishing of these species until Congress gives you 
some tools to work with.
    Now, we may have experienced some successes, but in almost 
every case they have followed an overfishing problem. Here we 
are, once again it appears to me, on the brink of taking 
another underutilized species, permitting the fishery to become 
overcapitalized, to create another disaster from which we must 
yet recover.
    Would you comment on this in the context of the regulatory 
schemes that you follow, and what is it that we need to give 
you, in terms of additional tools, or a different structure, as 
I mentioned in my opening statement, relative to conservation 
efforts, relative to whether or not you should remain in the 
Department of Commerce. What is it that we need to do 
differently in order to prevent these disasters from which we 
must recover?
    Mr. Schmitten. Thank you, Mr. Chairman. I think where we 
sit is not as relevant as what we do, and I think the 
imperative thing here is making sure that conservation is first 
in all of our minds.
    Certainly under existing law today most underutilized 
resource are recognized as an open-access resource--that has 
been the history of our nation--and therefore domestic vessels 
are allowed in and out with the freedom to access these 
resources.
    In the particular fishery that we are talking about, the 
herring fishery, there is not a fisheries management plan. The 
Council is working very diligently, and I think these issues 
rest with the Council, and that may be where our solution is; 
to get the plans out in a timely way to avoid the cycle of 
overfish, overcapitalize, seek a new fishery, that you have 
just described.
    There is a preliminary management plan in place. It has 
provided a couple of safeguards though. First of all, it set an 
ABC, an allowable annual harvest, which we can monitor. If 
catch reaches that level, we have the authority under Magnuson 
to close that fishery down, and we very much intend to do that.
    I think that this gets to two issues. One, support of 
limited effort around the country for our fisheries, which this 
agency very much does support, seven of eight councils support. 
We cannot just allow the uncontrolled expansion into all these 
fisheries. And second, an issue of timeliness, and that is a 
question of should there be some kind of plan in place prior to 
the opening of an underutilized fishery. Personally, I think 
that idea is consistent with good management. I cannot speak 
for the Administration because I have not really ever discussed 
this. But it is consistent with a conservation approach, in 
which we put the fish first. We put the burden, not on the 
fish, but on the fishers, and it is something that I can 
philosophically support.
    I would ask Dr. Matlock if he would have anything to add to 
that?
    Mr. Matlock. The only thing is really a very specific item, 
and that is in the case of the mackerel fishery, there is a 
domestic allowable harvest that has been set, because there is 
a fishery management plan for that fishery in place that sets a 
harvest level much lower than the allowable biological catch. 
So there has been a fairly significant amount of conservativism 
that has been built into the setting of that allowable harvest 
for mackerel. That is all.
    Mr. Schmitten. You also have given us some tools to be 
proactive for the first time. We have always been reactive, and 
you have pointed that out. Those tools are coming out of the 
Sustainable Fisheries Act, and they include, preventing 
overfishing, adherence to MSY, so we will not let the fish go 
down to the levels that you have described. Mandatory 
rebuilding for those fish that are overfished, within a 10-year 
timeframe. And I think important to this, something that has 
always been missed, is the critical nature of habitat. We can 
shut the fisherman down in many cases. We will never bring back 
the fish if we do not go in and preserve its habitat.
    Mr. Saxton. Thank you. I am going to stick with my word. My 
time has expired. I would like to come back to this issue in 
the future. And so let me turn this point to the Ranking 
Member.
    Mr. Abercrombie. Mr. Chairman, if Mr. Farr has to leave, I 
would----
    As I indicated, Mr. Schmitten, I will submit some questions 
and some inquiries--not all questions, in writing, for your 
observation and comment. I think it will be more useful to us. 
So because we have such little time, do not feel that you have 
to answer in detail. If you could just give me a succinct 
answer or observation, that essentially covers things. I am not 
going to hold you to--We can followup later.
    But you heard my initial remarks concerning West Pac and 
the question of the vessel monitoring system. Am I correct that 
the money that I think would be necessary to continue is not in 
the budget proposal for 1998?
    Mr. Schmitten. Mr. Abercrombie, no, that is incorrect. We 
have an enforcement augmentation of $1.7 million for 1998. 
Assuming that both the House and Senate supports those levels, 
it is for three areas. One of those is vessel tracking. We 
happen to feel strongly about that. There would be some 
$500,000 available for vessel tracking if we are able to secure 
this $1.7 million.
    We think it is a cost-savings way, in which we do not have 
to put enforcement agents all over our oceans to try to track 
the vessels, where we can sit in a room and track them everyday 
on a 24-hour basis. We are very impressed with this system, and 
we want to----
    Mr. Abercrombie. So the money is there.
    Mr. Schmitten. The money is there.
    Mr. Abercrombie. And West Pac will be able to utilize it. 
When I say the money is there, if it is appropriated.
    Mr. Schmitten. Yes. Not only West Pac though, for VMS. The 
New England area also has a need for vessel tracking and West 
Pac. Yes, there is money for both.
    Mr. Abercrombie. OK. Then it is a priority. Have you 
already been working with the Department of Defense in this 
area, technologically speaking, utilizing technology that may 
have been developed in relation to the Department of Defense 
research and development efforts?
    Mr. Schmitten. Excellent question. We have just begun to do 
that in the last year, year and a half, and let me tell you 
about some of the exciting areas that we are looking into. 
Listening devices. This is no longer classified. We have 
listening devices in our oceans that allow us now, not only to 
track vessels that identify what type of vessels they are, but 
to begin to track fish.
    Mr. Abercrombie. I understand.
    Mr. Schmitten. Whales on the East Coast.
    Mr. Abercrombie. Can you answer in more detail? I 
appreciate that. My question really is, at this point is that 
being actively done?
    Mr. Schmitten. Yes.
    Mr. Abercrombie. That is to say is the DoD and your 
department ever to work together on this?
    Mr. Schmitten. Yes.
    Mr. Abercrombie. And is it being done?
    Mr. Schmitten. Yes, it is.
    Mr. Abercrombie. OK. We will need to flush that out a 
little more, because I think one of the ways that we can deal 
with the Department of Defense budget, and others, is to try 
and show that we can integrate a lot of activity from DoD. I 
agree. I think Mr. Farr at one point, and I believe the 
chairman, mentioned national security. I do believe that the 
health of the oceans is a question of national security, and 
the Department of Defense needs to play a specific role in this 
activity. So we can perhaps embellish on that.
    I will not go into all of the details of the various fish. 
We have the Atlantic bluefin tuna and others. But on the 
question that the chairman already alluded to, let me be a 
little more specific on this Atlantic Star issue.
    Is it correct that a permit has been issued to the Atlantic 
Star to engage in activity? Has a permit been issued to them?
    Mr. Schmitten. Yes. Actually fot the herring fishery they 
really did not need a permit. What they were permitted for was 
access to a particular area with a particular type of gear.
    Mr. Abercrombie. They had to get a permit for that.
    Mr. Schmitten. Yes.
    Mr. Abercrombie. So this question is really one about the 
open access area? Now is that a policy? You have to help me 
here, because I am still learning my way along, and believe it 
or not, I do not know everything.
    I was under the impression you had to have a permit, but is 
open access in law or is that simply a policy that has been 
followed for a long time? You can tell me, you do not have to 
tell Mr. Schmitten. That is all right, Mr. Matlock.
    Mr. Schmitten. I wanted to make sure my answer is correct. 
Yes, it is authorized by law. It is the policy followed by all 
of our councils. Any domestic fisher can access an open-access 
fishery.
    Mr. Abercrombie. Rather than to get into arguments about 
permits and so, we need to examine the underline policy as it 
manifests itself in law, right?
    Mr. Schmitten. Yes.
    Mr. Abercrombie. OK. I want to make sure I am correct on 
this too. We have the highly migratory species. This is 
particularly important, I think, out in the Pacific, but 
probably is equally pertinent in the Atlantic.
    The Secretary of Commerce has the responsibility for 
drafting a fishery management plan, with respect to highly 
migratory species. Am I correct on that?
    Mr. Schmitten. That is correct in the Atlantic.
    Mr. Abercrombie. Now that has not been completed yet. Is 
that correct?
    Mr. Schmitten. We anticipate that being completed by 
October 1998, consistent with the Magnuson Act.
    Mr. Abercrombie. OK. That has taken quite a long time. Is 
that because you lack scientific data? I mean it is a number of 
years that this has been going on, right?
