[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
H.R. 4749, THE MAGNUSON-STEVENS ACT AMENDMENTS OF 2002
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
May 2, 2002
__________
Serial No. 107-111
__________
Printed for the use of the Committee on Resources
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COMMITTEE ON RESOURCES
JAMES V. HANSEN, Utah, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska, George Miller, California
Vice Chairman Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana Dale E. Kildee, Michigan
Jim Saxton, New Jersey Peter A. DeFazio, Oregon
Elton Gallegly, California Eni F.H. Faleomavaega, American
John J. Duncan, Jr., Tennessee Samoa
Joel Hefley, Colorado Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado Calvin M. Dooley, California
Richard W. Pombo, California Robert A. Underwood, Guam
Barbara Cubin, Wyoming Adam Smith, Washington
George Radanovich, California Donna M. Christensen, Virgin
Walter B. Jones, Jr., North Islands
Carolina Ron Kind, Wisconsin
Mac Thornberry, Texas Jay Inslee, Washington
Chris Cannon, Utah Grace F. Napolitano, California
John E. Peterson, Pennsylvania Tom Udall, New Mexico
Bob Schaffer, Colorado Mark Udall, Colorado
Jim Gibbons, Nevada Rush D. Holt, New Jersey
Mark E. Souder, Indiana James P. McGovern, Massachusetts
Greg Walden, Oregon Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho Hilda L. Solis, California
Thomas G. Tancredo, Colorado Brad Carson, Oklahoma
J.D. Hayworth, Arizona Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
Tim Stewart, Chief of Staff
Lisa Pittman, Chief Counsel/Deputy Chief of Staff
Steven T. Petersen, Deputy Chief Counsel
Michael S. Twinchek, Chief Clerk
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
SUBCOMMITTE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS
WAYNE T. GILCHREST, Maryland, Chairman
ROBERT A. UNDERWOOD, Guam, Ranking Democrat Member
Don Young, Alaska Eni F.H. Faleomavaega, American
W.J. ``Billy'' Tauzin, Louisiana Samoa
Jim Saxton, New Jersey, Neil Abercrombie, Hawaii
Vice Chairman Solomon P. Ortiz, Texas
Richard W. Pombo, California Frank Pallone, Jr., New Jersey
Walter B. Jones, Jr., North
Carolina
------
C O N T E N T S
----------
Page
Hearing held on May 2, 2002...................................... 1
Statement of Members:
Farr, Hon. Sam, a Representative in Congress from the State
of California.............................................. 17
Prepared statement of.................................... 21
Frank, Hon. Barney, a Representative in Congress from the
State of Massachusetts..................................... 9
Prepared statement of.................................... 13
Gilchrest, Hon. Wayne T., a Representative in Congress from
the State of Maryland, Prepared statement of............... 1
Grucci, Hon. Felix J., Jr., a Representative in Congress from
the State of New York...................................... 6
Prepared statement of.................................... 7
Hefley, Hon. Joel, a Representative in Congress from the
State of Colorado.......................................... 13
Prepared statement of.................................... 15
Saxton, Hon. Jim, a Representative in Congress from the State
of New Jersey.............................................. 7
Prepared statement of.................................... 8
Underwood, Hon. Robert A., a Delegate in Congress from Guam,
Prepared statement of...................................... 2
Young, Hon. Don, a Representative in Congress from the State
of Alaska.................................................. 2
Prepared statement of.................................... 5
Statement of Witnesses:
Grader, W.F. ``Zeke'' Jr., Executive Director, Pacific Coast
Federation of Fishermen's Associations..................... 87
Prepared statement of.................................... 89
Hayes, Robert G., General Counsel, Coastal Conservation
Association................................................ 62
Prepared statement of.................................... 64
Hogarth, Dr. William T., Assistant Administrator for
Fisheries, National Oceanic and Atmospheric Administration,
U.S. Department of Commerce................................ 24
Prepared statement of.................................... 26
Houde, Dr. Edward D., Professor, University of Maryland
Center for Environmental Science........................... 55
Prepared statement of.................................... 57
Leape, Gerald, Marine Conservation Program Director, National
Environmental Trust, on behalf of the Marine Fish
Conservation Network....................................... 68
Prepared statement of.................................... 70
LeBlanc, Justin, Vice President, Government Relations,
National Fisheries Institute............................... 81
Prepared statement of.................................... 83
Savage, Ricks E., Chairman, Mid-Atlantic Fishery Management
Council.................................................... 30
Prepared statement of.................................... 33
LEGISLATIVE HEARING ON H.R. 4749, THE MAGNUSON-STEVENS ACT AMENDMENTS
OF 2002
----------
Thursday, May 2, 2002
U.S. House of Representatives
Subcommittee on Fisheries Conservation, Wildlife and Oceans
Committee on Resources
Washington, DC
----------
The Subcommittee met, pursuant to call, at 2:06 p.m., in
room 1334, Longworth House Office Building, Hon. Wayne T.
Gilchrest [Chairman of the Subcommittee] presiding.
Mr. Gilchrest. The Subcommittee on Fisheries Conservation,
Wildlife and Oceans will come to order. I apologize to the
Chairman of the Transportation Committee for being late. My
watch said 10 to 2. My wife set it this morning.
I want to thank the Members for coming to testify at our
Magnuson-Stevens hearing. I ask unanimous consent that my
statement be included in the record.
[The prepared statement of Mr. Gilchrest follows:]
Statement of The Honorable Wayne Gilchrest, Chairman, Subcommittee on
Fisheries Conservation, Wildlife and Oceans
I would like to welcome our witnesses today. As most of you know,
the reauthorization of the Magnuson-Stevens Fishery Conservation and
Management Act has been one of the top priorities of the Subcommittee.
We have held six hearings during the 107th Congress on various aspects
of the reauthorization. Following these hearings, I have attempted to
identify the most pressing problems with domestic fisheries management
and those areas of the Act that needed to be strengthened. The bill
that was released as a Discussion Draft was the result of that effort.
I released it as a Discussion Draft because I wanted to solicit input
before I introduced the bill. I look forward to all of your comments on
the Discussion Draft.
Let me start by saying that I believe the Act is fundamentally
good. The basic provisions give guidance to the Councils and the
Secretary but provide flexibility to the regions to address problems
and situations in different manners. The legislation we are looking at
today is designed to give the Secretary and the Councils a nudge in the
directions we believe are important--rather than writing provisions
that will result in more lawsuits.
I have attempted to determine what areas of fisheries management
still need improvement and which of these areas are the most important
and pressing. I have taken a prudent approach and attempted to address
these areas in a realistic manner--again to provide guidance with
flexibility.
The current Magnuson-Stevens Act is a balancing act. There is a
balance between the needs of the fish and the economic needs of the
fishermen and the fishing communities. There is a balance between the
various components of the marine ecosystem. There is a balance between
the various and often competing users of the resource. I have attempted
to maintain this balance, with the goal of restoring overfished
populations and moving toward ecosystem-based management.
I look forward to the testimony of the witnesses and hope that we
can have a constructive discussion that will lead to a comprehensive
reauthorization that will continue to move us toward better management
of the Nation's fishery resources.
______
Mr. Gilchrest. I ask unanimous consent that Mr. Underwood's
statement be included in the record.
[The prepared statement of Mr. Underwood follows:]
Statement of The Honorable Robert A. Underwood, a Delegate in Congress
from Guam
Thank you Mr. Chairman for holding this hearing today and for your
continued leadership on this very important issue. I also appreciate
your ongoing efforts to ensure the sustainability of our marine
fisheries now and in the future. We cannot underestimate the importance
of this goal.
Just yesterday, the National Marine Fisheries Service released it
annual--albeit six months late--Status of U.S. Fisheries report. The
good news is, for the first time since the report has been released,
the number of stocks categorized as overfished has actually declined.
The bad news is, there are still more than 90 stocks in trouble, and
our work is far from done. Perhaps of just as much concern is the
hundreds of stocks for which we have no information and are currently
classified as ``unknown''. How long can fishing on these stocks
continue before they too become overfished?
Still, the decline in the number of overfished stocks that we know
about is a good thing, and it highlights a very important point.
Conservation measures to rebuild fisheries--however difficult they may
be--do work, and when they do, both the fish and the fishermen benefit.
Given that, and given the significant number of fisheries still in
trouble, now is not the time to undermine our commitment to rebuilding
these stocks. I am sure you would agree Mr. Chairman, and I look
forward to working with you to ensure that the legislation moving
through this Committee does not weaken the current law, and provides
the tools necessary to restore our marine fisheries.
I am concerned, Mr. Chairman, that there has not been sufficient
time for review of the proposed bill by the broad range of interests,
including the fishing industry in the Western Pacific, who will all be
impacted by any changes to the Magnuson Act that are put in place. I
hope we can work together to ensure that there is adequate opportunity
for input from all interested parties before we move this proposal or
any bill to mark up.
Again, I thank you for your efforts and dedication to the
protection of our marine environment.
______
Mr. Gilchrest. We look forward to your testimony, and I
yield now to the Chairman of the Transportation Committee, Mr.
Don Young.
STATEMENT OF THE HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ALASKA
Mr. Young. I thank the Chairman. And I am also the Vice
Chairman of the Resources Committee. I want to make sure you
remember that, Mr. Chairman, because it is crucially important
as time goes by, if you don't catch that, I hope you all--
Mr. Gilchrest. What was that again?
Mr. Young. I am still Vice Chairman of the Resources; so,
anyway, thank you, Mr. Chairman.
I do appreciate the effort that went into your bill. You
tried to find compromise on some important fishery management
issues and I would like to compliment you on this effort. I
think it has been a legitimate, well-done effort. While I
recognize the lengths you have gone to to find the balance,
there are a few areas I would like to go a little further in
the bill.
While I think the Sustainable Fisheries Act was essentially
a good Act, it has led to more lawsuits under the Magnuson-
Stevens Act than ever before. With this reauthorization, we
need to make certain we are not allowing new lawsuits. We must
also change the provisions in the current Act that are leading
to lawsuits. Fisheries management should not be done by the
courts.
As I mentioned, I think, Mr. Chairman, you have done a
great job and are on the right track with this bill. There are
a few provisions that need further work, in my opinion. In
particular, I know the issue of adding birds to the definition
of bycatch has been discussed by the environmental community.
However, I am curious what effect this will have in the real
world. Longliners in the North Pacific and the Bering Sea have
taken many measures to reduce bird bycatch. I am very concerned
that adding birds to the definition of bycatch would force more
restrictions on fishermen when other causes of bird mortality
can't be addressed by the Councils or the National Marine
Fisheries Service.
Listen to that very carefully. If this was being included
in the bycatch, they can eliminate the Councils and the works
of the National Marine Fisheries Service of accomplishing the
goal.
The Essential Fish Habitat provision in this draft bill is
a step in the right direction in getting this provision back on
track. When the Resources Committee passed this language in
1995, I understood, we understood that this provision would be
used to identify discrete areas that were necessary, and let me
emphasize that word necessary, for specific fish species. I
never, we never envisioned that the agency would warp the idea
so much that we now have huge areas of the oceans identified as
EFH. It disturbs me that with little or no science, huge areas
are designated EFH. The Act then requires reductions in gear
impacts when we aren't even sure if it is necessary habitat.
Because EFH is so broadly identified and the Act requires
Councils to minimize adverse impacts caused by fishing, they
will be tied up for years trying to figure out the impacts of
all the gear types on all different habitat types designated as
EFH. Either that, or the Councils or the agency will be in
court explaining to a judge why the mandate is impossible to
meet with the current information levels. Had I known or had we
known that would be the outcome, I probably would not have let
the Senate bill get to the House floor at the end of the 104th
Congress. This is an example of good intentions with bad
implementation.
At this point I would recommend we redraft the existing EFH
provision to get the agency to go back to square one and try to
get it right this time. I know this may not be a popular idea,
but we never envisioned such a bureaucratic nightmare and
lawsuit magnet. I know one way to limit it is to eliminate the
law schools and we wouldn't have this problem. Especially when
we attempted to do the right thing--remember, we attempted to
do the right thing by giving fisheries habitat some protection.
I find it outrageous that some environmental groups are telling
Congress not to review or make changes to the EFH language
because their lawsuits now have the agency in compliance with
the regulations. It is comments like that which lead me to
think we need to overhaul the total bill. The requirement that
gear impacts on EFH be modified is a real problem. While I do
believe Councils should do this, making it a requirement is
asking for lawsuits and gear battles over allocation. We are
already beginning to see the results of that.
My good friend Congressman Hunter has introduced
legislation to ban longline gear on the West Coast. This is a
blatant attempt by recreational fishing groups to hide behind
habitat concerns to get rid of the group they compete against
for allocations. It has nothing to do with habitat protection.
Now I have my good friend sitting at the table, Mr. Hefley,
who has worked with me all these years, has introduced
legislation that will ban certain types of bottom gear. While
this may be a sincere attempt to protect habitat, I believe it
will actually have the opposite effect. I think this is an
attempt to remove one gear type from the fishery so that others
can harvest those fish.
While well intentioned, Mr. Hefley, your bill does not
differentiate between effects of bottom gear or sandy bottom
where the effects may be temporary or insignificant and the
effects on what might really be sensitive habitat. It takes
these important decisions out of the hands of the regional
Fishery Management Councils and bans a specific type of fishing
gear everywhere.
Again the Council, the North Pacific Council, which is my
Council, has implemented time and area closures for bottom gear
to minimize the impact on truly sensitive habitat. I believe
you, Mr. Hefley, have recognized that blanket calls by
environmental groups for an outright ban on snow mobiles are a
problem, so I would hope you would understand that an outright
ban on bottom gear will have a huge economic impact on my
fishermen and it really creates problems.
Putting aside the economic impacts, by the way, it would be
about $185 million just off the coast of Alaska. Think about
it, $185 million just off the coast of Alaska. The bill may
actually have the reverse effect of its stated purpose and may
actually encourage the use of smaller roller gear which may
cause more damage to the sensitive habitat. I believe we ought
to rely on the Council. The Council in my area has done an
outstanding job, not at the whims of competing gear groups that
are more worried about allocation than habitat, or by the
environmental community trying to tie the agency up in knots,
consequently destroying the fisheries.
Again, Mr. Chairman, I look forward to working with you. In
crafting this bill, I think we have come a long ways. I think
we have a little further to go to make sure it is a good bill.
I again go back to EFH language authorizing action against
virtually every commercial fishery in the country for such
violations as catching fish, rocks, mud, worm tubes or clumps
of seaweed. This is being implemented by the agency under the
current EFH provisions. I really want you to reconsider what we
have done by a piece of legislation that was really well
intended--and I voted for it, you voted for it. It was the
right way to go and it is completely out of whack at this time,
and consequently, Mr. Chairman, we have a ways to go on your
legislation. I am willing to work with you, but let us get
facts on the table.
And, finally, I look forward to the testimony from the
witnesses. Thank you, Mr. Chairman.
[The prepared statement of Mr. Young follows:]
Statement of The Honorable Don Young, a Representative in Congress from
the State of Alaska
Chairman Gilchrest, I appreciate the effort that went into the
draft bill. You tried to find compromise on some important fishery
management issues and I would like to compliment you for this effort.
While I recognize the lengths you have gone to find balance, there are
still a few areas where I would like the bill to go further.
While I think the Sustainable Fisheries Act was essentially a good
Act, it has led to more lawsuits under the Magnuson-Stevens Act than
ever before. With this reauthorization, we need to make certain we are
not allowing new lawsuits, and we must also change the provisions in
the current Act that are leading to lawsuits. Fisheries management
should not be done by the courts.
As I mentioned, I think Chairman Gilchrest is on the right track
with this bill. There are a few provisions that need further work in my
opinion. In particular, I know the issue of adding birds to the
definition of bycatch has been discussed by the environmental
community, however, I am curious what effect this will have in the real
world. Longliners in the North Pacific and the Bering Sea have taken
many measures to reduce bird bycatch. I am very concerned that adding
birds to the definition of bycatch would force more restrictions on
fishermen when other causes of bird mortality can't be addressed by the
Councils or the National Marine Fisheries Service.
The Essential Fish Habitat provision in this draft bill is a step
in the right direction to getting this provision back on track. When
the Resources Committee passed language in 1995, we understood that
this provision would be used to identify discrete areas that were
``necessary''--and let me emphasize that word ``necessary''--for
specific fish species. We never envisioned that the agency would warp
the idea so much that we have huge areas of the oceans identified as
EFH. It disturbs me that with little or no science, huge areas are
designated EFH. The Act then requires reductions in gear impacts when
we aren't even sure if its ``necessary'' habitat.
Because EFH is so broadly identified and the Act requires Councils
to minimize adverse impacts caused by fishing, they will be tied up for
years trying to figure out the impacts of all the gear types on all of
the different habitat types designated as EFH. Either that or the
Councils or the Agency will be in court explaining to a judge why the
mandate is impossible to meet with the current information levels. Had
I known that would be the outcome, I probably would not have let the
Senate bill get to the House Floor at the end of the 104th Congress.
At this point, I would recommend that we redraft the existing EFH
provision to get the agency to go back to square one and try to get it
right this time. I know that may not be a popular idea, but we never
envisioned such a bureaucratic nightmare and lawsuit magnet when we
attempted to do the right thing by giving fisheries habitat some
protection. I find it outrageous that some environmental groups are
telling Congress to not review or make changes to the EFH language
because their lawsuits now have the Agency in compliance with the
regulations. It is comments like that which lead me to think we need to
overhaul the language.
The requirement that gear impacts on EFH be modified is a real
problem. While I do believe Councils should do this, making it a
requirement is asking for lawsuits and gear battles over allocation. We
are already seeing the results of that. Congressman Hunter has
introduced legislation to ban longline gear on the West Coast. This is
a blatant attempt by recreational fishing groups to hide behind habitat
concerns to get rid of the group they compete against for allocations.
It has nothing to do with habitat protection.
Congressman Hefley has introduced legislation that will ban certain
types of bottom gear. While this may be a sincere attempt to protect
habitat, I believe it will actually have the opposite effect. I think
this is an attempt to remove one gear type from the fishery so that
others can harvest those fish.
While well intentioned, the Helfey bill does not differentiate
between effects of bottom gear on sandy bottom where the effects may be
temporary or insignificant and the effects on what might truly be
sensitive habitat. It takes these important decisions out of the hands
of the Regional Fishery Management Councils and bans a specific type of
fishing gear everywhere. Again, my council, the North Pacific Council,
has implemented time/area closures to allow bottom gear, but minimize
its impact on truly sensitive habitat.
I believe Mr. Hefley has recognized that blanket calls by
environmental groups for an outright ban on snowmobiles are a problem
so I would hope he would understand that an outright ban on bottom
gear--which will have a huge economic impact on my fishermen--has
problems. Putting aside the economic impacts (which are estimated to be
in the neighborhood of $185 million just off Alaska), the bill may
actually have the reverse affect of its stated purpose and may actually
encourage the use of smaller roller gear which may cause more damage to
sensitive habitat.
The issue of dealing with effects of specific gear on sensitive
habitat needs to be dealt with at the Council level and based on good
science--not on the whims of competing gear groups that are more
worried about allocation than habitat or by the environmental community
trying to tie the agency up in knots.
I look forward to working with Chairman Gilchrest to craft a bill
that will eliminate lawsuits and create better fisheries management
based on good science. I think this draft bill is a step in the right
direction.
______
Mr. Gilchrest. Thank you, Mr. Young. Your statement is
heard loud, clear, and understood. We will continue to work on
this legislation to ensure fundamentally sound language for the
conservation of the resources in the ocean for the present
generation and future generations, and to the extent that we
can reduce the energy that goes into lawsuits and increase the
energy and efficiency that goes into conservation of the
oceans, I look forward to working with you on those particular
particulars.
And I yield to Mr. Grucci. I ask unanimous consent that
Congressman Grucci be allowed to sit with us in the
Subcommittee and ask questions.
Mr. Grucci, do you have any opening remarks?
STATEMENT OF THE HON. FELIX J. GRUCCI, JR., A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW YORK
Mr. Grucci. Yes, Mr. Chairman, and I appreciate your
graciousness in allowing me to sit in on this hearing today.
Thank you, Mr. Chairman, for allowing me to hear testimony
on this very important issue. My district lies in eastern Long
Island and is the home of many hard-working commercial
fishermen. These men and women work long and difficult hours to
retain a vital industry for Long Island. These commercial
fishermen bring over $150 million into the economy of New York
and the surrounding area. I am deeply concerned about the great
deal of rulemaking and regulation decisions made by the
National Marine Fisheries Service in the area of commercial
fishing. Too often huge tracts of waters are being closed
hastily and based on questionable scientific finding.
I am happy to support Chairman Tauzin's Fisheries Science
Improvement Act and I look forward to the ensuing debate on
this important legislation.
Commercial fishermen have been vigilant stewards of the
waters they fish following the many difficult and complex
regulations as well as adapting to the closing of waters time
after time. It is important that we keep in mind not only the
livelihood of the fishery but also of the fishermen. Economic
viability and well-being of the many fishing communities along
our coastlines, commercial fishermen are already subject to too
many complex laws regarding gear, bad limits, days at sea, to
mention just a few.
I am deeply concerned about the growing trend of rulemaking
decisions by the National Marine Fisheries Service.
Thank you very much for the opportunity to be with you and
I yield back the remainder of my time.
[The prepared statement of Mr. Grucci follows:]
Statement of The Honorable Felix J. Grucci, Jr., a Representative in
Congress from the State of New York
Thank you Mr. Chairman. I appreciate your graciousness in allowing
me to sit in with your Subcommittee today and hear testimony on this
very important issue.
My district lies at the Eastern End of Long Island and is the home
of many hard working commercial fishermen. These men and women work
long and difficult hours to retain a vital industry for Long Island.
These commercial fisherman bring over $150 million into the economy of
New York and the surrounding area.
I am deeply concerned about the great deal of rulemaking and
regulation decisions made by the National Marine Fisheries Service in
the area of commercial fishing. Too often, huge tracts of waters are
being closed hastily and based on questionable scientific findings. I
am happy to support Chairman Tauzin's Fisheries Science Improvement Act
and look forward to the ensuing debate on this important legislation.
Commercial fisherman have been vigilant stewards of the waters they
fish, following the many difficult and complex regulations, as well as
adapting to the closing of waters time after time. It is important that
we keep in mind not only the livelihood of the fishery, but also the
fishermen.
______
Mr. Gilchrest. Thank you Mr. Grucci.
Mr. Saxton.
STATEMENT OF THE HON. JIM SAXTON, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW JERSEY
Mr. Saxton. Thank you, Mr. Chairman. It is good to be here.
I just wanted to make a short opening statement. Let me say
first I am a co-sponsor of Mr. Hefley's bill and I have to
apologize to my friend Mr. Hefley whose bill I have co-
sponsored. I forgot to tell you that when we wrote that bill,
we had to put a paragraph in it to exempt Alaska. I am sorry.
Mr. Hefley. My mistake.
Mr. Young. I told you.
Mr. Saxton. Mr. Chairman, thank you for holding this
hearing today. I think it is very timely and important. I am
particularly pleased with the Highly Migratory Species section
of the draft Magnuson-Stevens bill in which the Secretary would
be required within 1 year to report to Congress on any nation
that is fishing in the Atlantic for HMS and is not in
compliance with the conservation management provisions or
rebuilding recommendations enacted by the international
management body.
The report will also include recommendations for action the
U.S. could take to ensure such compliance. This issue is
important, as you know. We are making some progress on some
highly migratory species, particularly swordfish. However, I
continue to remain concerned. In the last Congress we came
close to having--we did have agreement, but we didn't have
funding for a bill which I thought as a compromise measure
would provide real conservation for highly migratory species.
We did not get it enacted because of the funding provisions,
and I continue to be concerned. The white marlin population
continues to fall, and there are those who are considering
listing it as an endangered species. That is dangerous for the
entire Atlantic fishery because essentially it means that
anyone who is in a fishery that takes a white marlin bycatch
would be prohibited from fishing; not a good thing. So I hope
we can continue to look at ways to address this issue, as it is
extremely important not only to those who are immediately
involved in the fishery but to others who would suffer great
economic hardship were the various fisheries involved in white
marlin bycatch to be essentially put out of business.
So, Mr. Chairman, this is an important issue for my
district as I know it is for yours, and I ask that my entire
statement be put in the record.
Mr. Gilchrest. Without objection so ordered. Thank you Mr.
Saxton.
[The prepared statement of Mr. Saxton follows:]
Statement of The Honorable Jim Saxton, a Representative in Congress
from the State of New Jersey
Mr. Chairman, members of the subcommittee, I am pleased to be here
today to discuss this very important reauthorization, the Magnuson-
Stevens Act. I believe Mr Gilchrest's discussion draft bill is a good
first step to begin the discussions on this important piece of
conservation legislation.
I am particularly pleased with the Highly Migratory Species section
of the draft bill, in which the Secretary would be required, within one
year, to report to Congress on any nation that is fishing for Atlantic
HMS and is not in compliance with the conservation and management
provisions or any rebuilding recommendations enacted by the
international management body. The report will also include
recommendations for action the U.S. could take to ensure such
compliance.
This issue, as you know, continues to be extremely important. We
stand at an historic crossroads for the conservation of highly
migratory species (HMS).
The effective management of Atlantic HMS is one of the most complex
and difficult challenges facing the National Marine Fisheries Service.
These species range widely throughout international waters and the
jurisdictions of many coastal nations with diverse political
perspectives on how to properly utilize and manage this valuable
resource.
As you know, the Magnuson-Stevens Fishery Conservation and
Management Act, passed in 1976 is the primary law dealing with
fisheries resources and fishing activities in Federal waters (those
waters extending from the edge of State waters to the 200-mile limit).
The primary goals of the Magnuson-Stevens Act are the conservation
and management of the U.S. fishery resources, the development of U.S.
domestic fisheries and the phasing out of foreign activities within the
200-mile fisheries conservation zone adjacent to the U.S. coastline.
This area became known as the Exclusive Economic Zone (EEZ) following a
1983 proclamation by President Reagan.
I recognize that there will likely be issues of disagreement to be
worked out among all the many and varied players in this
reauthorization, but this is a good first step toward ensuring this
important piece of legislation remains an integral part of fisheries
management.
It is of the utmost importance that today, more than ever, we work
diligently to ensure our world's fisheries populations are maintained
at sustainable levels. If we fail to protect them, there are some
species that may disappear forever, which would be tragic.
Thank you.
______
Mr. Gilchrest. Gentlemen, thank you for your patience this
afternoon.
Mr. Frank, you may begin.
STATEMENT OF THE HON. BARNEY FRANK, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MASSACHUSETTS
Mr. Frank. Thank you, Mr. Chairman. I became really
involved with fishing in 1992 when, thanks to redistricting, I
became the representative for the city of New Bedford and
surrounding areas, which is a major fishing area, and I had not
been previously involved here. And I have to say I just have
one suggestion, looking at that painting behind you, if you
were to borrow John Ashcroft's blue cloth, I think it would be
put to better use over here than at the Justice Department. It
is a little weird, that painting.
But as to fishing, I am here really in a situation of some
distress, really. And I appreciate the remarks of the former
Chairman of the Full Committee, the Chairman of the
Transportation Committee, when he talks about a bill that was
passed and did not seem to many of us to be what it has been
subsequently interpreted to be in a number of areas.
