[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]



 
 OVERSIGHT HEARING ON THE IMPLEMENTATION OF THE 1996 AMENDMENTS TO THE 
        MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT

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

                                HEARING

                               before the

      SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

                                 of the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

                     JULY 22, 1999, WASHINGTON, DC

                               __________

                           Serial No. 106-45

                               __________

           Printed for the use of the Committee on Resources






 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house
                                   or
           Committee address: http://www.house.gov/resources

                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
60-043                      WASHINGTON : 2000





                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                NICK J. RAHALL II, West Virginia
JIM SAXTON, New Jersey               BRUCE F. VENTO, Minnesota
ELTON GALLEGLY, California           DALE E. KILDEE, Michigan
JOHN J. DUNCAN, Jr., Tennessee       PETER A. DeFAZIO, Oregon
JOEL HEFLEY, Colorado                ENI F.H. FALEOMAVAEGA, American 
JOHN T. DOOLITTLE, California            Samoa
WAYNE T. GILCHREST, Maryland         NEIL ABERCROMBIE, Hawaii
KEN CALVERT, California              SOLOMON P. ORTIZ, Texas
RICHARD W. POMBO, California         OWEN B. PICKETT, Virginia
BARBARA CUBIN, Wyoming               FRANK PALLONE, Jr., New Jersey
HELEN CHENOWETH-HAGE, Idaho          CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto 
WALTER B. JONES, Jr., North              Rico
    Carolina                         ROBERT A. UNDERWOOD, Guam
WILLIAM M. (MAC) THORNBERRY, Texas   PATRICK J. KENNEDY, Rhode Island
CHRIS CANNON, Utah                   ADAM SMITH, Washington
KEVIN BRADY, Texas                   CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania          DONNA MC CHRISTENSEN, Virgin 
RICK HILL, Montana                       Islands
BOB SCHAFFER, Colorado               RON KIND, Wisconsin
JIM GIBBONS, Nevada                  JAY INSLEE, Washington
MARK E. SOUDER, Indiana              GRACE F. NAPOLITANO, California
GREG WALDEN, Oregon                  TOM UDALL, New Mexico
DON SHERWOOD, Pennsylvania           MARK UDALL, Colorado
ROBIN HAYES, North Carolina          JOSEPH CROWLEY, New York
MIKE SIMPSON, Idaho                  RUSH D. HOLT, New Jersey
THOMAS G. TANCREDO, Colorado

                     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       ENI F.H. FALEOMAVAEGA, American 
JAMES V. HANSEN, Utah                    Samoa
WAYNE T. GILCHREST, Maryland         BRUCE F. VENTO, Minnesota
RICHARD W. POMBO, California         PETER A. DeFAZIO, Oregon
WALTER B. JONES, Jr., North          NEIL ABERCROMBIE, Hawaii
    Carolina                         SOLOMON P. ORTIZ, Texas
MARK E. SOUDER, Indiana              FRANK PALLONE, Jr., New Jersey
ROBIN HAYES, North Carolina          CARLOS A. ROMERO-BARCELO, Puerto 
MIKE SIMPSON, Idaho                      Rico
                                     ADAM SMITH, Washington
                    Harry Burroughs, Staff Director
                     Dave Whaley, Legislative Staff
               Jean Flemma, Democratic Legislative Staff





                            C O N T E N T S

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Hearing held Month Day, 1999.....................................     1

Statement of Members:
    Hon. Jim Saxton, a Representative in Congress from the State 
      of New Jersey..............................................    00
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Statement of Witnesses:
    Dalton, Penelope D., Assistant Administrator for Fisheries, 
      National Marine Fisheries Service, U.S. Department of 
      Commerce; accompanied by Andy Rosenberg, Deputy 
      Administrator of Fisheries, National Marine Fisheries 
      Service, U.S. Department of Commerce.......................    00
    Brancaleone, Joseph M., Chairman, New England Fishery 
      Management Council.........................................    00
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Additional material supplied:
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Communications submitted:
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 OVERSIGHT HEARING ON THE IMPLEMENTATION OF THE 1996 AMENDMENTS TO THE 
        MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT ACT

                              ----------                              


                        THURSDAY, JULY 22, 1999

                  House of Representatives,
                            Committee on Resources,
      Subcommittee on Fisheries Conservation, Wildlife and 
                                                    Oceans,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 11:02 a.m., in 
room 1334, Longworth House Office Building, Hon. Jim Saxton 
(chairman of the subcommittee) presiding.
    Members present: Representatives Saxton, Hayes, and 
Faleomavaega.
    Mr. Saxton. Good morning. I have been handed a note asking 
me to point out that testimony for today's hearing was 
requested to be delivered by 4 p.m. on Monday, July 19th, 1999. 
I would like to thank Mr. Brancaleone for complying with that 
request. The National Marine Fisheries Service testimony had 
not been delivered at the close of business yesterday. Some of 
you may be aware that Chairman Young recessed the hearing 
yesterday before the Administration witness could testify, 
because the full Committee had not had sufficient time to 
review the Administration's testimony. I will not do this. 
However, this has become a disturbing trend that we do not 
appreciate.
    Having said that, we will proceed with the hearing.

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

    Mr. Saxton. The Subcommittee on Fisheries Conservation, 
Wildlife and Oceans is meeting today to discuss the 
implementation of the 1996 amendments to the Magnuson-Stevens 
Fishery Conservation and Management Act.
    In 1996, Congress passed the Sustainable Fisheries Act. The 
Act was a major revision to the Magnuson-Stevens Fishery 
Conservation and Management Act, and it directed the Secretary 
of Commerce and the regional councils to undertake a number of 
new initiatives.
    It was a forward-looking piece of legislation that focused 
attention on three main areas: reducing bycatch; identifying 
and protecting habitat; and identifying, protecting and, when 
necessary, rebuilding over-fished fisheries. These are 
important initiatives for the National Marine Fisheries Service 
to undertake.
    It has now been almost 3 years since the enactment of the 
Sustainable Fisheries Act, and this hearing will examine how 
well NMFS is implementing the provisions of that historic 
fisheries act.
    In addition, this examination represents the first of 
several hearings that will hopefully result in the 
reauthorization of the Magnuson-Stevens Fishery Conservation 
and Management Act during this session of Congress. I expect 
there will be a number of issues that members will want to 
focus on during these hearings.
    Today we will hear from just two witnesses: Ms. Penny 
Dalton, who represents NMFS; and Mr. Joe Brancaleone, who is no 
stranger to the Committee, who will testify on behalf of the 
eight regional fishery management councils.
    I believe this deliberation will set the stage for our 
reauthorization process, and I look forward to hearing from our 
distinguished witnesses.
    [The prepared statement of Mr. Saxton follows:]

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

    Today we are discussing the implementation of the 1996 
amendments Magnuson Stevens Fishery Conservation and Management 
Act.
    In 1996, Congress passed the Sustainable Fisheries Act. 
This Act was a major revision of the Magnuson-Stevens Fishery 
Conservation and Management Act and it directed the Secretary 
of Commerce and the Regional Councils to undertake a number of 
new initiatives. It was a forward-looking piece of legislation 
that focused attention on three main areas: reducing bycatch; 
identifying and protecting habitat; and identifying, 
preventing, and, when necessary, rebuilding overfished 
fisheries. These are important imitiatives for the National 
Marine Fisheries Service to undertake.
    It has now been almost three years since the enactment of 
the Sustainable Fisheries Act and this hearing will examine how 
well the National Marine Fisheries Service is implementing the 
provisions of that historic Fisheries Act. In addition, this 
examination represents the first of several hearings that will 
hopefully result in the reauthorization of the Magnuson-Stevens 
Fishery Conservation and Management Act. I expect there are a 
number of issues that Members will want to focus on during 
these hearings.
    Today, we will hear from just two witnesses: Ms. Penny 
Dalton, who will represent NMFS; and Mr. Joe Brancaleone, who 
is no stranger to this Committee, will testify on behalf of the 
eight regional fishery management councils.
    I believe this deliberation will set the stage for our 
reauthorization process and I look forward to hearing from our 
distinguished witnesses.

    Mr. Saxton. I would now ask Penny if you would like to take 
your place, and Mr. Brancaleone, if you would like to take 
yours. You may proceed with your testimony. And let me remind 
you that we generally have a 5-minute rule. Obviously, at 
today's hearing we have some flexibility because of the fact 
that we have only you folks to hear from. So you may proceed.

 STATEMENT OF PENELOPE D. DALTON, ASSISTANT ADMINISTRATOR FOR 
 FISHERIES, NATIONAL MARINE FISHERIES SERVICE, U.S. DEPARTMENT 
      OF COMMERCE; ACCOMPANIED BY ANDY ROSENBERG, DEPUTY 
ADMINISTRATOR OF FISHERIES, NATIONAL MARINE FISHERIES SERVICE, 
                  U.S. DEPARTMENT OF COMMERCE