    Mr. Schmitten. Yes and no. It is not the lack of scientific 
data. There are several steps in this process; the formation of 
advisory panels, which we have now done. I think we have much 
of the science----
    Mr. Abercrombie. OK. Has it been a logistics question then?
    Mr. Schmitten. Not necessarily.
    Mr. Abercrombie. The main reason I am asking the question, 
Mr. Schmitten--and please forgive me that I keep going on, 
because my time is up and I want to make sure I have it down. I 
do not want to get into a situation where it was that you were 
reluctant to carry out the imperatives of the law, and so that 
we do not have that kind of clash.
    May I take it that your answer is a combination of factors; 
which does not include the will of the department to do and 
carry out its responsibilities.
    Mr. Schmitten. In fact the very short answer is, that we 
are aggressively carrying out the responsibilities, and we will 
meet or beat the time that Congress has given us of October 
1998.
    Mr. Abercrombie. But you have an absolute deadline for 
yourself of October of next year?
    Mr. Schmitten. You have given us that deadline, and yes, we 
will meet that.
    Mr. Abercrombie. OK. Thank you, Mr. Chairman. If somebody 
does not, I will keep going, Mr. Chairman, you know how I am.
    Mr. Saxton. Yes, we sure do.
    We have two Members that need to leave. It is actually Mr. 
Farr's turn, I guess as a Member of the regular committee. Mr. 
Lobiondo has a very quick question. Can we squeeze him in, Sam? 
Proceed, Frank.
    Mr. Lobiondo. Thank you, Mr. Chairman; thank you, Mr. Farr.
    Mr. Schmitten., I just wanted to ask you very quickly, if 
you could clarify the status of a proposal for joint management 
of squid, mackerel and butter fish, between the New England and 
Mid-Atlantic councils.
    Mr. Schmitten. I would be happy to do that. It currently 
rests with the agency. In fact it is on my desk. As we both 
know, the Mid-Atlantic as the lead has put forward the plan. 
New England Council has petitioned to be a part of that plan. 
Where you have species that are inter-jurisdictional, I like 
all the players to be a party to this, but I do not want them 
to be a party if it is going to be some sort of obstruction to 
the angle of preserving the resource and sustainability.
    We are looking closely at that. I continue to ask 
questions, plenty of questions in New England. As it stands, at 
this minute it is a fisheries management plan that rests with 
the Mid-Atlantic. That has not changed.
    Mr. Lobiondo. OK. I would appreciate, through Chairman 
Saxton, if you could keep us updated, because we are very 
concerned that the New England fishery has had some problems 
because of poor management, and we are not anxious for New 
England to come in and reek havoc in the Mid-Atlantic region, 
where we think our people are doing maybe a little better job.
    Mr. Schmitten. I think one of the big issues for New 
England was would they be able to participate; would they be 
qualified. Of the 44 vessels that have been permitted, 14 of 
them are from New England. And that is more than I think people 
expected. Plus, there is a provision for a small set aside of 
5,000 pounds of squid for almost anyone to take. This is a 
fairly well-drafted management plan, and any suggested changes, 
we would certainly notify the chair and you as well before we 
would do that.
    Mr. Lobiondo. Somewhat in advance.
    Mr. Schmitten. Yes.
    Mr. Lobiondo. Thank you very much. Thank you, Mr. Chairman 
and Mr. Farr.
    Mr. Saxton. Mr. Farr.
    Mr. Farr. Thank you very much, Mr. Chairman, I have been 
patient, but I am telling you that my frustration level has not 
been patient.
    When you think that this Congress in an overwhelming 
bipartisan effort passed the Magnuson Act last year, and in 
that had the management acts, essential fish habitat 
requirements. It was set in the law. And you came here before 
this committee, and you talk about that we gave you the tools 
to move forward; that you could meet our mandates. And then you 
turn around and take our mandates, and interpret them totally 
different than what was written in the law. You weaken the 
tools. And essentially, I think there is crisis here, and the 
crisis is a trusting government. How can we trust the agency 
that is supposed to carry out the mandate of the Federal 
Government.
    I have written several letters to the agency; one to Terry 
Garcia on October 28th, outlining these issues; no response, no 
phone call, nothing. Last year in the salmon closure process in 
California between the first part of the season and the second 
part, I wrote a letter on July 8th to William Hogarth in Long 
Beach. Not even a courtesy of a reply on an issue. There is a 
crisis in government.
    In the Federal law it says, any fishery management plan 
which is prepared by any council, or by the Secretary, with 
respect to any fish, shall describe and identify essential fish 
habitat for the fishery, minimized to the extent practical 
adverse effects on such habitat caused by fishing, and identify 
other actions to encourage conservation, and enhancement of 
such habitat. And then you go on to implement these 
regulations, and turn all the shalls into mays. You just do not 
have the legal authority to do that.
    Where do you get the--here we are, the exceptions for 
limited--to prevail over fishing. You have the exception in 
your proposed regulations that it is demonstrated by analysis, 
that such action will result in long-term net benefits to the 
nation. It is an exception. Now what the hell do you mean by 
that? What is meant by, when we put in here the definition of 
by-catch, and you turn that definition of the by-catch into 
something totally different than what Congress outlined.
    I am really concerned that the regulations that you are 
coming out with do everything to thwart the intent of Congress 
to protect the fisheries. How can you protect the fisheries 
when you are not looking at the habitat of the fishery; when 
you are not looking at the food chain of the fishery that 
protects that. The letter outlines several different areas 
where we think that your regulations, not only misinterpret, 
but really change the direction of congressional intent.
    Lastly, this problem of not responding to the crisis and 
the Pacific coast salmon season this year, we had some serious 
concerns by the California Commission and in the communities 
they represent, and came up with a modification to the 
Council's regulations. And I ask the Department to step in and 
look at those, and implement or see if they could implement the 
proposed changes which I would think protect the season. The 
fact of the matter is, yours is the tightest season in history. 
Fishing has been incredibly successful, but it has not gone to 
the commercial fisherman, it has gone to the recreational 
fisherman. And what happens--and I represent one of those 
communities--is that the recreational fish get into the 
marketplace, even though there are rules that say you should 
not be selling recreational fish. But if your season is closed 
to you, the commercial fisherman, and the sports buffs can go 
out and get record limits and record amount of time, a lot of 
those commercial fisherman will be fishing as sports fishermen. 
And it is very difficult to go around to every restaurant and 
figure out whether they have been buying fish from recreational 
or sport buffs. So I think we need to listen more to the 
commercial fishermen. They are trying to sustain the stock 
there, and have done more before the committees--the Water 
Committee here, and this committee, and others, who essentially 
be the advocates for sound fishery management. And yet when 
they come up with some regulations or suggestions for how it 
can work, they do not get listened to, and the letters that 
they Congressmen write do not get responded to.
    So I am very concerned, and I think our staff can provide 
you with a list of all of these regulations that you are 
proposing them, and I would like to know when you plan to 
release them, and I hope you do not release them until you 
rewrite some of them.
    Mr. Saxton. Mr. Farr, that was a series of questions. I 
know they are all important, but why do you not direct the 
attention to whichever ones you think are the most important.
    Mr. Farr. In a letter that I wrote to Terry Garcia and NOAA 
on August 28th, and it outlined five of them specifically; 
where we think the final regulations misinterpret the intent of 
Congress.
    Mr. Schmitten. Mr. Chairman, I think I have the essence of 
the questions.
    Mr. Farr, first of all, let me pick up on the one that I 
think is the most important; that is listening to the 
fishermen. And I can cite for instance, the concept of the 
essential fish habitat came from a California organization, 
came when I was a councilmember, came 8 years ago from your 
constituents. That it invested all the way up until it 
ultimately became law, and I feel very strongly about essential 
fish habitat.
    The guidelines, we do not disagree with you. There are a 
lot of ``shalls.'' We have tried to follow what Congress has 
suggested, and also there are a lot of ``mays'' because we want 
people to voluntarily be a part. Where they must be a part, we 
will notify them; where we would like them to be a part, we 
want them to be our partners in conserving the resource.
    The current status is we have no regulations yet. We have 
them out for comment. We are very open to what the public has 
to say. In fact, we have extended twice the essential fish 
habitat regulations just because there has been such an 
overwhelming points of view. And by the way, they are very 
divergent, from you're doing way too much; you are being too 
interpretive; too all inclusive, to you've doing nothing, and I 
suspect we will find something that satisfies Congress 
somewhere toward the middle or toward certainly the 
conservationsite.