A Federal judge just issued an order that will have a
devastating effect on the fishery in New England, just
devastating, far beyond what good science requires, far beyond
what responsible environmentalism requires. Indeed, one of the
plaintiff organizations in this lawsuit, the Conservation Law
Foundation, which has hardly been in the forefront of defending
the fishing industry, worked out an agreement with some of the
defendants for a set of restrictions, and the judge went far
beyond that and rejected that, and I thought that went too far.
So I appreciate your willingness, Mr. Chairman, to take on
what is not going to be an easy job, and I mean this genuinely.
Even people who have some disagreement with some aspects of
your bill appreciate your willingness to see that we meet our
responsibilities, and I believe we as the Congress have a
responsibility to reauthorize and redraft that bill somewhat
this year.
I have some specific concerns. One that has become a real
problem for us is the definition of overfishing, and we have a
definition of overfishing that I have been convinced is really
unrealistic and unnecessary. When we talk about the maximum
sustainable yield, that obviously goes beyond sustainable
yield. There is a debate about what is maximum sustainable
yield. One of the things I am going to ask unanimous consent to
submit as part of my testimony is a very good article by a man
named Brian Rothschild, who runs the program at the University
of Massachusetts-Dartmouth for the study of fishing in which
he, I think, makes some very good points about the mistaken
assumption that everything that affects the fish stock has to
do with the amount of fishing. There is a cyclicality he points
out to this that doesn't get taken into our definition.
[The information referred to follows:]
Comments on Current Fisheries Managment
by Brian Rothschild
Our institutional framework for managing the Nations fish stocks is
not working. The opportunity to provide informed stewardship of our
fisheries resources and to protect the livelihoods and investments of
those engaged in harvesting, processing, and selling fish is at stake.
The breakdown in the institutional framework is expensive in terms of
the burgeoning costs of management, revenues foregone, waste, and
community welfare.
Two recent events exemplify the breakdown of the framework. First,
last month the New England Fishery Management Council decided not-to-
decide on management measures for the thought-to-be depleted Gulf of
Maine cod stock. The decision not-to-decide leaves Gulf of Maine cod
management in a state of confusion and, in effect, eliminates the
possibility that the mandated consideration of adverse economic impacts
on the community can be vetted among those who are most effected. The
management regulations are no longer in the hands of those concerned
with the welfare of the region; rather, they are now in the hands of
the U.S. Secretary of Commerce. Second, on December 28, U.S. District
Court Judge Gladys Kessler agreed with plaintiffs (the Conservation Law
Foundation, the Center for Marine Conservation, the National Audubon
Society, and the Natural Resources Defense Council) that the Secretary
of Commerce and its agencies'the National Oceanic and Atmospheric
Administration and the National Marine Fisheries Service had failed to
comply with the provisions of the Magnuson-Steven's Act and the
Sustainable Fisheries Act (SFA) to prevent overfishing and minimize
bycatch in the waters of New England. In other words, the Judge
essentially ruled that the federal agency has failed to implement a
major part of its responsibility.
At the confluence of these events, the judge has ordered the
Secretary and the plaintiffs to participate in a conference on January
28, 2002. At the conference, the judge will mandate a remedy or course
of action to be taken by the Secretary. Her decision is a double-edged
sword. On one edge, the decision puts the Secretary on notice that the
laws of the land cannot be ignored by an agency charged with their
implementation. On the other edge, it highlights the fact that while
well-meaning, aspects of the legislation and the way parts of it have
been interpreted by the agency do not pass the test of common sense and
scientific understanding. Because of this implementation that follows
the sense of the pertinent legislation may border on the impossible.
In order to analyze the situation it is necessary to briefly review
the evolution of the legislation that governs federal fishery
management. The Fishery Conservation and Management Act of 1976 was the
ground-breaking legislation that formed the foundation for the
presently operable Magnuson-Stevens Act. The 1976 Act declared U.S.
jurisdiction over the stocks of fish out to 200 miles off our coasts,
essentially eliminating the huge foreign fleets that fished in our
waters. The Act also established what Senator Warren Magnuson called a
new form of governance. This new form of governance was a breath of
fresh air. It advocated the use of scientific rationality to manage the
stocks and to give those who would be most affected by management
decisions a say in the management process.
To accomplish these common-sense goals, the 1976 Act established
eight regional councils to advise the Secretary of Commerce on fishery
management measures. Each council's management advice is based on the
development of a management plan for each species or mix of species.
The management plans needed to be consistent with National Standards
described in the Act. These Standards today mandate the following: 1)
Conservation and management measures shall prevent overfishing while
achieving optimum yield; 2) conservation and management measures shall
be based upon the best scientific information available; 3) individual
stocks of fish shall be managed as a unit throughout its range; 4)
conservation and management measures shall not discriminate between
residents of different States; 5) conservation and management measures
shall consider efficiency in the utilization of fishery resources; 6)
conservation and management measures shall take into account and allow
for variations among, and contingencies in, fisheries, fishery
resources, and catches; 7) conservation and management measures shall
minimize costs and avoid unnecessary duplication; 8) conservation and
management measures shall, consistent with the conservation
requirements of this Act (including the prevention of overfishing and
rebuilding of overfished stocks), take into account the importance of
fishery resources to fishing communities in order to A) provide for the
sustained participation of such communities, and B) to the extent
practicable, minimize adverse economic impacts on such communities; 9)
conservation and management measures shall, to the extent practicable,
A) minimize bycatch and B) to the extent bycatch cannot be avoided,
minimize the mortality of such bycatch; 10) conservation and management
measures shall, to the extent practicable, promote the safety of human
life at sea.
Thus, the nation set forth in 1976 in a new era of rational fishery
management. Managers were armed with a directive to develop management
plans involving each stock. Further, the National Standards provided a
benchmark for the adequacy of management plans not initially at the
centralized federal bureaucratic level, but in the context of local
needs by regional fishery management councils.
However, by 1996 the provisions of the 1976 legislation and its
descendent, the Magnuson-Stevens Act was thought to not fully protect
the stocks of fish and, as a consequence, the requirements for
``conservation'' and the Secretary and Councils were ratcheted up. The
ratcheting was embodied in the Sustainable Fisheries Act in 1996. This
Act required the Secretary of Commerce to not only prevent overfishing
but to also rebuild depleted stocks and to report, assess, and minimize
bycatch.
This very cursory background enables us to begin to understand the
institutional problems that plague the public interest in implementing
fishery management. Let us illustrate with an analysis of a few of the
National Standards. First, those that know the technical aspects of
fisheries-management theory agree that some of the most important
Standards are extremely difficult to apply in the real world. Second, a
strictly interpreted application of some Standards can easily constrain
the attainment of other Standards. Because of the interrelationship
among the National Standards, carefully reasoned judgments must be made
in order to achieve balance among the Standards. Without this balance,
fishery management plans are counterproductive.
Take the issue of ``overfishing,'' for example. How do we determine
whether or not a stock is overfished? It may come as a surprise to
many, but biological overfishing is technically only clearly
identifiable for a small set of stocks where the theory of fishing, or
the data at hand, actually reflect that stock abundance (i.e.,
reproduction and productivity) will materially decline with increased
fishing effort. In fact, because overfishing is so difficult to
identify, various proxies have been derived to artificially (more or
less) indicate whether a stock is overfished. There are plenty of cases
where the theory predicts that increased fishing will cause only an
inconsequential decline in stock size and the data are often
sufficiently variable that an optimal level of fishing (i.e., maximum
sustained yield) cannot be resolved. Put another way, it is difficult
to determine whether many stocks are overfished.
Even more importantly, calculations that conventionally determine
whether or not a stock is overfished do not take into account
environmental variability, even though we are mandated to do so by the
National Standards. Environmentally induced variability in a fish stock
is often difficult to separate from fishing-induced variability.
Nevertheless, it is clear that major fluctuations in fish stock
abundance are commonly driven as much by a changing environment as by
the influence of fishing. We know from a reasonable number of stocks
observed prior to industrialized fishing, that stock abundances
fluctuate substantially in response to natural environmental changes.
Today, any downward fluctuation in a stock is attributed to so-called
overfishing, while any increase is termed a management success. These
assertions are obviously made ignoring environmental effects a view
akin to that held by the folks who do not believe in global warming. As
we will point out, the present inability to clearly separate
environmentally driven changes from those that owe to fishing
challenges the rationality of attempting to rebuild stocks.
Even the issue of obtaining the best scientific advice has become
warped. The National Standards direct us to base our declarations of
overfishing on the best scientific information available.
Unfortunately, the best scientific information delivered to management
councils is now interpreted as a level of fishing mortality (for
example) cited by the scientific community. This is not sufficient
scientific advice. Overfishing estimates need to be accompanied by a
description of the often great uncertainties associated with the
estimates.
The Councils are mandated to take into account possible adverse
economic impact of regulations. However, as implied above the councils
cannot consider each National Standard in a vacuum absent of the other
Standards. The Standards need to be balanced. If the difficulties in
defining overfishing as described above are not fully vetted before a
Council, then how can it balance the relation between the priority
prevention of overfishing and adverse economic impact?
The SFA presents specific problems that need to be rectified. The
SFA changes the balance of the National Standards that exists in the
Magnuson Stevens Act. Because the SFA focuses on preventing
overfishing, rebuilding stocks, and bycatch issues, the pendulum of
legal concern swings from a balance among the National Standards to a
focus on the hard-to-define overfishing standard. The biggest problem
in the SFA is the concept of rebuilding. The concept of rebuilding
leads to arbitrary management measures. The idea is that a so-called
depleted stock should be rebuilt to some past level of abundance. The
past level is identified and used as a target. When the stock reaches
this past level of abundance it is considered to be rebuilt. Typically,
the highest level of past abundance is chosen. However, it is not known
whether this past level of high abundance was the result of extremely
favorable environmental events, a reduced level of fishing, or the
result of a complex interaction between these factors. As a
consequence, rebuilding goals can easily be set which have small
likelihood of ever being attained. This situation results in arbitrary
management measures that drift from the hands of local and regional
into the hands of the federal government.
This vignette gives us a glimpse at the foundations of
institutional failure. To bring us back into the arena of ``wise use''
stewardship, we have to reexamine the implementation of our legislation
to make sure that it really is following the intent of Congress.
However, we also need to examine the legislation, particularly the SFA
to determine whether it is technically possible to achieve its
extremely admirable goals. I am afraid that the SFA has taken us beyond
the information that we have available (and are likely to ever have, at
least in the near term) and as a consequence it can lead only to
arbitrary fisheries management regulations. This arbitrary regulation
spurns and suppresses fishing communities. Without a buy-in by fishing
communities we have lost the opportunity for stewardship.
The issues described above are just the tip of the iceberg. The
public good demands a sweeping review of the practicality of the SFA
and implementation of fishery management policy. This must be an
essential task for the new administration and the new Administrator of
NOAA.
But what do we do in the meantime? Judge Kessler had no opportunity
to make an alternative judgment because the issue before her was so
narrowly framed and in the eyes of the law it appears that the
Secretary has done nothing to move the management process forward.
Other judges faced with related cases have probably with great
frustration'developed a narrowly focused remedy to deal with the
complaint. To do so in this particular case, however, would be to
ignore the breadth of the several National Standards and the
legislative history that mandates local involvement. Accordingly, it
would make sense for the Judge to require the Council to reconsider the
Gulf of Maine cod management plan in a timely way. In its
reconsideration, the Council needs to take full and explicit account of
the quality of data and the nature of the analysis that led to the
estimation of an extraordinarily high fishing mortality rate. The
Council also needs to recognize the fact that the Gulf of Maine cod is
not a single stock but migrates back and forth from Georges Bank,
mingling with the so-called Georges Bank stock. In their deliberations,
the Council needs to be encouraged by the Secretary of Commerce to
balance all of the National Standards and to focus on expediting the
framing of regulations.
The conservation organizations need to realize that without support
from the fishing community, the fishery management process will not
work, at least not in a way that is cost effective. The conservation
community needs to embrace the idea of wise use of fishery resources.
The conservation community needs to advocate 1) the collection of
adequate, reasonably accurate, easily retrievable data; 2) advances in
the approaches that convert these data into management decisions
approaches that equally take into account the ocean environment, its
interaction with fish stocks, and are based upon modern operations-
research techniques; and 3) an environmental research program to
understand more fully the factors that induce fish populations to vary.
Most importantly, these programs for New England need to be undertaken
in the context of the mixed-species trawl fishery, which exemplifies
the technical challenges that we have before us in managing fish
stocks.
______
Mr. Frank. We have a situation where we use this definition
where the stock can be increasing and it will still be held to
be overfished and cut back very drastically even when it is
increasing to a sustainable point, and I think that definition
has to be taken into account.
The bill set out a variety of factors that were supposed to
be balanced, and in practice it hasn't been balanced. In
practice, the legitimate economic concerns of communities and
individuals has been subordinated. The statute, at least by the
judge who recently decided it, was turned into kind of an
absolutism that wasn't there.
I hear the bells. I don't want to interfere with my
colleagues. I will be submitting some further testimony, but I
believe we are in a situation now, and I do agree with the
gentleman from Alaska that the lawsuits and the threat of
lawsuits have become a problem.
Mr. Frank. I had a very good conversation with the
administrator today who I think is trying to do a good thing in
a particular area and the threat of a lawsuit, particularly,
frankly, in a region where a Federal judge just gave a somewhat
draconian decision disrupts the procedure and there needs to be
more play in these--the question of sustainability. The
question of the fishery is a more complex one than has been
interpreted by some of these authors.
Finally, I want to express the opposition of a substantial
number of the people I represent are really quite strong to the
IFQ situation. They really feel--and fishing is an industry
where there are a lot of smaller independent people, and they
are very concerned about the implication of greater
concentration that could result if you get into this. I will
amplify those, but having heard the bells, I will cut it off
now and thank you for this opportunity.
Mr. Gilchrest. Thank you, Mr. Frank. Your full statement
will be included in the record.
[The prepared statement of Mr. Frank follows:]
Statement of The Honorable Barney Frank, a Representative in Congress
from the State of Massachusetts
The author of the following article, Brian Rothschild, is the
Director of the School for Marine Sciences and Technology (SMAST) at
the University of Massachusetts Dartmouth. The attached article was
published in the New Bedford Standard-Times in January of this year.
Under the leadership of Dr. Rothschild, SMAST conducted independent
research on scallop stocks in 2000. That research demonstrated that, as
argued by New Bedford area fishermen, the stocks were more abundant
than government statistics had indicated. Dr. Rothschild then played a
key role in persuading the National Marine Fisheries Service to
incorporate these findings into its analysis of the scallop stocks. As
a result, less severe restrictions than originally planned were put in
place for the fishery.
______
Mr. Gilchrest. Mr. Hefley
STATEMENT OF THE HON. JOEL HEFLEY, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF COLORADO
Mr. Hefley. Mr. Chairman and Committee, thank you. Although
it is with some fear and trepidation that I testify after
hearing Chairman's Young's opening statement--
Mr. Gilchrest. Is your mike on, Joel?
Mr. Hefley. I am sorry.
Mr. Young. I wasn't going to tell you.
Mr. Hefley. You weren't. Jim is absolutely right. I don't
know how I could have neglected exempting Alaska from this.
But, Mr. Chairman, in your statement earlier you talked
about the fisheries being sustained for us and for our
descendants and for their descendants and that is what I am
talking about with this bill. It is one thing if you overfish
and then it may take them a long time to get the populations
back up. It is quite another if you destroy the habitat and
that may never recover. So what I am talking about here is the
habitat, not about overfishing. And I do have a complete
statement that I would like to ask that it be put into the
record and I will summarize it.
Mr. Gilchrest. Without objection.
Mr. Hefley. I got interested in this several years ago when
I simply read an article in the newspaper. What do I know about
ocean fishing? I know how to catch trout and catfish, but what
I know about ocean fishing--but it piqued my interest because
it made the statement that every year worldwide an area
equivalent to the size of the Lower 48 states--and, see, Don,
also Alaska is exempted from that. The Lower 48 states was
being subjected to bottom trawling each year with an impact
equal to that of clearcutting the forest.
Now I know about clearcutting forests because we had that
out in the West and I hate it. It is ugly and I know managers
tell you sometime that is a good idea, but I don't find it a
good idea. So I became concerned and that is kind of the reason
I got into this and I began to do research and tried to learn
as much as I could about it, with still not nearly the
expertise that you have on this panel. But we do love the
oceans. I have loved the opportunity since being in Washington
to experience, Mr. Chairman, your Chesapeake Bay and what a
wonderful asset that is to the United States. We vacation every
year at Edisto Island in South Carolina where we get a little
bit of an ocean experience, and I applaud the Chairman for what
you have done to try to clean up the bay and bring it back, and
enormous progress has been made.
So when I looked into this further, it appeared to me that
there was something that should be done about this if we are
actually destroying the habitat, and there is a lot of
scientific evidence that we are. Currently bottom trawling as
is currently practiced I think is shortsighted. It can maximize
the take for bottom fishermen, no question about that, but it
can leave an environment sterile of the species that associate
with structured habitat during some stages of their life,
including the juvenile Atlantic cod, the lobster, and the
Pacific rock fish.
Some recent studies have suggested that the reason Atlantic
cod are not rebuilding as quickly as expected is because they
depend on structured habitat for protection when they are
juveniles. Without that habitat, the juveniles have nowhere to
hide and are quickly eaten by predators. So in the last
Congress, I introduced the Seabed Protection Act. That bill
would have placed a moratorium on fishing in 16 areas along the
Atlantic, Pacific and Gulf Coasts. It served mainly as a shot
across the bow of the NMFS which had been ordered by Congress
in 1996 to study and manage the impacts of bottom trawling, but
which 5 years later appears little has been done, if anything.
This year we took a different approach. This particular
bill, 4003, is narrowly tailored to protect the most bottom
structure and sustainable habitat while having a minimal impact
on bottom trawlers who use the large rollers and rockhoppers to
gain access to these sensitive areas. It does this by limiting
the size of these gear to 8 inches in diameter or less. The
bill mimics State and regional law. All 18 coastal States have
structurally complex habitat, and 5 of the 8 Federal Fishery
Management Councils have begun to limit the size of rollers and
rockhoppers or have outright banned bottom trawling. This bill
would ensure uniform regulation.
As a member of the Resources Committee, I have listened to
many debates over the years about commercial activities on
public lands. I believe in a multiple use process. I believe in
fishing. I believe in commercial fishing. And, in fact, fishing
disputes were at the heart of the American Revolution, or one
of them. Crab cakes and clam chowder are just as American as
apple pie. But I fear that unless we do something to preserve
the seabed environment, we won't have a fishing industry in 20
years, and if that happens, we will not only have lost jobs,
but we will have lost a part of our heritage.
This bill is supported by a wide array of environmental
organizations, recreational and commercial fishing groups that
recognize this destruction must be stopped. Therefore, I
encourage the inclusion of H.R. 4003 in the reauthorization of
the Magnuson-Stevens Act.
With that, Mr. Chairman, I would conclude, and appreciate
the opportunity to be with you.
[The prepared statement of Mr. Hefley follows:]
Statement of The Honorable Joel Hefley, a Representative in Congress
from the State of Colorado
Mr. Chairman, I'd like to thank you for the opportunity to give
testimony today on my bill, H.R. 4003, the Ocean Habitat Protection
Act.
This subject first caught my interest more than three years ago
with an article in my local newspaper, the Colorado Springs Gazette
Telegraph. At a December 14, 1998 press conference, representatives of
the American Oceans Campaign and the Marine Conservation Biology
Institute said that, worldwide, an area equivalent to twice the size of
the lower 48 states was being subjected to bottom trawling each year
with an effect equal to that of clear-cutting a forest.
I was concerned by that word picture. While I represent--or perhaps
because I represent--a district in a land-locked state, I have always
been fascinated by the sea. My family and I regularly vacation at
Edisto Island in South Carolina and I've enjoyed my time on the
Chesapeake Bay in Maryland. I applaud and support the efforts made by
the chairman and others to restore the health of the Chesapeake Bay.
Based on what I have read, the ecological impacts of bottom-
trawling are every bit as bad as those which have crippled the
Chesapeake. Worse than mere over-fishing, bottom-trawling can
completely alter the series composition, shifting from species such as
snapper or grouper to flounder and dogfish. The practice seems short-
sighted for, while bottom-trawling can maximize the take of bottom
fishermen, it can leave an environment sterile of species that
associate with structured habitat during some stages of their life,
including juvenile Atlantic cod, lobster and Pacific rockfish species.
Recent studies suggest part of the reason that Atlantic cod are not
rebuilding as quickly as expected is because they depend on structured
habitat for protection while they are small juveniles. Without
structured habitat, the juveniles are unable to hide and are quickly
eaten by predators long before they reach reproductive age.
Because of this, in the last Congress I introduced H.R. 3059, the
Seabed Protection Act. H.R. 3059 would have placed a moratorium on the
use of bottom trawls and dredges in 16 key areas considered essential
for maintaining fisheries and other marine life until the Secretary of
Commerce determined that the impacts of dredging on the productivity of
fisheries, marine life and seafloor habitat were negligible. That bill
attracted 14 bipartisan cosponsors.
H.R. 3059 was a shot across the bow of the National Marine
Fisheries Service and its regional fishery management councils. The
1996 Sustainable Fisheries Act amendments to the Magnuson-Stevens
Fishery Conservation and Management Act, NMFS had been directed to
study the impact of bottom-trawling and develop ways to ensure that the
practice proceeded in a manner that was self-sustaining. Yet five years
after these mandates, NMFS had yet to issue a policy on the subject.
At the beginning of this Congress, I planned to reintroduce H.R.
3059; my goal had always been to have its measures included in the
larger Magnuson-Stevens Act. But, after deliberation and discussion
with those groups that have supported my efforts, we decided to take a
different approach and focus on the most damaging type of bottom gear,
which is responsible for wiping out the last safe havens for fish in
the oceans. My new bill, H.R. 4003, is narrowly tailored to protect the
most bottom structure and sustainable habitat while having a minimal
impact on bottom trawlers who use large rollers and rockhoppers to gain
access to these sensitive habitats. Rather than terrifying the fishing
industry by shutting down designated areas while the NMFS took an
indeterminate amount of time to develop a policy, we decided to develop
legislation which would eliminate the gear which was causing the
problem. The bill that emerged was H.R. 4003, the Ocean Habitat
Protection Act.
H.R. 4003 would protect complex, rocky seabed habitats by
restricting the use of rollers and rockhoppers more than eight inches
in diameter and rockhoppers. Until the 1980s, bottom-trawling was used
mainly to harvest haddock and other species that inhabit sandy, mud and
small gravel sea floor habitats. But, as with so many things, the
technology improved and trawlers began to direct their efforts to these
complex areas they had previously avoided or had been unable to access.
These newly accessible areas provide homes to living structures such as
sea anemones, sponges and deep-sea corals and often serve as settlement
and nursery areas for juvenile groundfish and crustaceans of commercial
and recreational importance. The new method of improved trawling
improved fishing yields but left many of these complex areas barren of
species that depend on structure.
When there is no place for fish to hide,'' says Jeff Hutchings of
Dalhousie University, ``we can devastate entire populations. There is
evidence that severely overexploited populations may not recover, even
decades after depletion.'' Large rollers and rockhoppers, similar to
the large drift-nets that have been banned due to the needless
destruction that they cause, flatten precious and unique species like
deep-sea corals, homogenize seafloor habitat and leave fish that depend
on structured habitat with no place to hide.
On March 18, the National Academy of Sciences issued a report on
the effects of bottom-trawling. The report stated that bottom-trawling
had different effects on different types of bottom habitats. Recovery
times also varied but the NAS study concluded that some sensitive areas
would require so long a period of time to recover as to be
irrecoverable.
The NAS report also gave NMFS a conclusion that sounded a lot like
that heard before wolves were released into Yellowstone, namely that
there was no need for further study of the issue. Enough data already
exists to properly manage fisheries and bottom-trawling.
The lack of area-specific studies on the effect of trawling and
dredging gear is insufficient justification to postpone management of
fishing effects on sea floor habitat,'' the report said.
My bill mimics trends at the state and regional level. All 18
coastal states with structurally complex habitat and five of the eight
federal fishery management councils have begun to limit the size of
rollers and rockhoppers or have outright banned bottom trawling. The
problem is, we now have a complicated set of regulations that only
apply to certain fisheries, areas and times, and leave much complexly
structured habitat unprotected.
At the present time, the bill has 15 cosponsors and the support of
the Recreational Fishing Alliance, the West Coast Fishing Alliance, The
Ocean Conservancy, Friends of the Earth, the Natural Resources Defense
Council, Oceana and the American Oceans Campaign, the Marine
Conservation Biology Institute, the National Environmental Trust, the
National Coalition for Marine Conservation, Fish Forever a nd the
Jersey Coast Anglers Association, among others. I'd like to enter into
the record of full record my bill's supporters and cosponsors.
I am often asked why I, a congressman from a landlocked state,
would have such an interest in ocean fishing and bottom-trawling. I
answer that I like to fish. But, aside from that, it's because I don't
have a commercial stake in this issue. I don't have to answer to a
vocal fishing industry in Colorado. But I can appreciate that something
has to be done.
As a member of the Resources Committee, I have listened to many
debates concerning commercial activities on our public lands and,
generally speaking, I support the multiple-use of those lands. The
Forest Service used to put up signs that read ``A Land of Many Uses.''
I believe that's the way it should be.
The nation's forests are beautiful but they've also yielded timber
that provided jobs for Americans and lumber for homes and furniture.
When we eliminate lumbering--either by regulation or by overcutting--we
are not just eliminating jobs, we're cutting out a part of our
heritage.
So it is with the fishing banks, as well. I don't have to tell any
of you about the place the commercial and recreational fishing
industries hold in this country's history. Fishing factored into the
reasons for the American Revolution and in the works of Herman Melville
and Jack London. And, it may be argued that crabcakes, cod and clam
chowder are at least as American as apple pie. I fear that, unless we
take steps to preserve the environment that sustains our fishing
industry, we won't have one in 20 years. And with that, we will not
only have lost jobs but a part of our heritage. The Ocean Habitat
Protection Act is endorsed by a wide array of environmental
organizations and recreational and commercial fishing groups that
recognize that the devastation must be stopped. And that is why I urge
your inclusion of H.R. 4003 in the re-authorization of the Magnuson-
Stevens Act.
Again, thank you for hearing my testimony.
______
Mr. Gilchrest. Thank you, Mr. Hefley. We have a vote going
on, but we have time for Mr. Farr's testimony before we leave.
So, Mr. Farr, you may begin.
STATEMENT OF THE HON. SAM FARR, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Farr. Thank you very much, Mr. Chairman. I appreciate
the opportunity to continue to work with you. I am really
pleased that your hard work on Chesapeake Bay is so matched by
the hard work that I am trying to do on the Monterey Bay. I
would like to point out that Jean-Michel Cousteau was here the
other day and he said our oceans are sick. The patient is the
world, and the lungs of the world, the oceans, are not doing
well, and we see this all the time. I probably represent a
greater diversity of marine scientists and fishermen, and even
fisheries in my district, compared with any other district,
just tons of marine schools and fishing ports. The problem is
that we find from the National Marine Fisheries Services, who
just 2 weeks ago released their fish stock assessment, that
only two fish stocks have improved since last year. The number
of overfished stocks has declined, but overall things are not
getting any better.
We have about 950 fish stocks in the ocean. We know the
status of less than a third of these stocks. Of the 304 on
which we have some information, over 30 percent are overfished
or rapidly heading that way. I think that those of us who have
been on this Committee, and I sit now on the Agriculture
Appropriations Committee, are very interested in
sustainability. How do we continue the fishery business and
continue our agriculture business while sustaining the
environment that raises the plants and animals of the planet?