    Ms. Dalton. Mr. Chairman, thank you for inviting me to 
testify today on implementation and reauthorization of the 
Magnuson-Stevens Fishery Conservation and Management Act. I am 
Penny Dalton, Assistant Administrator for Fisheries of NOAA.
    As we approach the close of the 20th century, we are at a 
critical point in fisheries management, with considerable work 
ahead of us. In the 23 years since the enactment of the 
Magnuson-Stevens Act, we have seen the complete Americanization 
of Federal fisheries, the expansion of the U.S. seafood 
industry, declines in many marine resources, and the rise of 
public interest in fisheries issues.
    We have seen some successes from our management actions, 
including a rebound in Georges Bank haddock, the rebuilding of 
Atlantic king mackerel, and the continued health of Alaskan 
fish stocks. Yet considerable work remains. Scientists estimate 
that we could increase U.S. fishery landings by up to three 
million metric tons by rebuilding fisheries and harvesting them 
at long-term potential yields.
    Over the years, the Magnuson-Stevens Act has changed and 
evolved through several reauthorizations. The most significant 
has probably been the 1996 revisions of the Sustainable 
Fisheries Act that address a number of conservation issues. 
First, to prevent over-fishing and rebuild depleted fisheries, 
the SFA caps harvests at the maximum sustainable yield and 
requires fishery management plans to rebuild any over-fished 
fishery.
    Second, the SFA sets protection of fishery habitat as a 
management priority. To enhance this priority, the SFA requires 
that plans identify habitat that is necessary to fish for 
spawning, feeding, or growth. The new law also clarifies our 
existing authority to comment on Federal actions that affect 
essential fish habitat.
    Third, to reduce bycatch and waste, the SFA adds a new 
national standard requiring that plans minimize bycatch and the 
mortality of bycatch that cannot be avoided. It also calls for 
assessment of bycatch and steps to reduce it.
    The new conservation requirements may have far-reaching 
effects on recreational and commercial fishing, and on 
fishermen, their families, and communities. To address this 
concern, the SFA establishes a new national standard which 
requires fishery management plans to ensure sustained 
participation of fishing communities and minimize adverse 
impacts. In addition, a national standard has been added on 
promoting the safety of human life at sea.
    Finally, the SFA provides a number of new tools for 
addressing problems related to the transition to sustainable 
fisheries, including amendments to provide for fisheries 
disaster relief, fishing capacity reduction programs, vessel 
financing, and grants and other financial assistance.
    NOAA Fisheries takes seriously its new mandates under the 
SFA. We are continuing to work to ensure that SFA requirements 
are implemented, and that management programs fully protect 
marine resources and provide for the needs of fishing 
communities. A great deal of work remains to be done, and the 
benefits of the changes we make now may take years, perhaps 
decades, to realize.
    We need to direct resources and effort to the scientific 
and technical aspects of our work. In addition, the fishery 
decisions that we face are becoming ever more complex and 
contentious; therefore, we must build consensus among various 
stakeholders that moves us toward healthy and sustainable 
fisheries.
    Nearly all of the regulations and policy guidance related 
to SFA implementation have been developed and published. These 
regulations and guidelines address such issues as foreign 
processing in internal waters, observer health and safety, 
procedures for monitoring recreational fisheries, Secretarial 
emergency actions, and negotiated rulemaking. Proposed 
regulations for carrying out fishing capacity reduction 
programs were published in January 1999. Final regulations 
currently are under review.
    The national standard guidelines were one important area 
where substantial revisions were necessary because of the 
significant changes made by the SFA. The national standards are 
the guiding principles for management of our nation's fishery 
resources, and any management plans or associated regulations 
must comply.
    The national standard guidelines were revised and published 
as a final rule in May 1998. They address the need to end over-
fishing, reduce bycatch, and rebuild stocks. They also provide 
guidance for evaluating impacts on fishing communities and 
enhancing safety at sea.
    Another significant change is the increased emphasis of the 
Magnuson-Stevens Act on conserving and enhancing essential fish 
habitat. In December 1997, NOAA Fisheries published an interim 
final rule that establishes guidelines for describing and 
identifying EFH and fishery management plans, including adverse 
impacts on such habitat from fishing, and other actions to 
conserve and enhance EFH. The rule also provides procedures for 
consultations on actions that affect EFH.
    To date, NOAA Fisheries has conducted over 400 
consultations with Federal agencies whose actions may adversely 
affect EFH. We have completed seven agreements with other 
Federal agencies to establish specific procedures for using 
existing environmental review processes to handle those 
consultations. And we are working on 36 more agreements.
    In addition to revising the national standards, the SFA 
established a number of other new requirements for fishery 
management plans that necessitate their amendment. The SFA 
imposed a deadline of October 11, 1998 for amendments to each 
of the 39 existing fishery management plans. As of June 1999, 
52 amendments were either approved or partially approved. 
Another two amendments were under Secretarial review. And the 
remaining 13 were scheduled to begin Secretarial review this 
summer.
    Despite the councils' best efforts, there were some 
proposed amendments that did not satisfy requirements, or for 
which the analyses were inadequate. NOAA Fisheries disapproved 
or partially approved these amendments, and is working with the 
councils to improve them.
    I cannot over-emphasize the critical role and contribution 
of the councils in implementing the SFA and bringing Federal 
fishery management into compliance with its requirements. The 
councils have performed admirably over the years in developing 
plans, resolving conflicts, and making recommendations to the 
Secretary, particularly in light of the controversy and 
conflicts surrounding many fishery decisions. While both NOAA 
Fisheries and the councils are adjusting to the changes made by 
the SFA, we remain committed to working together in the 
transition to sustainable fisheries.
    Another initiative of the SFA was to establish a new title 
on fishery monitoring and research. Meeting our 
responsibilities under the Magnuson-Stevens Act and other 
applicable laws requires collection of a considerable amount of 
data, and in many fisheries we do not have what we need. 
Consequently, we are vulnerable to overlooking or accepting 
alternatives with unanticipated effects, due to the limitations 
of our models and underlying data.
    NOAA Fisheries is addressing this vulnerability by placing 
a high priority on using funds to fill in gaps, particularly in 
the area of economic and social data. In January of this year, 
NOAA Fisheries delivered a report entitled ``Implementation of 
a Fishing Vessel Registration and Fisheries Information 
System,'' that calls for Federal-state partnerships to improve 
the quality and quantity of information available. Such 
partnerships are an important mechanism for sharing resources 
and reducing duplicative efforts.
    In addition to the data management report, the SFA required 
about 20 other studies and reports to Congress that address 
many critical issues in fisheries management. We will be using 
the findings and recommendations of these reports to improve 
our conservation and management programs. They also contain a 
great deal of useful information that could inform and guide 
the reauthorization process.
    We are still working to understand and effectively 
implement the SFA, and would not propose major changes to the 
Magnuson-Stevens Act at this time. However, we have established 
an internal agency taskforce to evaluate SFA implementation, 
and the group has identified some revisions that may be useful 
to improve efficiency and resolve relatively minor problems.
    We are also reviewing issues raised by the taskforce, the 
councils, and some of our stakeholders. Among the issues 
identified thus far:
    One, a review process for fishery management plans, 
amendments, and regulations. The SFA attempted to simplify and 
tighten the approval process for management plans and 
regulations. However, it creates two distinct review and 
implementation processes; one for plans and amendments, and 
another for implementing regulations. As a result, the decision 
to approve or disapprove a plan or amendment may be necessary 
before the public has had an adequate opportunity to comment on 
the accompanying regulations. This disconnect should be 
addressed during the reauthorization process.
    In addition, the Committee may wish to consider reinstating 
the initial review of fishery management plans and amendments 
by the Secretary. At present, 2 or 3 months may elapse before 
the Secretary makes his determination on a plan or amendment. 
And if it is then disapproved, months may lapse before the 
council can modify or resubmit it. While the initial review was 
eliminated by the SFA to shorten the review process, it 
actually may provide a mechanism to shorten the time to get a 
plan or amendment in place, because it allows us to identify 
early problems.
    As I indicated in the April hearing on this topic, the 
Magnuson-Stevens Act currently restricts the collection of 
economic data from processors. Removal of this restriction 
could improve the quantity and quality of information available 
to meet the requirements of the Regulatory Flexibility Act and 
other laws requiring economic analysis.
    Three, coral reef protection. Special management areas, 
including those designated to protect coral reefs, hard 
bottoms, and precious corals, are important commercial 
resources and valuable habitats. Currently, we have the 
authority to regulate anchoring and other activities of fishing 
vessels that affect fish habitat. Threats to those resources 
from non-fishing vessels remain largely outside agency 
authority. We would like to clarify and strengthen NOAA 
Fisheries' authority to regulate the actions of a vessel that 
directly impacts resources being managed under the Magnuson-
Stevens Act.
    Caribbean Council jurisdiction. The current description of 
the Caribbean Council limits its jurisdiction to Federal waters 
off Puerto Rico and the U.S. Virgin Islands. As a result, the 
council cannot develop FMPs governing fishing in Federal waters 
around Navassa Island or any other U.S. possession in the 
Caribbean. Jurisdiction of the Caribbean Council could be 
expanded to cover Navassa Island.
    Five, council meeting notification. The Magnuson-Stevens 
Act currently mandates that the councils spend a great deal of 
money every year to publish meeting notices in local newspapers 
in regional fishing ports. By contrast, e-mail, public service 
announcements, and notices included with marine weather 
forecasts are much cheaper, and could be more effective in 
reaching fishery participants and stakeholders.
    In conclusion, we look forward to working with the 
Committee on the reauthorization and on high-priority policy 
issues such as observer programs, individual transferrable 
quotas, and funding and fee authorities.
    This concludes my testimony. Thank you for the opportunity 
to discuss the Magnuson-Stevens Act. And I am ready to answer 
any questions that members may have.
    [The prepared statement of Ms. Dalton follows:]

Statement of Penelope D. Dalton, Assistant Administrator for Fisheries, 
  National Marine Fisheries Service, National Oceanic and Atmospheric 
              Administration, U.S. Department of Commerce

    Mr. Chairman and members of the Subcommittee, thank you for 
inviting me to testify today on implementation and 
reauthorization of the Magnuson-Stevens Fishery Conservation 
and Management Act (Magnuson-Stevens Act). I am Penelope 
Dalton, Assistant Administrator for Fisheries for the National 
Oceanic and Atmospheric Administration (NOAA).

Building a Foundation for Sustainable Fisheries

    The fishery resources found off our shores are a valuable 
national heritage. In 1997, U.S. commercial fisheries produced 
almost $3.5 billion in dockside revenues. By weight of catch, 
the United States is the world's fifth largest fishing nation, 
harvesting almost 10 billion pounds annuall. The United States 
also is the third largest seafood exporter, with exports valued 
at over $3 billion in 1996. In addition to supporting the 
commercial seafood industry, U.S. fishery resources provided 
enjoyment for almost 9 million saltwater anglers who caught an 
estimated 366 million fish in 1997.
    As we approach the close of the 20th century, we are at a 
crucial point in fisheries management, with considerable work 
ahead of us. In the 23 years since the enactment of the 
Magnuson-Stevens Act, we have seen the complete Americanization 
of fisheries in Federal waters, the expansion of the U.S. 
fishing industry, declines in many fishery resources, and the 
rise of public interest in fisheries issues. We have seen some 
successes from our management actions, including the initial 
rebound of a few depleted stocks like Georges Bank haddock, the 
rebuilding of Atlantic king mackerel, and the continued strong 
production of fish stocks off Alaska. However, 12 percent of 
U.S. living marine resources are overfished or are approaching 
overfished, 24 percent are not overfished, and there is another 
64 percent whose status is unknown. Scientists estimate that we 
could increase U.S. fishery landings by up to 3 million metric 
tons by rebuilding fisheries and harvesting them at long-term 
potential yields.
    The Magnuson-Stevens Act, of course, provides the national 
framework for conserving and managing the wealth of fishery 
resources found within the 197-milewide zone of Federal waters 
contiguous to the United States. To allow broad-based 
participation in the management process, the Act created eight 
regional fishery management councils (Councils) composed of 
state fishery managers, the regional NOAA Fisheries 
administrator, and qualified fishing industry, academic, and 
environmental representatives. Each Council has authority over 
the fisheries seaward of the states comprising it while NOAA 
Fisheries has management authority over most highly migratory 
species (e.g. swordfish) in the Atlantic ocean. The primary 
responscility of the Councils is the development of fishery 
management plans that set the rules for each fishery and meet 
national conservation and management standards established in 
the Act.
    zOver the years, the Magnuson-Stevens Act has changed and 
evolved through several reauthorizations. In 1996, Congress 
ushered in a new era in fisheries management, making 
significant revisions to the Magnuson-Stevens Act in the 
Sustainable Fisheries Act (SPA). The SFA addresses a number of 
conservation issues. First, to prevent overfishing and rebuild 
depleted fisheries, the SFA caps fishery harvests at the 
maximum sustainable level and requires fishery management plans 
to rebuild any overfished fishery. NOAA Fisheries reports 
annually on the health of marine fisheries and identifies 
fisheries that are overfished or approaching an overfished 
condition. Second, the SFA sets a new direction for fisheries 
management that focuses on protecting fisheries habitat. To 
enhance this goal, the SFA requires that management plans 
identify habitat that is necessary to fish for spawning, 
feeding or growth. The new law also clarifies our existing 
authority to comment on Federal actions that affect essential 
fish habitat. Third, to reduce bycatch and waste, the SFA adds 
a new national standard requiring that conservation and 
management measures minimize bycatch and the mortality of 
bycatch that cannot be avoided. It also calls for management 
plans to assess bycatch and to take steps to reduce it.
    The new conservation requirements may have far-reaching 
effects on recreational and commercial fishing and on 
fishermen, their families and communities. To address this 
concern, the SFA establishes a new national standard which 
requires, consistent with conservation objectives, that fishery 
management plans ensure sustained participation of fishing 
communities and minimize adverse impacts. In addition, a 
national standard has been added on promoting the safety of 
human life at sea. Finally, the SFA provides a number of new 
tools for addressing problems relating the transition to 
sustainable fisheries, including amendments to provide for 
disaster relief, fishing capacity reduction programs, vessel 
financing, and grants and other financial assistance.