    Dr. Matlock may have more specifics on the time of these 
regulations.
    Mr. Matlock. The comment period for the national standard 
guidelines does not end until September 18th, so obviously we 
are continuing to receive comments, and will go through those, 
address responses and changes that may be appropriate in the 
guidelines before they are actually finalized. But with respect 
to the national standards, the comment period is not yet 
closed.
    The essential fish habitat guideline comment period has 
closed, and we are going through the very numerous comments. We 
received I think something on the order of 2,500; maybe even 
more than that, I am not sure of the number--that we are 
developing responses to, and reassessing the proposed 
guidelines before they are finalized. So as Rollie indicated, 
neither one of those sets of guidelines are yet finished, but 
they are in the proposed stage, comment period closed on one, 
but not the other.
    Mr. Farr. Can you respond to this letter? I will be glad to 
give you another copy today, but I think those outline the 
basic concerns that I have, on where I think the proposed 
regulations are.
    Mr. Schmitten. Absolutely. We have worked together enough 
to know that I will respond in a timely way, and I will get a 
copy of that, through Assistant Secretary Garcia--happy to.
    Mr. Saxton. If I may, if you have another minute, and if 
Mr. Gilchrest does not mind, I would like to just try to 
clarify Mr. Farr's point, by exploring one of the things Mr. 
Farr pointed to, relative to the by-catch regulations.
    Can you add a little more light to the situation as you 
see. You say the Congress had an intent and legislated relative 
to the issue of by-catch, and that NMFS then regulated 
something different. Is that a fair summary of that part of 
your question?
    Mr. Farr. They expanded by-catch. The definition in Section 
102, under definitions, Section 3.2--this is what Congress 
wrote. ``The term by-catch means fish which are harvested in a 
fishery, which are not sold or kept for personal use.'' It 
includes economic discards and regulatory discards. Such term 
does not include fish released alive under a recreational 
catch, and a release fishery management program.
    The definition that they came up with is different than 
that. I mean they are too different. You can put them side by 
side and they are just different.
    Mr. Saxton. Dr. Matlock, would you like to explain why you 
had a different definition than the law has?
    Mr. Matlock. Well, the definition as Mr. Farr read for by-
catch is as such. There are two terms however in that 
definition that are further defined in the law, both economic 
discard and regulatory discards. So the definition that we have 
put in the proposed guidelines incorporates those other two 
definitions into the definition of by-catch, so it is not a 
different one from the standpoint of the definitions combined 
that are in the Magnuson-Stevens Act.
    Mr. Gilchrest. Mr. Farr, is it your understanding that the 
definition of NFMS loosens our definition so that we are not as 
strict with by-catch. NFMS does not appear to be as strict with 
by-catch as was our intent?
    Mr. Farr. Yes, that is the interpretation that I have 
discussed with the staff, and I think the best way, rather than 
take the time of the committee and argue this here, is that we 
will just make it into our comments--you can put our comments 
into the record.
    Mr. Saxton. Mr. Gilchrest.
    Mr. Gilchrest. Thank you, Mr. Chairman. Just a quick 
followup. How long is NMFS definition of by-catch? Can somebody 
read it to me so I can see the difference between the two? Is 
it NMFS understanding that your definition complies with the 
intent of Congress?
    Mr. Schmitten. Absolutely. Let me do this for you. We will 
give a side by side definition of what is proposed in that 
Congress, and we will do that for the Full Committee.
    Mr. Gilchrest. I have a couple of quick questions. One, I 
am struck by the fact that there is more striped bass in the 
Chesapeake Bay now than there was when John Smith came here.
    Mr. Schmitten. Yes.
    Mr. Gilchrest. I mean is that a fact?
    Mr. Schmitten. That is a fact. In fact, that is unusual.
    Mr. Gilchrest. There is more striped bass here in the 
Chesapeake Bay than when John Smith said, you could walk from 
the shore to shore on the backs of these fish.
    Mr. Schmitten. Let me make sure I precisely say it.
    Mr. Gilchrest. Is there more striped bass here than it was 
100 years ago?
    Mr. Schmitten. Anytime in recorded history, it goes back to 
the 1880's. This is not unusual in--logical management. There 
are more here in this nation than ever before.
    Mr. Gilchrest. I have a few more questions. And that is 
great news, but I do think----
    Mr. Schmitten. That is a good story.
    Mr. Gilchrest. That is a great story. I just want to make 
sure I understood that quote, after being a history teacher for 
a number of years, and teaching about John Smith and all that. 
It is a fishery that has been managed properly, and we have 
brought them back. And you have done a marvelous job, and I 
want to compliment you on that. And it is something that we 
have to continue to sustain.
    I have sort of a broad question. Can you give us the chief 
reason that certain fisheries have declined in the open ocean 
or in coastal regions, or why some fish appear to be less than 
healthy? Now is this political? Is it a problem with 
enforcement? Is it a problem with overfishing? Is it a problem 
with habitat? Is it a problem of pollution? What is the general 
overall chief reason that fisheries have declined; whether it 
is Atlantic bluefin tuna, whether it is sharks; whether it is 
shad or salmon? Why are fish declining in some areas 
dramatically?
    Mr. Schmitten. I bet there would be an answer from every 
one of us in this room, but let me give you mine, and this is a 
personal answer.
    Mr. Gilchrest. One more quick thing. Could you say human 
impact and be correct?
    Mr. Schmitten. Absolutely, yes. In fact, that would be the 
sum. I was going to say it has been misdirected management of 
the past. It is human influence, whether it is habitat, whether 
it is a lack of fortitude by states, by National Marine Fishery 
Service, by our councils to do the right thing for our species. 
To not take a precautionary approach, when we know that that is 
what you must do in the absence of solid science.
    Mr. Gilchrest. And to followup on that. You made a comment 
that you could stop all fishing in the ocean, but unless you 
protected the habitat you would lose--I do not know what--50 to 
75 percent of the commercially caught fish, if you did not 
protect the habitat.
    Mr. Schmitten. In fact--Mr. Farr's gentlemen on the West 
Coast, and what he said to me--it was a commercial fisherman 
before our council meeting. He said, you regulators can put us 
out of business. You can shut our fishery down with your 
regulations, and you may not bring back the fish that you are 
concerned about if you do not do something about their habitat. 
I never forgot that, and that is part of the reason that we 
have promoted the essential fish habitat provision. Because it 
is a two-sided equation. Yes, we can control the fisherman, but 
we have to control the human impact's side, because if there is 
not a place to spawn for these fish, ultimately we are not 
going to have the fish.
    Mr. Gilchrest. The stripe bass has been successful in 
Chesapeake Bay, but there continues to be for on--and 
perpetuity population increase in the Chesapeake Bay watershed; 
development, construction, sewage treatment plants, rubble 
fills, landfills, agriculture and so on. At what point do you 
see the need to understand the limits to what this region can 
take in order to sustain life in the Chesapeake Bay?
    I am going to ask another broad-sweeping question. I hope 
you have a second round, Mr. Chairman. Broad-sweeping question. 
If you could do exactly what you think needs to be done to 
sustain the fishery, to sustain the health of the Chesapeake 
Bay watershed, looking specifically at habitat, what would you 
design as far as protecting the habitat for fish to spawn for 
the Chesapeake Bay?
    Mr. Schmitten. I have to be honest with you; I cannot 
answer that. I would need people that really know about----
    Mr. Gilchrest. Can I tell you what two scientists told me 
on Monday while we were in a boat looking for pfesteria?
    I though you were going to cut me off; the red light is up 
there, Mr. Chairman. We could wait until next year for this.
    They said that the Chesapeake Bay would return to John 
Smith quality if we put a hundred foot buffer around this 
watershed with trees. That would include every tributary, every 
river, and every ditch. You would then begin the process of 
filtering out nutrients so the grass would come back; the 
habitat would come back; the ecosystem would come back.
    I would add to that, but my time is up--the problem of 
dredging, a whole range of other things. But this is what two 
scientists said would sustain the Chesapeake Bay.
    Mr. Schmitten. It would certainly help, and in Mr. Crapo's 
districts they are doing that. They have been doing that for a 
good number of years, and their habitat is much superior to 
most of what is on the East Coast. It is not without a lot of 
pain. Idaho and others in the Northwest have contributed to 
building back habitat.