I have introduced a bill, H.R. 2570, the Fisheries Recovery
Act, to amend the Magnuson-Stevens Act. It has 71 co-sponsors,
and I think that this issue is important to the Committee
members on both sides of the aisle. I don't know if we have
enough time, but I wanted to go through and make some comments
on your bill, on your draft, that I think would be
constructive.
The fishermen in my district--
Mr. Gilchrest. Mr. Farr, if you do feel rushed, you can be
the first witness when we come back from the vote, if you would
like.
Mr. Farr. Why don't we start there. I will come back and
start with the discussion on your draft, which I think would be
constructive.
Mr. Gilchrest. We will do that. And Mr. Hefley and Mr.
Frank, I know the issue is definition of overfishing,
precautionary approach, maximum sustainable yield, conservation
versus--
Mr. Frank. Don't worry, Mr. Chairman. We won't come back.
Mr. Gilchrest. The gentleman from Massachusetts.
We will recess. It looks like we might have 2 votes, so for
the people in the audience and other witnesses, it probably
will be about 20 minutes.
[Recess.]
Mr. Gilchrest. The Subcommittee will come back to order.
We thank everyone for their patience and indulgence here.
We will probably have another vote in about 45 minutes, but at
this point I want to re-recognize Mr. Farr from California.
Mr. Farr. Thank you very much, Mr. Chairman. And as I said,
I am delighted to be here and I really appreciate all the hard
work you have personally done to tackle this issue. I think it
is so essential to the sustainability of fisheries and, more
importantly, to best management practices of the sea, which is
essentially the same thing we recognize and appreciate when we
deal with agriculture and land. I think we need to apply a lot
of our same sort of smart practices or good practices to the
ocean. We are going to have to gain more information and change
gear and so on.
I would like to just go through some of the provisions of
your bill which correspond with the provisions of my bill and
offer some reflection on it. I hope that this is all done in a
positive perspective, because I really appreciate your personal
interest in all this. I just want to share with you some of my
reactions to some of the wording, more than anything else.
I think the direction of the bill is a magnificent one, and
you are to be applauded for your leadership on it. As you know,
on the House floor in 1995 I introduced an amendment to require
that fishing impacts on habitat be reduced. The amendment was
accepted by an overwhelming vote of 251 to 162. At that time we
worked together to ensure that the Councils were required to
protect essential fish habitats from damaging fishing
techniques. Unfortunately, since that time, very little has
actually been done with respect to essential fish habitat and
the problems still persist.
As I pointed out, the fishermen in my district support the
protection of essential fish habitat and we are trying to learn
more and more about it. We know that without that, without
essential fish habitat, we cannot have a sustainable fishery,
and it is just a matter of time before it is all gone. I
represent the area where the sardines disappeared, and know
what happens when a fishery disappears. All the canneries shut
down, everybody who worked in the cannery, all the families
lost their jobs, people lost their livelihood, and there wasn't
any alternative there or government to come and bail them out.
It was a disaster and it took us 25, 30 years before we turned
Cannery Row in Monterey into a tourism area and, frankly, a lot
of recognition of that area goes to writer John Steinbeck who
made the area famous in his books. We don't want to go through
again is a loss of a fishery like that. It is worse than a base
closure. It is worse than a company moving out or shutting
down.
So here is what I am suggesting, that you emphasize the use
of habitat areas of particular concern as a means to focus the
protection efforts. Habitat areas of particular concern are
important because of their ecological significance, rarity,
sensitivity, or because they are threatened by human
activities. Because this is a concept contained in the National
Marine Fisheries Essential Fish Habitat Regulations, the
Councils and the National Marine Fisheries are familiar with it
and have identified many habitat areas of particular concern.
The proposal will place greater emphasis on these habitat areas
but would not serve to exclude any essential fish habitat from
future protection.
I also strongly recommend that the sections of H.R. 2570
that concern the impact of fishing gear on habitat be included
in your bill; for example, the required evaluation of the
potential impacts of any new types of gear prior to their
introduction. When you think about it, almost every other thing
we apply gear to or a new machinery to, we do on an impact
analysis. I am not suggesting we go that deep, but at least be
aware that there could be impacts and that those impacts ought
to be taken into consideration prior to authorizing it. Also,
please include the establishment of a program to identify new,
less damaging gear for all areas and to fund its introduction.
In your bycatch section, my comments and suggestions are
this, that your draft reflects your recognition of bycatch as a
serious problem. I commend you on the inclusion of birds as a
definition of bycatch. I strongly disagree with Mr. Young that
they shouldn't be included. I think that the inclusion needs to
be better defined. I think stating a deadline, as you have done
for the Councils, to report bycatch is very important but I
think you should give Councils a chance to explain why they
cannot develop such systems. Requiring the Councils to only
explain why they cannot develop such systems may create
unforeseen and exploitable loopholes, and I think that needs to
be tightened up a little bit, and I would recommend that you
include certain provisions such as requiring the Councils to
annually reduce bycatch, requiring annual reports on the
progress being made in reducing bycatch, and creating
incentives for the reduction of bycatch. In this way we can be
sure that the Councils be held accountable every year and that
they would be required to act on the information they have
gained.
On your observers' programs, I do not agree that we need to
study the need for observers. We need them and the data they
obtain. It is undeniably clear that there exists a great need
for data collection. There needs to be better data on bycatch,
on discards, and the impacts on certain types of fishing gear,
all of which have impacts on essential fish habitat. The best
way to prioritize the essential fish habitat of most concern is
through observers being able to collect adequate data.
As I wrote in the Fisheries Recovery Act, I strongly
recommend that the observer coverage be required in each and
every fishery until we collect statistically significant data
on bycatch, discards, and habitat impacts. Observer data are
further essential for getting information on the growth,
reproduction and survival rate of species, and I think that
observer data will enable managers to accurately determine
catch rates and set correct quotas.
Many fishermen with whom I have spoken oppose observers
largely because of the cost of observer coverage, particularly
when you have to take an observer and you have to pay for it. I
propose funding of observer coverage with money from the
Saltonstall-Kennedy Act, matched with a percentage of landing
fees that does not disproportionately impact smaller scale
fishermen.
On your ecosystem-based management, I know that you and I
share the belief that this may be one of the most important
policies that could come out of the Magnuson reauthorization. I
think we are making great headway. We need to keep pushing
this.
I am, however, concerned that the language in your draft
will allow the Councils to extend indefinitely the process of
implementing ecosystem-based management plans. For that reason,
I believe that this section should go beyond only supporting
and encouraging ecosystem-based fisheries management.
We need to mandate the requirement of the Councils to
rapidly develop fishery ecosystem plans for every major fishery
within their jurisdiction.
I also believe that much of the data that you are
requesting prior to the implementation of the ecosystem-based
management plans are really available now through a number of
systems. We can expect the National Marine Fisheries to define
the criteria for ecosystem-based management, I think, at most
in 2 years. Two years after the development of the Marine
criteria, the Council should be required to develop fishery
ecosystem plans. They should make sure that the fisheries
management plans are consistent with the ecosystems plans, and
I absolutely believe that it must be required from the very
date of enactment of this legislation that no fishery be
allowed to expand unless the complete fisheries ecosystem plan
is established and the standards are determined that will
protect the underlying marine ecosystems.
On the issue of cooperative research, I join you in
supporting cooperative research and I also join you in trying
to shut up this telephone.
Any effort or money to put toward the cooperative research
programs I think is a win-win proposition. I know that
fishermen in my district and around the country are
enthusiastic about cooperative research and support proposals
included in my bill.
I want to draw your attention particularly to two aspects
of the issue. It taps into the creativity of the natural
knowledge of fishermen by providing financial incentives to the
development and use of fishing gear and practices that limit
bycatch and minimize habitat damage.
It also proposes and funds this program with money from the
Saltonstall-Kennedy program. Currently the vast majority,
approximately $70 million of the money collected from this
program, is used to offset NOAA's operating budget. My proposal
would redirect the money to programs that are more directly
linked to fisheries management such as cooperative research and
observers.
And last, in the overcapacity reduction, I strongly support
your efforts to tackle the problem of overcapacity initially
through buyouts. We are very close to adopting this policy to
help reduce the pressure on ground fisheries in the West Coast.
In closing, Mr. Chairman, I think that you are doing an
incredibly good job of getting into the detail and realizing
how important it is to rewrite the Magnuson Act in terms of
what we know within modern knowledge, and I am also co-chair of
this Bipartisan Oceans Caucus and, as you know, there are two
groups out there, one authorized by Congress via a bill that
passed this Committee and the Senate and was signed by the
President to create an Oceans Commission. The Oceans Commission
is at work now traveling around the United States. There is
also one created by the Pew Trust that Christie Todd Whitman
was the Chair and now that she is gone to the administration,
former Congressman Leon Panetta has assumed the Chair. That
foundation's commission is going around the country and trying
not to duplicate what the Federal commission is doing, but both
of them, I think, even with a lot of industry folks on the
commissions, have recognized that this is the time that we have
got to tackle the health of the oceans. And it is, as you have
said so many times, that the oceans--if you look at this
planet, it is a blue planet because of the oceans. The oceans
cover 73 percent plus of the world. They really are the lungs
of the planet. We must learn how to better manage and sustain
them. I don't know how many years we can just go and dump what
we don't like into the oceans and take out, without
restrictions, as much as we want before we end up seriously
hurting the Planet Earth.
So I appreciate the tough role you are in and look forward
to working with you.
[The prepared statement of Mr. Farr follows:]
Statement of The Honorable Sam Farr, a Representative in Congress from
the State of California
Good afternoon, Mr. Chairman and the Members of the Subcommittee.
Thank you very much for holding this important hearing. I
appreciate the opportunity to discuss with you your draft for the
reauthorization of the Magnuson-Stevens Fishery Act. This is an issue
about which all of us feel passionately, and I hope I can help you
develop fisheries management legislation we can all live with.
The urgency of this matter was highlighted by the report to
Congress released this week from the Secretary of Commerce on the
status of our nation's fish stocks. The good news from this report is
that in fisheries where conservation measures have been implemented,
stocks are beginning to be rebuilt.
The bad news is that the National Marine Fisheries Service has only
two such fish stocks that have improved since last year's report. While
the overall number of overfished stocks has declined, nine of the 11
stocks that were removed from the list this year were removed because
their stocks are declining for reasons other than fishing. On the West
Coast, the status of the groundfishery has gotten worse, with two
additional stocks being listed as overfished and one listed as
approaching overfishing. This should not be counted as fishery
management progress.
We still have a serious problem on our hands. We fish from over 950
stocks. We know the status of less than a third of those stocks. Of the
304 stocks on which we have some information, over 30% are overfished
or rapidly heading that way..
Last year, I introduced H.R. 2570, the Fisheries Recovery Act, to
amend the Magnuson Act. That bill presently has 71 cosponsors. This
issue is important to many of our colleagues, from both sides of the
aisle. Mr. Chairman, I know how deeply the problems in our nation's
fisheries concerns you, and I offer the following comments only to help
you strengthen the proposed legislation.
Essential Fish Habitat (EFH)
Comments and Suggestions:
* LIn 1995, the Magnuson reauthorization bill that came out of the
Resources committee made discretionary the requirement to minimize the
impact of fishing on essential fish habitat (EFH).
On the House floor, I introduced an amendment to
require that fishing impacts on habitat be reduced. That
amendment was accepted by an overwhelming vote of 251 to 162.
Mr. Chairman, at that time, we worked together to
ensure that the councils were required to protect essential
fish habitat from damaging fishing techniques.
Unfortunately, since that time, very little has
actually been done with respect to EFH, and the problems
persist.
The fishermen in my district strongly support the
protection of essential fish habitat.
* I recognize your desire to narrow the application of this
requirement, and I suggest that you emphasize the use of habitat areas
of particular concern (HAPC), that have already begun to be identified,
as a means to focus the EFH protection efforts.
There are areas of EFH that are significant because
of their ecological significance, rarity, sensitivity, or
because they are threatened by human activities.
Because this is a concept contained in NMFS's EFH
regulations, the councils and NMFS are familiar with it and
have identified many HAPCs.
The proposal will place greater emphasis on HAPCs but
does not serve to exclude any EFH from future protection.
* I also strongly recommend sections of H.R. 2570 that concern the
impact of fishing gear on habitat:
the required evaluation of the potential impacts of
any new types of gear prior to their introduction
the proof that gear will not damage an area before it
is allowed to be used in that area
the establishment of a program to identify new, less
damaging gear for all areas and fund its introduction.
Bycatch
Comments and Suggestions:
* This section of your draft reflects your recognition of bycatch
as a serious problem.
I commend the inclusion of birds in the definition of
bycatch.
Stating a deadline, as you have done, for the
Councils to report bycatch is very important, however,
- giving the councils a chance to explain why they can not
develop such systems may create an unforeseen, exploitable
loophole.
I recommend you include certain provisions from my
bill, such as:
- requiring the councils to annually reduce bycatch
- requiring annual reports on the progress being made in
reducing bycatch and
- creating incentives for the reduction of bycatch.
In this way, we can be sure that beyond the initial
reporting of the bycatch situation, the councils would be held
accountable each and every year and would be required to act on
the information they have gained.
Observers
Comments and Suggestions:
* I do not agree that we need to study the need for observers. We
know we need them.
* It is undeniably clear that there exists a great need to collect
data on:
bycatch, discards and the impacts that certain types
of fishing are having on essential fish habitat.
This data is the best way to prioritize the Essential
Fish Habitat of most concern.
Observers are an effective means by which to do this.
* As I wrote in the Fisheries Recovery Act, I strongly recommend
that observer coverage be required in each and every fishery until we
collect statistically significant data on bycatch, discards and habitat
impacts.
Observer data are absolutely essential for getting
the information on the growth, reproduction, and survival rate
of species.
Observer data will enable managers to accurately
determine catch rates and set correct quotas.
* LMany fishermen with whom I have spoken oppose observers largely
because of the cost of observer coverage.
I've proposed funding of observer coverage with money
from the Saltonstall-Kennedy Act, matched with a percentage
landing fee that does not disproportionately impact smaller-
scale fishermen.
Ecosystem-based Management
Comments and Suggestions:
* I know that you and I share the belief that this may be one of
the most important policies that could come out of the Magnuson
reauthorization.
* We are making headway and we need to keep pushing this.
I am, however, concerned that the language in your
draft will allow the councils to extend indefinitely the
process of implementing ecosystem-based management plans.
* For that reason, I believe that this section should go beyond
supporting and encouraging ecosystem-based fisheries management.
* We need to mandate the requirement that the councils rapidly
develop fisheries ecosystems plans for every major fishery within their
jurisdiction.
I believe that many of the data that you are
requesting be gathered prior to the implementation of
ecosystem-based management are largely available now for a
number of systems.
I think we can expect NMFS to define the criteria for
ecosystem-based management in, at most, two years.
Two years after the development of the NMFS criteria,
the councils should be required to develop fisheries ecosystem
plans and then make sure that their fisheries management plans
are consistent with the ecosystem plans.
I absolutely believe that it must be required, from
the very date of enactment of this legislation, that no fishery
be allowed to expand unless a complete fisheries ecosystem plan
is established and standards are determined that will protect
the underlying marine ecosystems.
The bottom line, Mr. Chairman, is that people have been talking
about ecosystem-based management for decades. It is time to time to,
and we are able to, move beyond talk and require action.
Overfishing
Comments and Suggestions:
* Defining overfished refer as only stocks that are below the
natural range of fluctuation associated with the production of the
maximum sustainable yield is a complicating factor that might be used
by the industry to block action on rebuilding stocks.
I recommend that this provision be dropped.
* I do suggest language from H.R. 2570 that amends the definition
of conservation and management to require the inclusion of a margin of
safety to guard against scientific uncertainty.
Cooperative Research
Comments and Suggestions:
* I join you in strongly supporting cooperative research. Any
effort or money put towards the development of cooperative research
programs is a win-win proposition.
I hope you will look to the section on cooperative
research in H.R. 2570 as you develop your recommendations.
I know that fishermen in my district and around the
country are enthusiastic about cooperative research and support
proposals included in my bill.
* I want to draw your attention particularly to two aspects of
this issue:
It taps into the creativity and natural knowledge of
fishermen by providing financial incentives to the development
and use of fishing gear and practices that limit bycatch and
minimize habitat damage.
It proposes and funds this program with money from
the Saltonstall-Kennedy program.
* Currently, the vast majority, approximately $70 million of the
money collected for this program is used to offset NOAA's operating
budget. My proposal would redirect that money to programs that are more
directly linked to fisheries management, such as cooperative research
and observers.
Overcapacity reduction
I strongly support your efforts to tackle the problem of
overcapacity initially through buy-outs. We are very close to adopting
this policy to help reduce the pressure on groundfish along the West
Coast.
In closing, I recognize, Mr. Chairman, that all issues in fisheries
management would benefit from more study. However, we already have
sufficient information to move forward on a number of problems. I hope
the final version of this bill will mandate clear action, first, using
the data we already have and then, definite actions following the
collection of additional data. We need action now to promote the long-
term economic and ecological sustainability of our nation's fisheries
and fishing culture.
Thank you very much.
______
Mr. Gilchrest. Thank you, Mr. Farr. We appreciate the time
and scrutiny of our legislation, and basically it is a draft
proposal for the reauthorization of this Act, and the reason
for this hearing is so that we can improve the Act with the
input from a variety of people so that all of us here will have
some consensus and some pride that we move this Act in the
direction of conservation so that there will be more of what
everybody wants there to be more of, whether you are a
fishermen or not a fisherman. So we appreciate the time you
have taken to give us your input, and if there are any
questions from Mr. Tauzin.
Mr. Tauzin. No, sir.
Mr. Gilchrest. Mr. Grucci?
Mr. Grucci. No, sir.
Mr. Gilchrest. Thank you very much. Before I call up the
next panel, there are chairs around the lower dais if anyone
wants to sit down for the next hour or two.
Our next panel is Dr. William Hogarth, Assistant
Administrator for the National Marine Fisheries Service, and
Mr. Ricks Savage, Chairman, Mid-Atlantic Fishery Management
Council. Gentlemen, welcome. Thank you for coming this
afternoon. We look forward to your testimony. Welcome to the
Nation's capital, and I realize that both of you gentlemen are
extremely busy, so we will take your words with a great deal of
sincerity.
Dr. Hogarth, you may begin
STATEMENT OF WILLIAM T. HOGARTH, ASSISTANT ADMINISTRATOR,
FISHERIES, NATIONAL MARINE FISHERIES SERVICE
Dr. Hogarth. Good afternoon, and thank you for inviting me
here today. I am Bill Hogarth, the Assistant Administrator of
Fisheries.
First of all, I want to commend you for your constructive
efforts to reauthorize the Magnuson-Stevenson Fishery
Conservation and Management Act. We think this is an extremely
important effort that needs to take place and we look forward
to working with you in any way we can to see this come to bear.
Two days ago we issued the latest status of the stocks
report to Congress. The report shows a decrease in the number
of fish stocks that are overfished as well as increases in
stock sizes for those species that are under rebuilding
programs. I think the Chair's report demonstrates that while
some stocks still need scientific and management attention,
responsible actions by the Councils and NOAA Fisheries are
paying off since the Magnuson-Stevens Act was strengthened in
1996. While there is still progress to be made in some
fisheries, overall fish populations are more plentiful than
last year, proof that rebuilding programs work. Many fisheries
like Georges Bank haddock and yellow tail flounder that were
heavily overharvested 5 years ago are either healthy today or
headed toward recovery. Fishery-management plans are now being
designed to allow fishermen to continue fishing under strict
regulations while the stocks continue to grow to stable levels.
The improvements recorded in this year's stocks report are
evidence of the effectiveness of the agency's fisheries
management approach in its rebuilding programs. Now we have to
fix problems in the remaining fisheries, strengthen that data
for those species whose stock status is unknown, and target
limited resources on activities that will most benefit fish
stocks in fishing communities that depend on these stocks.
I think this is the third time I have come before the
Committee on the Magnuson-Stevens reauthorization and related
issues. Last year NOAA Fisheries convened a working group that
considered potential problems in the Act. We worked from a list
and we narrowed the list and discussed these with key
constituents, including the Councils. Today I am pleased to
discuss a few highlights of the working group and thoughts
concerning the draft bill you have put forward.
First, the group has suggested exploring ways to improve
the Secretarial review process and to strengthen the NOAA/
Council consultation process. This will result in fewer
emergencies and, at the same time, make them more effective and
timely.
Second, the committee, like your Committee, we support
improved data collection and management and consider it a
priority. Various Federal laws require NOAA Fisheries to
complete economic and social assessments associated with
management decisions. Unfortunately there is a lack of adequate
current economic and social data. We are already working
closely with the States and others to share fishery data, but
this is an area that needs attention.
Third, we believe provisions for observer data collection
have not been adequately addressed in the Act. In 1996, SFA
amendments resulted in significant progress of the North
Pacific fisheries and held that the Secretary should be allowed
authority to prepare monitoring plans for all fisheries as well
as mechanisms to pay for them in an equitable manner.
Fourth, the Committee's draft bill addresses overcapacity.
NOAA Fisheries is working on a national plan of action for the
reduction of overall fishing capacity. The Councils and NOAA
Fisheries have utilized management actions and buybacks to deal
with the problem. However, improvements can be made to capacity
reduction programs under section 312. We would like for the
Committee to look broadly at this issue with us and see if we
can find a solution. It is my belief that overcapacity is
probably the number 1 issue we have to address if we are going
to get the fisheries back to sustainable fisheries.
Fifth, in some federally managed fisheries, we believe we
can manage resources with greater efficiency if the Councils
and NOAA Fisheries have IFQs available as a tool. NOAA
Fisheries concurs with the National Academy of Sciences'
recommendation that the existing moratorium on IFQs should be
allowed to lapse this October. Your proposed language provides
a good starting point to reauthorize IFQs. We will work with
you to ensure that language of the reauthorized Magnuson-
Stevens Act is consistent with our proposal outlined in the
2003 budget and can be implemented most efficiently.
Next week we will have conducted a workshop in Galveston,
Texas which should provide us with additional information for
guidance as we go forward with IFQ. We will make this available
to you hopefully by May the 10th or 12th, in that neighborhood,
so you can have it as you move forward.
I also have some thoughts on other issues included in your
draft bill. First, I note the provision regarding overfishing
and overfished definition that the Committee is considering is
very similar to the concepts that we have been considering.
These terms are used interchangeably, making it confusing for
the public to understand the status of any given stock.
Dr. Hogarth. Second, we recognize the importance of the
focus in the essential fish habitat measures on areas most
essential to fish stocks. The draft bill would amend the
current requirement to minimize adverse impacts of fishing on
essential fish habitat. We understand we have limited resources
to dedicate toward habitat protection, and we are interested in
working with the Committee to prioritize our activities in this
area.
Third, regarding the application of the ecosystem
principles, we think this is headed in the right direction and
consistent with current law. However, we must move forward in a
way that would not overburden current available resources.
Finally, although we have made progress at minimizing
bycatch, that lacks precise reduction goals and provides little
guidance on how to reduce nontarget catch and really what
constitutes acceptable bycatch levels. Changes can be made such
as implementing valid levels of mandatory observable coverage
in key fisheries, incentives to reduce bycatch, increase
bycatch reduction gear, research and development and
cooperative agreements with States.
We appreciate the Committee's interest, and we are happy to
work with you to improve the discussion draft language.
NOAA Fisheries needs to be more transparent and timely,
more effective and service oriented. I have initiated a 5-year
review of our implementation of the Sustainable Fisheries Act.
Working with our Council partners, we are reviewing our
priorities and addressing the 10 national standards, assessing
gaps in their implementation and setting priorities and working
at meeting the challenge of completing this implementation.
Mr. Chairman, I thank you, and I will be very happy to
answer any questions.
[The prepared statement of Dr. Hogarth follows:]
Statement of Dr. William T. Hogarth, Assistant Administrator for
Fisheries, National Oceanic and Atmospheric Administration, U.S.
Department of Commerce
Good morning, Mr. Chairman and Members of the Committee:
I am Dr. William T. Hogarth, the Assistant Administrator for
Fisheries, NOAA. I want to thank you for the opportunity to be here
today. I also want to commend you, Mr. Chairman, and the Committee, for
all of the work that you have done over the past many months to move
forward on the reauthorization of the Magnuson-Stevens Fishery
Conservation and Management Act (MSFCMA).
It was just about a year ago that I testified before you and
discussed the scope of many of the issues facing the Committee with
respect to reauthorization of the MSFCMA. Since then, a lot has
happened. Inside NOAA, we have been discussing a broad range of ideas.
We convened an internal working group that developed ideas for a number
of possible changes to the Act. And the Committee has been busy,
holding many hearings around the country and preparing the discussion
draft bill that you shared with us.
We do not have any specific legislative proposals for you today;
but we would be glad to continue working with your staff as it fleshes
out the many ideas that are being widely discussed throughout the
country.
The significant amendments that were made in 1996 to the Act by the
Sustainable Fisheries Act are only now beginning to take hold. We
believe that these provisions deserve a more complete opportunity to
take hold before enacting any major changes to the basic cornerstones
of the law.
However, we also recognize that many in the fisheries
constituencies have been concerned about many of the most basic
concepts contained in the Act both before and after the Sustainable
Fisheries Act. We believe that even some of the modest changes
currently being discussed have the potential to greatly improve our
fishery management processes under the Act.
Today I would like to spend a few minutes discussing with the
Committee the results of our working group, as well as our thoughts
concerning some of the fundamental issues of marine fisheries
governance facing us today.
Results of the NOAA Fisheries Working Group
The 1996 amendments to the Magnuson-Stevens Fishery Conservation
and Management Act, known as the Sustainable Fisheries Act, included
the most comprehensive revision of the basic law since it was first
enacted in 1976. We in NOAA Fisheries, along with many in our extended
fishery policy community, have been thinking seriously about
reauthorization of the Act for three years. Last year, as these efforts
intensified, NOAA Fisheries convened a working group that considered
more than 60 potential problem areas in the administration of the Act.
We have narrowed that list to those that we believe might make the Act
work better. We have discussed many of these issues with several of our
key constituencies, including the chairs of the Regional Fishery
Management Councils and the Marine Fisheries Advisory Committee.
Our discussions and analysis reflect the view that the Magnuson-
Stevens Act provides a basically sound legislative and procedural
framework, and that only relatively modest changes are warranted. The
issues that we considered mostly fell into the following major
categories:
(1) LFishery management plan (FMP) review and comment procedures
(2) LStatutory definitions
(3) LFisheries law enforcement
(4) LCollection and use of economic and social data
(5) LFisheries Observers
(6) LFishing capacity reduction
I would like to call the attention of the Committee to some of the
highlights and principal themes surfaced by the working group.
Fishery Management Plan Procedures. With respect to fishery
management plan reviews and comments, we have noted some inadvertent
problems in the 1996 amendments to the Magnuson-Stevens Act. Our
highest priority concern in this area is the need to recouple the
deadlines and procedures governing the FMP review and comment
procedures with the review of implementing regulations. In addition,
NOAA Fisheries would like to explore ways of improving the Secretarial
review process. Strengthening the preliminary Departmental review and
the NOAA/Council consultation process could result in fewer emergency
actions and, at the same time, make them more effective.