Implementation of the Sustainable Fisheries Act

    NOAA Fisheries takes seriously its new mandates under the 
SFA. We are continuing to work to ensure that SFA requirements 
are implemented, and that conservation and management measures 
fully protect the resource and provide for the needs of fishing 
communities and the Nation. A great deal of work remains to be 
done. We are laying a better foundation for future fisheries 
management, yet the benefits of the changes made by Congress in 
1996 will take years, perhaps decades, to realize. In addition, 
the management decisions that we face are becoming ever more 
complex and contentious, and good solutions are hard to come 
by. We need to direct resources and effort to the scientific 
and technical aspects of our work. We also must build consensus 
with the public and among various stakeholders to facilitate 
progress in developing management programs that will move us 
toward the goal of healthy and sustainable marine resources.
    Regulations and guidelines. Nearly all of the regulations 
and policy guidance related to SFA implementation (other than 
implementing regulations lor plan amendments) have been 
developed and published. These regulations and guidelines 
address such issues as foreign processing in internal waters, 
observers' health and safety, procedures for monitoring 
recreational fisheries, Secretarial emergency actions, and 
negotiated rulemaking. Proposed regulations for carrying out 
fishing capacity reduction programs were published in January 
1999; final regulations currently are under review in the 
agency clearance process. However, sectors of the fishing 
industry that are interested in pursing buyouts can proceed 
with the development of buyout plans while this rule is being 
finalized.
    The national standard guidelines were one important area 
where substantial revisions were necessary because of the 
significant changes made by the SFA. The national standards are 
the guiding principles for the management of our Nation's 
fishery resources, and any management plans or associated 
regulations prepared by either the Secretary or the Councils 
must satisfy the criteria which they establish. The Magnuson-
Stevens Act requires that the Secretary prepare advisory 
guidelines on their application to assist in the development of 
management plans. The guidelines build on the national 
standards, providing more detailed advice for plan development 
and a guide to the Secretary in the review and approval of 
proposed plans and regulations. They were revised to reflect 
the changes made by the SFA and published as a final rule in 
May 1998. The final rule addresses the need to end overfishing, 
reduce bycatch and rebuild stocks, emphasizing use of the 
precautionary approach. It adds important guidelines on 
evaluating impacts on fishing communities, and provides 
guidelines to enhance safety at sea.
    Among the changes made by the SFA, one of the most 
important may be a strengthened standard for preventing 
overfishing accomplished by revising the definition of terms 
used in National Standard 1. The effect of this revision is to 
cap the optimum yield from a fishery at the maximum sustainable 
yield (MSY) and require all stocks to be rebuilt to and 
maintained at levels consistent with MSY. In addition, fishery 
management plans must establish clear criteria for determining 
when overfishing of a stock is occurring. NOAA Fisheries has 
worked with the Councils to develop an understanding of the new 
requirements to prevent overfishing. The Councils, in turn, 
have worked hard to develop new overfishing definitions, 
management rograms to achieve the revised goals, and rebuilding 
programs where stocks were found to be overfished. This has 
proven to be a very difficult task--in part because of the 
complex biological structure of fisheries and complicated 
calculations of MSY and other fishery parameters--but also 
because of the necessity to consider impacts on fishermen and 
dependent communities while achieving conservation goals.
    The Act calls for ending overfishing and rebuilding the 
fishery in the shortest time possible, taking into account a 
number of factors and within 10 years except under certain 
circumstances. As a result, the national standard guidelines 
allowed the Councils to take into account potential impacts on 
the industry or communities to extend the rebuilding period up 
to the 10-year limit, even when the stock could otherwise be 
rebuilt in a much shorter period. For long-lived and slow-
maturing species like red snapper, the rebuilding period may be 
as long as the time it would take the stock to rebuild without 
any fishing plus a period equal to the species generation time. 
This solution balances the need to meet the conservation 
requirements within a reasonable period while minimizing 
effects on the industry and dependent communities.
    Another significant change that resulted from passage of 
the SFA is the increased emphasis of the Magnuson-Stevens Act 
on conserving and enhancing essential fish habitat (EFH). NOAA 
Fisheries published a proposed rule in April 1997 for the 
implementation of the EFH provisions of the SFA, and an interim 
final rule in Decemer 1997. The extended timeframe was 
necessary so that all interested groups and individuals had 
ample opportunity for comments on the rulemaking. These rules 
establish guidelines to assist the Councils and the Secretary 
in the description and identification of EFH in fishery 
management plans, including identification of adverse impacts 
on such habitat from fishing and identification of other 
actions to encourage conservation and enhancement of EFH. The 
rule also provides procedures for EFH consultations on actions 
that may adversely affect EFH. The interim final rule became 
effective in January 1998, and is treated as final for the 
purposes of implementing the EFH provisions. We currently are 
reviewing the comments received on the interim final rule and 
plan to issue a final rule early next year. This will enable us 
to benefit from experience with EFH consultations with other 
Federal agencies and from the practical experience we will have 
gained from the first round of fishery management plan 
amendments on EFH. To date, NOAA Fisheries has conducted over 
400 consultations with Federal agencies whose actions may 
adversely affect EFH. We have completed seven agreements with 
other Federal agencies to establish specific procedures for 
using existing environmental review processes (e.g., NEPA) to 
handle EFH consultations, and we are working on 36 more. 
Federal agencies have been generally receptive to the new 
consultation requirements and have begun responding to NOAA 
Fisheries EFH conservation recommendations, as mandated by the 
Magnuson-Stevens Act. We expect consultations to increase as 
outreach efforts with Federal agencies continue to build 
awareness of the EFH statutory requirements.
    Turning to Council operations, Council members currently 
are exempt from conflict-of-interest provisions of the criminal 
code, as long as they are in coimpliance with the financial 
disclosure requirements of the Magnuson-Stevens Act. Concern 
that these provisions were not adequate to prevent the 
financial interests of Council members from influencing the 
decision making process led to their revision in the SFA. As a 
result, NOAA Fisheries prepared regulations that prohibit 
Council members from voting on matters that would have a 
significant and predictable effect on any personal financial 
interests disclosed in accordance with existing regulations.
    Amending fishery management plans to meet SFA requirements. 
In addition to revising the national standards, the SFA 
established a number of other new requirements for fishery 
management plans that necessitate their amendment. NOAA 
Fisheries and the Councils have made dedicated efforts to meet 
most SFA deadlines for 121 major activities and approximately 
400 separate tasks to bring fishery management plans into 
compliance with the new requirements. Commendably, this has 
been accomplished in a relatively short period of time. The SFA 
imposed a deadline of October 11, 1998 for amendments to each 
of the 39 existing fishery management plans to prevent over-
fishing and rebuild overfished stocks descriptions and analysis 
of trends in landings for commercial, recreational and charter 
sectors; and assessment of effects on fishing communities As of 
June 1999, 52 amendments were either approved or partially 
approved, another two amendments were under Secretarial review, 
and the remaining 13 amendments were scheduled to begin 
Secretaial review this summer. Despite the Council's best 
efforts there were some proposed amendments that did not 
satisfy the requirements, for which the analyses were 
inadequate, or that did not minimize socioeconomic or 
environmental impacts to the extent possible and achieve 
management objectives. NOAA Fisheries disapproved or pertially 
approved those amendments and is working closely with the 
Councils to improve them, particularly in the areas of over-
fishing definitions, bycatch reduction measures, and EFH 
identifcation and protection.
    I cannot over-emphasize the critical role and contribution 
of the Councils in implementing the SFA and bringing Federal 
fishery management into compliance with its new regirements. 
The Councils have performed admirably over the years in 
developing p ans, resolving conflicts among stakeholders, and 
makin recommendations to the Secretary, articularly in light of 
the controversy ang conflicts surrounding manK fishery 
decisions. While both NOAA Fisheries and the Councils are 
adjusting to t e changes made by the SFA, we remain committed 
to working together in the transition to sustainable fisheries.
    Turning to the management of wide-ranging Atlantic fish 
like tunas and billfish, NOAA Fisheries has taken the lead in 
preparing management plans and rebuilding programs. Of these 
Atlantic highly migratory species (HMS), the following are 
currently classified as overfished: bluefin tuna, big eye tuna, 
Northern albacore tuna, swordfish, blue marlin, white marlin, 
and the 22 species that make up the large coastal shark 
management complex. Yellowfin tuna are fully exploited, with a 
fishing mortality rate that is probably above the levels that 
support the maximum sustainable yield. This past April, NOAA 
Fisheries completed a fishery management plan for Atlantic 
tunas, swordfish and sharks (HMS Plan) and an amendment to the 
billfish fishery management plan (Billfish Amendment) that 
contained rebuilding programs. Numerous and substantial changes 
were incorporated in the final rule to implement the HMS Plan 
and Billfish Amendment, based on the thousands of public 
comments received by the agency. Advisory Panels established 
under the SFA and composed of representatives of commercial and 
recreational fishing interests and other knowledgeable 
individuals, including members of the ICCAT Advisory Committee, 
participated in the development of the management measures. The 
final rule became effective July 1, 1999.
    Improving technical and scientific information and 
analyses. Another initiative of the SFA was to establish a new 
title in the Magnuson-Stevens Act on fishery monitoring and 
research. NOAA Fisheries is committed to using the best 
possible science in the decision-making process, and to 
incorporating biological, social, and economic research 
findings into fisheries conservation and management measures. 
Meeting our responsibilities under the Magnuson- Stevens Act 
and other--applicable laws requires collection of a 
considerable amount of data, and in many iisneries we do not 
have all the data we need. We will continue to support a 
precautionary approach in the face of scientific uncertainty. 
At the same time, we are expanding our collection efforts and, 
wherever we can, partnering with the states, interstate 
commissions, fishermen and others to collect and analyze 
critical data. In addition, we are using a variety of methods 
to improve public input in the management process and the 
availability of socioeconomic data to assess and minimize 
impacts to communities and small entities and to meet the 
requirements of other applicable laws such as the Regulatory 
Flexibility Act.
    Despite these efforts, we are vulnerable to overlooking or 
accepting alternatives with unanticipated effects, due to the 
limitations of our models and underlying data. NOAA Fisheries 
is addressing this vulnerability by placing a high priority on 
using funds to fill in gaps, particularly in the area of 
economic and social data collection and analysis. In January of 
this year, NOAA Fisheries delivered a Report to Congress 
entitled Proposed Implementation of a Fishing Vessel 
Registration and Fisheries Information System that calls for 
innovative state-Federal partnerships to improve the quality 
and uantity of information for marine resource stewardship. 
Such Federal-state partnerstips are an important mechanism for 
sharing resources and reducing duplicative efforts.
    Just as important as the collection of timely and complete 
data is sophisticated modeling to analyze the complex 
interactions between management measures and various impacts. 
State-of-the-art modeling techniques that incorporate 
information from the biological and social sciences, for 
instance, would improve NOAA Fisheries' ability to make 
accurate predictions about economic impacts and benefits. As we 
improve our capabilities to conduct integrated analyses, 
scientific assessments of the effects of management decisions 
on both fish and fishermen will be enhanced. This information 
will enable managers to choose the alternative that best 
balances conservation needs and community impacts.
    Reports to Congress. In addition to the data management 
report, the SFA required about 20 other studies and reports to 
Congress that address many critical issues in fisheries 
management. We will be using the findings and recommendations 
of these reports to improve our conservation and management 
programs. They also contain a great deal of useful information 
that could inform and guide the reauthorization process.
    One of the most thorough and interesting of these reports 
is the National Research Council's study, Sharing the Fish: 
Toward a National Policy on Individual Fishing Quotas (IFQs), 
an examination of the issues surrounding the use of such quotas 
to manage fisheries. The report recommends that IF programs be 
retained as a fisheries management tool. It also contains a 
number of useful suggestions for developing potential ground 
rules for and key elements of IFQ programs if they are 
authorized.
    Another NRC report, The Community Development Quota Program 
in Alaska, highlighted some of the current successes of 
existing CDQ programs, and recommended expanding the programs 
over the long term to ensure overall success in meeting a 
variety of community development goals. We look forward to 
transferring some of the lessons learned to future programs.
    Earlier this month, the Federal Fisheries Investment Task 
Force released its report analyzing the Federal role in 
subsidizing expansion and contraction of fishing capacity. We 
will be looking closely at the recommendations in the report, 
including those that propose to rework existing programs and 
develop new funding mechanisms, to address problems of 
overcapacity and resource degradation.
    The National Research Council's report entitled Sustaining 
Marine Fisheries and the Ecosystem Principles Advisory Panel's 
Ecosystem-Based Fishery Management Report to Congress both 
advocate greater use of the precautionary approach and an 
ecosystem-based approach to management. In the latter report, 
the authors maintain that the burden of proof must shift to the 
fishery to ensure that the ecosystem will not be harmed by 
fishing. They also suggest that we develop indices of ecosystem 
health as targets for management. We will be looking to these 
reports and others for ideas as we continue to move toward 
ecosystem-based fisheries management.

Reauthorization Issues

    We are still working to understand and effectively 
implement the changes to fishery management policies and 
procedures made by the SFA. Consequently we would not propose 
major changes to the Magnuson-Stevens Act at this time. 
however, we have established an internal agency task force to 
evaluate SFA implementation, and the group has identified some 
revisions of existing provisions that may be useful to make the 
management process more efficient and to resolve some 
relatively minor problems. We currently are reviewing various 
issues raised by the task force. We currently are reviewing 
various issues raised by the task force, the Councils, and some 
of our stakeholders. Among the issues identified are the 
following:
    Review process for fishery management plans, amendments and 
regulations. The SFA attempted to simplify and tighten the 
approval process for management plans and regulations. However, 
one result of that effort has been two distinct review and 
implementation processes--one for plans and amendments and 
another for implementing regulations. This essentially 
uncouples the process for plans and amendments from the process 
for regulations, and as a result the decision to approve or 
disapprove a plan or amendment may be necessary before the end 
of the public comment period on the implementing regulations. 
This prevents agency consideration of public comments that 
could be germane to the decision on plan or amendment approval. 
We are considering amendments that would modify the process to 
address this issue.
    In addition, the Committee may wish to consider reinstating 
the initial review of FMPs and FMP amendments by the Secretary. 
Considerable energy and staff resources are expended on plans 
or amendments that are ultimately disapproved because of 
serious omissions and other problems. At present, two to three 
months must elapse before the Secretary makes his 
determination, and if the amendment is then disapproved, it can 
be months or longer before the Council can modify and resubmit 
the plan or amendment. While the initial review was eliminated 
by the SFA to shorten the review process, it actually may 
provide a mechanism to shorten the time it takes to get a plan 
or amendment approved and implemented.
    Restrictions on data collection and confidentiality. As I 
indicated in the April hearing on this topic, the Magnuson-
Stevens Act currently restricts the collection of economic data 
from processors. Removal of this restriction could improve the 
quantity and quality of information available to meet the 
requirements of the Regulatory Flexibility Act and other laws 
requiring economic analysis. In addition, the SFA changed the 
term ``statistics'' to ``information'' in the provisions 
dealing with data confidentiality. The change has raised 
questions about the intended application of those provisions, 
particularly with respect to observer information, and 
Congressional clarification would be useful.
    Coral reef protection. Special management areas, including 
those designated to protect coral reefs, hard bottoms, and 
precious corals, are important commercial resources and 
valuable habitats for many species. Currently, we have the 
authority to regulate anchoring and other activities of fishing 
vessels that affect fish habitat. Threats to those resources 
from non-fishing vessels remain outside agency authority except 
when associated with a Federal action that would trigger EFH 
consultation or where addressed in regulations associated with 
a national marine sanctuary. We suggest amending the Act to 
clarify, consolidate, and strengthen NOAA Fisheries' authority 
to regulate the actions of any recreational or commercial 
vessel that is directly impacting resources being managed under 
the Magnuson-Stevens Act.
    Caribbean Council jurisdiction. The current description of 
the Caribbean Council limits its jurisdiction to Federal waters 
off Puerto Rico and the U.S. Virgin Islands. As a result, the 
Council cannot develop FMPs governing fishing in Federal waters 
around Navassa Island or any other U.S. possession in the 
Caribbean. Jurisdiction of the Caribbean Council could be 
expanded to cover Navassa Island, by including ``commonwealths, 
territories, and possessions of the United States'' within the 
description of that Council's authority.
    Council meeting notification. Pursuant to the notification 
requirements of the Magnuson-Stevens Act, Councils spend tens 
of thousands of dollars a year to publish meeting notices in 
local newspapers in major and/or affected fishing ports in the 
region. By contrast, e-mail, public service announcements, and 
notices included with marine weather forecasts are much cheaper 
and could be more effective in reaching fishery participants 
and stakeholders. The Committee may wish to consider modifying 
notification requirements to allow Council use of any means 
that will result in wide publicity.
    We also look forward to working with the Committee on high-
priority policy issues such as observer programs, individual 
transferable quotas, and funding and fee authorities. We 
appreciate the concern of the Congress and industry regarding 
the Administration's fee proposal, and NOAA is interested in 
working with all relevant parties to develop a viable fee 
proposal. However, at this time, we have no specific 
recommendations for changes in the Act to address these issues.
    Mr. Chairman, this concludes my testimony. Thank you for 
the opportunity to discuss the implementation and 
reauthorization of the Magnuson-Stevens Act. I am prepared to 
respond to any questions members of the Subcommittee may have.