    I am sure you saw this in this morning's paper.
    Mr. Gilchrest. No, I did not.
    Mr. Schmitten. This is a new outbreak as of yesterday.
    Mr. Gilchrest. Oh, pfesteria.
    Mr. Schmitten. In the Chesapeake.
    Mr. Gilchrest. In fact, I was on the phone with the 
Governor, just before, because I guess he needs----
    Mr. Saxton. Well we thank Johnny Appleseed for his 
comments. Mr. Crapo.
    Mr. Crapo. Thank you, Mr. Chairman and Mr. Schmitten. As 
you might guess, I would like to turn the attention now to the 
Pacific Northwest salmon and steelhead issues. And I know that 
you did not specifically address these issues in your opening 
statement, in your prepared testimony, and I realize this is 
not a hearing specifically on those issues, but I would like to 
do everything I can to make sure that you and your agency is 
focused as much as possible on what is happening there.
    In fact, Mr. Gilchrest, as an aside, it is true as Mr. 
Schmitten says, that we do have the 100-foot buffers, but I 
tell you there are problems, political problems as well as 
others, with implementing the system of buffers, because it 
impacts all kinds of other activities and uses that are, in 
many cases, not problems, but are nevertheless impacted by such 
a broad brush approach. And so, I will tell you, if you want to 
approach that, you will find out how many people will be 
impacted by buffers.
    Mr. Gilchrest. Would the gentleman yield just for a second.
    Mr. Crapo. Yes.
    Mr. Gilchrest. I would say, I understand the nature of the 
problems; economic, political and so on. I think we ought to 
start from a position of, here is what would work, by using the 
natural processes, and then understanding that we do have 
people on the planet and we could manage from that perspective.
    Mr. Crapo. I understood, and I think you and I have talked 
about this type of issue many times. We could work it out. And 
that is actually one of the things that I wanted to discuss 
with you, Mr. Schmitten. I think I would like to set the 
background for my questions with this comment.
    As you probably know, recently there were hearings held in 
Idaho by another subcommittee of this committee, on the draw-
down issue. I have asked, and we held hearings there on review 
of NMFS activities in the region in Boise. And we have held a 
committee hearing here with the chairman's agreement.
    At that hearing in Lewistown, I believe it was, I asked 
every witness who came before us--whether it was someone who 
was fish advocate, or a transportation, or barging advocate, or 
an advocate for some other particular interest. I asked every 
witness the same question. And that is, did they feel that the 
process by which NMFS was seeking to implement the Endangered 
Species Act requirements, and obligations that it had--I do not 
remember the exact way I worded it. But did they feel if they 
were given the opportunity, a meaningful opportunity, to be a 
part of the process, and that their positions were being heard, 
and everyone said no.
    Now, I will be the first to acknowledge to you that NMFS 
has a very difficult assignment in this area, and that whoever 
has that assignment is probably going to incur the ire of about 
everybody involved. Nevertheless, those types of answers were 
also consistent with comments that I had been receiving from my 
constituents from all different sides for a long period of 
time, and they tell me that something is not working right in 
terms of the process.
    You know that one state has pulled out. Several of the 
tribes have pulled out of the process. The State of Idaho, I 
believe I can fairly say is very unhappy with the fact that its 
efforts to build consensus and bring parties together were 
rejected by NMFS in its final decisionmaking on what should be 
done in terms of approaching this year's recovery efforts.
    And the question I want to pose to you is, are you aware of 
those developments, and if so, is something being done or 
considered at your level in Washington to address the question 
of making sure that the states, the tribes and the interested 
parties are truly and meaningfully involved; and that efforts 
such as that of the State of Idaho to develop a consensus are 
not rebuffed?
    Mr. Schmitten. Mr. Crapo, as you know, my history is from 
the Northwest, and I spent nearly 45 years there, and also was 
the one to bring the initial listing. At that time I said we 
will never survive this unless we work together. And was one of 
the first to speak out against the current essence of the ESA 
because it was too federally dominated. I said that we need 
travel involvement and participation, and we certainly need the 
states. Frankly, they have the information.
    So I am disappointed in this process because I am aware 
that we have asked for a time out. That is why the current 
biological opinion is actually for 4 years. And part of that is 
to go back in. The ultimate answer is going to be with 
invigorated new science that will say, yes, on barging or no, 
on barging.
    If we do not have a process that is equitable and people 
are heard--I know ultimately it is a tough decision because 
NMFS is the one that has to say, yes you are in or you are out; 
but there has to be a meaningful way that people participate. 
And I will go back, and I will talk to my regional 
administrator and say that I am hearing these things.
    Mr. Crapo. All right, I appreciate that. And again, I do 
not mean to imply that people are not trying, and I know the 
enormity of the task that they have, but I can tell you that we 
do not think it is working right yet.
    I see my time is almost up. I want to hit one other issue 
very quickly. Just as an example of how issues are maybe 
addressed by overkill or by too rigid an approach--Two days ago 
the Salmon River below Stanley was closed entirely to all float 
boating. And the reason was because some salmon on some redds 
had been spooked. The float boaters were already portaging 
around those redds, and I think something needed to be done to 
be sure that it was further addressed. But to me it seems that 
closing the entire river because of an incident at one location 
is a bit of an overkill, and that is part of the problem that 
we end up dealing with.
    Mr. Schmitten. Mr. Crapo, it is the first time I think I 
have ever heard that the entire river has been closed. What I 
have found is the boaters have been very willing to work with 
us, have identified these areas, have encouraged people to stay 
out; put up signs or floats. I have not heard this, so let me 
ask what the situation is.
    Usually, we are the ones that are consulted upon, but it is 
the forest service or BLM that actually makes the final call.
    Mr. Crapo. That is right. And I, myself, do not know who 
made this final call or why, and I just got the information 
myself about an hour ago. But it was just one more of those 
circumstances that----
    Mr. Schmitten. Why do I not call you before the end of the 
day with what I find out.
    Mr. Crapo. All right, I would appreciate that.
    Mr. Saxton. Mr. Crapo, you and I had a conversation the 
other day about your frustration with the lack of cooperation, 
relative to the development of a management plan in the 
Northwest.
    Mr. Crapo. Yes.
    Mr. Saxton. Would you like to take a minute just to pursue 
that. I found your discussion very interesting, and I know how 
deeply important this is to you. So if you would like to take 
just a minute to----
    Mr. Crapo. If I could. That was the issue I started out 
with, and I wanted to move quickly into this other one.
    Mr. Schmitten, as I indicated in my initial comments, we 
are trying in the State of Idaho to put together--and I am sure 
you are aware of this--to put together a system by which we 
bring together the necessary parties to find solutions. 
Clearly, science has to drive those solutions.
    Right now I have learned in this particular issue that for 
many years the statement that science has to drive the issue 
did not really solve anything, because everybody brought in 
their own science, and it was just a continuation of debate 
under the name of the science. But it seems to me that 
recently, with the Independent Science Advisory Board, which 
Will Stelle has been very instrumental in putting together, and 
I think was a good step.
    We are starting to get some consensus on some areas where 
science will tell us we should move, but it seems to me that 
consensus is what the State of Idaho tried to rely on, and it 
is that scientific consensus that helped us build the consensus 
in the State of Idaho, which was supported by the other states, 
and the tribes and fishery managers. And yet, we still, in the 
process when we had, I think, virtual dominance of support for 
the approach that the state brought in the region--We still had 
the agency, NMFS reject it, in the name of science.
    And so I guess the question I am posing here, is how can we 
get past saying we need to work on good science, and get past 
all those statement about how we need to have regional 
cooperation, to where we really have it, and we really do not 
have efforts of consensus building that is simply then 
unsuccessful, as a Federal agency on its own essentially says 
no.
    Mr. Schmitten. I certainly do not have all the technical 
details. But, certainly, I would put a lot of faith in the 
Independent Science Board; it was designed to certify what 
science is coming out. And I think there is a second piece that 
is needed, and that is some sort of dispute mechanism, that 
when there are these fundamental differences as we find, 
especially on the issue of Northwest salmon, that there is some 
process, independent from the process, someone can oversee and 
say, yes, this is where we go.
    Currently what is happening is the parties run to court. 
That is a much protracted, drawn out situation. We received a 
positive ruling, but I am not sure what a positive ruling is if 
the parties are not behind it. So I think a dispute mechanism; 
it would be important there.