Definitions. Currently, the Act uses the terms ``overfished'' and
``overfishing'' interchangeably, which makes it confusing for the
public to understand the status of any given stock. ``Overfished''
applies to the state of a fishery resource, while ``overfishing''
applies to the act of fishing. In other words, the term ``overfished''
draws attention to the resource, while the word ``overfishing'' denotes
a level of human activity that adversely affects the resource. This
distinction is important because of its implications for rebuilding
schedules.
Improving Law Enforcement and Compliance. With respect to fishery
law enforcement, we are looking for ways to improve compliance with
domestic fishery management regulations, and with various U.S.
commitments in regional and international organizations. A fundamental
problem that NOAA Fisheries and the U.S. Coast Guard have in enforcing
our management regulations is the general absence of effective
deterrents. We are considering ways to generally strengthen the hand of
our fisheries law enforcement authorities in deterring and prosecuting
violations. A high priority in this area would be to increase the
maximum penalty, and promote more effective State-Federal partnerships
in fisheries law enforcement.
Social and Economic Information. The collection and use of economic
and social data are increasingly important in the entire fishery
management process. Under the Magnuson-Stevens Act and other laws
(e.g., the National Environmental Policy Act and the Regulatory
Flexibility Act) and various Executive Orders, we and the Councils are
required to complete a number of economic and social assessments
associated with management actions. One general problem that we have
had in meeting these mandates is a lack of adequate, up-to-date, and
comprehensive information, particularly fishery and fishery dependent
community economic and social data. We would like to improve the
Councils and our ability to conduct these assessments in conformity
with these mandates. Priorities would be obtaining economic information
from processors; expanding the accessible scope of economic data; and
dealing more effectively with proprietary and confidential data.
Fisheries Observers. Sound science and fisheries management rely in
many instances on data obtained from on-board fisheries observers.
However, provisions for collection of observer data have not been
adequately addressed in the Magnuson-Stevens Act. The 1996 Sustainable
Fisheries Act amendments made significant progress on this issue, but
only with respect to federally managed fisheries in the North Pacific.
To meet the need for expanded observer programs, the Secretary should
be allowed broad authority to prepare statistically valid, mandatory
monitoring plans for all fisheries. It would also be helpful if the
Secretary were given the authority to establish, in cooperation with
the Councils, a mechanism to pay for the costs of the monitoring plan
in an equitable manner.
Fishing Capacity Reduction Program Financing. The last several
years have witnessed mounting concerns over excessive levels of
harvesting capacity in our federally managed fisheries. Overcapacity is
basically a domestic concern, but the United States has also addressed
this issue though an international initiative, the United Nations Food
and Agriculture Organization-sponsored international plan of action on
the management of fishing capacity. In the domestic sphere, the
Councils and NOAA Fisheries have dealt with this problem through a
number of means, including fishery management actions and recourse to
buybacks of overcapacity in selected fisheries. The 1996 amendments to
the Magnuson-Stevens Act authorized a fishing capacity reduction
program in Section 312(b)-(e). NMFS acknowledges that these provisions
could be implemented more effectively and, accordingly, we are
investigating changes that would facilitate the development and
approval of specific fishing capacity reduction programs that might be
used in concert with complementary management tools such as entry
limitations and individual quota systems.
Additional MSFCMA Reauthorization Issues
Mr. Chairman, in addition to the considerations of our working
group last year, there are other issues that are important to the
governance of our marine fisheries that many in the fisheries community
are talking about. We in NOAA have been considering these for a long
time. Many of these issues have been raised at several of the
Committee' hearings. However, while they are important, they require
increased communication and careful implementation. We have not had the
opportunity to consult with the Councils or MAFAC on these ideas as we
did on the working groups' considerations, and do not have any formal
proposals to share with you. I would like to discuss our current
thinking in NOAA Fisheries on many of these ideas in hopes of
stimulating discussion and moving forward our consideration of these
important issues.
Individual Fishing Quotas. Perhaps no question has dominated
fishery policy debates so consistently and pervasively since the
earliest days of the Act as have Individual Fishing Quotas (IFQs). The
first major national workshop on IFQs for the regional fishery
management councils was held in Denver in 1977. Since then the issue
has never failed to engender lively debate all around the country.
Today we have four IFQ programs in place. However, we also have many
limitations on the use of IFQs that arguably limit their effectiveness.
In fact, there is even currently a moratorium on the adoption of new
IFQ programs by the Councils until October of this year.
As I testified at the Committee's February 13, 2002 IFQ hearing,
NMFS concurs with the National Academy of Sciences report that the
existing moratorium on new IFQs should be allowed to lapse in October
2002. We believe that, in some federally managed fisheries, we can
manage resources with greater efficiency if the Councils and NMFS have
IFQs available as a tool. We will be pleased to work with Congress as
it considers legislation to set additional appropriate conditions under
which new IFQ programs could be approved. The IFQ programs that are in
place have worked well and receive wide support within the affected
fishing industry. It is unfortunate and unreasonable that this one tool
should be singled out for continued prohibition.
Several difficult and controversial issues remain regarding IFQs.
These are broader than the Councils' prerogative and may require
national level guidance to Councils and regions where they are used.
Congress ought to allow the regional councils flexibility and
discretion to address fishery-specific characteristics. NMFS is
examining these and other IFQ issues such as foreign ownership, the
collection of some share of windfall profits and/or economic rent, and
caps on cost recovery fees. Your proposed language provides a good
starting point to reauthorize IFQs. We would like to work with the
Subcommittee on how best to ensure the final language in a reauthorized
Magnuson-Stevens Act is consistent with our proposal outlined in the
fiscal year 2003 Budget and can be implemented and operated most
efficiently.
Ecosystems. Many suggestions are being made that would try to
promote the application of ecosystems principles to marine fishery
conservation and management. We think that these efforts are heading in
the right direction, and are consistent with current law. It has been
elementary to note the relationships among fish stocks, and between
fish stocks and their marine and estuarine environments; but it is much
more difficult to put ecosystems management into practice.
The data and the analytical and decision models currently do not
fully support the implementation of a comprehensive approach to
fisheries ecosystems. Nevertheless, this is a direction that we need to
move in. We would like to see each Council develop an overall statement
that considers the interrelationships of all of the fisheries that the
Council has under its management. This would be the precursor in future
years for detailed and comprehensive fisheries ecosystems plans.
We also would like to explore strengthening the basic policies and
purposes of the Act in the way that they emphasize the ecosystems
implications of fisheries conservation and management.
Bycatch. Among the major provisions of the Sustainable Fisheries
Act were requirements aimed at reducing and minimizing bycatch.
Although we have made some progress in this direction over the last
five years, the Act still lacks precise bycatch reduction goals, and
provides little guidance on how to reduce non-target catch and what
would constitute acceptable bycatch levels. There is a widespread sense
in much of the fisheries constituency that we and the Councils have not
done enough to address this problem.
Getting a handle on bycatch and how to reduce and minimize it is
expensive, perhaps more so than many other important uses of our fiscal
resources. However, we do believe that there are some additions and
changes that could be made to the Act that would improve the situation.
We are looking into the possibility of implementing a statistically
valid level of mandatory observer coverage in key fisheries. We are
also considering incentives to reduce bycatch in all fisheries where
bycatch is a serious problem.
Matching Fishing Capacity to Available Resources. Overcapacity in
the harvesting sector plagues not only a number of federally-managed
fisheries, but also many fisheries around the world. The United States
has been a leader in the international community in articulating the
need to match harvesting capacity to available fishery resources. We
are currently working on a national plan of action for the reduction of
overall fishing capacity in our fisheries. We have some tools in the
Act to deal with this, but our efforts under the MSA and other
authorities have largely been fractured and lacking effectiveness.
We believe that a lot more creative thinking needs to be applied to
this problem. We would like the Committee to work with us in looking
broadly at this issue, including the effect and implications of other
agencies' programs.
Committee Issues
Mr. Chairman, we know that your staff has been working hard to put
together some ideas for a draft bill to reauthorize the Magnuson-
Stevens Fishery Conservation and Management Act. We have had the
opportunity to look at the language that was included in the April 19,
2002, discussion draft, although we have not had the opportunity to
examine it carefully and provide detailed comments. What I would like
to do is comment on some of the main themes that we have seen in the
draft bill.
Overfishing. The definition of ``overfishing'' and ``overfished''
that the Committee is considering is included in the options that we
have been considering. When we complete our review the Administration
will share proposed language with the Committee.
Data Collection. I appreciate the Committee's commitment to
improving the collection of data on our marine recreational fisheries.
We believe that the emphasis for changes in the Act should be placed on
collecting and managing the data. We are already working closely with
the states and others to share marine recreational fisheries data. We
look forward to working with you to improve these provisions. We also
welcome your attention to the needs for collecting economic data from
the processing sector.
Essential Fish Habitat. We recognize the importance of focusing
essential fish habitat measures on those areas which are, in fact, most
essential to fish stocks. The draft bill would amend the current
requirement to minimize adverse effects of fishing on essential fish
habitat. Under this draft bill, the requirement would only apply to
fisheries for which there is available information on the growth,
reproduction, or survival rates within habitats or production rates by
habitat B what our essential fish habitat regulations refer to as Level
3 or Level 4 data--or for fishing activities determined by a Council to
jeopardize the ability to achieve maximum sustainable yield on a
continuing basis. This type of conclusive scientific information does
not exist for any of our fisheries, excepting a few salmon stocks for
which there is some Level 3 or 4 information for small portions of
their range in spawning rivers. We understand that we have limited
resources to dedicate towards habitat protection and would be happy to
work with the Committee to prioritize our activities to yield maximum
habitat benefits.
Other Issues. The draft bill addresses a number of issues that we
believe are critical, such as overcapacity, buyouts, ecosystems and
bycatch. Some of these are issues that I have discussed elsewhere in
this testimony, for example, bycatch. We would also support a research
program for bycatch reduction gear research and development, and would
suggest that this include a technology transfer program, and
cooperative agreements with the states. We would be happy to work with
the Committee to improve the discussion draft language.
We very much appreciate the Committee focusing its attention on
these and we look forward to working with your staff in the development
of this legislation.
Conclusion
Mr. Chairman, these are exciting times in the history of our
development and implementation of effective conservation and management
for the Nation's valuable marine fisheries. They are also often
difficult times, and always challenging. You have all heard me talk
about the need to make NOAA Fisheries more responsive and open, more
transparent and timely, more effective and service-oriented. I have
initiated a 5-year review of the implementation of the Sustainable
Fisheries Act in order to get a better picture of what is working and
how we can make the Act work better. I am convinced that we can make
this work.
A lot of times it is natural for us to look at the negative. But I
think we also have a lot going on that gives us reason to accentuate
the positive. Our recent report to the Congress showed that the number
of fisheries listed as overfished is beginning to decline.
The Sustainable Fisheries Act gave all of us tremendous impetus to
begin moving seriously and effectively in new directions. I believe
that much of the potential of the SFA still needs to be explored. We
have also tried today to begin to outline some fundamental issues that
many of us have been considering, and outline some solutions. Not all
of these will be popular in all circles, but it is time that we discuss
these issues forthrightly and work together toward some real
improvements in how we manage marine fisheries. We in NOAA Fisheries
look forward to working with the Committee, with your staff, with the
Regional Fishery Management Councils, the states and the commercial
fishing, recreational fishing, environmental, scientific and other
marine fisheries communities.
Thank you, Mr. Chairman. I would be glad to answer any questions.
______
Mr. Gilchrest. Thank you, Dr. Hogarth. Mr. Savage.
STATEMENT OF RICKS SAVAGE, CHAIRMAN, MID-ATLANTIC FISHERY
MANAGEMENT COUNCIL
Mr. Savage. Good afternoon, Chairman Gilchrest, members of
the Subcommittee. I am Rick Savage, Chair of the Mid-Atlantic
Fisheries Management Council.
Mr. Gilchrest. Is your mike on, Mr. Savage?
Mr. Savage. Yes, sir. My written comments reflect the views
of all eight Regional Fishery Management Councils. I am
generally in favor of individual transferable quotas.
First, I would like to reiterate the position that the
chairman of the eight regional councils have expressed to you
last year by our former Mid-Atlantic Council Chairman, Dr.
James Gilford. He testified that the consensus view developed
in May 1999 in the 2000 Council chairmen's meetings was that
the blanket moratorium on IFQs and ITQs should be lifted and
that the Council should have those tools available as possible
management options. IFQs and ITQs provide fishery managers an
option for assuring stakeholders long-term benefits of
rebuilding programs.
There should be minimal national standards on
transferability and the ability to charge fees, but councils
should have the maximum flexibility to develop IFQs or ITQ
programs which recognize the unique characteristics of specific
fisheries. Since then, they have reaffirmed this position at
their 2001 meeting.
Now I will tell you my personal experience with the surf
clam and ITQ surf clam and ocean climber ITQ fisheries, which
became the Nation's first ITQ program. My father was an ocean
climber from 1949 until the mid-1980's. I started working with
him when I was 15. I owned clam boats from 1964 until just
before the ITQ program came in in 1990. The Mid-Atlantic
Council initiated development of the Nation's first EEZ fishery
management plan for these two resources at its first council
meeting in September 1976 and implemented management measures
in 1977.
By 1981, we were on the third amendment to the FMP. The
surf clam resource had been significantly overfished prior to
the Federal management, but by the early 1980's it was being
rapidly rebuilt. Unfortunately, our effort-based management
system was becoming rather Draconian. With initiation of the
plan, we restricted fishing to 96 hours per week per vessel. We
ratcheted down the allowable fishing time to not exceed the
maximum sustainable yield target. But as the surf clam resource
began to rebuild and as the catch rates climbed, we were
obliged to further reduce fishing effort.
By 1985, allowable time was reduced to only 3 hours per
week. We actually worked 6 hours every other week.
Effort management was clearly not working. ITQs were
initially discussed by the Council and industry in the late
1970's, but it was not until the mid-1980's that nearly
everyone agreed that the resource and the increase in
efficiency of the vessels were--there was too much capital
invested to support all of the vessels in the fishery.
Overcapitalization and the cliche ``too many boats chasing too
few fish'' can apply not only when a resource is overfished,
but also when a resource is healthy.
In 1979, there were 168 permitted surf clam vessels. In
1990, the ITQ system was implemented and the surf clam fishery
numbered 128 vessels. By 1992, the surf clam fleet had
consolidated to 59 vessels and by 2000, there were only 31
vessels landing surf clams. That was just surf clams.
Industry consolidated itself. There was no multi-million
dollar buyout by the Federal Government as there has been in
the New England ground fish fishery. The industry capital and
the fishery is now used much more efficiently as the average
boat, which made 34 trips in 1990, made 56 trips by 1992 and
made 69 trips in 2000. Individual surf clam vessels have
greatly increased their production and thus the economic health
of the individual vessels remaining in the fishery has greatly
improved.
In 1990, the average annual catch of the surf clam vessel
landed was about 24,000 bushels. The landing amount doubled by
1992, and by 2000 it was over 77,000 bushels.
Enforcement and compliance with the regulations were also
areas which showed dramatic improvement following
implementation of the ITQ program. Cheating under the prior
system generally took the form of fishing longer than your
allocated hours. Everybody fished on the back end, not on the
front end. Poaching in the areas closed for nursery grounds was
also a problem. These rules were very expensive to enforce, as
they required Coast Guard cutter and aircraft to observe
vessels at sea for purposes of detecting such violations.
With ITQ management the world changed. First, there were no
more time limits. People could fish when they wanted, and they
didn't need to race for the resource. This improved both safety
and profitability. Fishing rights were no longer tied to boats.
Industry could finally consolidate the fleet and use only as
many boats as were needed to catch the quota. This brought
tremendous savings to the industry.
Enforcement efforts were allowed to switch from costly at-
sea operations to comparatively cheap dock-side enforcement as
the clams were moved to the processing plant. This saved
taxpayers large amounts in Coast Guard cutter and aircraft
time.
Cheating fell dramatically for two reasons. First, people
are a lot less likely to break the rules when they are finally
able to make a decent living from their work. Second, the right
to fish one's quota is very valuable, and they are put at risk
if one is caught repeatedly. Hence, people are going to think
twice before undertaking an illegal activity that if detected
and penalized could result in the loss of their further income
stream that an ITQ represents.
Finally, we as Council members could stop micromanaging the
clam industry. Instead of trying to regulate what goes into an
industry such as when people fish, where people fish, how
people fish, what gear people use, what size boat people use,
we could just specify by an annual quota what comes out of the
fishery each year and leave the rest to the industry.
Right now the surf clam and ocean fisheries require very
little government time to manage. Before the ITQ management,
the Council had to address issues on a clam plan at almost
every meeting.
ITQs are successful in the surf clam industry because the
Council prevented overfishing with the initiation and
management. There was extensive council, industry, National
Marine Fisheries Service cooperation. The industry itself was
vertically integrated and had a limited fishery. The industry
provided excellent data through logbooks. NMFS devoted
sufficient scientific effort toward the research, and finally
there are minimal bycatch, discard and essential fish habitat
issues.
The Mid-Atlantic Council takes great pride in its clam ITQ
management efforts. More than once in the past decade,
scientists at the Northeast Fisheries Science Center stock
assessment meetings have labeled this the best managed fishery
in the United States, if not the world.
It may be that not all fisheries are appropriate for this
type of management, and it may be that ITQs are not a one-size-
fits-all management tool, but give the Councils the flexibility
to make that decision. Give the Councils the authority to use
or not to use ITQ management options.
Our Council has discussed ITQs for other Mid-Atlantic
resources and supports the pro-ITQ position of the Mid-Atlantic
scallop industry. Our Loligo squid and tilefish fisheries,
which are each limited to less than a hundred vessels, are
basically single species fisheries, with the ideal candidates
for this management approach. Congress should lift the
moratorium and restore this very useful management tool to the
Council.
I appreciate your having invited me, and I thank you for
allowing me to express my views about reauthorization of the
Magnuson-Stevens Act. Thank you very much.
[The prepared statement of Mr. Savage follows:]
Statement of Ricks E. Savage, Chairman, Mid-Atlantic Fishery Management
Council
Recommendations of the Regional Fishery Management Council Chairs
regarding Magnuson-Stevens Fishery Conservation and Management Act
Reauthorization Issues
May 23, 2001
At the 2001 Council Chairs' meeting, representatives from the eight
regional fishery management Councils reached consensus on a variety of
recommendations associated with reauthorizing the Magnuson-Stevens
Fishery Conservation and Management Act (MSA). These recommendations
are listed below, first as a group of ``Highest Priority Issues'' and
then as ``Other Significant Issues.'' Other than these two groupings,
no relative priorities are assigned.
Highest Priority Issues
NEPA
The process for social and economic analysis, scientific review,
and public comment specified in the MSA is substantially the same as
the process specified under the National Environmental Policy Act
(NEPA). However, the time line and administrative process under these
two Acts often conflict. These conflicts have led to cumbersome and
unnecessarily complex administrative procedures resulting in long
delays between the time that decisions are made and regulations are
adopted. They have also created significant opportunities for
procedural lawsuits that frustrate Council conservation actions. The
Congress needs to resolve these conflicts between statutes in order to
clarify and streamline the process. The following is submitted as a
possible remedy to the effects of litigation on Council management
actions:
Section 305(f)...Judicial Review
Purpose: to clarify that the Secretary's failure to comply with the
NEPA in the management of a fishery under the MSA should result only in
judicial guidance regarding NEPA compliance rather than judicial
management of, or injunction against, a fishery.
Amendment: We suggest the following subparagraph be added to
Section 305. Paragraph (f) is amended by redesignating subparagraph (4)
as subparagraph (5), and inserting after subparagraph (3) the
following:
(4) If the secretary has failed to comply with the NEPA, Section
4332 of Title 42, United States Code, in the management of a fishery
under this Act, the exclusive remedy shall be an injunction related to
the substance of the environmental analysis or the process for
developing such analysis.
Section 3(29) and Section 304(e)...Redefine Overfishing
The Council Chairs believe that there are a number of problems
related to maximum sustainable yield (MSY)-based definitions of
overfishing. For example, data deficiencies may lead to inappropriate
calculations of MSY, that in turn skew overfishing definitions.
Ultimately, this could lead to unnecessary social and economic
dislocation for fishermen who are subject to measures that are tied to
stock rebuilding schedules skewed by unrealistic overfishing
definitions. We would like to work with the Congress in seeking
solutions to our concerns as the re-authorization process proceeds.
Section 303(a)(7)...Essential Fish Habitat
The Sustainable Fisheries Act (SFA) required Councils to identify
and describe essential fish habitat (EFH), but gave little direction on
how to designate EFH. The EFH definition, i.e., ``those waters and
substrate necessary for 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 criticism. The Council Chairs
believe that the current definition and descriptions of EFH serve a
very useful purpose in the consultation process between NMFS and
agencies that are responsible for permitting or carrying out proposed
development projects in the marine environment. Those waters and
substrates necessary to fish for spawning, breeding, feeding, or growth
to maturity are all habitats of importance to each fishery stock, and
the range of each stock from egg to maturity is overlapped by the
ranges of hundreds of other stocks. The Council Chairs do, however,
endorse the concept of using habitat areas of particular concern
(HAPCs) as the next step in describing areas of EFH critical to certain
life history stages for each stock, as proposed in the two Senate bills
drafted in 2000. For years a number of Councils have established HAPCs
to protect pristine coral reef habitats and spawning aggregation sites.
Section 304(e)(4)(A)...Rebuilding Periods
Without a doubt, the Council Chairs support rebuilding targets
under the SFA; however, the Councils should have greater latitude for
specifying rebuilding periods than is provided under the National
Standard Guidelines. The Council Chairs recommend that ``the SFA be
amended to provide sufficient flexibility to make short-term
adjustments to rebuilding targets/programs to account for scientific
uncertainty, natural variation, current stock status, current stock
trends, and multi-species fishery relationships''.
Executive Order for MPAs
The Council Chairs recognize that there is a conservation benefit
realized by establishing marine protected areas (MPAs). The Councils
have had the authority to establish MPAs for fisheries management and
have done so since the first fisheries management plans were
implemented under the MSA. The Councils are and will remain in the best
position to determine when and what areas should be closed to fishing
activities to protect fish stocks and habitat in the EEZ.
The Council Chairs recommend that Executive Order 13158 be
rescinded, or alternatively, amended to reaffirm the sole authority of
NOAA and the Councils to manage marine fisheries in the EEZ. Also,
Congress should review the MPA issue and possibly develop legislation
to clarify jurisdictional issues, set criteria for MPAs, and establish
clear administrative procedures for establishing MPAs which among other
things, reinforces the role of the states, territories, and Councils in
managing marine fisheries.
Section 303(d)(1)...Rescinding the Congressional
Prohibitions on IFQs and ITQs
Section 303(d)(1) of the MSA prohibited a Council from submitting
or the Secretary from approving an Individual Fishing Quota (IFQ)
system before October 1, 2000. More recently, through the fiscal year
2001 Appropriation Act, this moratorium on IFQs/ITQs was extended for
an additional two years. If the reauthorization process is completed in
2001, the Council Chairs support rescinding the moratorium before the
year 2002 deadline. The Council Chairs recommend that MSA be amended to
provide maximum flexibility to the Councils to tailor IFQ programs to
specific regional, social, economic, and fishery conditions. Councils
should have clear authority to address transferability and ownership
issues; include harvesters, processors, and communities in such
programs; promote conservation; and include measures necessary to
successfully monitor and enforce the provisions of such a program.
Section 313(a): see also Section 403...Observer Program
The Council Chairs reaffirm their support for 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, but not necessarily
limited to use of ex-vessel value as the basis in setting fees.
Endangered Species Act (ESA)/Marine Mammal Protection Act
(MMPA)
The Council Chairs recommend that the Councils be identified, for
purposes of consultation, as being action agencies under the ESA and
the MMPA, thereby being able to participate in the development of
biological opinions.
ESA and MMPA considerations are playing an increasingly significant
role in Council fishery management activities. The NMFS has stated that
Councils ``have a critical role in management of federal fisheries''
and ``must be aware of effects of proposed fishery management actions
on listed species''. However, NMFS and NOAA/GC have determined that the
Councils are not federal action agencies; therefore, they are not
included in the consultation process.
By foreclosing the opportunity to participate in the consultation
process, NMFS and NOAA/GC have made it virtually impossible for
Councils to meaningfully address their responsibilities under MSA, ESA,
and MMPA.
Therefore, the Council Chairs recommend that the MSA be modified to
specify that the Councils are deemed to be action agencies for purposes
of formal consultation under ESA and MMPA.
Section 304(a) and (b)...Coordinated Review and Approval
of Plans and their Amendments and Regulations
The SFA amended Sections 304(a) and (b) of the MSA to create
separate sections for the review and approval of fishery management
plans (FMPs) 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 Chairs recommend modification of these provisions to
include the original language allowing concurrent approval of FMPs,
amendments and regulations, and providing for the initial 15-day
disapproval process. The Councils would also like the ability to
resubmit responsive measures rather than having to submit a complete
FMP or amendment as is now required by subsection (4) of Section
304(a).
Section 304(a)...FMP Review Program
The Council Chairs believe that NMFS, in its review of proposed
FMPs, amendments, and framework actions, has failed to adequately
communicate to the Councils perceived problems in a timely manner. We
propose the inclusion of a mandate in the MSA to require an abbreviated
rule-making process in which NMFS would consult with the Councils and
consider such new information as provided by the Councils before
disapproving FMPs, amendments, or framework actions submitted by the
Councils for NMFS approval.
Other Significant Issues
Section 302(d)...Council Member Compensation
The MSA should specify that Council-member compensation be based on
the General Schedule that includes locality pay associated with the
geographic locations of the Councils' offices. 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 to
implement this change.
Section 302(f)(4) and (7)...Receipt of Funds from any
State or Federal Government Organization
Currently Councils can receive funds only from the Department of
Commerce, NOAA or NMFS. The Councils routinely work with other
governmental and non-governmental organizations to support research,
workshops, conferences, or to procure contractual services. In a number
of cases, complex dual contacts, timely pass-throughs, and unnecessary
administrative or grant oversight are required to complete the task.
The Councils request a change that would give them authority to receive
funds or support from local, state, and other 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.
Section 302(i)(3)(A)(ii)...Review of Research Proposals
The MSA should be amended to include a provision for the Councils
to close meetings to the public for the purposes of reviewing research
proposals. Some of the Councils now provide and administer funding to
researchers and fishermen for data collection and other research
purposes. The proposals submitted to the Councils for funding may
contain proprietary information that the submitters do not want to make
public for various reasons. It will be in the best interests of this
process for the Councils to have the ability to close meetings to
consider these proposals.
Section 303(b)...Regulating Non-Fishing Activities of
Vessels
The Council Chairs recommend that Section 303(b) of the MSA be
amended to provide authority to Councils to regulate non-fishing
activities by vessels that could adversely impact fisheries or EFH. One
of the most damaging activities to such habitat is the anchoring of
large vessels near HAPCs and other EFH (e.g., coral reefs, etc.). When
these ships swing on the anchor chain deployed in 100 feet of water, 10
to 20 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
authorized.
Section 303(b)(7)...Collection of Economic Data
The MSA specifies the collection of biological, economic, and
socio-cultural data to meet specific objectives of the MSA, and
requires 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 NMFS should not be precluded from
collecting such proprietary information so long as it is treated as
confidential information under Section 402. Without this economic data,
multi-disciplinary analyses of fishery management regulations are not
possible, preventing NMFS and the Councils from satisfying National
Standard 2: ``...conservation and management measures shall be based
upon the best scientific information...'', National Standard 8: ``...to
the extent practicable, minimize adverse economic impacts...'', and
other requirements of the MSA and the Regulatory Flexibility Act (RFA).