    Mr. Saxton. Thank you very much, Ms. Dalton.
    Mr. Brancaleone.

 STATEMENT OF CHAIRMAN, NEW ENGLAND FISHERY MANAGEMENT COUNCIL

    Mr. Brancaleone. Thank you. On behalf of myself and the 
seven other council chairmen, I would like to thank the members 
of the Subcommittee for the opportunity to present our views.
    First, let me say that the council chairmen believe that 
the Magnuson-Stevens Act, as amended in 1996, is a good piece 
of legislation, and it is working. Many of our most important 
fisheries are prospering, and we are now seeing significant 
improvements in a majority of the over-fished stocks under 
management.
    The changes we suggest are not substantial, but we believe 
that they will serve to enhance and improve the Act. The points 
I make in this presentation concern only the reauthorization 
issues on which the chairs have reached consensus. I believe 
that individual councils have positions on additional topics 
which I am sure they will communicate as the reauthorization 
process moves forward.
    On the issue of rescinding the Congressional prohibitions 
on IFQs or ITQs, currently Section 303(d)(1) of the Magnuson-
Stevens Fishery Conservation and Management Act prohibits a 
council from submitting, or the Secretary from approving, an 
Individual Fishing Quota system before October 1 of the year 
2000. Section 407(b) prohibits the Gulf Council from 
undertaking or continuing the preparation of a red snapper IFQ 
program or any system that provides for the consolidation of 
permits to create different trip limits for vessels in the same 
class before October 1 of the year 2000.
    If the reauthorization process is completed in 1999, the 
council chairmen support rescinding these provisions before the 
year 2000 deadline. The chairmen also oppose extending the 
moratorium on IFQs.
    On the issue of establishing fees, the council chairmen are 
opposed to the imposition of fees that are not regional in 
nature and dedicated by the councils; and are concerned, deeply 
concerned, about the ability of depressed fleets to pay these 
fees. However, we do support the National Academy of Sciences' 
recommendation that Congressional action allow councils maximum 
flexibility in designing IFQ systems and allow flexibility in 
setting those fees to be charged for initial allocations, first 
sale, and leasing of IFQs.
    Coordinated review and approval of plans and their 
amendments and regulations: The Sustainable Fisheries Act 
amended Sections 304(a) and (b) of the Act to create separate 
sections for the review and approval of plans and amendments, 
and for review and approval of regulations. Accordingly, the 
approval process for these two actions now proceeds on separate 
tracks, rather than concurrently.
    The SFA also deleted the 304(a) provision allowing 
disapproval or partial disapproval of an amendment within the 
15 days of transmission. The council chairmen recommend 
modification of these provisions to include the original 
language allowing concurrent approval of plans and amendments, 
as well as regulations providing for the initial 15-day 
disapproval process. The councils would also like the ability 
to resubmit responsive measures without having to submit a 
complete fishery management plan or amendment, as now required 
by subsection (4) of Section 304(a).
    On the issue of regulating non-fishing activities of 
vessels, the council chairmen recommended that Section 303(b) 
of the Act be amended to provide authority to councils to 
regulate non-fishing activities by vessels that adversely 
impact fisheries or essential fish habitat. One of the most 
damaging activities to such habitat is the anchoring of large 
vessels near habitat areas of particular concern or other 
essential fish habitat; for example, the coral reefs. When 
ships swing on the chain deployed for anchoring in 100 feet of 
water, 20 to 70 acres of bottom may be plowed up by the chain 
dragging over the bottom. Regulation of this type of activity 
by the councils should be allowed.
    On the issue of collection of economic data, language 
throughout the Magnuson-Stevens Act specifies the collection of 
biological, economic, and socio-cultural data to meet specific 
objectives of the Act, for the fishery management councils to 
consider this information in their deliberations.
    However, Section 303(b)(7) specifically excludes the 
collection of economic data, and Section 402(a) precludes 
councils from collecting proprietary or confidential commercial 
or financial information. The National Marine Fisheries Service 
should not be precluded from collecting such proprietary 
information, so long as it is treated as confidential 
information under Section 402. Without this economic data, 
multi-disciplinary analyses of fishery management regulations 
are not possible, preventing NMFS and the councils from 
satisfying the requirements of the Act and the Regulatory 
Flexibility Act. These inconsistencies should be resolved.
    The chairmen recommend amending the Magnuson-Stevens Act to 
eliminate the restrictions of the collection of economic data. 
Amending Section 303(b)(7) by removing the words ``other than 
economic data'' will allow NMFS to require fish processors who 
first receive fish that are subject to a plan to submit 
economic data. Removing this current restriction will 
strengthen the ability of the National Marine Fisheries Service 
to collect necessary data, and eliminate the appearance of a 
contradiction in the law requiring economic analysis without 
allowing collection of the necessary data.
    On the issue of confidentiality of information, Section 402 
replaced and modified former Sections 303(d) and (e). The 
Sustainable Fisheries Act replaced the word ``statistics'' with 
the word ``information,'' expanded confidential protection from 
information submitted in compliance with the requirements of an 
FMP to information submitted in compliance with any requirement 
of the Act, and it broadened the exceptions to the 
confidentiality to allow for disclosure in several new 
circumstances.
    The following draft language clarifies the word 
``information'' in 402(b)(1) and (2) by adding the same 
parenthetical used in (a), and deletes the provision about 
observer information. The revised section would read as 
follows:
    Confidentiality of information:

          (1) Any information submitted to the Secretary by any 
        person in compliance with any requirements under this 
        Act, and that would disclose proprietary and 
        confidential commercial or financial information 
        regarding fishing operations or fish processing 
        operations, shall not be disclosed, except:
          (A) To a Federal employee and to council employees 
        who are responsible for fisheries management plan 
        development and monitoring;
          (B) To state or Marine Fisheries Commission 
        employees, pursuant to an agreement with the Secretary 
        that prevents public disclosure of the identity or 
        business of any person;
          (C) When required by a court order;
          (D) When such information is used to verify catch 
        under an individual fishing quota program; or
          (E) When the Secretary has obtained written 
        authorization from the person submitting such 
        information to release such information to persons for 
        reasons not otherwise provided for in this subsection, 
        and such release does not violate other requirements of 
        this Act.
          (2) The Secretary shall, by regulation, prescribe 
        such procedures as may be necessary to preserve the 
        confidentiality of information submitted in compliance 
        with any requirement under this law----And we would 
        also add:
          ``----and that would disclose proprietary or 
        confidential commercial or financial information 
        regarding fishing operations or fish processing 
        operations, except that the Secretary may release or 
        make public any such information in any aggregate or 
        summary form which does not directly or indirectly 
        disclose the identity or business of any person who 
        submits such information. Nothing in this subsection 
        shall be interpreted or construed to prevent the use 
        for conservation and management purposes by the 
        Secretary or with the approval of the Secretary, the 
        council, of any information submitted in compliance 
        with any requirement or regulation under the Act, or 
        the use, release, or publication of bycatch information 
        pursuant to Paragraph (1)(E).''
    On the issue of enforcement, the council chairmen support 
the implementation of cooperative state-Federal enforcement 
programs patterned after the National Marine Fisheries Service 
and South Carolina enforcement cooperative agreement. While it 
is not necessary to amend the Act to establish such programs, 
it is consistent with the changes needed to enhance management 
under the Act to suggest to Congress that they consider 
establishing and funding such cooperative state and Federal 
programs.
    On the issue of council member compensation, the Act should 
specify that council member compensation be based on the 
general schedule that includes locality pay. This action would 
provide for a more equitable salary compensation.
    Salaries of members serving in Alaska, the Caribbean, and 
Western Pacific are adjusted by a cost of living adjustment. 
The salary of the Federal members of the councils includes 
locality pay. The Department of Commerce has issued a legal 
opinion that prohibits council members in the continental U.S. 
from receiving locality pay. Congressional action, therefore, 
is necessary.
    Observer programs: The chairmen reaffirm their support to 
give discretionary authority to the councils to establish fees 
to help fund observer programs. The authority would be the same 
as granted to the North Pacific Council under Section 313 for 
observers.
    Essential fish habitat: The 1996 Act required the councils 
to identify and describe essential fish habitat, but gave 
little direction on how to designate EFH. The EFH definition--
for example, ``those waters and substrate necessary to fish for 
spawning, breeding, feeding, or growth to maturity''--allows 
for a broad interpretation.
    The EFH interim final rule encouraged councils to interpret 
data on relative abundance and distribution for the life 
history stages of each species in a risk-averse manner. This 
led to EFH designations that were criticized by some as too 
far-reaching. ``If everything is designated as essential, then 
nothing is essential,'' was a common theme throughout the EFH 
designation process, on a national and regional scale. Either 
the EFH definition should be modified, or the guidance on how 
to use different types of data should be more specific.
    On the issue of rebuilding periods, the councils should 
have greater latitude for specifying rebuilding periods than is 
provided under the National Standard Guidelines. Social and 
economic factors should be given equal or greater consideration 
in determining the schedules that result in the greatest 
overall net benefit to the nation.
    Redefine ``Over-fishing'': The chairmen believe that there 
are a number of problems related to MSY-based definitions of 
over-fishing. For example, data deficiencies may lead to 
inappropriate calculations of MSY, which in turn affect over-
fishing definitions. Ultimately, this could lead to unnecessary 
social and economic impacts for fishermen who are subject to 
measures that are tied to stock rebuilding schedules.
    While we have no specific recommendations at this time, we 
would like to work further with the Subcommittee in seeking 
solutions to our concerns as the reauthorization process 
proceeds. This is an extremely important issue to the councils, 
but through our conversations with the National Marine 
Fisheries Service staff we appreciate that there are varying 
viewpoints to be considered before we are able to present 
clear, concise, and productive recommendations on what is the 
foundation of the SFA.
    Receive funds from any state or Federal Government 
organization: Currently, councils can only receive funds 
through the Department of Commerce, NOAA, or the National 
Marine Fisheries Service. The councils routinely work with 
other government organizations to support research, workshops, 
conferences, or to procure contractual services.
    In a number of cases, complex dual contacts, timely pass-
throughs, and unnecessary administration and grant oversight 
were required to complete the task. The councils request a 
change that would give them authority to receive funds or 
support from other local, state, and Federal Government 
agencies and non-profit organizations. This would be consistent 
with Section 302(f)(4) that requires the Administrator of 
General Services to provide support for the councils.
    On the issue of bycatch, the appears to be an inconsistent 
definition of ``bycatch,'' depending on geography. In the 
Atlantic, highly migratory species harvested in catch-and-
release fisheries managed by the Secretary under 304(g) of the 
Magnuson-Stevens Act or the Atlantic Tunas Convention Act, are 
not considered bycatch; but in the Pacific, they are.
    We suggest that highly migratory species in the Pacific, 
managed under the Western Pacific Council fisheries management 
plan and tagged and released alive under scientific or 
recreational fishery tag-and-release programs, should not be 
considered bycatch.
    Note that there are also inconsistencies between the 
Magnuson-Stevens Act definition of ``bycatch'' and the NMFS 
Bycatch Plan. The NMFS definition is much broader, and includes 
marine mammals and birds and retention of non-targeted species. 
The council chairmen prefer the Magnuson-Stevens Act 
definition. We also wish to retain turtles in the definition of 
``fish,'' because of their importance in every region, and 
especially in the past and possible future fisheries pursued by 
indigenous peoples of the Western Pacific Region.
    The chairmen believe that the National Marine Fisheries 
Service in its review of proposed plans, amendments, and 
framework adjustments, has failed to adequately communicate to 
the councils perceived problems in a timely manner. We propose 
the inclusion of a mandate in the Act to require the National 
Marine Fisheries Service to consult with the councils before 
disapproving fisheries management plans, amendments, or changes 
made through the abbreviated rulemaking process.
    NMFS regional administrator emergency action vote: For the 
purpose of preserving the Secretary's authority to reject a 
council's request for emergency or interim action, the NMFS 
regional administrator is currently instructed to cast a 
negative vote, even if he or she supports the action.
    While we recognize the extreme sensitivity in recommending 
a change in the voting responsibilities of our partners in the 
National Marine Fisheries Service--we certainly do not wish to 
appear disparaging to the regional administrators in any way--
the council chairmen believe that Congressional intent is being 
violated by this policy.
    We instead suggest a modification to the language of 
Section 305(c)(2)(A) as follows:

        ``(A) The Secretary shall promulgate emergency 
        regulations or interim measures under paragraph (1) to 
        address the emergency or over-fishing if the council, 
        by unanimous vote of its members, excluding the NMFS 
        regional administrator, who are voting members, request 
        the taking of such action----'' and so forth.
    The Mid-Atlantic At-Large Seat: The council chairmen 
recommend that an additional at-large seat be added to the Mid-
Atlantic Fishery Management Council, along with the funding 
identified for that purpose. Such a seat would most likely be 
filled by an individual from the State of North Carolina. This 
would allow the state to have both recreational and commercial 
representatives on the Mid-Atlantic Fishery Management Council.
    Mr. Chairman, I would like to thank you for this 
opportunity to comment on the Magnuson-Stevens Act. I am sorry 
for going over my time. And I will be happy to answer any 
questions, if I can. If not, I am sure I can get back to you 
with some answers. Thank you.
    [The prepared statement of Mr. Brancaleone follows:]
    [The prepared statement of Mr. Brancaleone follows:]

   Statement of Joseph M. Brancaleone, Chairman, New England Fishery 
                           Management Council

    On behalf of myself and the other seven Council Chairman, I 
would like to thank the members of the Subcommittee for the 
opportunity to present our views. First let me say the Council 
Chairmen believe the Magnuson-Stevens Act as amended in 1996 is 
a good piece of legislation and it is working. Many of our most 
important fisheries are prospering and we are 
seeingimprovements in a majority of the overfished stocks under 
management. The changes we suggest are not substantial, but we 
believe they will serve to enhance and improve the Act. The 
points I make in this presentation concern only the 
reauthorization issues on which the chairs reached consensus. I 
believe individual Councils have positions on additional topics 
which I'm sure they will communicate as the reauthorization 
process moves forward. The Chairs discussed this document in a 
fair amount of detail at our meeting in late June. I'm happy to 
answer questions on any of the issues we covered or on issues 
of concern to the New England Council.