    Mr. Crapo. Well, I would look forward to working closely 
with you and with Katie McGinty at CEQ, and others at this 
level. But I can tell you, there is just an extreme level of 
frustration in my state. And it is not just with regard to the 
salmon recovery issue. I think part of it is simply, that we 
have to sit down and make sure we are all working off the same 
page in terms of where we want to head, because it is a 
consistent problem now in my district, with regard to the 
activities that agency managers are involved in, whether they 
are BLM or Forest Service, or whatever, with the overlay of 
NMFS, a biological opinion activities with regard to salmon and 
steelhead recovery.
    Mr. Saxton. Mr. Crapo, I do not want to belabor this 
subject, but it seems to me that when we were discussing this, 
you said that there was something in the neighborhood of 15 
stakeholders groups that sat down to try to develop this 
consensus plan, and that 14 of the 15 agreed, including the 
U.S. Fish and Wildlife Service.
    Mr. Crapo. That is right. That was actually 12 out of 13.
    Mr. Saxton. Twelve out of thirteen.
    Mr. Crapo. There were 13 fishery managers, representatives; 
whether it be the four states or tribes or the U.S. Fish and 
Wildlife and so forth at the meeting where Idaho proposed its 
plan. And I realize there have been a lot of meetings. Whenever 
I say this there are responses about, well, maybe it was not 
really this way or that way. The bottom line is, is I have 
pursued this in testimony in Idaho as well as in the previous 
hearing.
    Well, what I want to say to you, Mr. Chairman, is that in 
rebuttal, later on, some from the NMFS said--Well, some of them 
did not actually support it; they just did not object to it. 
But at the meeting there was only one objection to the Idaho 
approach, and there was significant support for the objection 
from many groups, and we interpreted that as being support from 
all 12 of those who did not object. But there were at least a 
vast majority of them who did support it. And yet we still were 
not able to proceed because NMFS overrode it. And that is one 
of the things that is causing an extreme level of frustration, 
in Idaho, and I think in the region, with the way that this 
supposed cooperative effort is working out.
    And I will say that the region that they stated that they 
could not agree with it, is because we were proposing a 
different approach to recover than what they interpret the 
scientific answer to be. But again, I believe that their own 
science board would differ with them, and I believe that the 
vast majority of the other fishery managers differ with them. 
But so, we are into a debate on science again, but the point 
is, as we try to build consensus here, we were getting there in 
the region, but then were not able to move because of NMFS 
refusal to agree.
    Mr. Schmitten. I understand there was to be a meeting 
yesterday on the focus of science in Idaho, and I have not 
heard the results of that. But we were asked if we would go 
over and sit down, and spend an entire day for the public state 
of fish and wildlife folks, to go through science, and I hope 
that that was a positive session.
    Mr. Crapo. I hope so too. And I just want to say, I am not 
suggesting that there is just an absolute recalcitrance here. 
There is a very willing statement; or the officials are very 
willing to work with us, it is just that when we get down the 
road to where we hope we can get some results of this effort to 
develop collaboration and consensus, we run into a consistent 
refusal, and that is the concern that we face.
    Thank you, Mr. Chairman.
    Mr. Saxton. Thank you, Mr. Crapo.
    The gentlemen from Massachusetts, Mr. Tierney, has joined 
us. Mr. Tierney is not a Member of the Committee, but through 
the unanimous consent request at the opening of the hearing, we 
will ask him for his participation and questions at this time.
    Mr. Tierney. Thank you, Mr. Chairman. I thank my colleagues 
for giving me this opportunity, Mr. Schmitten and gentlemen.
    I share some of these questions, or all of these questions 
that I am about to ask with Representative Delahunt, also from 
the Commonwealth of Massachusetts, on the areas of considerable 
concern.
    Let me start by just saying that on August 28th NMFS issued 
a mid-water trawl gear authorization letter to the Atlantic 
Star. The Atlantic Star is a 360 foot-long factory trawler, and 
that permit would allow it to fish for herring and mackerel in 
the areas on the Georges Bank and the Gulf of Maine, with much 
less than 6 inches. In order for that exemption to be issued it 
was supposed to be demonstrated that the fishing activity would 
have less than a 5 percent by-catch of groundfish. And given 
that the Atlantic Star has never caught a single fish, and we 
have not had any vessel of this size fishing in the Georges 
Bank for more than 2 decades, how is it that you could certify 
now that the Atlantic Star would have less than a 5 percent by-
catch rate; and do not vessels and other fisheries seeking such 
exemptions have to provide data that demonstrates their by-
catch will be less than 5 percent?
    Mr. Matlock. I was checking to see whether or not the 
permit included an observer requirement, because I do not 
remember for certain whether or not it does.
    Mr. Tierney. It does not appear to. That was one of my next 
questions; as why does it not, and it does not at all appear 
to.
    Mr. Matlock. I will have to check and followup to make sure 
that my answer to you is correct--whether or not it does--
because I do not know.
    But at least with the data that we have in hand, and the 
regulations as they are currently written, the assessment by 
the regional director, who is authorized to issue the permit, 
was that the expected by-catch would be less than 5 percent 
level at which the determination to issue a permit is made.
    The data that we have throughout the entire area is in many 
cases very sparse. It is not the best in the world; it is not 
everything you would want. But the regulations require that we 
use the best available information to make that determination, 
and in this case that was done that were available.
    Mr. Tierney. This data--I mean we have not had a boat of 
that size for over 2 decades, so how reliable can that data be?
    Mr. Matlock. Well, it is primarily looking at what that 
gear of that mesh size catches, as opposed to what a vessel of 
a certain size does or does not catch. So the basis upon which 
a decision is made is more on the gear itself than the vessel.
    Mr. Tierney. Well, you would agree with me that that data 
is a little bit weak, considerably weak?
    Mr. Matlock. Well, I cannot at this point because I am not 
familiar with the specific data, so I would not want to agree 
or disagree.
    Mr. Tierney. Well, let us assume that the by-catch rate is 
5 percent; that would be 2,500 metric tons of groundfish by-
catch, that they could harvest on 50,000 metric tons of 
mackerel and herring. I think that would be a conservative 
estimate; given their harvest capacity of 250 metric tons a 
day.
    If that is the case, the entire target total allowable 
catch, for the Georges Bank area, both the cod, haddock and the 
flounders, only about 5,000 metric tons; a by-catch of 2,500 
metric tons is significant, very significant. So what kind of 
an impact is that going to have, and how do you again--going 
back on that--which seems to me a very weak data--What kind of 
comfort level can you possibly have that that is not going to 
be harmful to the ground fishermen?
    Mr. Matlock. The kind of gear that is involved, which is a 
mid-water trawl, would be expected to have a very, very small 
by-catch of groundfish. So to operate on a premise that the by-
catch is 5 percent is inconsistent really with the decision, 
and the basis upon which the decision was made by the regional 
director. But assuming that the by-catch were 5 percent, then I 
believe that the conclusions you have reached are certainly 
consistent with that amount of catch. They are legitimate 
concerns to have, and I would suspect that if the catches of 
that magnitude were expected that a permit may not have been 
issued.
    Mr. Tierney. Well, I just want to press this a little bit--
trying not to be argumentative--but it sounds to me that you 
are not totally comfortable with the data or with the 
assumptions that are being made. I can assure you that Mr. 
Delahunt and I are not comfortable at all with this sort of 
gratuitous willingness to take data that is 2 decades old, and 
assumptions based on the equipment as opposed to any history--
based on reality--and make sort of general conclusions that are 
going to have a considerable effect on ground fishermen; in an 
area that 20 years ago suffered devastation, and these people 
were the ones that suffered the biggest impact of that.
    What comfort level can you give Mr. Delahunt and I, that 
you might go back and revisit this, and have to insist on some 
sort of more reliable data, and less assumption, and less 
wishing, that seems to be going here, because there are 
considerable unknowns that appear to exist. Why would we not 
seek some assurances and some comfort that are based on hard 
facts, and not assumptions, before we went and issued a permit. 
Why would we not wait until there was a plan in effect before 
we did this, and why are we being so precipitous?
    Mr. Matlock. Goodness, that is several of them together.
    Mr. Tierney. They all pretty much say the same thing 
though, so it should not be hard.
    Mr. Matlock. Yes. It might be worthwhile to make sure you 
know that the permit allows for the catch of both herring and 
mackerel.
    Mr. Tierney. Right.