The Council Chairs recommend resolution of these inconsistencies by
amending the MSA 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 federal FMP 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 while
simultaneously prohibiting the collection of economic data necessary
for such analyses.
Section 303(d)(5) and Section 304(d)(2)...Establishment
of Fees
The Council Chairs are opposed to the imposition of fees that are
not regional in nature and established by the Councils. However, we do
support the National Academy of Science's 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.
Section 305(c)(2)(A)...NMFS Regional Administrator
Emergency or Interim Action Vote
For the purpose of preserving the Secretary's authority to reject a
Council's request for emergency or interim action, each NMFS Regional
Administrator 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 NMFS, we certainly do not wish to appear to be disparaging the
Regional Administrator in any way. However, the Council Chairs believe
that Congressional intent is being violated by this policy. We suggest
a modification to the MSA 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 ...
Section 311(a)...Enforcement
The Council Chairs support the implementation of cooperative state/
federal enforcement programs patterned after the NMFS/South Carolina
enforcement cooperative agreement. We applaud the inclusion of $15
million in the 2001 NMFS budget to expand the program to other states.
While it is not necessary to amend the MSA to establish such programs,
Congressional action is needed to enhance management under the MSA to
establish permanent funding for such cooperative state/federal
programs.
Section 312 (a)...Fisheries Disaster Relief
Purpose: to make available fishery disaster relief funds for
fisheries being closed, or severely curtailed as a result of judicial
decisions.
Amendment: We suggest modifying Section 312 of the Act as follows
(new language in bold):
(a)...
(1) At the discretion of the Secretary or at the request of the
Governor of an affected state or a fishing community, the Secretary
shall determine whether there is a commercial fishery failure due to a
fishery resource disaster as a result of
(A)...
(B)...
(C)...
(2) or closures imposed by a court to a fishery [Redesignate
paragraphs (2), (3), and (4) as paragraphs (3), (4), and (5)]
Revise new paragraph (3) as follows (new language in bold): Upon
the determination under paragraph (1) or (2) that there is a commercial
fishery failure, or a judicial closure of the fishery the Secretary...
Section 402(b)(1) and (2)...Confidentiality of
Information
Section 402 replaced and modified former Sections 303(b) and (e).
The SFA replaced the word ``statistics'' with the word ``information'',
expanded confidential protection for information submitted in
compliance with the requirements of an FMP to information submitted in
compliance with any requirement of the MSA, and broadened the
exceptions to confidentiality by allowing 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 -
(3) Any information submitted to the Secretary by any person in
compliance with any requirement under this Act that would disclose
proprietary or confidential commercial or financial information
regarding fishing operations, or fish processing operations shall be
confidential information and shall not be disclosed, except...
(4) 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 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).
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 MSA 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 FMP 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 MSA
definitions of bycatch and the NMFS Bycatch Plan. The NMFS definition
is much broader and includes marine mammals and birds as well as
retention of non-target species. The Council Chairs prefer the MSA
definition. We also wish to retain turtles in the definitions 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.
Section 302(i)(2)(c)...Notification of Meetings
The Council Chairs recommend that this section be modified to read:
``notice of meetings be submitted for publication in local newspapers
in the major fishing ports, or by other means that will result in wide
publicity''. Other means such as press releases, direct mailings,
newsletters, e-mail broadcasts, and web page updates of activities and
events, including Council meetings are far more effective in
communicating with our target audience than a legal notice in a local
newspaper.
Section 302(a)(1)(D) Caribbean Council
The Council Chairs request that Section 302(a)(1)(D) of the MSA be
amended by inserting ``Navassa Island,'' before ``the Virgin Islands''.
______
Mr. Gilchrest. Thank you, Mr. Savage. I will start with Mr.
Tauzin.
Mr. Tauzin. Thank you, Mr. Chairman, and I want to thank
the witnesses.
In regard to the recommendations you made, Dr. Hogarth, in
terms of the Chairman's draft, let me ask you a couple of
questions regarding some proposals that we are interested in
and get your focus on them. In regards to the term and the use
of the idea--using the best scientific information available in
making decisions regarding fisheries management plans, do you
have any trouble with the notion that the--that idea that the
best scientific information available should be information
that is determined to be directly related to the specific issue
under consideration?
Dr. Hogarth. The only concern I would have, as you look
toward ecosystem management, I think you have to look at the
big picture than if you can take the fact that you are looking
at the ecosystem and the data that is available for the--but I
would be concerned if we didn't look at the big picture.
Mr. Tauzin. But in regards to looking at the big picture,
shouldn't you be concerned about the specific issue under
consideration?
Dr. Hogarth. Yes.
Mr. Tauzin. As the information relates to it in the
process?
Dr. Hogarth. That is correct.
Mr. Tauzin. Second, should it be based on the statistically
valid samples, such that conclusions can be drawn that are
reasonable and not speculative?
Dr. Hogarth. Well, I think the resources available, you
know, we have to sample, to the best we can, do the surveys.
And we try to supplement that we can check the cooperative
research money that the Congress has provided. But I don't
think the lack of data should prevent us from protecting the
resource, no, sir.
Mr. Tauzin. So you are saying that the best available
information should not be based upon statistically valid
samples?
Dr. Hogarth. I think the--
Mr. Tauzin. When they are not available?
Dr. Hogarth. I think the goal should be always to get the
best data that you can get and--
Mr. Tauzin. You should get statistically valid samples
whenever you can, right?
Dr. Hogarth. That is right.
Mr. Tauzin. So the term ``best available information'' can
include statistically valid samples. You ought to go get them,
shouldn't you?
Dr. Hogarth. That is correct, yes, sir.
Mr. Tauzin. Third, do you have any problem with those--that
term ``statistically''--``the best scientific information
available''--do you have any problem with it being adequately
and independently peer reviewed?
Dr. Hogarth. No, sir. We are trying to get all that data
peer reviewed.
Mr. Tauzin. I think that is a good idea, too. Do you
disagree that the information that is going to be the best
scientifically available information should at least--you ought
to try to collect it within a timeframe that is reasonably
related to the specific issue under consideration?
Dr. Hogarth. Yes, sir.
Mr. Tauzin. There ought to be more recent information if
you can get it, right?
Dr. Hogarth. That is correct.
Mr. Tauzin. So if you are going to use best scientific
information available, you want to try to get recent
information, statistically valid samples. You ought to at least
include evidence, information regarding the specific issue
under consideration while you may be looking at a broader
picture. And should it also be consistent with information that
is available from other reliable sources?
Dr. Hogarth. I think all information available should be
put on the table.
Mr. Tauzin. See whether it makes sense with other things
you already know, right?
Dr. Hogarth. All the data should come to the table and be
evaluated.
Mr. Tauzin. And could it include but not be limited to
anecdotal information collected from the harvesting and
processing of fish? As long as you said that that wasn't
enough, could you at least include as part of the consideration
anecdotal information collected in such a process?
Dr. Hogarth. Give me just a minute to explain this. I think
anecdotal information is good to help you determine what may
have taken place, but it is very difficult to put, you know,
statistical valid--
Mr. Tauzin. What I am saying is you wouldn't exclude it.
Dr. Hogarth. No.
Mr. Tauzin. I am going to run out of time so I want to
hurry with this. Would you have any trouble in allowing each
Council to establish, if it wants to, scientific review
committees?
Dr. Hogarth. No, sir. I think--
Mr. Tauzin. Would you have any problem with giving the
Councils the ability rather than to regulate the entire
Exclusive Economic Zone but actually to look at habitat areas
of particular concern so they can focus in on other marine
activities that might be impacting an area of fisheries other
than just fisheries?
Dr. Hogarth. I am not sure if I quite understand that. You
are talking about areas of particular concern?
Mr. Tauzin. Well, right now the whole Exclusive Economic
Zone has now been defined as the fisheries habitat, essential
fisheries habitat. What I am suggesting is wouldn't it be
helpful if the committees were allowed to look at habitat areas
of particular concern within the entire economic zone so they
could focus in on activities that may be harmful to fisheries?
Dr. Hogarth. Those are most critical life stages, yes.
Mr. Tauzin. It might be worth doing, would it not be?
Dr. Hogarth. That is correct.
Mr. Tauzin. I am going to run out but I want to get this
one in if I can. The term ``maximum sustainable yield'' has
generally been used in the way that law and the implementation
has worked to mean the greatest yield and the best year, the
best environmental condition. Do you or will you concede to me
that depending upon environmental conditions, environmental
conditions change, that the notion of maximum sustainable yield
could be impacted by things other than fishing? That is going
to be impacted by environmental conditions, could it not?
Dr. Hogarth. That is correct.
Mr. Tauzin. Should not that term take that into
consideration in the way we implement the law?
Dr. Hogarth. It should and I think it does in many
instances, yes.
Mr. Tauzin. If it doesn't adequately, you wouldn't have any
problem with us trying to make sure it does?
Dr. Hogarth. I like the terms you were using.
Mr. Tauzin. That is a good answer. You obviously want to
see it. But I am just trying to get the principle in mind. You
don't have a problem with the term taking into account, as it
probably should, the environmental conditions that might affect
maximum sustainable yield?
Dr. Hogarth. No, because I think the harvest levels we try
to put in place reflect that, and the environmental
conditions--
Mr. Tauzin. And, Mr. Chairman, I know I am out of time, but
we always ask that cumulative effects be examined on the state
of the fisheries, on the habitat. Well, we say, don't just look
at what one guy is doing or what one person is doing or what
one activity does. You want to look at all of these activities
together to see if the cumulative effect of these activities
adversely affects the habitat.
Would you have any problem when the law and the
implementation of the law has to examine the effects on the
economic side, on the commercial fishing side, that it also
have the same responsibility, looking at cumulative effects of
other activities or perhaps other decisions?
For example, with the Department, they are making three
different decisions, each one of which taken alone may not have
a significant impact on the commercial fishing community or the
commercial fisheries, but collectively the three decisions may
be devastating. Do you have any problem with our law at least
asking the Department and asking them to at least look at the
cumulative effects of its multiple decisions upon the
commercial fisheries?
Dr. Hogarth. No. I think that is part of the assessment we
try to make now, particularly on a community basis.
Mr. Tauzin. I know you try to do that now, but would you
have any problem if we made sure that you always did it?
Dr. Hogarth. As long as you give us the mechanism to gather
the social and economic data necessary to make it.
Mr. Tauzin. Thank you, Mr. Chairman.
Mr. Gilchrest. Thank you, Mr. Tauzin. I think Mr. Tauzin
very eloquently described, in my judgment, an approach that is
necessary to manage our fisheries, which is in a comprehensive
way looking at more than just the impact of fishing. That is
what an ecosystem approach is.
Mr. Tauzin. But if the Chairman would yield, likewise I
think we also have--if we are going to have a balance I think
we have always wanted in this decisionmaking, we have to take
the same sort of holistic approach when we examine the effect
of various decisions upon commercial fishing or the commercial
fishing community, so that we take into account environmental
changes that would affect maximum sustainable yield, would take
into account how recent the information is and how
statistically valid the samples were and how reasonable the
conclusions were based upon other known factors, how several
decisions collectively might impact.
Those are all things I think that require fairness and
balance in this process, with the goal in mind always--you have
said it best--let me get your name. Mr. Savage. You said it
best in the end. If this is all going to work right, the
commercial fisheries industry is going to be as sustainable as
the fisheries, because they both need one another.
Mr. Gilchrest. That is what this is all about.
Dr. Hogarth. Just one last thing. I think the key to this,
too, is to make sure that we manage fish areas, and if the
environmental conditions are changing drastically and we cannot
control those, you cannot let the fishing go uncontrolled,
because then you will get stocks to the point that you cannot
rebuild. So I am saying you have to be very careful that you
look at the fishing impact on top of or in combination with the
environmental. We can't control many environmental things that
have taken place, and if you don't do that, then we could just
let the fishing go and then you would have stocks so overfished
that you wouldn't have any economic balance out of it, period.
Mr. Tauzin. If the gentleman would yield, I didn't suggest
that. All I suggested was that if you use as a criteria defined
maximum sustainable yield, the yield that can be achieved under
the most extraordinarily perfect environmental condition, if
that is your target all the time, it is an unnatural target.
There are average environmental conditions. There are highs and
lows, just as there are in the affairs of men and women and the
affairs of life, and the environment goes up and down. But if
you always use this as the only goal, as the measure in which
you are going to relate all of your decisions and you don't
take into account that there is an average, some mean
somewhere, a golden mean that the Greeks talked about in all of
their writings, if you don't take that into account somewhere,
you have got an artificial is all I am saying.
No, you should never let the fishery stock be managed on
the basis of the worst environmental conditions either, because
you lose them all and you will lose the commercial fishing
industry with it, as well as the great stocks of fish.
Thank you, sir.
Mr. Gilchrest. I thank you, Mr. Tauzin. Since there is a
potential that Mr. Tauzin is going to drop a bill dealing with
the Magnuson Act and the issue of maximum sustainable yield
which is so critical. In fact, to a large extent, it is one of
the pillars upon which the fisheries depends. I would offer an
invitation to speak at length with Mr. Tauzin about a number of
people's perspective on that term ``maximum sustainable yield''
and how we can use that, with some flexibility, with the
concept of the precautionary approach that will in fact improve
the fishery by ensuring that there are more fish and the
commercial industry can be even healthier.
Mr. Tauzin. Again, we can't conduct our negotiations like
this, but I took Mr. Hogarth through a number of the provisions
that we would like to see some attention paid in the process of
marking up a new bill, and they are included in a potential
draft of the bill that we would file. And I would certainly
welcome the opportunity to negotiate with the gentleman on
those terms and to indeed allow him to explore ways in which
even our own ideas might be improved.
Mr. Gilchrest. And I say that as we move forward with the
legislation, so that by the time we reach the House floor there
will be a good deal of mutual understanding as the process
moves forward.
Mr. Tauzin. Thank you.
Mr. Gilchrest. The gentleman from New York, Mr. Grucci.
Mr. Grucci. I am glad that you asked that question, Mr.
Tauzin, because I represent a district that commercial fishing
represents about $150 million to the economy, and I represent a
district that has Montauk Point in it and Orient Point in it,
and our fishermen are out in the ocean, Sag Harbor, which you
know very well. It is a beautiful district, and its commercial
fishing is a very healthy part of it, and I must admit I have
come to this argument a little late, in the sense that I have
dealt with it now for about a year and a half since I became a
Member of Congress, not recognizing the huge, huge obstacles
that lie in the face of our commercial fishermen, and all that
they want to do is try to make a living.
They said to me very compellingly--and I have to tend to
agree with them after hearing their argument--that no one is
more concerned about the health of the fishing industry or the
stocks, the quality of water than they are. That is how they
put their kids through school. That is how they put a roof over
their head. That is how they pay their bills, make their
living. They certainly don't want to deplete their inventory,
and they certainly don't want to pollute the asset that gives
them that.
So they are very concerned about it, too, but they have a
real problem with these terminologies of ``maximum sustainable
yield,'' and the way it was kind of described to me, it is
almost a goal that you can never accomplish, you can never
reach. Somewhere along the line something was established, and
the battle now goes, how do you get there every year, and each
year the fishing industry has less and less opportunity to fish
a stock that may very well be on its way back.
One of the things that was brought out to me--and I will
get to a question in just a moment for you,Mr. Hogarth--is that
when the data was being collected for the determination on the
sustainable yield and whether or not the fishing stock was
coming back, was that what was being harvested in boats that
were being used for purposes of gathering this data--they were
working next to commercial fishing boats, and what was coming
up from the vessels that were designed to provide the catch for
the data was woefully less than that which was coming up from
the commercial fishing boats.
The argument being made is that commercial fisherman know
how to fish and that perhaps they should be brought into that
process, as well as in the data gathering section, and it is
just a thought I throw out to you, because their argument was
pretty compelling, that if two boats are working in the same
area, in the same--and looking at the same stock and what is
coming up on deck is completely different, on both, somebody is
doing something right and somebody is doing something wrong,
and as a result of that data it may give you a false reading
that the fishing stock is indeed being depleted, overfished,
and as a result, you know, brakes need to be put on and
safeguards need to be put in place. And you may be hurting a
fishing of a stock that may not truly be in danger of being
depleted.
So I just offer that to you to consider in the process that
you undertake to gather your data. But I do have a couple of
questions. One of them is why did the National Marine Fisheries
Service decide to stop the Cooperative Science Survey Program
with the commercial fishermen, along the Northeast coast? I
know you agree that stopping these cooperative surveys would
give NMFS less information and not more in determining the
accurate fish population.
Dr. Hogarth. I am not sure personally which survey you are
talking about, because we just completed a monthly survey with
the New England fishermen, and we are initiating a sea bass
program also. There was a survey on ground fish that we did not
agree on the design, and we are still working with them on
that. And we have gone to the Council with some of the money
they are getting proposals for, additional cooperative
research. But if you tell me a specific program, I will check
it out and get back with you.
Mr. Grucci. I will be more than happy to do that, and I
know ground fish is something that has been on the fishermen's
minds, because it is something that is being taken away from
them, and I think that may very well be the survey that they
are referring to.
One more question, Mr. Chairman, if I do have the time.
While I understand the importance of protecting all the
fisheries and support the fair and complete application of
current law, it is paramount to take into account the economic
vitality and well-being of many fishing communities along the
coastline.
Commercial fishermen are already subject to many complex
laws. Recently there has been a lawsuit in Boston regarding the
Northeastern Fisheries Management Council. It is disturbing to
see that the options that were drafted by the National Marine
Fisheries Service essentially closes off the northeastern coast
to fishing of various species.
How can commercial fishermen continue to work when their
hands are regularly being tied by the regulations and
rulemaking of NMFS? That area they showed me on the map is
tantamount to Vermont, Maine, Connecticut, Rhode Island and New
York. Just shift that off the mainland and put it out in the
ocean, and that is the area that has been closed off to fishing
as a proposal by you all in that lawsuit. How can you justify
that?
Dr. Hogarth. The lawsuit--the proposal or the lawsuit came
about through mediation required by the judge. There were, I
think, nine members that went forward and seven of the nine
agreed with the mediation. The area that I think you are
talking about, there were two areas that were heavily
concentrated with small cod, which is the problem in the area,
and we closed the Gulf of Maine--southern part of the Gulf of
Maine and then one area called Cashes Banks due to the number
of fish and the bycatch problems in that area. The judge
decided to close two other areas that were not closed in this
mediation. It was her determination that those areas were as
important as the area that we closed and they were necessary to
rebuild. We have that under consideration now, but we have no
choice but to put those in place to keep the fishery open.
Under amendment 13, which is being designed and implemented
now by the Council process, which will take approximately
another year, all of these restrictions are being evaluated to
do amendment 13, and so we could have an opportunity to refine
and look at how this will be done in amendment 13.
Mr. Grucci. Thank you, Mr. Chairman. You have been very
gracious with your time.
Mr. Gilchrest. Thank you, Mr. Grucci.
Mr. Savage, you made a number of positive statements based
on your experience in the quahog clam industry dealing with
ITQs, and we are looking at certainly lifting the moratorium to
allow the Councils to develop ITQs.
Based on your experience with ITQs, do you have any concern
about the concentration of a few entities controlling the
greater percentage of the ITQs in any fishery?
Mr. Savage. Based on what I have seen in the clam fishery,
no, absolutely not, because it went just the opposite. When the
initial ITQ allocations were given out in 1990, the biggest
shareholder of all was Borden's, and Borden's had a big
presence in the fishery. They have been there for many, many
years. They bought Snow's Canning Company, and there is no more
Borden's today in the fishing industry. Borden's is gone. The
other big ones were--Doxsee was a big company. They are gone,
and all of these big companies--American Original was a
tremendous big company, and they are gone, and all of those
shares that they had have been bought up by little people.
There is more little people--you know, the little people that
are in the fishery that you all worry about being bought up,
they are actually the buyers. They are not the sellers. There
have been a few little ones that sold, but by and large, the
big companies are gone.
Mr. Gilchrest. Can you give us any specific recommendations
for criteria that we would put into the Act that the other
Councils may follow in order to prevent any concentration?
Mr. Savage. Not really. We didn't do anything before, and
it worked very well, and I don't see--you know, I just don't
see that happening. Everybody worries about it, but it is sort
of like worrying about the big bomb. It hasn't happened yet and
I don't see it on the horizon.
Mr. Gilchrest. Do you have any concern or would you agree
with an ITQ that had a sunset to it, let us say 10 years? There
is no sunset to any ITQs in the Mid-Atlantic quahog or clams
fishery, but would there be any concern that you might have if
in the Act we set up ITQs that did have, let us say, for
example, a 10-year sunset, for it to be reviewed, to be
reissued?
Mr. Savage. Well, what you have done then if you do that,
you have destroyed the value of it. Who is going to buy
something and spend probably a 10-year payout on it and then in
10 years have it have no value? It has got to be held for
something down the road. We took out half the boats almost
overnight just by consolidating, and people were willing to
buy, because they saw it as worth something, but if you are
going to say you can have it for 5 years or 10 years and then
take it back, a person wouldn't spend the money to buy it.
Mr. Gilchrest. Dr. Hogarth, any comment on sunsetting of
ITQs or concern about concentration of ITQs in other councils?
Dr. Hogarth. I have heard some concern about the
concentration, you know, as far as controlling price. If a
couple industries could own the whole fishery, that would be
more of a control for prices and this type of thing. As far as
the sunset, in your bill is the first time we have heard that
mentioned, and I think there is some concern about the value of
the permit. Once you do that, then will people really want to
buy it?
Some people may say that is a good idea, because one of the
problems with IFQs now is they have become a $60,000 permit or
something, and they shouldn't--there is some concern about the
price they get to. I personally think we should look at the
concentration, the number or percentage it would have.
I think that the Congress could ask for a report on how
effective they have been without really having a sunset and
then take action based on the report of the effectiveness and
how many were established and what was accomplished.
Mr. Gilchrest. Do either of you have any comment about
processor shares for ITQs?
Mr. Savage. I do. I am opposed to processor shares. I think
they shouldn't have it. We had--before the ITQs came into the
surf clam fishery, you could easily send--it was a deal where
you could send two truckloads of clams to a plant. The guy
could just look at you. He shucked the clams. They were there
and they were having them. He would say, you know, they were
really poor, and I am--I just--I can't pay you $10 a bushel for
them. I will give you 8, 7. He would give you whatever he
wanted to give you, and with the advent of the ITQs, all of
that changed, because you said we were very dependent on who we
sold to. There aren't a lot of processors. You don't sell surf
clams just anywhere. You sell them to a processor, you know,
that has a plant and is able to shuck them. And before the
ITQs, we were at the mercy of the processors, and with
processor shares I see that coming right back again. If you
have got a quota and I am a processor and you have caught your
quota, I will say, yeah, I will let you catch them, but they
will be 2 bucks. And you could lay to the dock if you want to
or you can catch them. We are going back 12 years if you want
to do that.
Mr. Gilchrest. Dr. Hogarth?
Dr. Hogarth. Well, I think as an agency we have some real
concerns about the processor shares. I have looked at some of
the data that was presented I think at your last hearing. The
professor had done some work on the West Coast with some of
them. We are continuing to look at this and discuss this issue,
because I think it is an extremely important issue, but I am
concerned about what it does to the price and to the fact
that--you know, the freedom of fishing, of selling. It is sort
of saying that the process--it takes X to process, then it has
government to come from a certain fish window, and you have got
to determine how he gets it. So that certainly gets into a lot
of the freedom to fish and freedom to sell, and there is some
concern there.
Mr. Gilchrest. I understand. Thank you.
Dr. Hogarth. I understand you say it happens and I think we
need to look at further, And that is what we are trying to do
next week, also.
Mr. Savage. Could I say one last thing on that? There is
nothing to stop a processor from buying right now. Any
processor can buy ITQ allocation if they wanted. They are not
precluded. What you are talking about is giving it to them now
or what--any new thing in the Act would be just an awarding of
the processors a share.
Mr. Gilchrest. Do you think we should give--should another
approach be for us to give the Council the option to allow
processors to be involved in ITQ system?
Dr. Hogarth. I personally think that is an option that
should be looked at. We recommended that at least we put into
the Magnuson to make sure the processors are considered
fisheries. There is some concern there whether the language,
the definition as it is now in Magnuson, would include
processors as being eligible as a fishery.
So I think that should be done, and then the Councils would
have the option to look at it then.
Mr. Gilchrest. Mr. Savage?
Mr. Savage. I think the Council could handle it if you
wanted to do that.
Mr. Gilchrest. Well, I have a few more questions, but I
don't want to take up the bulk of the time here.
Mr. Grucci, do you have any other questions?
Mr. Grucci. No, Mr. Chairman. I am just listening.
Mr. Gilchrest. All right. I am going to sort of pretend I
am on a second roll here. I don't know if Kevin wants to hit
the green light again or not.
There has been an interesting proposal floating around
about having the Councils continue to have authority over
allocation, and for the Secretary to have authority over
conservation, and I would just like to get your comment on
that. Dr. Hogarth.
Dr. Hogarth. There has been a lot of discussion recently
about the effectiveness of both the National Marine Fisheries
Service and the Councils in managing the resource and
rebuilding these stocks, and one of the concerns was that there
is tremendous pressure on the Councils to commercial
fisherman--and that we should look at a mechanism that would
take some of the pressure off the Council, so to speak, and
have a scientific determination through the science and through
a scientific committee that would say that the amount of
harvest that would come out of the resource should be in this
range, and then the Council had the right to then allocate that
catch or allowable biological catch.
I think the concern with that is that--that I have heard
expressed, because I am probably one of those that you may have
heard discuss this based on comments that I have heard--is that
it takes a lot of the Council's considerations, deliberations
away from them, so to speak, and that they are now just a body
that will allocate among a few people but not really look at
the big picture. I think it was put on the table as a
discussion of how we as a group, both the National Marine
Fisheries Service and the Councils, should do a better job, and
I think to do a better job we have decided internally that we
have to work closely with the Councils and we have to give the
Councils more direction up front, not at the end of the
process.
And that is our goal, to be more of a team process with the
Councils up front and scoping and looking at alternatives and
hopefully that we can--and saying no if we have to. I mean, I
think sometimes the Councils have thought we were second-
guessing them. We said no, but I think we have to look at the
national standards at what Congress has directed us as the
Secretaries to do, and I think if we do that we may not need
that type of a situation.
Mr. Gilchrest. I see.
Mr. Savage.
Mr. Savage. I speak for myself as a Council member and not
as a chairman and certainly not representing any other Council,
but if that is what you intend to do, I would rather go home.
It is just we are finished. If we get to do nothing but the
allocation and just say, OK, have somebody else determine all
the numbers and everything that is going to go and then just
say, OK, you guys now get to throw it out, we are finished. I
mean, it is over. So pat us on the head and send us home.
Mr. Gilchrest. All right. Thank you very much.
In our draft proposal we have included sea birds as a
bycatch, and Mr. Young has expressed his opinion on that. Some
have suggested that we not only include birds as bycatch but we
include marine mammals as bycatch. Now, it has been discussed
that marine mammals are protected by the Marine Mammal
Protection Act.
Dr. Hogarth, do you agree with sea birds being considered
as a bycatch in the reauthorization, and do you have any
feelings on marine mammals being also considered as bycatch?