         Rescinding the Congressional Prohibitions on IFQs or 
        ITQs
        Currently Section 303(d)(1) of the Magnuson-Stevens Fishery 
        Conservation and Management Act (M-S Act) prohibits a Council 
        from submitting or the Secretary from approving an Individual 
        Fishing Quota (IFQ) system before October 1, 2000. Section 
        407(b) prohibits the Gulf Council from undertaking or 
        continuing the preparation of a red snapper IFQ program or any 
        system that provides or the consolidation of permits to create 
        different trip limits for vessels in the same class before 
        October 1, 2000. If the reauthorization process is completed in 
        1999, the Council chairmen support rescinding these provisions 
        before the year 2000 deadline. The chairmen also oppose 
        extending the moratorium on IFQs.
         Establishment of Fees
        The Council chairmen are opposed to the imposition of fees that 
        are not regional in nature and dedicated by the Councils, and 
        are concerned about the ability of depressed fleets to pay 
        fees. However, we do support the National Academy of Sciences 
        recommendation that Congressional action allow the Councils 
        maximum flexibility in designing IFQ systems and allow 
        flexibility in setting the fees to be charged for initial 
        allocations, first sale and leasing of IFQs [M-S Act Sections 
        303(d)(2-5) and 304(d)(2)].
         Coordinated Review and Approval of Plans and their 
        Amendments and Regulations
        The Sustainable Fisheries Act (SFA) amended Sections 304(a) and 
        (b) of the MS Act to create separate sections for the review 
        and approval of plans and amendments and for the review and 
        approval of regulations. Accordingly, the approval process for 
        these two actions now proceeds on separate tracks, rather than 
        concurrently. The SFA also deleted the 304(a) provision 
        allowing disapproval or partial disapproval of an amendment 
        within the first 15 days of transmission. The Council chairmen 
        recommend modification of these provisions to include the 
        original language allowing concurrent approval of plans and 
        amendments as well as regulations and providing for the initial 
        15-day disapproval process. The Councils would also like the 
        ability to resubmit responsive measures without having to 
        submit a complete fishery management plan or amendment, as now 
        required by subsection (4) of Section 304(a).
         Regulating Non-Fishing Activities of Vessels
        The Council chairmen recommend that Section 303(b) of the Act 
        be amended to provide authority to Councils to regulate non-
        fishing activities by vessels that adversely impact fisheries 
        or essential fish habitat (EPH). One of the most damaging 
        activities to such habitat is the anchoring of large vessels 
        near habitat areas of particular concern (HAPQ or other EFH 
        (e.g., coral reefs, etc.). When these ships swing on the chain 
        deployed for anchoring in 100 feet, 20 to 70 acres of bottom 
        may be plowed ug by the chain dragging over the bottom. 
        Regulation of this type of activity by the Councils should be 
        allowed.
         Collection of Economic Data [Section 303(b)(7)]
        Language throughout the M-S Act specifies the collection of 
        biological, economic, and socio-cultural data to meet specific 
        objectives of the Act and for the fishery management councils 
        to consider this information in their deliberations. 
        However,303(b)(7) specifically excludes the collection of 
        economic data, and Section 402(a) precludes Councils from 
        collecting ``proprietary or confidential commercial or 
        financial information.'' NMFS should not be precluded from 
        collecting such proprietary information so long as it is 
        treated as confidential information under Section 402. Without 
        this economic data, multi-disciplinary analyses of fishery 
        management regulations are not possible, preventing WS and the 
        Councils from satisfying--the requirements of the M-S Act and 
        the Regulatory Flexibility Act (RFA). These inconsistencies 
        should be resolved.
        The chairmen recommend amending the M-S Act to eliminate the 
        restrictions on the collection of economic data. Amending 
        Section 303(b)(7) by removing ``other than economic data'' 
        would allow NMFS to require fish processors who first receive 
        fish that are subject to a plan to submit economic data. 
        Removing this current restriction will strengthen the ability 
        of NMFS to collect necessary data and eliminate the appearance 
        of a contradiction in the law requiring economic analyses 
        without allowing collection of the necessary data.
         Confidentialty of Information [Section 402(b)]
        Section 402 replaced and modified former Sections 303(d) and 
        (e). The SFA replaced the word ``statistics'' with the word 
        ``information,'' expanded confidential protection from 
        information submitted in compliance with the requirements of an 
        FMP to information submitted in compliance with any 
        requirements of the Act and broadened the exceptions to 
        confidentiality to allow for disclosure in several new 
        circumstances.
        The following draft language clarifies the word ``information'' 
        in 402(b)(1) and (2) by adding the same parenthetical used in 
        (a), and deletes the provision about observer information. The 
        revised section would read as follows (additions in bold):
        (b) CONFIDENTIALITY OF INFORMATION--
        ``(1) Any information submitted to the Secretary by any person 
        in compliance with any requirement under this Act, and that 
        would disclose proprietary or confidential commercial or 
        financial information regarding fishing operations or fish 
        processing operations shall not be disclosed, except--
        A. to Federal employees and Council employees who are 
        responsible for fishery management plan development and 
        monitoring;
        B. to State or Marine Fisheries Commission employees pursuant 
        to an agreement with the Secretary that prevents public 
        disclosure of the identity or business of any person;
        C. when required by court order;
        D. when such information is used to verify catch under an 
        individual fishing ota program; or
        when the Secretary has obtained written authorizzation from the 
        person submitting such information to release such information 
        to persons for reasons not otherwise provided for in this 
        subsection, and such release does not violate other 
        requirements of this Act.''
    (2) The Secretary shall, by regulation, prescribe such procedures 
as may be necessary to preserve the confidentiality of information 
submitted in compliance with any requirement under this Act, and that 
would disclose proprietary or confidential commercial or financial 
information regarding fishing operations, or fish processing 
operations, except that the Secretary may release or make public any 
such information in any aggregate or summary form which does not 
directly or indirectly disclose the identity or business of any person 
who submits such information. Nothing in this subsection shall be 
interpreted or construed to prevent the use for conservation and 
management purposes by the Secretary or with the approval of the 
Secretary, the Council, of any information submitted in compliance with 
any requirement or regulation under this Act or the use, release, or 
publication of bycatch information pursuant to paragraph (1)(E).
         Enforcement
    The Council chairmen support the implementation of a cooperative 
state/Federal enforcement programs patterned after the NMFS/South 
Carolina enforcement cooperative agreement. While it is not necessary 
to amend the Act to establish such programs it is consistent with the 
changes needed to enhance management under the Act to suggest to 
Congress that they consider establishing and funding such cooperative 
state/Federal programs.
         Council Member Compensation The Act should specify 
        that Council member compensation be based on the General 
        Schedule at includes locality pay. This action would provide 
        for a more equitable salary compensation. Salaries of members 
        serving in Alaska, the Caribbean, and Western Pacific are 
        adjusted by a COLA. The salary of the Federal members of the 
        Councils includes locality pay. The Department of Commerce has 
        issued a legal opinion that prohibits Council members in the 
        continental U.S. from receiving locality pay. Congressional 
        action, therefore, is necessary.
         Observer Program
        The chairmen reaffirm their support to give discretionary 
        authority to the Councils to establish fees to help fund 
        observer programs. This authority would be the same as granted 
        to the North Pacific Council under Section 313 for observers.
         Essential Fish Habitat
        The 1996 Act required the Councils to identify and describe 
        EFH, but gave little direction on how to designate EFH. The EFH 
        definition, i.e., ``those waters and substrate necessary to 
        fish for spawning, breeding, feeding orto maturity,'' allows 
        for a broad interpretation. The EFH Interim Final Rule 
        encouraged Councils to interpret data on relative abundance and 
        distribution for the life history stages of each species in a 
        risk-averse manner. This led to EFH designations that were 
        criticized by some as too far-reaching. ``If everything is 
        designated as essential then nothing is essential,'' was a 
        common theme throughout the EFH designation process, on a 
        national and regional scale. Either the EFH definition should 
        be modified, or the guidance on how to use different types of 
        data should be more specific.
         Rebuilding Periods
        The Councils should have greater latitude for specifying 
        rebuilding periods than is provided under the National Standard 
        Guidelines. Social and economic factors should be given equal 
        or greater consideration in determining schedules that result 
        in the greatest overall net benefit to the Nation.
         Redefine ``Overfishing''
        The chairmen believe there are a number of problems related to 
        MSY-based definitions of overfishing. For example, data 
        deficiencies may lead to inappropriate calculations of MSY, 
        which in turn affect overfishing definitions. Ultimately, this 
        could lead to unnecessary social and economic impacts for 
        fishermen who are subject to measures that are tied to stock 
        rebuilding schedules. While we have no specific recommendations 
        at this time, we would like to work further with the 
        Subcommittee in seeking solutions to our concerns as the 
        reauthorization process proceeds. This is an extremely 
        important issue to the Councils but, through our conversations 
        with NMFS staff, we appreciate that there are varying 
        viewpoints to be considered before we are able to present 
        clear, concise and productive recommendations on what is the 
        foundation of the SFA.
         Receive Funds from any State or Federal Government 
        Organization
        Currently Councils can only receive funds through the 
        Department of Commerce, NOAA or NMFS. The Councils routinely 
        work with other government organizations to support research, 
        workshops, conferences or to procure contractual services. In a 
        number of cases, complex dual contacts, timely pass-throughs 
        and unnecessary administration or grant oversight were required 
        to complete the authority to receive funds or support from 
        other local, state and Federal Government agencies and non-
        profit organizations. This would be consistent with Section 302 
        (f)(4) that requires the Administrator of General Services to 
        provide support to the Councils.
         Bycatch Issues
        There appears to be an inconsistent definition of bycatch, 
        depending on geography in the Atlantic, highly migratory 
        species harvested in catch and release fisheries managed by the 
        Secretary under 304(g) of the Magnuson Stevens Act or the 
        Atlantic Tunas Convention Act are not considered bycatch, but 
        in the Pacific they are. We suggest that highly migratory 
        species in the Pacific, managed under a Western Pacific Council 
        fishery management plan and tagged and released alive under a 
        scientific or recreational fishery tag and release program, 
        should not be considered bycatch.
        Note that there also is an inconsistency between the Magnuson-
        Stevens Act definition of byeatch and the NMFS Bycatch Plan. 
        The NMFS definition is much broader and includes marine mammals 
        and birds and retention of non-target species. The Council 
        chairmen prefer the Magnuson-Stevens Act definition. We also 
        wish to retain turtles in the definition of ``fish'' because of 
        their importance in every region and especially in past and 
        possibly future fisheries pursued by indigenous peoples of the 
        Western Pacific Region.
         FMF Review Program
        The chairmen believe that NMFS, in its review of proposed 
        plans, amendments and framework adjustments, has failed to 
        adequately communicate to the Councils perceived problems in a 
        timely manner. we propose the inclusion of a mandate in the Act 
        to require that NMFS consult with the Councils before 
        disapproving fishery management plans, amendments or changes 
        made through the abbreviated rule-making process.
         NMFS Regional Administrator Emergency Action Vote
        For the purpose of preserving the Secretary's authority to 
        reject a Council's request for emergency or interim action, the 
        NMFS Regional Administrator is currently instructed to cast a 
        negative vote even if he/she supports the action. While we 
        recognize the extreme sensitivity in recommending a change to 
        the voting responsibilities of our partners in the National 
        Marine Fisheries Service--we certainly do not wish to appear to 
        be disparaging the Regional Administrators in any way--the 
        Council chairmen believe that Congressional intent is being 
        violated by this policy. We instead suggest a modification to 
        the language of Section 305(c)(2)(A) as follows (new language 
        in bold):
        (A) The Secretary shall promulgate emergency regulations or 
        interim measures under paragraph (1) to address the emergency 
        or overfishing if the Council, by unanimous vote of the members 
        (excluding the NMFS Regional Administrator) who are voting 
        members, requests the taking of such action; and . . .
         MAFMC At-Large Seat
        The Council chairmen recommend that an additional At-Large seat 
        be added to the Mid-Atlantic Fishery Management Council (MAFMC) 
        along with funding identified for that purpose. Such a seat 
        would, most likely, be filled by an individual from the state 
        of North Carolina. This would allow the state to have both a 
        recreational and commercial representative on the MAFMC.
    Mr. Chairman, I would like to thank you for this opportunity to 
comment on the Magnuson-Stevens Act reauthorization. As I mentioned 
earlier, I'm also happy to answer questions or provide further 
information about the positions taken by the Council chairmen.