    Mr. Matlock. There is a plan in place for mackerels, so 
that is the reason for making sure that you know the permit is 
for both. There is a requirement that we use--the best 
available data at the time that we get a permit--to make a 
decision. The conclusion reached by the regional director was 
that those data supported issuing the permit.
    Knowing Andy Rosenberg, who is the RD up there, and knowing 
his intent to make sure that we do look further at what we have 
done, I would think that he would be already making the kind of 
effort that you want made, in terms of making sure that the 
issuance of the permit is not doing damage to the species being 
called by-catch.
    Mr. Tierney. Is there no provision within the context of 
your rules or whatever, to say that when you have such dated 
data, when you have such unreliable data, that you are not 
going to try and construe some result out of that; that instead 
because of the sparsity of information and data that really 
could sensibly be called reliable, that you will put off a 
decision until a plan is done?
    Mr. Matlock. In essence, the regulations are that we use 
the best available data.
    Mr. Tierney. So if it is bad data, and it is outdated data, 
but it is the best that you have, you go with that?
    Mr. Matlock. Well, if it is bad data, and you know it, then 
it is not the best available.
    Mr. Tierney. Well, it is 20-year old data. Would you think 
that that would be bad or weak, or somewhat less than reliable 
data?
    Mr. Matlock. In general, the catches of things in trawls do 
not change very much, and the composition of things caught in 
trawls do not change very much, even though the time period may 
change. So, again, the data that Andy had to look at, I am sure 
that he concluded, were the best available.
    Mr. Tierney. Well, let me close, and I really appreciate 
the opportunity. Can I ask you, on behalf of Mr. Delahunt and 
I, to revisit that issue again, and to get in touch with our 
offices so that we can continue this. I know the chairman and 
others are concerned with this issue also, and we have a very 
deep concern that this was done precipitously perhaps, and we 
would like to work with you to try and stop this from becoming 
a disaster as it did 20 years ago.
    Mr. Matlock. Yes, sir.
    Mr. Tierney. Thank you. And thank you, again, Mr. Chairman.
    Mr. Saxton. I thank the gentleman for a very good question.
    This is an example--if you have time to stay--This is an 
example of what causes a great deal of concern among, not only 
Members of Congress, but members of the American commercial and 
recreational fishing community.
    This permit was issued apparently on August 28th. Now let 
me just review for a minute some things that we have already 
established.
    I think there is general agreement between Congress and 
NMFS, that we have a difficult situation with regard to our 
successes, because our successes, almost always, if not always, 
follow disastrous situations. We know that economic pressure 
causes the activities in most cases that create overfishing. We 
also know that throughout the history of our regulatory process 
we have had underutilized species that become overcapitalized, 
and therefore fall into a most undesirable state or situation.
    We also know that the House of Representatives recently 
passed a bill--before August, on July 28th; passed a bill by 
voice vote, relative to this issue, where we clearly expressed 
our opinion on this issue, and we also know the Senate of the 
United States is currently developing a consensus relative to 
this herring, mackerel issue. And yet, based on what is at best 
described here today, as lukewarm evidence, if any evidence at 
all; you saw fit to issue this permit with all of those 
circumstances that I described. And I would like to know why.
    I do not understand this. I do not think there is any 
science to justify it. Public opinion was clearly against it. 
The Congress of the United States, through the House of 
Representatives, spoke loudly. The Senate is developing, I 
believe, a very similar consensus; and yet with the history of 
fishery mismanagement through these same cycles, you issued the 
permit. Please explain it to me.
    Mr. Schmitten. Mr. Chairman, I will attempt that. And I am 
sure that I do not have all the thought processes that the 
region must have went through. But it is fairly clear that the 
stock abundance--in fact the latest SA, and the SA is the stock 
analysis. It is done every 2 years. It is shown that there is 
between 250,000 to a million metric tons of herring available.
    The Council saw fit to reduce that down to 89.2 thousand 
metric tons that would be available for any fishery. So there 
is a huge safety net there.
    Mr. Saxton. Excuse, me. Are you talking about groundfish?
    Mr. Schmitten. I am talking about herring. I will take it 
specifically back then to the 5 percent. That is an upward 
figure. I am sure what went through their minds--and I will 
check this out be-

cause I am speculating as others might here--that it is a mid-
water trawl fishery, which tradition has shown is a very clean 
fishery, not a bottom fishery, with roller gears picking up 
bottom groundfish. So that is a bit of a buffer.
    Five percent is a figure that the Council has allowed and 
sustained; it came from it. I will look it at it, but we have 
to realize that this only a permit. These people can fish right 
today without a permit. They have asked for a permit in an 
exclusive area----
    Mr. Saxton. With a smaller than a 6-inch mesh?
    Mr. Schmitten. What is that?
    Mr. Saxton. With a smaller than a 6-inch mesh?
    Mr. Schmitten. With a smaller--And I do not know the 
authorized get.
    Mr. Saxton. But why would it be necessary to get an 
exemption?
    Mr. Schmitten. Because there were going into an area that 
fishing is not allowed normally with this gear.
    Mr. Saxton. So you granted them a wider opportunity to fish 
in areas where they cannot fish with the smaller net.
    Mr. Schmitten. Yes.
    Mr. Saxton. I think that gets us back to the point, does it 
not? Feel free to jump in, Mr. Tierney.
    Mr. Tierney. I hate to gang up, but we did go a little 
circular route there, but we got back to the point. You have 
just enhanced their ability to fish with a smaller net size in 
an area that we had prohibited. You waived it. We are wondering 
why? If they can fish already to certain areas, let them stay 
there and get some reliable data before you start expanding it 
on the basis of assumptions and guesswork.
    Mr. Schmitten. It is prohibited for groundfish, not for 
herring. The prohibition is on ground fish, not for herring. 
And so they have asked the right to fish in these areas that 
are, right now, closed for everything.
    Mr. Saxton. Two days ago you told me you would stop--I 
think you said. I do not want to mischaracterize you. You told 
me you would stop them from fishing if you had the ability to 
do it, but you cannot do it.
    Mr. Schmitten. No, I said that if they approach--If they 
take their quota, we can stop them, and yes, we will.
    Mr. Tierney. Are you going to have somebody on that boat 
monitoring it?
    Mr. Schmitten. And as Doctor Matlock said, I do not know 
the answer to that.
    Mr. Tierney. Well, if the answer is no so far, will you 
change that?
    Mr. Schmitten. We could require observer coverage. In fact, 
I may be wrong, but I think even the vessel at one time at the 
previous hearing indicated that they would take an observer. I 
would want to check that. But that is a point that I am very 
willing to look and engage in.
    Mr. Saxton. It seems to me that you have all made a 
decision here, which may or may not have been the right one. 
But it seems to me that you obviously made a decision that runs 
counter to another Federal--I mean, we have a situation in New 
England waters where we are spending millions of Federal 
dollars to buy back boats because of the collapse of the 
fishery. And yet, you issued a permit, which enhances the 
ability to catch the fish which we are trying to help recover. 
And that along with all the other things----
    Did you get any pressure from anywhere to make this 
decision, to issue this permit? Did the White House contact you 
relative to this permit?
    Mr. Schmitten. The answer is no. In fact, I do not 
authorize the permit. That is an issue that is authorized right 
within the region, so that was not something I even saw or knew 
about. I was aware of it, but it is not an action out of 
Washington, DC.
    Mr. Saxton. Well what role do you play in the issuance of 
the permit?
    Mr. Schmitten. Just to be aware; to raise the questions 
that----
    Mr. Saxton. Do you have the power to veto the permit?
    Mr. Schmitten. I do not know. The authorization rests with 
the regional administrator, not with the assistant 
administrator.
    Mr. Saxton. Would that be Dr. Andy Rosenberg?
    Mr. Schmitten. Yes.
    Mr. Saxton. And you do not have the authority to turn his 
decision around?
    Mr. Schmitten. On certain matters, yes. On this----
    Mr. Saxton. Would this be one of those----
    Mr. Schmitten. [continuing] a permit, I do not know.
    The Council has just told me, I could take a legal means of 
withdrawing my delegation to the regional administrator or his 
right to do that, so there is a tool available.
    Mr. Saxton. Can you explain what that means?
    Mr. Schmitten. I would send a letter--it would have to be 
in writing, I am sure--that he no longer has the authority to 
issue permits. I am with withdrawing that authority that was 
delegated initially to me.