Dr. Hogarth. I do agree that birds should be included for
several reasons. Several of the birds are endangered, and now
fisheries do interact. We are not responsible for birds under
the Endangered Species Act and the National Migratory Bird Act.
The Department of Interior is. So then we have to consult with
them on the fisheries and what is taking place.
It is much better that the Council have that to look at
from the beginning. I think it makes the process work better.
It is not an afterthought that may end up delaying the fishery
opening or having someone else get involved in determining what
measures should be in place. I think from a national
standpoint, it is important to us, because our fisheries are
sometimes minor players in this, but they are players, and if I
am not having that right, so to speak, in our fisheries, it is
very difficult for us to go forward and argue with other
countries that they need to reduce their bird bycatch or
bycatch of marine mammals and this type of thing. It helps us
as part of our work, and I think I have no problem with birds.
I think marine mammals are protected under the Marine
Mammal Act, and the Councils need to look at that, which we
encourage them to do now.
Mr. Gilchrest. Dr. Hogarth, you don't think it is
redundant--
Dr. Hogarth. No, sir.
Mr. Gilchrest. --that that is put into that?
Mr. Savage, any comment on that?
Mr. Savage. In the Mid-Atlantic area, we don't have that
much interaction with birds anyway, so I am not that familiar
with it, and it has never come to us as a problem before. So I
really shouldn't speak to it.
Mr. Gilchrest. All right. One other comment--or question.
In the Act we are looking at trying to understand this concept
of ecosystem fisheries management, and we have a 2-year study
to take a look at it, a 1-year study to fill the gaps and then
a 2-year implementation of the knowledge but no specific
criteria for a timeframe in which a fisheries management plan
must be an ecosystem approach.
One of the things we have been discussing is--among
others--are there any Councils in either of your opinions that
would, let us say, be ready to go as a pilot project or an
ecosystem fisheries management plan in the next 3 years?
Dr. Hogarth. We have one ecosystem plan that is out for
review right now, and that is one done by the West Pacific
Council on coral reefs. We have had many Councils talk about
it, but to be honest with you, with the resources available and
the problems we now have to correct our NEPA problems and
process problems to hopefully get us out of court as much as we
are in court, I am concerned about the additional work that
will be put on the Councils to do this in that timeframe.
I think we all are working toward ecosystem management. I
think the agency is working with the Councils, and we plan to
have a workshop very soon, national workshop, to look at the
implementation of ecosystem management. But I think we need to
discuss this part with you a little bit more and make sure we
understand and it doesn't get it into a predicament where we
just get more lawsuits than we have now, and that is one of the
concerns we have with that provision at the present time.
Mr. Gilchrest. Mr. Savage.
Mr. Savage. Chairman Gilford, who was the chairman before
me, in the last couple of months of his term, he appointed an
ecosystems committee, and I reconstituted that committee when I
was elected chairman, and we do have a committee. Could we have
a plan ready in 3 years? Probably not. We were just I think at
this point--you know, we are still trying to--the committee is
still trying to get themselves up to speed on what it would
take, what it would mean and where it would have to go, and
really I wouldn't stick their necks out and say they would be
ready in 3 years, but we are working on it.
Mr. Gilchrest. I see. Thank you.
Mr. Tauzin, we sort of started a second round. So before we
move on, do you have any questions?
Mr. Tauzin. No.
Mr. Gilchrest. I have another question.
The complexity of an ecosystem management approach I think
is well appreciated by those of us on both sides of the aisle
on the Committee. But we would like to firm up this commitment,
since everybody seems to agree that an ecosystem fisheries
management plan is probably or likely the best thing we could
do to preserve fisheries, bring them back, make them healthier.
And so I am wondering if either one of you would have a
suggestion, not that we want to accelerate too fast so this
whole big thing just collapses in lawsuits, because we are not
ready to do it in 3, 4, 5 years, but is there--therefore, for
example, a suggestion that a statement or language be put into
the national standards and section 301 to be revised to
emphasize the importance of ecosystem management? Is that
something that would be a good idea or--and I shouldn't say
or--and should each Council be required to develop an overall
umbrella statement that considers the interrelationships of all
of the fisheries that the Council has under its management,
something stronger, for example, than is in the draft bill
right now that will move us in this direction without the
concerns of waste--we are not wasting but putting our energies
in lawsuits and in fact maybe even putting some type of
timeframe in the language for the implementation of ecosystem
management plan?
I guess I gave you three questions, the national standards,
an umbrella statement and a timeframe, Mr. Savage.
Well, let me ask you this, Mr. Savage, before you just
answer that question, and I know you just came off a pretty
rough couple of weeks. The language that we have in the draft
bill now dealing with the studies on ecosystem management, do
you find that reasonable? Does it go too far? Does it not go
far enough?
Mr. Savage. Well, I think it is reasonable. I am not sure
it goes too far, but we are still--let me remind you, we are
still fighting the effect of the last 5 years from the lawsuits
we have had on our plans from the SFA. You know, we are
burdened under that. We are still amending all of our plans to
get the essential fish habitat requirements from the SFA in
there, and it is just we are way behind the curve, and I think
everybody else is, too. We are up to our neck in lawsuits.
Mr. Gilchrest. All right. We want to work with you on that.
Dr. Hogarth.
Dr. Hogarth. I think our concern is what do all of the
groups that we deal with, commercial, recreational,
environmental and general public, really think ecosystem
management means and does? It could be very comprehensive. In
fact, we have looked internally at what would it do to
implement a full ecosystem management plan. I think you would
be somewhat astonished at the amount of money it would take if
you really want to do full. We now have 600 and--still 650
species that we know very little about, on account of how we
do--you know, the money to do surveys. In fact, ground fish
right now, which is very important to us, we do surveys every 3
years. And so I think we have to look at the priorities of
where the money goes, and I think we all want to get the
ecosystem management approach.
I am concerned that if we move too fast, we will kill that
program, somewhat like I think the controversy that surrounded
the essential fish habitat. The essential fish habitat has not
caused the problems that a lot of people think. If you go back
and look at the number of projects we have looked at and the
impact it has had, you know, it has not caused projects to shut
down or caused great delays. It has caused some mitigation and
some changes in projects to make them better.
I just don't want to see us move with the speed without the
money to do it right and to have the resources it takes. I
think it would be good for Congress in this bill for us to sit
down and try to look at criteria quickly or something like that
that the Congress could put in here to have us to work forward
with the goals, to develop criteria within a certain number of
years, which ones you go to, which is the most important in the
data collection, the type of data collection and that. But I
don't want to see it drop, and I hope you don't take this as
being negative, because I think as an agency managing this
resource, I think we all feel that if we could get the
ecosystem management--we could switch over overnight and be
there, I think it would be better off for everyone concerned in
the long run, but it is a matter of getting out of the hole we
are in and getting to this start of a new approach.
Mr. Gilchrest. Just one last question. Part of the
ecosystem management approach would be collecting data, which
is always a critical issue. Can both of you give me your
opinion on who should have the authority or some combination
thereof to establish an observer program, the Secretary or the
Councils?
Dr. Hogarth. Well, I personally think it should be the
Secretary with the cooperation of the Councils. I think it
should be both. I think the Councils, if they choose not to do
it for certain reasons and that information is necessary for
bycatch or carrying out the mandates that Congress gives us,
then I think the Secretary should have the authority to do it.
But I think the Councils should be involved in that. We don't
want to take their authority away, but I think if for some
reason they decide not to, and it is very obvious from the
scientific standpoint for data collection and other mandates of
the Congress in the Magnuson-Stevens or any other laws we are
working under that we needed that data, then I think the
Secretary ought to have the authority to do it.
Mr. Gilchrest. Mr. Savage?
Mr. Savage. We have been working very hard on cooperative
research, and we have invested a lot of time and effort into
our set-aside programs and all of that to collect data. And I
don't think it ought to be--I think it ought to be a shared
obligation, if you will. I am not in favor of taking it all one
way or the other.
Mr. Gilchrest. Thank you.
Mr. Tauzin.
Mr. Tauzin. Mr. Chairman, you know, you have inspired me to
at least make one comment to Mr. Hogarth. All of us want to
make sure you have adequate resources to do these jobs
correctly, but I just want to put something on the record. It
doesn't help the agency when it makes that claim to us when we
look at some of the raw data that is collected by the agency to
back up some of its decisions and find that some of the data
has been arbitrarily discarded so that the results are
arbitrarily skewed.
Now, you can deny that happens, but when our fishermen tell
us it is happening and they see it happening on test trials and
test runs, then we go out and look at the raw data and find
indeed that some runs were discarded just arbitrarily where
there was, for example--I will give you a specific when we are
looking at some of the raw data, on some of the runs on some of
the TEDs issues that were so controversial in my district, and
some of the runs indicated some rather substantial losses of
catch, and those runs were simply discarded.
In fact, the Service actually came out with a conclusion
that carrying a TED, which allows for an opening in the net to
allow a turtle to escape, actually enhanced the number of
shrimp caught, that having an extra hole in the net produced a
result where more shrimp were caught than if you didn't have a
hole in the net.
Now, most normal people would consider that a rather
inaccurate conclusion, but you got to it by discarding
arbitrarily those runs which produced an abnormally high loss
of shrimp catch. We uncovered that. We exposed that, and we
never got an adequate explanation.
And so the people we represent, the people that Congressman
Grucci is talking about, who simply want a fair shake, who just
want to make sure the information is accurate when you do make
a ruling, when you do make a decision, look at those things
happening, and they say don't you dare give those people more
money. Don't you give more money to do that to us again until
they promise you they are going to quit doing that or they
promise you they are going to take adequate and fair samples,
they are going to really come up with honest conclusions that
don't compromise common sense.
Dr. Hogarth. I am not aware of that, but if you will give
me the specifics, I will get you an answer.
Mr. Tauzin. Oh, trust me, I will get them to you.
[The information referred to follows:]
Question for Dr. Hogarth from Rep. Tauzin
Allegations made by shrimp fishermen that NMFS technical work on
the effects of TEDs on harvests is flawed by an unscientific selection
of samples.
Answer: Fishermen were concerned about missing data on shrimp loss
estimates used in the proposed rule to amend the TED requirements
published October 2, 2001. They allege the NMFS report on shrimp loss
data did not contain information from 58 tows and that the lack of
providing data from all observed tows may reflect selective reporting.
The data set in question resulted from testing conducted in 2000. That
data set did not include unsuccessful tows. Unsuccessful tows are those
that include problems which would bias the data in a manner unrelated
to the TED, i.e., fouled tickler chain, torn nets, and catches dumped
together. As a result, data gathered from such tows can not be used to
make a judgment on the functioning of the TED. However, all tows are
recorded by the observer and any problems are noted.
Some shrimp fishermen believe that the shrimp loss data gathered by
NMFS on the double cover flap TED are flawed in many respects. Since
publication of the proposed rule, NMFS conducted further testing of the
double cover flap TED. During the height of the shrimp season, from
January through August, 2002, the double cover flap TED has been tested
during normal commercial fishing operations against current
commercially available TEDs for shrimp loss aboard 12 commercial shrimp
trawlers in the Gulf Area, and one trawler in the Atlantic Area. In the
Gulf Area, seven vessels fished in inshore and near shore areas (two in
Texas, two in Louisiana, one in Mississippi, one in Alabama and one in
Florida). Offshore testing was conducted along the northeast coast of
Florida by one vessel, the pink shrimp grounds of southwest Florida by
two vessels, Louisiana by two vessels and Texas by one vessel. In order
to obtain statistically valid data, a minimum of 20 comparative tows
were conducted during each trip. Testing has included the shrimp season
openings in Texas, Louisiana, and Mississippi. A total of 305
comparative tows were conducted. The double cover flap TED experienced
a 0.1 percent shrimp gain when compared to current commercially
available TEDs, which is not statistically different from zero.
Excessive shrimp loss due to back washing and large catch loads were
not experienced during the tests to date. Additionally, several vessel
captains have remarked that the double cover flap appears to work
better in excluding debris such as sticks, grass, and jellyfish.
______
Dr. Hogarth. I am aware of the problem we have with the
protocol in looking at the bycatch reduction devices in the
Gulf, and we changed that protocol because there was a problem.
If you got certain parts through, you had to discard some
samples, and it didn't work as well and we went back and
redid--
Mr. Tauzin. Well, let me just ask you--and I will. I will
bring you the information. I will bring you this information
how these runs were discarded.
Mr. Gilchrest. Well, Mr. Tauzin--
Mr. Tauzin. I am sorry, sir?
Mr. Gilchrest. I was saying you could bring the information
to the Committee as well and we could have a hearing on it.
Mr. Tauzin. We did already.
Mr. Gilchrest. We had a hearing on it?
Mr. Tauzin. Yeah. It came out of Committee, I believe, but
we will bring them again. But the point I will make is I will
bring you those things and I will show you the conclusion where
the Department actually concluded that you are going to catch
more shrimp if you carry a device that creates a hole in your
net than when you don't have a hole in your net, and you tell
me if somebody didn't have a hole in the head when they wrote
that conclusion. I will be extraordinarily disappointed if you
don't come to the same conclusion we did.
It is that sort of thing that sends people up the wall,
and, you know, those are the people we have to go back to and
say, you know, every November send me back to Washington
because I am a good Representative. They say, you let that
happen to us? Put yourself in our shoes. Imagine going back to
those same people who were faced with a regulation based upon
that kind of conclusion and try to defend it and try to defend
their government to them.
Dr. Hogarth. That is why we try to make this more open and
communicative to prevent this type of thing.
Mr. Tauzin. I mean, look, if it is a fair evaluation, if
the samples are accurate, if there is real information that
determines a management decision is critical, that is good for
all of us. It is good for the environmental community, it is
good for the fisheries and good for the fishing community. But
when those kind of things happen, it destroys the credibility
of the program. It makes it difficult for folks like us who
want to help you with the money to do it right to come back and
help you.
Dr. Hogarth. I am unaware, but I will get you an answer.
That was before my time, but I will still get you an answer.
Mr. Tauzin. God's sake, if you are employing a burglar,
don't arm him if he is going to come in our house. That is the
answer we get.
Thank you, sir.
Mr. Gilchrest. Mr. Grucci.
Mr. Grucci. Thank you, Mr. Chairman. I don't want to sound
like I am piling on to the issue, but--
Mr. Tauzin. Pile on.
Mr. Grucci. --it is exactly what I was trying to say
earlier. You have two fishing boats working side by side. They
knew that the way that they were capturing the data for purpose
of determining the size of the stock was wrong. They were
trolling far too fast. They knew that they would never capture
anything in the nets. I am talking about the professional
fishermen, and indeed I hear the same stories where they say--
when they get stuff that comes up on the boat, they throw it
over the side and therefore their numbers are skewed.
Now, I don't have the data on that, so I can't provide you
the specifics on it, but I will share with you this situation
that Chairman Tauzin talks about is not unique to Louisiana. It
is happening in New York, and if it is happening in New York
and Louisiana, I have got to believe it is happening elsewhere.
It might even be happening in Texas.
So the point is, is that these folks are only asking for
the opportunity to make a living, and we are making it more and
more difficult on them, and they are saying we are making it
difficult on them artificially. They want the fishing stock
protected. They want it preserved. They want it to be there for
them and hopefully their children.
Today I was out at a seminar where NADS stood up and said,
listen, I don't have a college education but I have $2 million
tied up in my couple of boats, and all I do is go out and fish
and now they are going to close off half the ocean to me. They
are getting information that is inaccurate. They have got the
sustainable fishing quotas that are artificial. You can't reach
them.
Is it because they want to put us out of business and have
fishing farms where we get the fish from? Is it because they
want to put the American fishing industry out of existence and
the foreign vessels can come in and fish the same waters and
aren't subject to those same quotas?
I mean, these guys have a lot of problems out there, and we
are creating a lot of it for them.
Dr. Hogarth. Let me just respond real quick, and I will
make this a quick response. I think the cooperative research
that Congress has provided money for is an excellent program,
and it is working.
One of the real problems is commercial fishermen are
excellent at catching fish. They know how to catch fish. They
know how to catch legal sized fish. The surveys that we do as
an agency for scientific purposes are not targeting the size of
the fish. We are looking at recruitment. We are looking at
small fish, and it is a difference. What we have to do is work
with them, and that is why we supplement that like we did with
monk fish. We were able to really find--you know, supplement
that data and find out how well off the population really was.
So it is a matter of us working with the industry and talking
to the industry, and hopefully we can start that dialog and
communication. And it is beginning, and I think we have to
continue that. But no way does this agency want to shut down
the commercial fishing industry in the U.S., but we do have to
take some--I think we have got some major problems with the
amount of capacity and the status of some of these stocks and
that unless we do a better job of managing I don't see the
commercial industry having a bright future, and I think we have
got to get these fisheries to a sustainable level so that those
guys who have an investment can continue to fish.
Mr. Grucci. We will be the first to tell you that they are
in total agreement to that. Where the difference lies, because
they don't believe that the data is accurate based upon what
they see every day out on the water. One of the things that
they brought to my attention, which, you know, for the life of
me I can't understand, and maybe you can enlighten me on it, is
that the quota is established and now all of a sudden they are
out there fishing and they reach their quota. They pull up
their net. They have more fish in it than what their quota is.
They have to throw it over the side. They are throwing the fish
over the side that are dead. I don't understand the logic in
that, because if they come back to port with that, they are
going to get murdered. Their boat could be confiscated. There
could be huge fines involved with them. They could be put out
of business.
So they are out there fishing and the next thing you know
they are throwing fish over the sides of their boat because if
they get caught with it on their boat, they are going to be
subject to significant fines, which kind of leads you to
believe the next question has to be asked is if it is such an
endangered species, how come they are getting so much of it?
Dr. Hogarth. Well, I think you brought up two issues. I
think No. 1 is that bycatch is one of the major issues that we
deal with, because, you know, when you reach--and particularly
in multi-species--when you reach a level that we feel is safe
to be harvested and then you continue to fish, you catch these
fish that you shouldn't be catching and you throw them over
dead. That impacts the future of the recovery.
Dr. Hogarth. Fishermen see--and we agree with fishermen.
For example, in New England groundfish, the stocks are
improving but they are not at the level of stability that is
sustainable, and so that is what is the difference. They are
out there every day. They say they are improving, we say they
are improving, but they think we ought to take off all
restrictions and we have to address the back issue. It is a
major issue in this country.
Mr. Grucci. I hate to interrupt you, but I can only speak
for the fishermen that I represent. They don't want you to
eliminate all rules and regulations. They just want them to be
on a level playing field.
Mr. Gilchrest. Mr. Grucci, we have a vote and I think what
we will do is we will recess, and Dr. Hogarth and Mr. Savage,
your time with us will be done for this afternoon. And I
strongly appreciate your patience and your testimony, but, Mr.
Grucci, just very quickly, no foreign fishing vessel can come
in to U.S. waters, so your fishermen are safe regardless of
what happens there. And the observer program is important to
collect the data so that your fishermen can feel secure that
NMFS is giving out the right data.
And, Dr. Hogarth, and I apologize for this, but I did have
one other quick question that give a yes-or-no answer that
deals with gear type. Mr. Tauzin brought up the TEDs, and there
are a number of issues dealing with essential fish habitat when
we deal with just a whole range of gear types. Is there some
way that we could privatize the development of gear type for
the fishing industry? As opposed to having NMFS do it, can we
privatize that and ask American ingenuity to create a specific
gear type for specific fisheries?
Dr. Hogarth. That could be done. The DSCAPE funds that we
have, the solicitation for proposals for the next year, is just
going to the Federal Register. One of the top priorities there
is gear, and so the fishermen or anyone can give us proposals
under that scenario. Plus we have a gear group in Pascagoula
that will work with any of the commercial industry. I think the
commercial industry particularly knows what to do and has a lot
of ingenuity, and I think it is just giving them the events
that they need to do something and give them some help; yes,
sir.
Mr. Gilchrest. Mr. Savage.
Mr. Savage. I think the gear technology, the improvements
come right off the boats. It doesn't have to come from anywhere
private or from the government. The guys that are fishing are
doing it every single day and they are the ones that when
something new like that comes up, something new in the dredge,
it comes from some guy on a boat. It doesn't come from someone
down the road selling that thing.
Mr. Gilchrest. Mr. Savage, Dr. Hogarth, thank you very
much. We are in recess.
[Recess.]
Mr. Gilchrest. The Subcommittee will come back to order. I
understand one or two people have to leave by a quarter to 6 to
catch a plane. We will try to expedite the process. If we are
not done at that point, whoever you or they are, please feel
free to leave. We will try to stick to the 5-minute rule during
the opening testimonies and get to the heart of the matter
during the questioning. Thank you, gentlemen, for coming. We
appreciate your attendance and we look forward to your
testimony.
Mr. Gilchrest. Mr. Houde, you may begin your testimony.
STATEMENT OF EDWARD D. HOUDE, PROFESSOR, UNIVERSITY OF
MARYLAND, CENTER FOR ENVIRONMENTAL SCIENCE
Dr. Houde. I thank the Chair--
Mr. Gilchrest. Can you move the microphone over there?
Thank you.
Dr. Houde. I thank the Chair and Subcommittee for providing
me this opportunity to comment on the discussion draft of the
Magnuson-Stevens reauthorization, and I commend Chairman
Gilchrest for the high priority that he is giving to this
reauthorization and hope that the comments I am making will
identify some science issues that should be considered in
strengthening the proposed legislation. My comments will
briefly address some of the issues in the draft bill. My
written testimony provides more detail.
Given the uncertainties of stock assessments and the
uncertainty in the effectiveness of management actions which,
by the way, often do not reflect the quality of science and
management but, rather, the random and unpredictable behavior
of marine ecosystems, I believe there is a need for more
dedicated language on precautionary approaches in the
reauthorized Act. There is a need because marine ecosystems are
complex and never will be completely predictable. Complexity
requires a broad knowledge of how ecosystems function, and also
a healthy respect for their variability and complexity. Firm
language in the Act to recognize and acknowledge the need of
precautionary approaches would be welcome.
Overcapacity and excess efforts, these are the global
problems that have been recognized as the major management
issues in marine fisheries. It is good to see the problem
recognized and the recommended actions highlighted in the
discussion draft. The National Academy Committee in 1999 came
to the same conclusions and recommended that this should be a
major emphasis of renewed management in the United States. In
fact, they said that had there been an effort-to-control effort
for most of the overfished single-species fisheries in the
past, that the need for more extensive, complex, and broader
ecosystem approaches that we now are faced with would have been
less of an issue had we reduced effort in overcapacity in the
years past.
I was pleased to see the language regarding IFQ management
in the discussion draft. Many resource economists and managers,
of course, have been recommending that Councils have the
discretion to apply IFQs as an option at least to be considered
in fishery management, and it was good to see that language in
the Act. There are potential pitfalls, of course, but overall
it is a good measure that will allow IFQ management plans to be
developed at Council discretion. I think it will help control
capacity and effort, the two things that are identified as the
major problem.
Ecosystem-based approaches, I noticed in the previous
discussion that we were talking about ecosystem management; I
prefer to talk about ecosystem-based approaches. Ecosystem
management is a formidable concept and idea. Ecosystem-based
approaches, on the other hand, implies that in an incremental
way, we could move toward managing those critical components of
the ecosystem, and this seems entirely feasible to me. I think
that the discussion draft is not as firm as it could be in some
respects with respect to these kinds of approaches. I am an
advocate of such approaches, multispecies management,
admittedly difficult, and ecosystem-based approaches, even more
difficult, are on the horizon. Many of these approaches can
benefit fisheries today, helping to overcome the uncertainties
already mentioned. THe Ecosystems Principles Advisory Panel in
1999 that NMFS put together strongly recommended development of
such umbrella plans, fishery ecosystem plans. The discussion
draft of your bill recognizes the value of this conceptual
advance and recommends a process that will lead to research on
them but not the implementation. It will take 3 years after
reauthorization to even reach a point where recommended
research will be presented to the Secretary by each Council. To
me this seems too long. I think it is possible to move faster.
Essential fish habitat, I am in the camp that thinks that
essential fish habitat ought to be defined better, that habitat
areas of particular concern ought to be defined. The seascape
is not homogeneous, and individual species and species groups
have preferred and required parts of marine ecosystems that are
critical for production and well-being. The HAPC designation
has been used by Councils and could be formalized in the Act.
Some have recommended that a new standard be developed for EFH.
I am not certain that this is required, but recognition of
importance of habitats in both a broad sense and a more
specific sense I think will help in applying ecosystem
approaches.
Marine protected areas are another idea that doesn't appear
in the draft language. This is an especially explicit way of
complementing traditional kinds of management. It is unlikely
that marine protected areas would be a stand-alone tool, but
the National Academy Committee on MPAs and the Ecosystem
Advisory Panel thought that there were many benefits of MPAs
that could be applied now. Some recent applications of MPA
approaches have been quite positive. Many of you are familiar
with the successes of MPA implementation on Georges Bank with
respect to scallops, for example. Admittedly, such closures
need to be implemented with care and evaluated to confirm their
efficacy. I believe that supportive language to undertake
research and to move toward implementation of MPAs, where
appropriate, should be included in the Act.
There are data needs. The draft discussion recognizes this.
Again, the National Academy, in the Year 2000 report, laid out
a long list of data needs that could help to improve fishery
management in the United States. I have summarized some of
these in my written testimony, but the big idea that they came
up with that I would support is that there is a need for a
National Fisheries Information System. NAS recommendations
could ensure improved data accessibility for stock assessments,
socioeconomic analysis, and environmental research.
Finally, the National Academy also addressed the
possibilities for government-academic partnerships. They made
many recommendations to alleviate manpower shortfalls in NMFS.
Primary among the recommendations was an idea to expand and
develop partnerships between NMFS and academic institutions to
train experts and to conduct collaborative research.
Cooperative marine and education research programs have been
instituted to an extent on the East Coast of the United States
and an expansion of the CMER concept would be helpful to
improve habitat research, stock assessments, and ecosystem
approaches to fisheries management in particular, while
educating the next cohort of fishery scientists to address
these new problems.
I want to thank you, Mr. Chairman, for allowing me to
testify on this discussion draft. I know you have been
sensitive to the needs of commercial, recreational, and
environmental interest in fisheries and marine resources
management and that developing a strong and effective
reauthorization of the M-S Act is high on your priority for the
107th Congress.
If I can answer questions here or later as you work on this
bill, I would be pleased to respond.
Mr. Gilchrest. Thank you very much Dr. Houde.
[The prepared statement of Mr. Houde follows:]
Statement of Edward D. Houde, Professor, University of Maryland Center
for Environmental Science
The Need for Reauthorization
The 1996 reauthorization of the Magnuson-Stevens Fishery
Conservation and Management Act (the Act) took important steps to
improve management of fish stocks in the U.S. EEZ. It did not free us
of the problems of overfishing and associated overcapitalization in
many fisheries, but its declarations that overfished stocks would be
rebuilt, that overfishing was not acceptable, and that fisheries
management in general would become more risk-averse under the Regional
Councils have had an effect on stabilizing stocks, curtailing declines,
and beginning the rebuilding process in some stocks. More steps need to
be taken. Proposed amendments in the present reauthorization draft of
MSFCA acknowledge the need for additional legislative action aimed at
improving fish stocks, the fishing industries, and ecosystems that
support fisheries. I am cautiously optimistic that marine fish stocks
can be managed sustainably. Even with perfect legislation, however,
achieving and insuring sustainability will not be easy tasks.