    Mr. Saxton. May I just ask you to elaborate on the last 
point that you made relative to the change that you are 
suggesting with regard to the relationship between NMFS and the 
councils?
    Mr. Brancaleone. The last point? You mean the regional 
administrator?
    Mr. Saxton. About emergency action.
    Mr. Brancaleone. Yes. There have been many times where 
everyone sitting around the table at a council meeting feels 
that an emergency action or an interim action is very important 
in the process. The regional administrator is directed to vote 
``No,'' to save the integrity of the Secretary, in the event 
that the Secretary wishes to disagree. However, there are times 
when----
    Mr. Saxton. So there is a standing policy--I am sorry; I 
did not mean to interrupt you, but I want to understand this.
    Mr. Brancaleone. Sure.
    Mr. Saxton. There is a standing policy within NMFS that the 
Secretary's representative is instructed to vote ``No''?
    Mr. Brancaleone. That is my understanding, Mr. Chairman. I 
may be corrected. But that is the usual case at every council 
meeting around the country.
    Mr. Saxton. That seems kind of strange.
    Ms. Dalton. I think the concern is that if there is a 
unanimous vote, then the decision to ask for the emergency rule 
basically becomes binding. And the concern is that the council 
is, in some respects, an advisory body to the Federal 
Government. And there is concern that we retain the ability to 
go back and do the analysis and the determination on the 
emergency rule, without being bound by the law to go ahead in 
accepting the council's recommendation.
    So the only time that that would apply is if there is a 
unanimous vote other than the regional administrator.
    Mr. Saxton. But is it so that there is a policy statement 
that instructs the representative to vote ``No'' in these 
emergency cases?
    Ms. Dalton. I do not know if there is a formal statement. 
And we can find out about that. But I think it has been a 
longstanding kind of informal policy. And the concern is to 
retain the flexibility.
    Mr. Saxton. OK. We understand. I am not sure we agree.
    With regard to highly migratory species, Ms. Dalton, the 
long-line fishery, if you will--or the long-line gear, I guess 
is the correct way to say it. There has been, both within the 
long-line gear industry, as well as in the sport fishing, 
recreational industry, a growing desire to put in place a buy-
out program for long-liners.
    And over the last several years, this has been something 
that has been of great interest to me. And our staff has worked 
very closely with me in monitoring the various steps along the 
way to get there. First, we needed to have you folks put in 
place a limited entry plan, which I understand has now been 
done; to be followed, I thought, or hoped--still do--by a buy-
out program.
    Now, your agency has stated that you do not think you have 
the statutory authority to implement a buy-out program. And I 
find that curious, because we think you do have the statutory 
authority. Can you explain your position?
    Ms. Dalton. OK. I have one request. My deputy administrator 
is here, Dr. Andy Rosenberg, and I want to see if he could join 
me at the table.
    Mr. Saxton. He is welcome.
    Ms. Dalton. Thanks. On that issue, I think there is a 
question. There are specific provisions that apply to highly 
migratory species, and they are done--At least on the Atlantic 
side, they are done by the Secretary, rather than by the 
councils.
    The question that has come up is really a technical 
drafting issue, in the way that the buy-back provisions are 
written; in that it is drafted as a request from the council. 
And the Secretary is not mentioned in the initial provisions.
    So it is not really a policy issue. I think we would be 
supportive of doing a buy-out program. There is the question of 
whether that legal authority needs to be clarified in the 
Magnuson-Stevens Act before we can move forward with it.
    Mr. Saxton. Do these need some technical changes?
    Ms. Dalton. Yes, that would be one way to handle it, would 
be to do the technical changes.
    Mr. Saxton. Do you have to have the technical changes in 
order to proceed?
    Ms. Dalton. We are not sure right now. I mean, it has been 
a question that we have been discussing.
    Mr. Saxton. I think Mr. Rosenberg would like to speak.
    Ms. Dalton. Sure.
    Mr. Rosenberg. Thank you, Mr. Chairman. I think we are 
trying to determine whether to conclude the process we would 
need those technical changes. But we have been working 
intensively with the industry, providing as much information as 
we can, so that we are not waiting for that determination on 
technical changes.
    We are trying to move forward with all aspects, as far as 
we can. And we have had staff working with industry to try to 
develop what the industry proposal would be, the industry 
including recreational proposal would be, for a buy-out 
program, while we try to sort out those technical details.
    Mr. Saxton. Can you describe where you think you are 
currently in the process?
    Ms. Dalton. We recently released information that was 
requested by the long-line fishery, an analysis that was done 
by our Southeast Region and Center, to the industry. One of the 
issues is that they are interested in dealing with it 
legislatively. And so if we deal with it legislatively, we 
would need to wait for that legislative proposal to move on 
through. There is no funding in the budget for doing it. Right 
now, what we have been doing is trying to provide them with the 
support that they would need to develop a proposal.
    Mr. Saxton. Well, this is kind of surprising to me. We have 
been avoiding the legislative route, because we thought you 
were going to do it. And until you and I entered into this 
conversation, right up until now, I thought you were going to 
proceed--I thought that NMFS was going to proceed to implement 
the buy-back program. Is that not the case? I mean, you just 
said that you are waiting for us to do it legislatively?
    Ms. Dalton. Well, there has been draft legislation. I do 
not know that it has primarily been--There is a draft bill that 
Senator Breaux was working on. We have kind of gotten mixed 
signals.
    I think we are willing to work with the industry and 
proceed however folks want to proceed with it. At least some 
indication that we had gotten is that there was interest at 
least on the Senate side in doing it legislatively.
    Mr. Saxton. Well, that is fine. I have no problem with 
doing it legislatively.
    Ms. Dalton. Yes.
    Mr. Saxton. But as I just said, we have been sitting, 
waiting for you to do it, because we thought you were going to. 
A, we thought you had the authority; you are not sure. B, we 
have been literally waiting for the proposal to come down; and 
it is surprising to hear that you are waiting, or counting on 
us.
    Ms. Dalton. Well, no, I think we have been counting on the 
industry to fully develop their proposal more.
    Mr. Saxton. Let me move to a different question. The eight 
regional fishery management councils have taken action to 
describe and identify essential fish habitat by amending the 
fisheries management plans, FMPs, under their jurisdiction. In 
some cases, the entire coastline of an area under the council's 
jurisdiction has been designated as essential fish habitat.
    Did NMFS give the councils adequate guidance in developing 
the essential fish habitat amendments to their fisheries 
management plans? I guess you can both respond to that.
    Ms. Dalton. I think we felt that it was the guidance that 
we could provide. The limitations on essential fish habitat are 
basically the limitations of our understanding. Very often, if 
you look at the definition--that is, the areas that are 
necessary for fish to spawn, grow, breed, or feed--then it does 
encompass very large areas offshore of the ocean.
    The other thing that we anticipate is, as we get more 
information and begin to develop information on essential fish 
habitats, that these will be able to identify the areas that 
really are critical to the continued productivity of the 
fisheries.
    Mr. Saxton. Now, I understand that you have another 
definition, known as ``habitat areas of particular concern''? 
Is that right?
    Ms. Dalton. Do you want to answer that?
    Mr. Rosenberg. Yes, Mr. Chairman, it is. And we have 
encouraged the councils to identify habitat areas of particular 
concern, so that we can focus our attention on those areas that 
we currently know, or believe, are truly critical. That helps 
us prioritize our work with regard to essential fish habitat.
    So the EFH designation is very broad. We have asked 
wherever possible, when we have good information, to identify 
additionally habitat areas of particular concern, so that we 
can focus attention.
    Mr. Saxton. Mr. Rosenberg, we were aware that you had the 
authority to identify essential fish habitat. And frankly, what 
we envisioned 3 years ago was something a little different than 
what actually occurred. We thought you were going to identify 
habitat for a species--bluefish, for example, in the Northeast, 
or whatever species you want, redfish in the Gulf of Mexico, et 
cetera.
    The maps that we have here indicate that the entire East 
Coast and around the tip of Florida into the Gulf of Mexico is 
essential fish habitat; looks like it is several hundred miles 
offshore, I guess.
    And in the case of Alaska, which has drawn concern from at 
least one Member of Congress----
    [Laughter.]
    Mr. Saxton. [continuing] this area, the yellow area, is 
Alaska, and the red area surrounding it is essential fish 
habitat. And the entire Gulf of Mexico and the entire West 
Coast. So I guess our thought was that somebody in NMFS, in 
conjunction with the councils, would identify some special 
areas that were essential for various species, and identify 
some science to support those notions, and then outline some 
areas.
    You know, if we had had this kind of a notion, we could 
have just said in the law that the coastal areas of the United 
States are essential fish habitat, because that is what you all 
did; or at least, that is what it looks like you did.
    Mr. Rosenberg. Mr. Chairman?
    Mr. Saxton. So that is premise No. 1. And premise No. 2, 
then, when we come to the designation of habitat areas of 
particular concern, I guess the second part of this question 
relative to this issue is, we did not know that we had given 
you the authority to make that separate designation.
    So would you explain to us, on the one hand, the broad 
definition that you use for EFH, ``essential fish habitat''; 
and then, where you get the authority to designate ``habitat 
areas of particular concern''?
    Mr. Rosenberg. Mr. Chairman, with regard to the broad-scale 
nature of ``essential fish habitat,'' as Penny said a moment 
ago, some of this relates to the ability to determine what is 
truly essential, in terms of the scientific ability to do that. 
And we recognize that we would like to improve, greatly 
improve, our habitat science.
    But I do need to point out that, for example, with 
bluefish, the area that you showed in your chart is in fact the 
migratory area that bluefish inhabit as juveniles and adults. 
And so it is difficult to say, ``Well, even though they do 
inhabit that area, they do not really need to.'' That is the 
scientific question you would have to answer, of how you could 
constrain the population without injuring the population.
    So in many cases, we have looked at what has been the 
distribution of the stock: Where did they actually go? And once 
you overlap all the various fisheries that we have in the 39 
fishery management plans, it does end up being very broad 
areas.
    We did believe that we have the authority, previous 
authority, in our consultations on habitat concerns prior to 
the amendments in 1996, to identify habitat areas of particular 
concern. And the intent there on the part of the agency was to 
do as you have suggested, and that is focus on those areas that 
we truly know are essential for a particular stock or species; 
not to complicate the picture, but to make sure that the 
councils who are asked to make these identifications, 
proposals, for us, can tell us what they think the highest 
priority areas are for habitat protection, because of the 
broad-scale nature.
    Unfortunately, you know, the answer is that fish live in 
most of the coastal waters. And it is difficult to decide that 
a particular area is not really needed for a given stock, if it 
has historically inhabited that area.
    Mr. Saxton. Mr. Rosenberg, can you explain what type of 
regulatory measures NMFS envisions in implementing these 
special areas?
    Mr. Rosenberg. We do not have additional regulatory 
authority under the essential fish habitat provisions, but the 
councils, in considering those areas, may decide that they want 
to, through their fishery management regulation 
recommendations, focus attention on habitat areas of particular 
concern. And that is something that the councils have done in a 
number of cases.
    As I believe Mr. Brancaleone pointed out, the councils are 
concerned in some cases that when they have focused fishery 
regulations on a particular area of special concern, like a 
coral reef, they and we do not have the authority to deal with 
other impacts, such as anchoring and shipping. So our intent 
there is to, again, provide a mechanism by which in regulation 
we can consider whether fishery regulations are needed for 
those areas; and in consultation on essential fish habitat with 
other agencies, we can advise them of what truly we think are 
the most important problems, based on current information, as 
opposed to more general concerns about impacts on broad-scale 
habitat.
    Ms. Dalton. Just as an additional point, our gear 
restrictions primarily occur in the habitat areas of particular 
concern. We also have more of a tendency to use retention 
restrictions there, too. So they have been used as a regulatory 
mechanism.
    Mr. Saxton. Thank you. Mr. Faleomavaega has joined us, of 
course. And I would like to ask unanimous consent at this point 
that his statement be included in the record at the beginning 
of the hearing, following the Chairman's statement.
    Mr. Faleomavaega, your questions?
    Mr. Faleomavaega. Thank you, Mr. Chairman. And I do 
appreciate your calling this hearing this morning as an 
oversight concerning these two important Congressional 
enactments.
    As a followup of the Chairman's question, I want a little 
more enlightening statements here, if you could just describe. 
When you talk about habitat, and the map that the Chairman had 
indicated to you, Ms. Dalton, we are talking about how many 
miles out? Is it beyond the 200-mile EEZ zone, or within 50 
miles?
    Ms. Dalton. It is hard to tell, but that looks like it is 
probably 200 miles----
    Mr. Faleomavaega. How about Alaska? Is it about 500 miles 
out?
    Ms. Dalton. Is it limited by 200?
    Mr. Faleomavaega. It is about 22 miles?
    Ms. Dalton. Two hundred.
    Mr. Faleomavaega. It is 200 miles?
    Ms. Dalton. Which is the Federal Exclusive Economic Zone.
    Mr. Faleomavaega. Yes. So it is within the EEZ zone. OK. 
And if you were to describe what is an essential habitat, what 
would that be described as, as far as the geography of the 
site? Is that within still the same scope, or is there a 