    Mr. Saxton. So you are saying that you clearly had the 
ability to do something about this if you had thought that 
would have been the right course to follow.
    Mr. Schmitten. I am saying there is a means of doing that. 
I was not involved in the decision. I really trust his 
judgment. He is a credible scientist before he even became a 
manager. So, I am sure that I will be able to provide you a lot 
of explanation that I do not have right now.
    Mr. Saxton. The concern that I have is, is that the 
overwhelming majority of the American people who are 
knowledgeable about and concerned about this issue, felt 
different than the individual that you trusted to make this 
decision; and it raises some questions about why this happened.
    One ship captain that I know of, who is interested in this 
decision that you made, or that your agency made--There is an 
amendment, knows as Amendment 7, to the New England ground 
fishery plan that speaks to this. It seems to me that it is 
very clear that it says, that there needs to be evidence 
through history of by-catch, which does not appear to exist, 
and yet the permit was issued anyway. And that is why I ask 
about whether or not the White House----
    Did State Department contact you?
    Mr. Schmitten. No, I had no contact whatsoever on this 
issue. In fact the resulting permit was granted before I was 
aware of it even. It is not the sort of thing that I normally 
would be involved in.
    Mr. Saxton. Well, I guess I would be wondering if you are 
going to revisit this, or you have any intention of revisiting 
this in the very near future.
    It seems to me this whole assumption that there be less 
than 5 percent by-catch involves around your faith in an as yet 
unknown captain, and that captain's ability to drag the nets 
appropriately or whatever. I think that we really have to rely 
on you to acknowledge all of the facts and circumstances that 
the chairman has pointed out, and hopefuly revisit this with 
the thought in mind that if the data is not any better that has 
been represented here today, we might get a different result.
    Mr. Schmitten. Mr. Tierney, I can guarantee you--my word is 
usually pretty good--we will call the regional administrator, 
and I will ask him the issues that you have raised, your 
concerns about observer coverage, and I will find those matters 
out.
    Mr. Saxton. Let me just finish this, and I do not want to 
carry this on any longer. But just let me finish it with an 
observation, and just ask you to respond to it.
    When Andy Rosenberg was here, through a question which I 
believe I asked--I asked him about the sustainable limit, and 
he said 150,000 metric tons was the number. Is that correct? 
Annually?
    Mr. Schmitten. The SA--as I was reading this over this 
morning--had 250 to--and this is short-term utilization--up to 
a million. The DAH is set at around 90,000, so there is an 
extreme lowering in a conservative approach to what is actually 
available. So 90,000--Am I correct?
    I am hearing all sorts of comments. But the bottom line is 
that they have taken a very conservative approach of what the 
quota would be for anyone fishing out there right now. It will 
not harm these fish in any range. If you take the most liberal 
range, it will not harm these fish.
    Mr. Saxton. What is the more conservative range?
    Mr. Schmitten. What the Council has offered. That is the 
90,000 metric tons. That is extremely conservative.
    Mr. Saxton. And the more liberal range.
    Mr. Schmitten. Goes upwards to--you have indicated 150; I 
thought it was 250 on the bottom end, or higher.
    Mr. Saxton. Now, remembering the arithmetic on this issue 
from the last time we spoke about it here, it seems to me that 
the Atlantic Star alone has the capacity to take 50,000 metric 
tons a year, and that smaller boats are currently capable of 
taking about 31,000 metric tons a year. Are those good numbers?
    Mr. Schmitten. I can verify the 50,000, I just do not have 
the small boat data.
    Mr. Saxton. Well, at what point then would you think it 
would be a good idea to address the issue that is pointed out 
by this advertisement that occurred in National Fisherman, for 
captains, mates, engineers and deck hands, to man to freezer 
trawlers, located in the U.S., to enter into the herring and 
mackerel fishery, which we can assume also have the capability 
of taking something in the neighborhood of 50,000 metric tons a 
year?
    Mr. Schmitten. Mr. Chairman, I think we are mixing both 
herring and mackerel. But for the herring fishery, and 
specifically for the vessel that has requested the permit, and 
it has been granted, we certainly--all the deliveries to my 
understanding will be delivered shore-side. We will be 
monitoring those very closely. As they approach their 50,000, 
our intent is to shut that fishery down.
    Mr. Saxton. And that will shut the small boats down that we 
have to buy back if they----
    Mr. Schmitten. If their authorization is only 50,000, and 
there is 90,000 available, there is still 40,000 out there for 
other vessels.
    Mr. Tierney. Is there in fact a requirement or a limitation 
that they can only get 50,000? They can get more than that.
    Mr. Matlock. No. As far as I know there is not a 
requirement that limits them to any total amount. Again, this 
is an open-access fishery. There is, however, a total catch 
that has been set by the Atlantic States Main Fisheries 
Commission for herring. There is also a total catch that has 
been set by the Fishermen Management Plan of the Mid-Atlantic 
Council for mackerel. So depending upon which species about we 
are talking, the situation is different.
    Mr. Saxton. I know Mr. Gilchrest wants to ask a question, 
and just a minute I am going to ask him to come over here and 
ask it, because I have to go talk with the Speaker about 
another matter.
    But let me just conclude for my part by saying this. I am 
concerned about the herring and mackerel fishery, but for my 
purposes today, the herring and mackerel fishery, and the 
situation involving the Atlantic Star, some number of smaller 
boats, and two additional boats, which appear to be on the 
horizon; just provide an excellent example of you all trying to 
defend what I think is an indefensible fishery management 
policy.
    We are entering--as I said in my opening statement--into 
another part of the cycle of identifying an underutilized 
species, and letting it become overcapitalized. And sometimes 
you all say you cannot do anything about it; sometimes you say 
you can withdraw the authority of the person that issues the 
permit. Sometimes you can issue exemptions for smaller net 
size.
    It leaves me pretty speechless to know what to say to you. 
I guess I can just say I look forward to working with you in 
the future, so that we can come to some resolution of this 
general matter, which I will not describe again.
    So, I thank you for being here today. I am going to leave 
Mr. Gilchrest here in the chair, while I go visit with the 
leadership about some other issues. And I thank you for your 
candor with us, and thank you for being with us.
    And, Mr. Gilchrest, you are in charge. May I ask unanimous 
consent, and ask you, there are some questions from other 
members, including the chairman of the Full Committee, which we 
would like to ask unanimous consent be submitted to you. And 
Mr. Young has asked that you try to answer them within 2 weeks.
    Mr. Schmitten. I will do that for you. Mr. Chairman, as you 
leave, I think where we are together is the desirability of 
having a plan in place prior to these actions occurring. I 
think that is pref-

erable, and I think that is where you are. That is also where I 
am. I think that is the type of thing that would help.
    I happen to also believe that the Council is a right 
mechanism. You have authorized them through us, through the 
Secretary, empowered them to develop the plan, and I think that 
would be most helpful. It is certainly the precautionary 
approach which we all support.
    Mr. Saxton. Thank you. And I ask unanimous consent that all 
members have the opportunity to submit questions in writing.
    Mr. Gilchrest. [presiding] Thank you, Mr. Chairman. I just 
have a couple of quick questions, Mr. Schmitten.
    I am just curious. Who owns the Atlantic Star?
    Mr. Schmitten. I do not know by name, and I do know the 
keypoint, and that is, it is an American or domestic vessel; 
therefore it is afforded the right in an open-access fishery--
--
    Mr. Gilchrest. When permits are issued does NMFS routinely 
want to now who the owner of the boat is?
    Mr. Schmitten. Yes, it is a requirement that we do know the 
owner of the vessel.
    Mr. Gilchrest. I was just told it is 51 percent U.S., 49 
percent Dutch.
    Mr. Schmitten. That is exactly right.
    Mr. Gilchrest. And the Dutch are heavily lobbying for the 
fishery. I am just repeating what I just heard.
    Mr. Schmitten. I do not know about the last point because I 
have never met with the Dutch. But this is classified then as 
an American vessel, at the 51 percent. That is not unusual in 
many of the large vessels.
    Mr. Gilchrest. Do you have any idea who then owns the other 
two vessels that were in the newspaper advertisement?
    Mr. Schmitten. I do not. I would be curious who the vessels 
are, because there is a list of vessels on the East Coast 
currently that have permits; the couple have been identified on 
the West Coast, so I do not know the owners. But again, if they 
have permits, they are U.S. vessels.