I appreciate having the opportunity to address the Subcommittee and
to present my views on the discussion draft for reauthorization of the
Act. My comments mostly represent personal views, particularly on
science-related issues, and not those of the University of Maryland's
Center for Environmental Science (UMCES). However, my recommendation to
add language to the Act that establishes Cooperative Marine Education
and Research (CMER) programs between the National Marine Fisheries
Service and seven universities is an initiative supported by UMCES.
Recent History, Precautionary Management
Emerging paradigms in fisheries management on a global basis hinge
on the ``precautionary approach'' that has been adopted as a standard
(FAO 1995). The ethic espoused in this approach advocates setting risk-
averse targets as ``biological reference points'' rather than more
liberal ``thresholds'' or ``limits'' that had been recommended
historically. The precautionary approach is accepted in principle and
is being applied in many fishery management plans, although the present
Act and the draft discussion are mostly silent on it. An explicit
acceptance of the precautionary approach and a definition of it in the
Act would be helpful to promote the ethic, both in principle and in
effect.
Fishing Effort, Overcapitalization and Alternatives for Fisheries
Management
Excess Effort and Overcapacity
Language in the discussion draft (Sec. 3 and Sec. 4) that addresses
reduction of overcapacity and overcapitalization is welcome. These
problems have been recognized repeatedly as the major problem in
controlling and managing marine fisheries. This is true globally as
well as in the United States. The National Academy report, ``Sustaining
Marine Fisheries'' (NAS 1999a) urged solution of this problem to allow
U.S. fisheries to be managed sustainably. There is excess effort
invested in many of the nation's valuable fisheries. Serious
allocation, conservation, and economic problems too frequently
accompany the excess effort and capacity of fisheries, eroding
potential benefits and profits, and threatening sustainability.
Language in the draft, if it generates actions to reduce capacity, can
be beneficial to some marine fisheries.
Individual Quotas and Community Development Quotas
Limiting entry and establishing individual quotas (IQs) have been
debated vigorously in the U.S. (e.g. Hanna et al. 2000) and globally. A
NAS study (1999b) was guardedly positive on the role of IQs and
recommended them for specific fisheries at the discretion of the
Regional Councils. The accumulated evidence from a scientific
perspective supports the implementation of IQ management under
appropriate circumstances, recognizing the need to consider initial
allocation of shares, the threat of monopolies developing, and the
rules for transfer and duration of IQ permits.
It was good to see language in the discussion draft that will allow
Councils to develop new IQ fisheries (Sec. 12), and which addresses the
issues that most often concern those who are opposed to such limited-
access approaches to management. I expect that declaration of IQ
programs and implementation will continue to be contentious in many
marine fisheries. The requirement to hold referenda among stakeholders
before an IQ plan can be instituted is included to democratize the
process, but choice of those included in a referendum is to be
determined by the Council, with guidance from the Secretary. The
``guidance'' from the Secretary, in the absence of specific directives
in the Act, will be critical in determining effectiveness of IQ
implementation. Firmer, more prescriptive language on the referenda
criteria would be helpful.
Benefits of IQs, in addition to controls on effort (and fishing
mortality), are probable. For example, IQ-based management is
potentially more ecosystem friendly than open-access participation in
some fisheries. This may be true, for example, with respect to fishing
impacts on habitat and with respect to bycatch reduction.
Ecosystem-Based Approaches and Issues
Ecosystem-Based Management
The proposed language in the discussion draft (Sec. 6) may not be
strong enough to insure effective actions by the Councils. It urges
managers to ``support and enourage efforts to understand the
interactions of species,'' which is important and could have a positive
influence on ``better stewardship and sustainability of coastal fishery
resources.'' But, there are no firm directives that lead to
implementation and no explicit approaches mentioned. For example, the
NMFS Fisheries Ecosystem Principles Advisory Panel (1999) and the
National Research Council's Committee on Marine Protected Areas (NAS
2001) strongly recommended incorporation of protected areas and other
spatially-explicit approaches for fisheries management. These
approaches tend to reduce the dependency of management on conventional
effort and landings controls towards more ecosystem-sensitive
approaches that can be favorable to protect essential fish habitats,
reduce bycatches, and protect threatened species.
Fisheries Ecosystem Plans
The amended MSFCMA (1996) recognized that marine fisheries
management has been too little concerned with marine ecosystems, their
stability, variability, and sustainability of high productivity that
will assure sustainable and profitable fisheries. Accordingly, Congress
mandated that an Ecosystems Principles Advisory Panel be established to
undertake an analysis of the extent to which ecosystem principles were
being applied in fisheries and to recommend actions that should be
undertaken by the Secretary and Congress to expand application of
ecosystem principles in fisheries management. The report of the Panel
(NMFS, 1999) included many specific recommendations and a major
conceptual recommendation--the proposal that each Council develop a
Fishery Ecosystem Plan(s) within its region. A FEP is envisioned to be
a document that serves as an umbrella under which individual Fishery
Management Plans (FMPs) would reside and to which they must adhere.
Adopting the FEP concept is likely to insure that many individual FMPs
will be more ecosystem-sensitive because the function and structure of
ecosystems would be highlighted when managing an ecosystem's
constituent fisheries.
I was pleased to see language in the discussion draft that
addresses the need to develop criteria and to move towards
establishment of FEPs (Sec. 6). However, the language may not be
sufficiently firm and the timetable to establish criteria seems far too
long. As written, after two years Councils are to complete development
of criteria for FEPs and then within one additional year must (with the
Secretary and Congress) select specific marine ecosystems within their
regions to ``develop and begin to implement research plans'' that
address issues identified in the Fisheries Ecosystem Panel report (NMFS
1999). The approach is good, but the timetable is not. After three
years, the Councils need only begin to develop research plans. When
will management measures based on ecosystem principles be instituted? I
recommend that language in the discussion draft on ecosystem-based
management be reconsidered to require more timely actions, and that
explicit recommendations be included to plan for implementation of
FEPs.
Essential Fish Habitat
The SFA (1996) contains specific language on Essential Fish Habitat
(EFH), directing Councils to identify such habitats in their respective
FMPs and presumably to implement measures to protect such habitats to
insure healthy fisheries. The definition of EFH as it now stands,
however, tends to be so broad that it is questionably useful in the
management process, although the ethic that supports broad
consideration of EFH is appropriate. It is reassuring that there is
recognition of the broad habitat needs to support marine fisheries, but
the language in the discussion draft of the Act does not clearly
recognize that some habitats are especially important to protect and
produce the many and diverse stocks of fish being managed under the
MSFCMA. I believe that this is a deficiency of the discussion draft. We
should be moving towards identifying the specific types of habitat that
are critical for some species or species groups, which have been termed
Habitat Areas of Particular Concern (HAPC), and which deserve
particular attention in managing the stocks. Some additional
consideration is necessary in the discussion draft, which then should
be followed by addition of more specific language on EFH that provides
guidance to managers, in addition to highlighting the criteria for, and
kinds of, habitat-related research that are required. I am not certain
that a specific National Standard needs to be added to the Act, but
this possibility should be considered.
Bycatch
The discussion draft includes strengthening of recommendations and
guidance for bycatch reduction in marine fisheries (Sec. 9). This
language is very welcome in the Act. Bycatch can be wasteful and
potentially damaging to marine ecosystems. There are ways to address
the problem and to reduce the amount of ``technical interaction'' in
fisheries that will lower the catch of non-targeted organisms. Observer
coverage and modification of gears can document and reduce bycatch.
Research on methods and approaches to reduce bycatch already are being
implemented; the language in the discussion draft will reinforce and
strengthen these actions.
The language in the discussion draft that specifically allows
distribution of dead bycatch to charitable organizations, while
acceptable in principle, could be misdirected if it induces subtle
shifts in fishing strategies and locations by fishermen to areas where
bycatches may be high. Under ``Bycatch Reduction Gear Development''
(Sec. 408), it seems remiss to not clearly specify the ``Amount of
bycatch, if known'' in the list (page 12, lines 23-25) for fisheries
with bycatch problems (page 12, lines 23-25 of discussion draft). This
would highlight the magnitude of the problem in those fisheries where
bycatch is problematical.
Marine Protected Areas
Closed area management is not new in fisheries, but nevertheless it
has been used rather sparingly. The concept of marine reserves or other
closed areas, with various restrictions on fishing and other human
uses, was recognized in the 1996 reauthorization of the MSFCMA and has
been on the planning tables of Regional Councils in recent years. Some
marine areas have, in fact, been closed to some kinds of fishing effort
(e.g. parts of Georges Bank). A detailed study of MPAs by the National
Academy of Sciences (NAS 2001) broadly evaluated their potential,
including their use as a tool in fisheries management. The NAS
Committee concluded that MPAs have a role in fisheries management. In a
broad sense, setting aside areas to protect spawning stock can serve as
a buffer against the uncertainty of obtaining accurate stock
assessments, i.e., a kind of insurance. More specifically, the NAS
Committee recommended that MPAs for fisheries management should be
designed as parts of broader networks of MPAs that are zoned for
permitted activities, and that the networks be embedded in a broader
plan of coastal ocean management that considers the full spectrum of
human activities and need to protect ecosystem structure and function.
The NAS Committee recognized and emphasized that stakeholders (fishers)
must be included in every stage of MPA development, from discussion of
concept through design, and continuing into the evaluation and
monitoring phase after implementation.
MPAs are not a stand-alone solution to fishery management problems
but their role, which is likely to increase, should be recognized.
Language in the pending reauthorization of the Act could be added to
address the issues and identify probable benefits of MPAs, to specify
research needs, and develop criteria for MPA implementation. The
impetus to do this is underscored by the Executive Order issued by
President Clinton in May 2000 directing federal agencies to develop
networks of MPAs in the coastal ocean.
Data and Information Needs
The issues of data availability, collection of data, and data
management for stock assessment and management purposes represent key
needs for improvement of fishery management and, to an extent, are
addressed in the discussion draft (Sec. 5 and Sec. 20). A National
Academy of Science Committee (NAS 2000a) developed a comprehensive list
of detailed recommendations for data collection and management
specifically addressed to Congress, NMFS, or the Councils. That
committee recommended implementation of a national Fisheries
Information System (FIS), which remains an important need and could be
emphasized in the reauthorized Act. The summarized and consolidated NAS
recommendations, many of which should be considered for inclusion in
the reauthorized Act, are:
Congress and NMFS. Standardize and improve fisheries data
collection and management methods and procedures nationwide. Develop a
Fisheries Information System (FIS).
Councils. Be more proactive in determining needs and
requesting appropriate data and models to improve potential for success
in management. This recommendation is applicable to both commercial and
recreational fisheries.
Congress. Make commercial fisheries data more accessible
to agencies for stock assessment scientists by amending laws relevant
to confidentiality.
NMFS. Develop more cost-effective ways to collect and
manage data, including data collected for recreational fisheries in the
Marine Recreational Fishery Statistics Survey (MRFSS) surveys.
NMFS. Develop new data collection and stock-assessment
methods, including those that consider ecosystem functions and
processes, habitats, and environmental variability.
NMFS. Involve stakeholders (fishers) in the data
identification and collection processes more than at present. Better
cooperation with stakeholders will improve quality of data. Reports of
data analysis and assessments should be made available to stakeholders
on a regular basis.
Congress and NMFS. Insure that NOAA has a strong and
capable fleet of research and survey vessels for fisheries data
collection and assessment.
Congress and NMFS. Increase the level of observer
coverage on fishing vessels to improve data collection and
interpretation.
Congress, NMFS and Councils. Institute better and more complete
monitoring and evaluation of marine ecosystems and EFH. Build this
information into stock assessments.
Cooperative Research and Education
Many of the needs for fisheries science, the requirements for
management action in the existing Act, and the implementation of
recommendations in the discussion draft will require increased funding
and also additional staff and personnel trained in quantitative
fisheries science, ecosystem science, economics, and sociology. At
present, the National Marine Fisheries Service (NMFS) cannot meet its
demand for stock assessment specialists and has too few social
scientists and economists on its staff to effectively provide
management information and advice to the Councils. A National Academy
of Sciences workshop (NAS 2000b) on manpower needs in NMFS explored the
need for such experts and made recommendations to NMFS to help recruit
new talent. However, it is not certain that such needs can be met
without significant stimulation of effort and funding by Congress.
Furthermore, the needs for stock assessment scientists and
socioeconomic experts on Council staffs and in academia (to train the
new cadre of experts) is problematic, a kind of Catch-22 since
virtually all experts in quantitative fisheries science at the PhD
level who are U.S. citizens now take positions in NMFS, leaving a
minuscule pool of talent for Council staffs or for academic
institutions to recruit into faculty ranks. Language in the Act that
served to insure programs and funding to address the research and
educational needs of NMFS and other research institutions would be an
excellent investment for sustainable fisheries and ecosystems that
support them.
Cooperative Marine Education and Research (CMER)
To meet the challenges posed by issues of resource management in
the marine environment, a partnership between NMFS and universities has
been proposed to conduct research on coastal fisheries and to help
resolve the manpower shortage in NMFS of highly-trained fishery
scientists, marine ecologists and socioeconomics experts. The
Cooperative Marine Education and Research (CMER) program already exists
in four universities (University of Massachusetts, University of Rhode
Island, Rutgers University, and College of William and Mary) through
funding from the NMFS Northeast Fisheries Science Center. The Director
of each university's program is a NMFS scientist who administers the
program and participates in research and education activities at the
academic institution. CMER could benefit immensely from a permanent
authorization in the Act and by expansion to include the universities
already participating plus three others (University of Maryland,
University of New Hampshire and Stony Brook University- -the State
University of New York). These universities constitute a consortium
that will partner with NMFS to meet research and educational needs of
the agency and the country.
The following language is proposed for inclusion in the Act:
``Cooperative Marine Education and Research- -For the purposes of
developing adequate, coordinated, cooperative research and training
programs for living marine resources, the Secretary may establish a
Cooperative Marine Education and Research Program. Under this program
the Secretary is authorized to enter into cooperative agreements with
universities and institutions of higher learning in order to conduct
research in areas that support conservation and management of living
marine resources. Research conducted under this program may include
biological research concerning the abundance and life history
parameters of stocks of fish, the interdependence of fisheries or
stocks of fish, and other ecosystem components, and the linkages
between fish habitat and fish production and abundance.''
Summarizing
There are many science-related issues that need to be addressed in
the reauthorization process. The problems of fisheries science and
management, and recommendations to solve them, were nicely encapsulated
by Pamela Mace in her keynote address at the 2nd World Fisheries
Congress (Mace, 1997). Mace's essay is global in scope, but most of the
issues she addresses are relevant to U.S. fisheries. She believes that
overcapacity is the single largest problem in fisheries management on a
global basis, and that control of excess effort is essential to have
healthy fisheries. The draft language in the reauthorized Act now
recognizes this issue and proposes actions to alleviate the problem.
Also, Mace (1997) states, ``I contend that, to date, lack of national
policies and institutional failures have been more limiting than
science, management or data. Sound national and international policy
and effective institutions are essential for providing the necessary
environment to foster good science, management and data collection
programmes.'' The reauthorization of the Act must provide the
legislative guidance to support NMFS and the Councils that will allow
them to conduct the science, recommend effective management measures,
and then implement regulations to assure healthy and sustainable
fisheries. Amendments proposed in this discussion draft of the Act, if
supplemented by additional recommended actions and firmer, more
prescriptive language, will help to insure that those goals are met.
References
FAO. 1995. Precautionary approach to fisheries. Part 1: Guidelines on
the precautionary approach to capture fisheries and species
introductions. FAO Fisheries Technical Paper 350/1. 52 pp.
Hanna, S., H. Blough, R. Allen, S. Iudicello, G. Matlock and B. McKay.
2000. Fishing grounds. Defining a new era for American
fisheries management. The H. John Heinz III Center for Science,
Economics and the Environment. Island Press, Washington, D.C.
Mace, P. M. 1997. Developing and sustaining world fisheries resources:
the state of the science and management. Pp. 1-20. In: Hancock,
D. A., D. C. Smith and J. P. Beumer (eds.). Developing and
sustaining world fisheries resources. 2nd World Fisheries
Congress Proceedings. CSIRO Publishing, Collingwood, VIC,
Australia.
NAS. 1998. Improving fish stock assessments. National Academy of
Sciences, National Research Council. National Academy Press,
Washington, D.C.
NAS. 1999a. Sustaining marine fisheries. National Academy of Sciences,
National Research Council. National Academy Press, Washington,
D.C.
NAS 1999b. Sharing the fish. Toward a national policy on individual
fishing quotas. National Academy of Sciences, National Research
Council. National Academy Press, Washington, D.C.
NAS. 2000a. Improving the collection, management, and use of marine
fisheries data. National Academy of Sciences, National Research
Council. National Academy Press, Washington, D.C.
NAS. 2000b. Education and training needs for fishery sciences and
management. Workshop Report. National Academy of Sciences,
National Research Council. Ocean Studies Board.
NAS. 2001. Marine protected areas: tools for sustaining ocean
ecosystems. National Academy of Sciences, National Research
Council. National Academy Press, Washington, D.C.
NMFS. 1999. Ecosystem-based fishery management. Ecosystem Principles
Advisory Panel. NOAA/NMFS. 54 pp.
______
Mr. Gilchrest. Mr. Hayes.
STATEMENT OF ROBERT G. HAYES, GENERAL COUNSEL, COASTAL
CONSERVATION ASSOCIATION
Mr. Hayes. Thank you. I am the general counsel of the
Coastal Conservation Association, and, as such, I would like to
give you the views of their 80,000 members on your draft. There
are a number of those views that have been included in my
testimony, and I don't want to just repeat those, so what I
will do is pick four or five which we think are of
significance, some of which haven't been touched on today, and
deal with those directly.
Mr. Gilchrest. And we will include your statement in the
record.
Mr. Hayes. Thank you. Let me start with the definition of
``bycatch.'' we have no position, frankly, on the issue of
whether you include birds, and certainly no objection to it. We
do, however, have an objection to having bycatch apply
essentially to recreational fishing. Recreational fishing as an
activity by and large is a bycatch fishery. The connotations in
the statute suggest that bycatch is a bad thing that ought to
be minimized or avoided. So what you are basically saying in
the statute to the average recreational fisherman is, the
activity that you are engaged in, including all catch and
release activities which are generally viewed as a pretty
positive conservation measure, are something that we ought to
be avoiding as a matter of national policy. Frankly, NMFS has
wrestled with this issue. We wrestled with it in certain plans,
the highly migratory species plan on the marlins. It is an
intractable problem, frankly, and it results from the existing
definition. And what we would like to do is work with you on
developing a definition that clearly preserves the conservation
ethic that you are trying to preserve, but which doesn't label
an activity incorrectly as something that ought to be avoided
and minimized. That is the first one.
The second one, I would like to suggest, that I saw your
study on HMS fisheries dealing with fostering the international
compliance with ICCAT. We think that is a very positive step
forward. Frankly, we passed the resolution here only about 2
months ago dealing with multilateral compliance with
international conservation measures by ICCAT. We are going to
Tokyo, I think at the end of this month, to further some
discussions along those lines; and, again, this is one of those
things we would like to get back with the Committee after we
get back and include--it turns out I am the Recreational
Commissioner--but I would like to include the other
commissioners, including the Federal Commissioner, Dr. Hogarth,
in an active discussion of how we can move forward in this
arena. This is something that is sorely needed for the
international compliance on those measures.
The third thing I would like to do is applaud you for your
introduction, a concept that we have embraced as long as I have
been involved in the Coastal Conservation Association, which
has now gone on about 20 years; that is, we believe very
strongly that recreational sale of fish is not recreational
fishing. Recreational fishermen are out there to conduct
recreation. The sale of those fish is a commercial activity. It
should be accounted for as a commercial activity. It is
believed by certain members and, frankly, by almost every
recreational group I have talked to, as something that ought to
be prohibited. You ought to prohibit the sale of recreationally
caught fish. And so I was glad to see that in your draft.
Just briefly on ITQs, CCA has long been a proponent of the
use of ITQs. We think the Councils ought to have the broadest
possible discretion to determine how to use them. To imagine
that the Federal Government--and not to chastise the Congress,
but maybe worse yet--that the Congress could actually conceive
of the right system to apply in a specific fishery is a little
unimaginable to me, frankly. They are very complicated, they
are not useful in every fishery. There are different economic
and social and biological concerns that have to be taken into
place. These are probably the most complicated thing you can do
in fishing, and, frankly, the institution that ought to be
looking at them is the Councils, and they ought to be looking
at them pretty much in an unfettered way. That is sort of our
sense of the thing.
Last, I want to mention two things. One, you have a
provision in here which has a research provision for oysters,
which I found very interesting and very commendable. But I got
to a certain provision of it and I was a little bit taken back,
and that provision dealt with the no fishing area which you
would have the Federal Government impose on citizens of the
State of Maryland in internal waters in the State of Maryland.
I would suggest that that is the only time that has ever been
done, at least to my knowledge, and that it was an
extraordinary thing to do.
I took the liberty of talking to the DNR folks over in the
State of Maryland, and they were slightly astonished, frankly,
to see it. And I was reminded by the fellows I talked to in
Virginia that we fought a war over this at one time. So that
provision I thought was a little bit surprising.
Second, it does bring up something that Dr. Houde has just
brought up which I think is an important consideration. We
think this concept of marine protected areas, which some
people, particularly in the environmental community, love to
refer to as no fishing zones, is something that ought to be
shaped with some guidelines in the Magnuson Act. We are not
opposed to no fishing areas. We are not opposed to closed
seasons. We are not opposed to time and area closures. In fact,
recreational fishermen are, by and large, in favor of most
management measures.
What we are opposed to is arbitrarily excluding the public
from a public resource when there is no scientific basis for it
and there is no public participation in the decision that was
ultimately made. That is something that from a recreational
fishing standpoint simply can't be allowed, and the reason for
that is pretty simple. The economic value and, frankly, the
recreational value of recreational fishing is that you have
access to a resource. You can limit me the number of days, you
can tell me what size I can catch, you can put slot limits on,
you can tell me I have got to release every fish, you can tell
me I have got to take the barbs off the hooks, you can tell me
I can only use a fly rod.
Mr. Gilchrest. Or a canoe.
Mr. Hayes. Or a canoe. And none of that is going to bother
me. When you tell me I can't go down the Sassafras River and
cast to a fish that is there, even though I might have to
release it, that is something that annoys recreational
fishermen and it is something that we would like to get very
clear with specific guidelines in the Magnuson-Stevens
reauthorization.
I would note there is a bill, Freedom to Fish Act. We love
the name. And it does include some guidelines. We would be
perfectly be happy to talk about those guidelines and the
extent of those guidelines, and we would come to visit with you
and have a chitchat about it.
[The prepared statement of Mr. Hayes follows:]
Statement of Robert G. Hayes, General Counsel, Coastal Conservation
Association
Good Afternoon, my name is Bob Hayes and I am the General Counsel
for the Coastal Conservation Association (``CCA''). I would like to
thank the Chairman for this opportunity to address the Committee on the
reauthorization of the Magnuson-Stevens Act. First, I would like to
tell you a little about CCA and how it operates. Second, I will address
some of the issues the Chairman has addressed in his draft bill and
finally, I will raise some of the issues of concern to recreational
fishermen that are not addressed in the draft bill.
The Coastal Conservation Association is the leading marine
recreational fishing group in the United States. Formed by a small
group of sportfishermen in Houston in 1978, CCA has grown to a fifteen-
state operation representing 80,000 members. Each of our states
operates somewhat independently focusing on issues in the state that
are important to marine recreational fishermen. However, like so much
in fisheries management, conservation issues encompass a regional and
national perspective; therefore, CCA learned long ago that federal and
international fisheries management were just as important to the local
marine recreational fishermen as the conservation of the most local
fish population.
CCA pursues conservation policies set by our state and national
Boards of Directors. These boards are made up of active volunteers
concerned about the health of the nation's fisheries. CCA has been
active in a number of conservation issues in the last twenty years,
including: all of the east and gulf coast net bans; game fish status
for redfish; speckled trout; tarpon; striped bass; river shad; marlins;
spearfish; sailfish; and the reduction of bycatch through the use of
closed areas and technology. Our Maryland chapter is actively involved
in the health of the Chesapeake Bay and management of its valuable
recreational species. Sherman Baynard testified at your recent field
hearing on oyster bed protection in the Bay.
MAGNUSON-STEVENS ACT
Our comments on the draft bill are organized in the same fashion as
the draft; therefore, the order of our comments does not suggest any
emphasis by CCA.
Report on overcapitalization. As a first step toward right-sizing
the commercial fleets in this country this report should be extremely
useful. We suggest, however, that the report's geographical breadth of
``United States waters'' be clarified to ensure that state as well as
federal fleets are included. For example, if only federal fleets were
included, the list would exclude the Texas inshore shrimp fleet, which
the state has not only determined to be overcapitalized but is in the
process of reducing through the buyback of half of the permits in the
fleet.
We further suggest that this study be done every five years so that
future overcapitalized fleets can be identified.
Buyout Provisions. While section of the Sustainable Fisheries Act
(``SFA'') has been almost dormant since 1996, there have been buyouts
and proposed buyouts through Congressional action. There are few groups
in this country that have spent as much time and effort in developing
acceptable buyout provisions for commercial fisheries as CCA. In
addition to our efforts to reduce the size of the pelagic longline
fleet, recreational fishermen are the sole source of funds for the
present reduction of the Texas shrimp fleet. What we have learned is
that the stumbling block is not the buyout itself but rather the source
of the funds to execute it. We suggest the creation of a fund
specifically for the purpose of buyouts that could be funded through an
accumulation of all of the penalties now paid for fisheries violations
and any funds collected as fees for licenses or Individual Transferable
Quotas (``ITQs'').
Data Collection. Recreational fishermen are not opposed to
improving the collection and use of data about recreational catch. In
fact, we would like to see a significant improvement in the collection
of catch data and the economic data required to comply with the
Regulatory Flexibility Act. To the extent that sharing state collected
data will improve the system, we support the sharing of it. We suggest
that data regarding the impact of fishing regulations on the
recreational industry should, in certain instances, also be collected.
Ecosystem Based Management. CCA supports the development of a
workable definition of ecosystem management. CCA does not support a
requirement that an unnamed and unknown advisory panel develop criteria
for using this management technique. CCA is not opposed to the further
development of the science as proposed in the draft bill; to the
contrary, we encourage it. However, ecosystem management is scientific
theory with little or no practical application. Its parameters are not
well understood and the principles for its use are not easily
identified. One example--the ill-fated Sargassum plan in the
southeast--surely should have been identified as the likeliest
candidate for approval as an ecosystem plan. Yet, five years after
development, it still has not been approved because NMFS cannot figure
out how it fits into the present statutory scheme. What the draft bill
suggests is taking this principle and requiring Councils to put it into
place in, for example, the Florida Keys. In order to accomplish the
implementation of this principle, not only does the scientific approach
need to be changed, the entire structure of the Magnuson-Stevens Act
needs to be adjusted.
Therefore, we suggest that the requirement in Section 2(1)(B) be
deleted and that you add a requirement for a report from the Secretary
regarding what changes, if any, need to be made to the Statute,
implementing guidelines and regulations in order to put an ecosystem
plan in place.
Overfishing. The changes proposed in separating the definitions of
overfishing and overfished seem reasonable enough on there face. Since
only the definition of overfished seem to have changed and it would
appear to be a lesser standard that the present definition it would be
useful to find out the impact of the change before it was made. CCA
suggests that the Committee ask NMFS to determine what effect this will
have on existing fishery management plans before it moves forward with
the change.