different definition? What is the difference? If you have an 
essential habitat, what are you talking about?
    Ms. Dalton. Well, that is the essential fish habitat. And 
it is not necessarily a biological definition, as much as it is 
the definition that is in the Act.
    Mr. Faleomavaega. OK. So once it is classified as a 
habitat, it is an essential habitat?
    Ms. Dalton. That is the defined term in the Act, is to 
identify ``essential fish habitat.'' And those are areas that 
are required for fish spawning and feeding and growing.
    Mr. Faleomavaega. We are talking about two acts, the 
Magnuson-Stevens Act and the Sustainable Fisheries Act. What is 
the current cost in the administration of the Magnuson-Stevens 
cost, on an annual basis?
    Ms. Dalton. Our request--We currently are spending about 
$165 million for implementation of the Magnuson-Stevens Act. 
And then our request for next year is just over $168 million. 
The Sustainable Fisheries Act is in large part in a series of 
amendments to the Magnuson-Stevens Act.
    Mr. Faleomavaega. I see. On the status of our regional 
councils, I understand from your recent statement here that 
regional councils are strictly on an advisory basis. They are 
not policymaking bodies?
    Ms. Dalton. No, they really are a unique creature in the 
Federal bureaucracy. The problem is that they do not fit into 
either a category of being an advisory----
    Mr. Faleomavaega. Would you rather get rid of them?
    Ms. Dalton. No.
    Mr. Faleomavaega. No? OK.
    Ms. Dalton. But they do not fit neatly into either an 
advisory status or a Federal status. And those are really the 
only two defined things. They are kind of an amalgam of both. 
So for many situations, again, they are treated as advisory 
groups.
    Mr. Faleomavaega. So when does it become advisory? When 
something really hits the fan, or rubber hits the road?
    Ms. Dalton. Primarily, for administrative purposes.
    Mr. Faleomavaega. Suppose there is an advisory position 
that is different from the Administration position. How would 
such a conflict be resolved?
    Ms. Dalton. That is where we come into the approval and 
disapproval process. We take the recommendations of the 
council. If they meet the requirements of the national 
standards and the other requirements of the Act, then we 
approve them.
    Mr. Faleomavaega. So are we somewhat duplicating our 
efforts here, in having the council do one thing and the NMFS 
doing something else? I mean, where are the positives, as far 
as the relationship? It sounds to me that you are constantly 
fighting each other.
    Ms. Dalton. I do not think we really are constantly 
fighting each other. I think the councils really are a unique 
opportunity to bring in Federal managers together with state 
managers and the stakeholders, to really have a participatory 
process to develop fishery management decisions. And it is 
predicated on the belief that the industry can contribute to 
the regulatory process.
    Mr. Faleomavaega. Is that a fair statement, Mr. 
Commissioner, or Mr. Chairman?
    Mr. Brancaleone. That is a fair statement. But I did want 
to disagree with Ms. Dalton about the councils not being 
policymakers, because in our minds we are policymakers. And we, 
at least in the Northeast, have formed a partnership with the 
National Marine Fisheries Service, and it usually works pretty 
good.
    The only time it does not work good is when everyone 
sitting around the table feels that an emergency action is 
necessary, but someone there has to stymie it for us. And I am 
not saying that that is intentional, but that is exactly what 
happens at times. In my understanding, it is not just the New 
England region; it is all around the country.
    Mr. Faleomavaega. For 3 years now, since we have 
implemented the Sustainable Fisheries Act, Ms. Dalton, do you 
consider the Act worthy of its purpose? Or do you think that it 
is just another added layer of bureaucracy that just starts 
shuffling paper? Or do you think that the Act really is being 
effectively implemented in such a way that it meets the goals 
or the intent of the Congress?
    Ms. Dalton. I may be slightly prejudiced, having spent a 
great deal of time working on developing it, but I think it has 
worked. The biggest problem that we have is that there is going 
to be a time line. We are dealing with issues, we are trying to 
rebuild over-fished stocks, we are beginning to wrestle with 
essential fish habitat and with reducing bycatch. But a lot of 
the decisions that we make now, we will not even see whether 
they work or not for a number of years, particularly in the 
area of rebuilding stocks.
    So what we have tried at this point, I think, is to get all 
of the ground work laid and all of the tools in place for the 
councils and the National Marine Fisheries Service to move 
forward with the implementation.
    Mr. Faleomavaega. It is my understanding that there are 
three basic objectives or intents of the Congress, for the 
reasons why the Congress passed the Magnuson-Stevens Act: To 
reduce the bycatch; to identify and protect habitats; to 
identify and protect and rebuild over-fished fisheries.
    So the Congress then went and passed the Sustainable 
Fisheries Act. Is there a conflict here? Are we duplicating the 
purpose and the intent of the two enactments?
    Ms. Dalton. The Sustainable Fisheries Act, probably 90 
percent of it are amendments to the Magnuson-Stevens Act. And 
the authorities that resided in the Magnuson-Stevens Act, 
probably all of the authorities that were necessary to have 
healthy and sustainable fisheries were in place before the 
Sustainable Fisheries Act was passed.
    What it did was to clarify and provide additional 
procedures to the councils and to the National Marine Fisheries 
Service, and clarify policies that we needed to achieve those 
goals.
    Mr. Faleomavaega. You mentioned that the U.S. had exported 
over $3 billion in the seafood industry. How much have we 
imported in seafood?
    Ms. Dalton. I think it is more.
    Mr. Faleomavaega. How about $7 billion?
    Ms. Dalton. OK.
    Mr. Faleomavaega. Now, I am curious, and this is from a 
layman's point of view. If we are exporting three billion and 
we are importing seven billion, are we making any real serious 
effort to produce fish domestically to meet the demands of the 
American consumer? I mean, why do we have to import $7 billion 
worth of fish or seafood? Why can we not do it domestically, on 
our own?
    Ms. Dalton. And this is one reason why it is so important 
to rebuild fisheries, because we can increase our domestic 
production if we have healthy fisheries. The problem is that we 
have some fisheries that are in trouble and they are not 
producing at the long-term potential yields that they could 
produce. The other thing is that American consumers have a very 
large appetite for seafood.
    Mr. Faleomavaega. How do we compare in our technology, as 
far as the seafood industry is concerned, with other countries?
    Mr. Rosenberg. Congressman, I think we compare extremely 
well. Our companies are extremely competitive. There are other 
countries, of course, that produce large amounts of seafood in 
various areas.
    I do not believe that we could, through natural production, 
meet the entire demand for American consumers. We certainly 
could get closer, if we rebuilt the over-fished fisheries and 
had them producing at their maximum level. But I would suspect 
there always will be some demand for imported products; not 
because we are doing something wrong, but because, you know, 
our appetite for seafood will extend beyond the production of 
our natural system, as augmented by aquaculture and other 
sources--which has been increasing rather dramatically.
    Mr. Faleomavaega. Well, I will withhold further followup on 
that. But just quickly, I note that there were 80 species of 
fish that were listed as being over-fished. Where are we with 
those 80 species, having proper regulations? Are we up to date 
on all that? You do not have to have--I mean, is it pretty 
good?
    Ms. Dalton. I think we have rebuilding plans for 59 species 
at this point. So we are still working on some of them.
    Mr. Faleomavaega. Very essential fish to our industry? That 
is a lot. Eighty species? Like what?
    Mr. Rosenberg. In some cases--I believe we have rebuilding 
plans in place for virtually all of the major species; but 
there would be additional species that are not yet under 
rebuilding. And we are working, of course, under the mandates 
of the Act, to develop rebuilding programs for all species. In 
some cases, some of the ones that do not formally have a 
rebuilding plan are dealt with under other provisions of law, 
or international issues.
    So we do have rebuilding plans, and are making progress on 
many of those over-fished fisheries. But it is quite difficult 
bringing back a natural resources, as I am sure you know.
    Mr. Faleomavaega. We have kicked this issue around now for 
how many years? And I notice also, one of the essential 
elements of the Magnuson-Stevens Act was to look at the problem 
of bycatch. And I think I may have mentioned in previous 
hearings too, Mr. Chairman, the very serious problem of 
bycatch, where total waste is being conducted in the fact that 
these fish are just as good, edible, and yet just being wasted 
out in the ocean when the fishing industry goes out only for 
one particular species, and to the detriment of other fish that 
are just as good for consumption.
    Where are we exactly on the issue of bycatch, as a policy 
in our country? And what are we doing with other countries? 
Because they are probably the worst abusers of this bycatch 
issue that we have been talking about.
    I understand in the billions of dollars worth--billions of 
dollars worth--of fish that is being wasted, or ``bycatch,'' as 
it is commonly known, that people of the world--You know, 
people are starving to death. And yet, this fish is being 
wasted.
    Do we have a definite policy? Are we aggressively pursuing 
this issue with international forums? How do I tell a purse 
seiner coming from San Diego that, ``If you catch three tons of 
fish that are not tuna, go ahead and just throw it overboard''?
    Mr. Rosenberg. Congressman, a lot of the bycatch problems 
are an economic issue. Of course, the reason in some cases that 
fish are thrown overboard, such as the example you gave, is 
because the value of the products is very low relative to the 
target. That is not always the case with bycatch, but it is 
often the case with bycatch.
    We do have domestically and internationally an aggressive 
program. Under the Sustainable Fisheries Act, we are mandated 
to try to minimize bycatch. Under the agreement that we were 
instrumental in promoting within the United Nations, there is 
an international agreement to try to minimize bycatch wherever 
possible. That is the U.N. treaty on straddling fish stocks and 
highly migratory fish stocks. That treaty we expect to come 
into force fairly soon.
    And in addition, in the Food and Agricultural Organization 
of the United Nations, and in all of the regional fishery 
organizations around the world that we participate in, we have 
strongly promoted bycatch reduction measures, to the extent 
possible.
    It still is a large problem. But I do think that we are 
making substantial progress, both internationally and 
domestically. It is a difficult problem, though, not only 
economically, but sometimes it relates to the complications of 
the regulations and so on, which can have impacts on bycatch.
    Mr. Faleomavaega. Thank you very much.
    Ms. Dalton. We do have a document that we can provide you 
that discusses our efforts to diminish bycatch.
    Mr. Faleomavaega. Please. I would appreciate getting a 
copy.
    Mr. Chairman, thank you very much.
    Mr. Saxton. I thank you.
    Mr. Brancaleone. Mr. Chairman, may I just comment on one 
issue that the Congressman brings up?
    Mr. Saxton. Sure.
    Mr. Brancaleone. And it is the redundancy and the 
duplication and the relationship, and how accountable is the 
system----
    Mr. Saxton. Could you do me a favor, and pull the 
microphone just a little closer?
    Mr. Brancaleone. I am sorry.
    Mr. Saxton. Thank you.
    Mr. Brancaleone. And whether the council system is working 
or not. I would like to speak, if I could, as just a taxpayer, 
and not a member of the council, but as one who has fought long 
and hard years ago for the council process. And I would hope 
that no changes in the Act would lead to any deletion of the 
councils. Because in my opinion, it is the expertise on the 
council that is going to bring some sanity to the whole 
process.
    If you put it in light with the issue of emergency action 
and having the regional administrator vote on those actions, 
let me say that Andy Rosenberg and I sat on the council 
together when he was regional administrator. And he and I 
locked horns many times, but we walked away as friends.
    But when you have industry people on the council who feel 
that there is an emergency at hand, and you have, as in our 
case, five state directors who feel there is an emergency at 
hand, and all of those people vote in favor, then it is not the 
time for the regional administrator to vote against it--which 
in my opinion is wrong. But for the most part, we work 
together, hand in hand, especially in the last few years, on 
getting the job done.
    I just wanted to stress that if you do away with the 
councils, then all that the industry has fought for years ago 
with the advent of the 200-mile limit is just going to go down 
the tubes. And I hope that there is not even a consideration of 
that.
    Mr. Saxton. May I just ask you why you think there is a 
notion of doing away with councils?
    Mr. Brancaleone. Well, there are people who feel that there 
are--Maybe I should not even bring it up, but I mean I have 
heard it said that it is a case where the fox is watching the 
chicken coop. And it is so far removed, it is not funny. That 
is not the way it works.
    The whole problem with the council process is that a lot of 
times common sense cannot come into the picture here: You know, 
industry people sitting around the table, who have common sense 
and know the business, know that this is the way to go; but 
people who sit behind desks, or scientists, say, ``No, that is 
not.'' And that is where we butt heads once in a while. But in 
a democracy, as you know, we come to some agreements.
    Mr. Saxton. Just to give you some reassurance, I know of no 
one on the Subcommittee, nor anyone on the full Committee, who 
has any notion of doing away with the council part of the 
partnership. Now, there may be some notion of doing away with 
the other half of the partnership----
    [Laughter.]
    Mr. Saxton. I am glad you are laughing, Penny.
    Mr. Brancaleone, a two-part question: Do you believe the 
definition of ``essential fish habitat'' is too broad in the 
current statute? And was NMFS guidance in the identification of 
``essential fish habitat'' helpful to the council process?
    Mr. Brancaleone. Yes, and yes. Yes, on the first one. And 
they did not give us the guidance they had. And I do not fault 
them for that, because I do not believe they had the 
information. I think that the critical habitats of concern is 
where we have the better information, and that to me is where 
regulation should come in to deal with fish habitat.