    Mr. Gilchrest. Is there some concern about, if you have 49 
percent Dutch, what the other 51 percent is made up of?
    I mean, just to give sort of a peripheral example. If an 
80-year old man marries a 20-year old girl from Thailand, and 
brings her into the United States as his wife, and she applies 
for citizenship, INS wonders if they are going to stay together 
for very long, or did she just marry this guy to come to the 
United States.
    In this vein, is there any, either legal or peripheral look 
at the make-up of the ownership, if it is so close, 49 percent 
foreign and 51 percent domestic?
    Mr. Schmitten. I am unaware of that. I think it is beyond 
our scope, other than identifying whether or not it is 
American-owned, with a majority of ownership in American hands.
    Mr. Gilchrest. So the Department of Commerce has no 
interest in that.
    Mr. Schmitten. I am not sure if I could say yes or no to 
that. But we are not required by law to go beyond the 
identification that it is American-owned by majority 
percentage.
    Mr. Gilchrest. How do you know it is 51 percent-owned by 
U.S. without knowing who those U.S. people are? Is it a bank?
    Mr. Schmitten. Let me ask someone much smarter than I.
    Mr. Chairman, there actually is a good answer to this, or a 
reasonable one.
    Mr. Gilchrest. Great.
    Mr. Schmitten. The Coast Guard is in charge of examining 
the documentation.
    Mr. Gilchrest. So if I wanted that information I could ask 
the Coast Guard.
    Mr. Schmitten. And they look into actually who the owners 
are.
    Mr. Gilchrest. Is there any collaboration between the Coast 
Guard and NMFS as far as this----
    Mr. Schmitten. We need to know that it is American-owned; 
that is our part.
    Mr. Gilchrest. Does NMFS ever, every once in a while, 
discuss the issue with the Coast Guard?
    Mr. Schmitten. We have to find out that it has U.S. 
documentation on all vessels, and that is on a regular basis.
    Mr. Gilchrest. Just a quick question on dredging in the 
Chesapeake Bay. I noticed in your brochure you mentioned a 
popular island as a successful venture for beneficiary use of 
dredged material, or as it is called today, dredge spoil.
    The Chesapeake Bay has a long history of being a part of a 
positive fisher and recreational area, and so on. And the 
Governor now has a plan to dredge the port, and the approach 
channels, and also a plan to dispose of that dredge material, 
one of which is Popular Island, which a lot of people have 
signed off on as being very positive.
    One of the other proposals in the plan is to build with the 
dredge material at least one 6-mile around man-made island, off 
of Kent Island.
    Is NMFS aware of the Governor's plan? Are they involved in 
determining whether or not these areas are a good idea? Has 
NMFS signed off on any of these things?
    Mr. Schmitten. Mr. Gilchrest, I need to go to our 
Chesapeake Bay office and ask. I know we are aware, and like 
you, I have read the issues. Generally what we have to do is 
certify that the spoils are not contaminated. Also, since the 
Corps of Engineers most often does the removal, they have to 
consult with us if there is any endangered species in the 
process. And I have been involved in multiple cases where we--
man--the siting where the spoils are actually located, 
especially if they are contaminated.
    I will get some details on this one.
    Mr. Gilchrest. I guess my question is, does NMFS have any 
long-range vision of areas that competing interests are 
involved, as far as the health of the fishery in dredging. And 
for example, it is very difficult now to find places to put 
dredged material in the Chesapeake Bay from the Port of 
Baltimore. And if we look out over 50 years, the plan right now 
that may or may not go into effect, is suppose to last about 20 
years.
    Is there anybody in NOAA or NMFS that says, well, the Port 
of Baltimore, Wilmington, Philadelphia, New York, Charleston, 
Norfolk, Jacksonville--it is going to be difficult to sustain 
all of these ports in the long range, as far as where we are 
going to put all the dredged material, and the cost of this 
disposal of the dredged material?
    Mr. Evans. Let me take that one. I think NOAA's principle 
involvement in most of the dredging issues that you are talking 
about, putting aside for a second the question of contaminated 
spills and their interaction with possible water action with 
endangered species, comes through the Coastals Zone Management 
program, which is run by the states.
    And so, our involvement, relative to how those projects 
would be permitted, would be in working with the state coastal 
zone programs, and if there would be need in almost all of 
those cases, since they are Corps of Engineers projects for 
Federal consistency determinations. And I think that would 
probably be the mechanism that is in place right now for NOAA 
to be involved in those actions. It would be more through the 
coastal zone management side of our programs than through NMFS 
programs.
    As we move further down the line, dealing with essential 
fish habitat, NMFS may or may not, depending upon how the 
regulations work out, become more involved in those decisions. 
But that would be the connection.
    Mr. Gilchrest. Thank you. One last quick question. It has 
nothing to do with anything we have discussed so far, but I was 
curious.
    I was curious when I was in Alaska this summer with the 
Coast Guard, to find out at least from one fisherman's 
perspective--so I do not have any data to back up this 
statement.
    Some of the fisherman in Kodiak said that there is about 
the same number of farm-raised salmon sold on the world market 
as salmon caught in the Gulf of Alaska, and that the farm-
raised salmon is going to continue to increase, and make it 
very difficult for fishermen in the Gulf of Alaska to sustain 
that--I guess to sustain the fact that they will or will not 
catch salmon anymore because the price is going down so low.
    Is there some degree of truth to that, and if so, what is 
the future impact of wild salmon being caught in the Gulf of 
Alaska?
    Mr. Schmitten. It is true in countries such as Norway, 
Canada, Chile--are producing high quality farm-raised fish. And 
what I think the domestic markets are looking at is a 
continuous supply over a 12-month timeframe of a certain size 
product, and where wild capture is in high peaks of abundance; 
but uncertainty over long periods of time. More and more of the 
supermarkets are turning to these consistent suppliers. And I 
think because of the high amount of raised fish it is 
depressing the prices.
    I guess the only difference is that sockeye are not being 
raised, and that is the prime species in Bristol Bay, to any 
degree; nor are pink salmon. So that will still be a 
predominantly wild capture stock. But they are competing with 
high quality chinook, coho and chum salmon, that this is going 
to keep the price down--my view--for quite a while.
    Mr. Gilchrest. Do you think the average consumer knows the 
difference between those species?
    Mr. Schmitten. The average consumer? No. They will go to 
the market, and if it looks bright, shiny, smells fresh, it is 
salmon; they will buy it.
    Mr. Gilchrest. Great. Well, since I am the only one left 
here, and my staff wants to go to lunch--Thank you very much, 
gentlemen, for your testimony. And I am behanded the gavel. The 
hearing is adjourned.
    [Whereupon, at 12:25, the Subcommittee was adjourned.]
    [Additional material submitted for the record follows.]
  Statement of Hon. Don Young, a Representative in Congress from the 
                            State of Alaska

    Mr. Chairman, thank you for holding this hearing on the 
National Marine Fisheries Service's role in managing the 
nation's fishery resources.
    While I realize this is a thankless job, there are a number 
of areas where this Subcommittee can and should continue its 
oversight responsibilities. As all here are aware, articles on 
a variety of fisheries issues have been common in the 
newspapers in the last few years as more and more interest in 
the marine world is shown. We have experienced a fishery 
disaster in the New England groundfish fishery, we have 
experienced a serious problem in some west coast fisheries, and 
in the last two years we have seen both the boom and the bust 
cycle for salmon harvests off Alaska.
    While these are not all problems caused or ignored by NMFS, 
they are problems that need to be addressed. This agency has a 
responsibility to conduct timely and necessary research into 
stock populations. This agency has a responsibility to the 
American public to maximize the harvest of fishery resources as 
a stable and inexpensive source of protein as long as it is in 
a sustainable manner. This agency has a responsibility to 
reduce the amount of waste in the harvesting of fishery 
resources. This agency also, more and more, has a 
responsibility to those who make their living from the ocean.
    These are not easy duties and dealing with the 
uncertainties in the amount of science that is out there on the 
marine environment make this job even more difficult. It is 
this Subcommittee's duty to oversee the activities of the 
National Marine Fisheries Service and to make suggestions or 
develop priorities when we feel the agency is not fulfilling 
it's statutory duties or is ignoring Congressional mandates.
    I have a number of parochial issues which I will raise 
today and I know a number of other Members also have issues 
which affect their constituents to raise with you today. I look 
forward to hearing your thoughts and Members' questions.
    Thank you, Mr. Chairman.

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