    I do not know about other councils, but a lot of our fish 
habitat looked a lot like the maps that you have. And if you go 
back and look at the record, I do not think you will find 
anybody that voted that opposed the essential fish habitat. 
Because it is motherhood and apple pie: Everyone wants to 
protect fish habitat.
    But 3 years ago when this was implemented, we knew it was a 
freight train coming at us. No. 1, we did not have enough data. 
No. 2, we did not have the manpower. No. 3, we did not have the 
money. So nine times out of ten--and no disrespect--when laws 
are made and changed, then there has to be something behind it 
to back it up in the way of financing.
    So again, there are either abstentions or ``Yeses,'' on the 
votes when dealing with essential fish habitat.
    Mr. Saxton. You answered ``Yes'' to the first part of that 
question, and that is interesting. Do you have suggestions as 
to how you think the definition could be improved?
    Mr. Brancaleone. No, we were looking toward coming up with 
some suggestions for you and the National Marine Fisheries 
Service.
    Mr. Saxton. Well, we would certainly appreciate that. Let 
me ask you both kind of a general question, something that 
people that have been in my company have heard me say before. 
As we look at the history of the regulatory process under 
Magnuson-Stevens, if you go around the coast of the United 
States it is easy to pick out examples that have been less than 
successful. And I am not being critical of anybody on this. I 
am only asking this to get some ideas about how we can make the 
process work better from our side.
    But as you look around the coast of the United States, if 
you start in New England and look at the groundfish fishery, we 
promoted consumption. We helped enlarge the fleet. I am saying 
``we.'' The fishermen went out and caught too many fish. The 
fishery collapsed, and then we had to put in place programs to 
help it recover.
    And the same thing happened with striped bass on the East 
Coast of the United States. The same thing happened with 
sharks, is currently going on with the shark fishery. It 
happened with redfish in the Gulf of Mexico. It happened with 
sea urchins on the West Coast. I do not know whether salmon is 
a good example or not, but certainly there is a problem that we 
can point to there.
    And what happens is, we have this cycle that occurs: We 
promote consumption; fishermen go out, sometimes with our help 
from financial aid; the fishery collapses; and then we have a 
success, we call it a success, when the fishery recovers. That 
is a cycle that we ought not to see so often. Is there anything 
in the law, is there anything in Magnuson-Stevens, that you 
would like to see to help us get ahead of these collapses that 
seem to occur so often?
    Ms. Dalton. I think there are a couple of things that are 
in there now. One is the report that we do every year that 
basically does the assessment and kind of gives you a heads-up 
on what fisheries are getting into problems.
    We probably also need to see if there are some things that 
we can do to act more proactively when we have got a new stock 
of fish, or a stock is coming back that has been depleted for a 
long period of time, to proactively get ahead of the fleet, so 
that they are not making the investment and then we are forcing 
them out of business, or cutting back on them, or making it 
difficult for them to make a living.
    We need somehow to match up the capacity and the resource 
on a long-term basis. And that is basically what we are trying 
to do with these rebuilding programs, so that we do not have 
too many fishermen chasing too few fish. Because as long as we 
do have that situation, we are creating economic hardship, and 
we are also going to make management decisions excruciatingly 
difficult.
    The question is going to be now, for species like striped 
bass: We have brought them back; can we keep them back? And I 
do not know. Personally, I am optimistic that this is really an 
evolutionary process, and we are learning as we develop each of 
these different fishery management plans on what the best way 
to manage the resource is, and how to keep it in better 
condition.
    Mr. Saxton. Do you have any specific suggestions on 
legislative changes that need to be made?
    Ms. Dalton. Probably, the biggest thing that we need is to 
encourage improvements of the scientific basis for management 
decisions. And I will let Andy chime in on this.
    Mr. Rosenberg. Thank you. Mr. Chairman, I think the 
scientific basis is a very important consideration. But I would 
also point out, in one of the reports that was produced under 
the Sustainable Fisheries Act, that report on ecosystem 
management by the National Research Council, they also discuss 
the idea of, if you like, precautionary management plans for 
resources that may not yet be--or umbrella management plans. 
Not necessarily because you are trying to address a problem, 
but because you want to prevent one in the future.
    And ight now, the focus of the Act certainly is on 
addressing problems such as over-fished stocks that need 
rebuilding. Although it is allowed, there is not the mandate to 
implement management plans for stocks that are newly exploited, 
or have not been exploited in some time. And I believe Joe 
Brancaleone has a good example in New England of the herring 
stock. Now the council has worked toward providing a new 
herring management plan, because that stock is at very high 
levels. The same thing with mackerel in the mid-Atlantic.
    But those discussions are extraordinarily difficult, 
because people are not very willing to accept restrictions on a 
stock that is in very healthy condition and in fact could 
benefit by fishing down. So if we had greater ability to move 
forward under a mandate for precautionary management plans, or 
the idea suggested in the ecosystem report, that would probably 
address in part some of the problem that you have raised, sir.
    Mr. Saxton. Mr. Brancaleone, would you like to comment?
    Mr. Brancaleone. I am sitting here racking my brain, Mr. 
Chairman, as to what changes might be made in the Act. And 
frankly, I do not know what they could be.
    Mr. Saxton. Let me ask this specific question. One of the 
things that I find kind of ironic is that we have legislated at 
least two general goals. One is to promote consumption; and the 
other is to conserve fish. Is that as much of a conflict in 
your jobs as it appears to me to be?
    Mr. Brancaleone. No, because I think if we do our jobs and 
we conserve fish, then we will have enough as far as 
consumption. I do not see that as a problem.
    Mr. Saxton. Well, why do you have to promote consumption? I 
am a little bit lost. Years ago, maybe we had to promote the 
consumption of chicken. Years ago, maybe we needed--When I was 
a kid, my mom used to promote the consumption of broccoli. When 
I go to the fish store today and pay $10 a pound for fish, it 
seems to me that there is pretty good demand for fish.
    Mr. Brancaleone. Depends on what you are buying, Mr. 
Chairman. Years ago, we were promoting pollock----
    Mr. Saxton. Yes.
    Mr. Brancaleone. [continuing] which was a trash fish.
    Mr. Saxton. And--excuse me--we did promote the consumption 
of shark, didn't we?
    Mr. Brancaleone. I do not know. I think so.
    Ms. Dalton. Yes.
    Mr. Saxton. Yes. I mean, we even issued pamphlets with 
recipes for shark meat. Now look what we did to shark. Does 
that not create a conflict? I mean, you identify an under-
fished fishery, shark; promote the consumption of shark; and 
now the fishery is in danger, if it has not already collapsed.
    Mr. Brancaleone. If you had promoted the consumption of 
shark, and we stayed with using--what do they call it?--
harpooning, we would still have a lot of sharks around. The 
problem is the fishermen become too efficient in what they do.
    Mr. Saxton. Well, of course.
    Mr. Brancaleone. I mean, and that is the name of the game 
to them. Their concern is making money. And just as technology 
goes, they are going to go, too. So again, I do not think that 
that is the problem. I think it is just having the guts to do 
what you have to do to conserve fish. And I mean, that is 
evident in New England lately.
    Mr. Saxton. But does it not make it harder to conserve 
fish? I am not trying to argue. You know more about this than I 
do. You have been in it for a long time.
    I have another job here. I am the Chairman of the Joint 
Economic Committee. And we talk a lot about supply and demand, 
and what demand does for the economy. And in the world of 
fisheries, every time we increase the demand for fish, we 
increase the likelihood that more people want to go and be 
involved in the industry and catch more fish. Because the price 
goes up because the demand goes up, and it becomes profitable, 
and so we find more fishing pressure as a result of the demand.
    And I find it kind of ironic that we have all these 
problems with fish conservation, and yet the very agency that 
is supposed to be carrying out the conservation efforts also is 
in charge of creating demand.
    Ms. Dalton. I think at this point, though, we spend almost 
no resources or dollars on promoting consumption.
    Mr. Saxton. That made me feel better.
    Ms. Dalton. Yes. I think things like that, we do do things 
with the industry if there is a market for a product overseas, 
to help them get through the bureaucratic hurdles that they 
need to do. There also was a move a few years ago to make 
seafood eligible under the Ag-Marketing Act, and I think they 
probably do more to promote seafood than we do at this point.
    Mr. Saxton. I have just been handed a note. The real 
problem--and you can respond to this--the real problem is the 
lack of science for making sure demand does not outstrip 
conservation. Is that a fair statement?
    Ms. Dalton. That is a huge problem for us. And that is what 
we need to keep working to improve, the scientific basis for 
our management decisions.
    Mr. Saxton. Mr. Brancaleone, would you like to comment?
    Mr. Brancaleone. Just I echo what Penny just said.
    Mr. Saxton. I would like to ask a question on behalf of Mr. 
Gilchrest, who could not be here today. The question is: Why 
does North Carolina need an additional seat on the Mid-Atlantic 
Council?
    [Laughter.]
    Mr. Brancaleone. Most of the states have an at-large seat 
and an obligatory seat. And in the last reauthorization, North 
Carolina was given an obligatory seat on the Mid-Atlantic 
Council. And there are members who feel that that is not 
proper; that they should have an opportunity to have an at-
large seat as well as an obligatory seat.
    Mr. Saxton. Thank you.
    Mr. Brancaleone. You are welcome.
    Mr. Saxton. Mr. Brancaleone, the issue of using maximal 
sustainable yield as a fishery management target has caused 
confusion in many fisheries. How does NMFS use maximal 
sustainable yield? And should this concept be replaced with a 
more concrete target?
    Mr. Brancaleone. I will let the Service answer how they use 
it, Mr. Chairman, if I may. But as you see in my statement from 
all of the chairmen, we disagree with the use of the MSY. 
Again, we do not have any specific recommendations for you, but 
we are working on getting that for you. And we want to work 
with you to come up with something else.
    Mr. Saxton. Penny, do you want to comment?
    Ms. Dalton. I am sorry, I missed the question.
    Mr. Saxton. Is MSY working well, and should it be replaced 
with a more concrete target?
    Ms. Dalton. I think that one we will turn over to Dr. 
Rosenberg.
    Mr. Saxton. OK.
    Mr. Rosenberg. Mr. Chairman, I think in general MSY is 
working well. I think it is important to realize that MSY is a 
reference point that fishery scientists have developed. You 
could use alternative reference points. Probably it would 
change slightly the specifics of how over-fishing definitions 
and rebuilding programs would look, but it probably would not 
change the overall need to ensure that you are not over-
harvesting the stock.
    The MSY is fairly straightforward in terms of how it is 
calculated, based on the available data. Sometimes the data is 
rather scanty to actually calculate it, but that would be true 
for most reference points. So in some ways, I think people are 
concerned that the use of the concept of MSY is the culprit, 
and I am not really sure that that is the case. As long as we 
want to have some kind of a clear measure of whether we are 
over-fishing or not, you need to have a reference point. MSY is 
one example of a reference point, and I do not believe that 
changing to a different version would really help very much.
    Of course, there was a substantial change in 1996 of 
requiring that there be a very clear definition of over-fishing 
in the Act. And the alternative would be go to back the other 
direction and have a more nebulous concept of over-fishing, and 
I do not think that that would actually help in the process of 
rebuilding the over-fished stocks. Thank you.
    Mr. Saxton. I have a letter here from the North Pacific 
Council, and they note here that MSY is not definable in every 
fishery. Can you elucidate on that for us?
    Mr. Rosenberg. While I do not agree with the statement 
technically, I think you may not be able to estimate it in 
every fishery, because you may not have sufficient data 
available; although it is likely that you can make an estimate, 
with varying degrees of uncertainty, for most every fishery.
    That would be true if you chose another reference point, as 
well. What we have done in terms of implementing the provisions 
for defining over-fishing based on MSY is, we have said that 
you should use MSY, and if you do not have sufficient 
information you should develop a proxy. In other words, do the 
best you can to try to meet the intent of defining an over-
fishing standard based on MSY. And in fact, I think we have 
been very successful at that in the various fisheries around 
the country.
    So the basis is not as rigid as some people have 
interpreted, because we have specifically in our guidelines 
said in those cases where you do not think you have sufficient 
information, use a proxy. And there are many well-known proxies 
for portions of that definition. For example, long-term average 
landings in some cases is used as a proxy for MSY. And for most 
fisheries we have something like that.
    There are problem areas, but it is based on the data, 
rather than the concept, I believe.
    Mr. Saxton. OK. Well, listen, I want to thank all of you 
very much for being with us this morning. I just want to ask 
unanimous consent at this point that other members who may not 
have been able to make it here today may submit their 
statements for the record.
    [The statement of Mr. Pallone follows:]
    Mr. Saxton. In addition, there may be some other questions 
that we will want to submit to you in writing. And if you would 
be so kind as to respond to those, we would appreciate it.
    [The information follows:]
    Mr. Saxton. And I would just like to remind everyone that 
this is the first of several hearings on the Magnuson-Stevens 
reauthorization, and we look forward to working with you 
through the process. Thank you very much. And the hearing is 
adjourned.
    [Whereupon, at 12:22 p.m., the Subcommittee was adjourned.]
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