Bycatch. Most importantly, the definition of bycatch should be
amended to exclude recreationally caught fish. Several attempts have
been made administratively to accomplish this but in each instance the
definition in the Act was problematic. There are no approved catch and
release programs under the Magnuson-Stevens Act making the second
sentence of the definition inoperable. The first sentence does nothing
more than show a complete a lack of understanding of the marine
recreational fishery. Let's use the catch of white marlin as an
example. White marlin is a targeted fish in the recreational fishery.
They are very rarely landed, almost never retained for personnel use,
and are not under a catch and release program. Yet, they are bycatch
and subject to the bycatch reduction provisions. The Billfish Advisory
Committee and NMFS wrestled with this problem for almost two years and
finally gave up by declaring that the definition just did not make any
sense in this fishery.
We would like to work with the Chairman on a definition that makes
sense and does not brand recreational activity as something to avoid.
CCA supports the use of bycatch donations so long as it does not
lead to a reduction in the conservation of the resource or undermine
state and federal gamefish laws. For example, we would not support the
landing of striped bass in any state that has a gamefish law nor would
we support the landing of marlin for a consumptive purpose. We suggest
that this section be further amended to ensure that the donation of the
fish would not undermine the underlying purpose of and state or federal
management measure.
Bycatch reduction gear development. CCA supports the development of
technological methods of avoiding and reducing bycatch. Bycatch
reduction devices in the shrimp fishery are the best example of the use
of technology to reduce bycatch, but there a number of other fisheries
that could use this research. We suggest you set a date certain for the
first Secretary's report and require the Secretary to develop and
implement a program at a specific amount.
Essential fish habitat. CCA supports the emphasis on measures that
address destructive practices by commercial fishermen. Overfishing is
still the greatest threat to the viability of the nation's marine
resources but habitat destruction is a close second in many fisheries.
The destruction of the bottom in the shrimp fishery may not jeopardize
the shrimp fishery, but it does a significant amount of damage to other
fisheries through the reduction of habitat. Strengthening this section
to focus on something that the Councils and the Secretary can
realistically impact is the right thing to do with this section.
Oyster reproduction sites. CCA has previously testified on this
concept. Our suggestion then was to reduce the impact to the maximum
amount possible. We perceive that this section attempts to reduce the
impact by limiting the area that will be closed. We suggest that you
limit the impact by excluding only those activities which will have a
negative impact. If the Chairman's intent is to conduct an experiment,
then we suggest using a completely closed area as a control for others
that are left open, and determining whether fishing has any impact on
the recovery of oysters.
We should note also that the requirement for the Secretary to
impose specific regulations for fishing in an area where no other
federal regulations for fishing exist is an extreme and unprecedented
use of federal power. CCA is adamantly opposed to the Congressional use
of this form of power when there is no demonstration of the need for
such regulations. A Congressional field hearing in Annapolis is hardly
the kind of public process envisioned in the Magnuson-Stevens Act and,
even if it was, the requirement represents an extraordinary intrusion
on the sovereignty of the States of Maryland and Virginia.
Individual quota limited access systems. CCA recently provided
testimony to the Committee on the use of individual transferable quotas
(``ITQs''). Many of the suggestions about involving participants in the
fishery and giving the Councils' broad discretion to implement the
system are included in the draft proposal. There are two things,
however, which are troubling about the proposal. The first is the
charging of fees for the use of the system. This concept is based on
the perception that individual recipients are getting something akin to
a privilege for the right to use the quota. CCA does not make that
assumption. Rather we view the granting of an ITQ as nothing more than
an individual allocation which is subject to recall from whoever has
it. Charging a fee will be viewed as a deterrent to the use of the
system and may restrict the use of the device rather than encourage it.
ITQs, properly implemented, can be a useful conservation tool and
should be encouraged, not discouraged.
Additionally, the section does not appear to allow the Secretary to
develop limited entry systems or ITQs for highly migratory species. I
assume the use of such tools in those fisheries would have the same
beneficial effect as it does in other fisheries. At a minimum, the
section ought to be made clear that ITQs can be used in HMS fisheries
as well.
Cooperative Education and Research. CCA is not opposed to the use
of commercial vessels to do research so long as the underlying science
is not compromised.
Highly Migratory Species. For the last five years, the United
States has worked at the International Convention for the Conservation
of Atlantic Tunas (ICCAT) to achieve compliance with the international
conservation measures adopted. International compliance has been slow
to come. The provision you have added will help achieve acceptance of a
market driven, internationally-approved enforcement mechanism in order
to make international conservation effective. Much more needs to be
done. After the upcoming meeting of ICCAT in Tokyo later in May, the
other Commissioners and I can meet with the Chairman to develop a more
effective system.
Prohibited Acts. A prohibition on the sale of recreationally caught
fish is long overdue. Most states already prohibit such sale and some
of the fishery management plans also follow this system. CCA has long
argued that a recreational fisherman does not sell his catch and I
believe the vast majority of recreational fishermen agree with this
position.
Membership of Fishery Management Councils. CCA supports the intent
of this amendment. Individuals who have no financial interest in the
fish being managed ought to be on Fishery Management Councils. CCA has
argued for years that the hired hands of interest groups are not the
right people to make unbiased decisions about how to manage the
resource. There has always been a clear distinction between people that
are knowledgeable and those who have been hired to represent a point of
view. Today, there are Council members who are paid to be members by
recreational, commercial and/or environmental groups. They are there
not because of there own knowledge, but to represent the views of the
group that pays them.
We suggest that the section be applied to all Council members and
be changed to prohibit the appointment of any individual who is
employed by any association of commercial, recreational, charter and/or
non-governmental organization, or is a paid representative of any
entity that has an interest in a Council decision. We believe that all
but about 100 of CCA's 80,000 members would be eligible under these
criteria. Hundreds of thousands of environmental and conservation
representatives would still be eligible under these criteria. Lawyers,
consultants, association operatives and the like would all be
ineligible and the Council system would be much better for it.
At a minimum environmental interests ought to be added to the list
of prohibited interests. The environmental representative's point of
view can be bought just like the rest.
Miscellaneous amendments. All of the miscellaneous provisions
appear to be good additions to the Act.
RECOMMENDED ADDITIONS TO THE MAGNUSON-STEVENS ACT REAUTHORIZATION.
Marine Protected areas.
In the last few years, there has been increased interest, primarily
in the environmental and academic communities, in the use of Marine
Protected Areas (MPAs) as a device to manage and restore marine
fisheries. MPAs are different things to different people. To most
fishery managers, they are a tool that has been used in both fresh and
salt water for years. Time and area closures for spawning aggregations
are the best known use of an MPA. Closed areas for destructive gear
types are also common. Time and area closures have been proposed by CCA
for any number of conservation problems and are broadly supported in
the recreational community.
The environmental community views them as a clean and efficient way
to manage fishery resources by excluding uses, including all fishing,
from large areas of the ocean. In their view, the creation of no
fishing areas will enhance stock recovery and protect large portions of
the biomass. Environmental groups are heralding the use of MPA as a new
day for oceans management and have announced their objective of putting
20% of the nation's oceans in no fishing zones.
Why are recreational fishermen so opposed to no fishing zones?
MPAs, at least as the environmental community envisions them, limit
recreational access to the resource without any demonstrable benefit to
the health of most fishery resources and, so far, with little public
involvement. MPAs are unpopular because anglers believe they will be
used to restrict access. Expanding angler access is something the
recreational sector, local, state and federal officials have been
trying to encourage for twenty years.
Recreational fishermen have led the fight to conserve America's
marine fisheries. Striped bass, weakfish, redfish, mackerel and
Atlantic shad are all recovering as a result of the efforts of
recreational fishermen. We have worked inside the existing management
system with the existing tools to turn around the exploitation of these
resources and recover them. We've done it because we believe the
highest and best use of these resources is for recreation.
For a number of years the economic development theory for
recreational fishing has followed two paths. The first is to provide
for ease of access to the resource. Millions of dollars of angler's
money has been spent through the Wallop Breaux program to increase
angler access. The second path has been the recovery of key
recreational species. This rebuilding was done on a ``build it and they
will come basis.'' The explosion in recreational fishing for these
rebuilt species has more than proved the point. It works. Today,
sportfishing contributes more to the economy than ever before.
Recreational fishermen are not opposed to the use of traditional
management measure s to address specific management issues based on
good science and implemented as a result of a public process. As a
result we support the Freedom to Fish Act H.R. 3104 which amends the
Magnuson ``Stevens Act by adding guidelines for the use of MPA's. These
guidelines would also apply to the management of marine recreational
fisheries in federal marine sanctuaries. In essence they provide for a
public process, sound science and a nexus between the problem being
solved and the measure being proposed. They are intended to make the
exclusion of the public from a public resource the management measure
of last resort for stock rebuilding.
We recommend that you support the inclusion of H.R. 3104 in your
bill.
Judicial review. One of the major flaws in the Sustainable
Fisheries Act is the inability of the Courts to take into account the
status of the stock prior to issuing an order on whether NMFS and the
councils have complied with either the overfishing prohibition or the
rebuilding program. Most fishery management plans are based on at least
two year old data. Most plan amendments take a couple of years to put
together and most court reviews occur one to two years later. Courts
are restricted from taking into account whether the plan adopted is
working. Rather, the court looks at whether the statute was implemented
and whether the record rationally supports the measures adopted. Courts
not only do not know whether the plan is working, they are restricted
from ever looking at it by the Administrative Procedure Act.
Considering that the court is looking at a series of decisions made on
data that may be five years old at the time of the ruling, there is
little relevance between the decision being made and the status of the
stock as a result of the measures adopted. Therefore, we suggest that
courts be required to take into account the present status of the stock
prior to determining whether the measures adopted could achieve their
purpose. Section 305 (f) should be amended by inserting the following:
(5) In any action which is a challenge to measures intended to
prevent overfishing or rebuild an overfished fishery a hearing will be
held prior to issuing any order impacting such measures, which (A)
assesses the impact of the measures on preventing overfishing or on
rebuilding and (B) assesses the status of the fishery at the time of
the hearing. Findings from the hearing will be taken into account prior
to issuing any order.
Thank you for allowing us to testify here today and share the views
of the Coastal Conservation Association.
______
Mr. Gilchrest. Thank you, Mr. Hayes. Those are excellent
suggestions. I will say that I am not surprised that DNR was
astonished at something I did or said, because they are usually
surprised if they pick up the phone and I am on the other end.
But we can work out these issues, I am sure, and put some
language for the guidelines of MPA in Magnuson.
Thank you very much. And the Sassafras River is a great
place for canoes.
Mr. Gilchrest. Mr. Leape.
STATEMENT OF GERRY LEAPE, MARINE CONSERVATION PROGRAM DIRECTOR,
NATIONAL ENVIRONMENTAL TRUST, MARINE FISH CONSERVATION NETWORK
Mr. Leape. Mr. Chairman, my name is Gerald Leape and I am
the Marine Conservation Program Director for the National
Environmental Trust. Thank you for the opportunity to testify
today on behalf of 145 member groups of the Marine Fish
Conservation Network. These groups collectively represent the
views of more than 5 million Americans. NET is a member of the
advisory board, and I am a member of its executive committee.
Mr. Chairman, we appreciate the intent and direction of
this draft in its goal of strengthening Federal fisheries
management and moving toward ecosystem-based management. We
share that goal. We believe that your draft includes several
improvements to existing law. Overall, however, we believe that
too many of the sections are missing directives with deadlines
for action on those directives, and rely instead on additional
reports. Relegating action on these issues to reports, we feel,
will lead to more inaction and delay in addressing the critical
problems facing our oceans.
Overall, Mr. Chairman, we believe that your draft needs
some significant improvements in several areas to achieve our
shared goal of healthy marine ecosystems. If you will
incorporate our suggested changes, we will not only support
your bill upon introduction, but we will fight for its
enactment this year.
There are three provisions included in your draft that we
believe roll back conservation protections from current law.
Those include the new ``overfished'' definition, the opt-out
provision for the Councils from implementing the bycatch
reporting systems, and the movement from required to
discretionary of the mandate to minimize the impacts of fishing
gear on essential fish habitat. We urge you to consider
dropping these provisions prior to introduction.
I would like to focus my remaining comments on six key
areas: ecosystem-based management, IFQs, observers,
overfishing, bycatch, and essential fish habitat.
While the ecosystem-based management section contains
adequate research plans and a process for setting criteria for
fishery ecosystem plans, it lacks the requirement, as you heard
earlier, of a deadline for Councils to develop and implement
these plans for all fisheries under their jurisdiction. We feel
that if you fail to put a deadline for Councils to develop
these plans for all their fisheries, it will doom progress on
our shared goal for at least another decade.
At the hearing you chaired on this issue last year, we
learned that there is currently sufficient data to get started
on ecosystem-based management. That hearing also showed that 2
years of dedicated additional research could fill in many of
the remaining data gaps. We strongly urge you to merge your
research provisions with those in H.R. 2570, include the
deadlines from H.R. 2570, and authorize specific funding as we
heard the needs from Dr. Hogarth for this section to ensure
that the work gets done.
On IFQs, the Network believes, first and foremost, fish are
a public resource; and we support continuation of the current
moratorium unless and until Congress can adopt legislation
containing mandatory national standards for new IFQ programs to
ensure that these programs contribute to and enhance the
conservation and management of our fisheries and ensure equity
among all fishermen participating in the fishery.
Related to the draft, we are concerned that the 5-year
review, while well intentioned, will be ineffective unless it
is accompanied by a 5-year sunset. Directly connecting the
review with the sunset period would not only require an IFQ
program to pass the review to get renewed, but there would be a
built-in consequence for failure.
Finally, the Marine Fish Network is opposed to quota shares
for processors. We believe that this draft, in addition, should
authorize a national observer program. Information gained from
these observer programs is crucial to moving toward ecosystem-
based management, reducing bycatch, eliminating overfishing,
and also protecting essential fish habitat. There are several
regional observer programs already in place in areas, but they
are lacking a central coordinating mechanism to maximize the
benefit of the data that they are collecting. In addition, this
program could fill in the gaps where currently there are no
observer programs in place. There are several creative ways to
finance observer programs, and this legislation should include
those alternatives.
On overfishing we urge to you eliminate the mixed stock
exception created by NMFS which allows overfishing for the
weakest stock in a mixed stock fishery. It is our feeling this
regulation was against the plain language in the SFA and should
be overturned through this year's legislation. While we are
opposed to the new overfished definition, we could accept a
third definition such as ``depleted,'' as long as that
definition was tied to the same rebuilding obligations as those
that apply to overfished under current law.
On bycatch, we are very pleased with the addition of
seabirds to the definition and the requirement that Councils
finally have to develop and implement standardized reporting
methodologies. We strongly urge you to include the provisions
from H.R. 2570 which require annual reductions in bycatch for
those fisheries where the problem has already been assessed.
On EFH, the problem with your new information requirements,
we heard earlier from Dr. Hogarth, is that the necessary
information doesn't exist for most species. NMFS has set in
motion a 4-year plan to begin to get that information, through
completion of the NEPA required environmental impact statements
for each fishery around the country. We urge you to let that
process work. Upon completion we should have the kind of
knowledge for these species that your draft would require, and
under current authority greater focus and refinement can be
made to Federal actions to protect habitat as needed. We urge
you to drop those habitat provisions from your bill.
In closing, we look forward to working closely with you,
Mr. Chairman, as we have over the last few years, and your
staff to strengthen this draft to improve fisheries management
for the fishermen and the fish. I will be happy to answer any
questions.
Mr. Gilchrest. Thank you Mr. Leape.
[The prepared statement of Mr. Leape follows:]
Statement of Gerald Leape, Marine Conservation Program Director,
National Environmental Trust, on Behalf of the Marine Fish Conservation
Network
Good afternoon Mr. Chairman and Members of the Subcommittee and
thank you for the opportunity to testify on behalf of the more than 145
member groups of the Marine Fish Conservation Network (Network) and our
more than 5 million members. My name is Gerald Leape and I am a member
of the Network's executive committee and the Marine Conservation
Program Director of the National Environmental Trust. We look forward
to continuing to work with you and your staff to strengthen the
conservation provisions of this draft so that we can support it when it
comes to markup and realize our shared goal of ensuring sustainable
fisheries and healthy marine ecosystems. The Network has a
comprehensive agenda for strengthening the Magnuson-Stevens Fishery
Conservation and Management Act, which is appended to my statement. In
addition, I have appended a copy of the Network's IFQ legislative
proposal to my statement for the record. We also want to convey to you
our strong support for H.R. 2570, the Fisheries Recovery Act of 2001,
which was introduced by Congressman Sam Farr on July 19, 2001. As you
know, 67 members of the House have cosponsored Mr. Farr's bill.
As requested, we will focus our comments on the discussion draft
circulated with the invitation letter. We support the general intent of
the discussion draft, however, several provisions need significant
modification to ensure that current regulations are not undercut, fish
conservation is enhanced, and the Network can enthusiastically support
the bill.
First, we would like to offer some overall comments on the draft.
In most of the conservation provisions in the bill, the proposed
amendments call for more studies and reports to Congress. In many of
the sections, there is no directed action or if there is such a
suggested action, there is no deadline for completing the action.
In several cases, there are rollbacks from existing law that, if
enacted, would undercut the gains in habitat protection, rebuilding
overfished stocks, and minimizing bycatch realized by passage of the
Sustainable Fisheries Act (SFA) amendments of 1996. These amendments
were passed by the House by a vote of 387-38 and in the Senate by a
vote of 99-0. Mr. Chairman, those votes support our position that, at a
bare minimum, we must not go backwards. For the sake of the fish and
the fishermen, we must move forward to not only complete implementation
of the SFA, but also strengthen existing law to achieve the vision of
the 1996 amendments to the Act. Below are my specific comments
organized by section of the discussion draft.
SECTION-BY-SECTION ANALYSIS AND RECOMMENDATIONS
Overcapacity Report
The Network agrees that overcapacity in our fisheries should be
reduced as overcapacity is linked to many other problems faced by U.S.
fish populations. The General Accounting Office (GAO) has investigated
the issue of overcapacity and buyback programs several times, most
recently in June 2000. Therefore, we question the need for another
study.
Recommendation:
We recommended that you: 1) ensure that the report does not
duplicate previous work by the GAO; 2) require the Secretary to detail
a specific course of action to address the problems be identified in
both the June 2000 GAO report and this proposed report; and 3)
establish firm deadlines for addressing the problems.
Buyouts
We believe that this section contains the strongest improvements to
existing law of any part of this discussion draft. This new language,
which directly addresses problems that have plagued buyout programs to
date, i.e., capacity being redistributed instead of permanently
retired, can improve future buyouts by more effectively reducing
fishing effort and capacity. One important drawback to this section is
that it does not identify a funding source for the buyback program. We
also recommend that the program be expanded to include state fisheries
data.
Recommendation:
Identify and include a dedicated source of funding.
Data Collection
We support this effort to improve recreation data by directing NMFS
to collect and consolidate recreational fisheries data from the states.
In fact, many states have indicated a willingness to cooperate in
similar efforts, yet lack the resources to do so. Without some new
mechanism or incentive to encourage states to participate, we feel that
a lack of cooperation from the state could frustrate this effort to
collect valuable recreational fishing data. Additionally, this program
should be expanded to include the collection of state commercial
fisheries data.
Recommendation:
We recommend identification of a mechanism to encourage and enable
states to comply with the spirit and letter of this new directive.
Conserve Marine Ecosystems
Fishery managers and scientists have long recognized the need to
expand fishery management beyond traditional single-species planning to
include ecosystem considerations. As far back as 1980, studies of
federal fisheries management by the American Fisheries Society,
National Fish and Wildlife Foundation, and others have called for
moving to ecosystem-based management. Such an approach includes, but is
not limited to, interactions between key predator and prey species
within an ecosystem and the habitat needs of living marine resources
and other limiting factors in the environment. This concept supports
the precautionary approach to fishery management, especially when the
ecosystem effects of fishing are uncertain. The precautionary approach
requires managers to act to avoid likely harm before causes and effects
are clearly established.
It is widely believed that some fishery declines and difficulties
in restoring overfished populations are due, at least in part, to
fishing caused disruptions of ecosystems. Under existing law, fishery
managers do have limited authority to consider ecosystem interactions,
including predator-prey relationships, in management plans. The
principal reasons ecosystem relationships are not currently being
adequately considered is a lack of guidance regarding the information
that is needed, clear direction regarding the principles and policies
that should be applied, and most importantly, the absence of a legal
mandate to require the application of such principles and policies to
fishery management decisions.
Mr. Chairman, you have been a steady advocate for ecosystem-based
management since we first worked with you on fisheries management
issues more than eight years ago. Six years ago, during debate on the
SFA, we worked closely with you to identify the questions that needed
to be addressed prior to beginning the necessary transition from single
species management to ecosystem-based management. The NMFS advisory
panel, created by the SFA and charged with answering these questions,
has done its job. They have not only answered the questions raised, but
have made recommendations on how to proceed. We are happy to see that
the section on ecosystem-based management in H.R. 2570 would implement
these recommendations.
Concern:
The draft is admirable in its effort to promote the development of
plans to fill identified information gaps and begin the process of
establishing criteria for the development of fisheries ecosystem plans.
However, there is no requirement for managers to develop fisheries
ecosystem plans, or to ensure that their fisheries management plans are
consistent with ecosystem principles, in short, to implement ecosystem-
based management. As we pointed out earlier, a number of studies and
reports over the last two decades have recommended moving toward
ecosystem-based management, yet little has happened. Dr. Bill Hogarth
testified before this Subcommittee in June of 2001 that NMFS was moving
to implement ecosystem-based management and that NMFS would be holding
stakeholder meetings in the Fall, again, nothing substantive has
happened. The message to us and we hope you, is clear, without a legal
mandate, NMFS and the councils will not implement ecosystem-based
management. Finally, there is no dedicated source of funding to
accomplish this enormous task.
Recommendation:
To realize the goal of ensuring America's of fisheries are managed
in an ecosystem context Mr. Chairman, there must be a legal requirement
for managers to do so. Therefore, we recommend that you merge your
ecosystem research plan language with the ecosystem language in H.R.
2570. This will codify the recommendations of the SFA mandated panel,
establish a clear legal mandate for ecosystem-based management, set up
a reasonable 6 year timetable for action, and dedicate specific funding
to achieve this goal.
Establish a National Fishery Observer Program
Objective observation and accurate data collection are vital to
effectively manage marine fish and fisheries. The ability of fishery
managers to address the problems of overfishing, bycatch, and
degradation of EFH is currently limited by a lack of accurate and
reliable information on a fishing vessel's catch and bycatch. In many
fisheries there is an incomplete understanding of the total catch,
i.e., landed catch and discarded bycatch. Overfished stocks cannot be
rebuilt if we do not understand and control all types of mortality.
Minimal, but inadequate, observer coverage exists along the Atlantic
Coast, the Gulf of Mexico, and the West Coast. A far more comprehensive
national observer program is necessary to protect the sustainability of
America's marine fish, fisheries, and fishing communities. The catch
and bycatch data that would be achieved as a result of such a
comprehensive program is vitally important to meeting the objectives of
the Magnuson-Stevens Act, including the promotion of sustainable
fishing.
Concern:
Consistent with your efforts Mr. Chairman and the efforts of others
on this Subcommittee to gain an additional $25 million for observers in
fisheries around the country, we believe that progress on this issue
should not be relegated to another report. There is broad and
substantial support for and agreement on the need for a national
observer program. Another feasibility study will only serve to further
delay implementation of this badly needed program.
Recommendation:
Require the establishment of a national observer program. The
information generated from such a program will allow us too make true
progress in reducing bycatch and protecting essential fish habitat. We
strongly recommend the observer language of H.R. 2570, which requires
establishing observer programs in each fishery in order to gather
statistically valid data. This does not mean requiring 100% observer
coverage, but would require enough observers to produce statistically
valid data. NMFS staff has told us that statistically valid data would
generally require 30% observer coverage in most fisheries.
To help fund such a program, H.R. 2570 proposing using $25 million
in Saltonstall-Kennedy funds to offset the cost of observers. The
remainder of the funding would come from a landings fee. If there is a
need for an additional report, we recommend that it focus on other
mechanisms to fund such a program and the level of observer coverage
necessary in each fishery to provide statistically robust data.
However, let me reiterate our strong opposition to authorizing a study
without requiring the establishment of a national observer program,
since we firmly believe that such a study would only serve to delay the
establishment such a program.
Overfishing
Overfishing has been and continues to be one of the major problems
threatening the survival of fisheries and the fish populations on which
they depend. The most recent NMFS Status of U.S. Fisheries report found
81 stocks overfished (21% of the federally managed species that are
assessed) and 65 stocks experiencing overfishing (24% of the managed
species that have been assessed). This represents some improvement over
last year, but much work remains to be done. We must continue to move
forward to end all overfishing and to rebuild all overfished or
otherwise depleted fish populations.
Concerns:
We appreciate your interest in separating the definition of
overfished from overfishing. However, the proposed definition of
overfished will significantly weaken existing law. Enacting this
definition, which links the definition of overfished to a stock size
that is below the natural range of fluctuation associated with
producing MSY, would legitimize the efforts of those who blame all
fisheries declines on anything but fishing. We in the conservation
community believe that environmental change should be considered in
efforts to determine the cause of fluctuations in biomass, but not as
an excuse to avoid regulations necessary to rebuild overfished fish
populations. Incorporating the ``natural range of fluctuations'' into
the definition will add further scientific uncertainty and subjectivity
to the definition, thus increasing the potential to increase the number
of lawsuits rather than decrease them. We are also concerned that the
proposed definition of overfished in the Chairman's draft would,
because of the difficulty in identifying the natural range
fluctuations, force NMFS to place greater numbers of stocks into the
``unknown'' status in its annual report on overfished fisheries. These
unknown stocks will not be afforded the protections of the SFA.
Recommendation:
Maintain the existing overfishing definition in the draft bill, but
remove the natural fluctuations clause from the proposed definition of
overfished. Furthermore, we recommend that the draft should include
language from H.R. 2570 that would eliminate the loophole that allows
overfishing of weak stocks in a mixed stock fishery, require rebuilding
plans for those stocks that are approaching an overfished condition,
and requires the development of uncertainty buffers to prevent and stop
overfishing.
Bycatch
Bycatch is the indiscriminate catching, killing, and discarding of
fish and marine life other than those a fishing vessel intends to
capture. This includes fish that are not the target species, sex, size,
or quality. It also includes many other fish and types of marine life
that have little economic value but are ecologically important, such as
birds, starfish, sponges and skates. Primarily, bycatch results from
fishing practices and gear that are not selective. In addition to
visible mortality, fish and other sea life are sometimes killed or
injured when passing through or escaping fishing gear, and through
``ghost fishing'' from abandoned or lost gear.
Environmental problems caused by bycatch include overfishing,
increased scientific uncertainty regarding total fishing mortality, and
potentially serious changes in the functioning of ecological
communities. Economically, bycatch equates to lost fishing
opportunities as a result of mortality of commercially valuable
juvenile fish.
Concerns:
While we appreciate the addition of birds to the definition of
bycatch and the addition of a deadline into the standardized bycatch
reporting system requirement, we take strong issue with the proposal to
exempt councils from that reporting requirement if they simply explain
why they can't meet it. While few councils have taken any action to
assess or reduce bycatch, the legal obligation remains. We believe that
any provision providing a loophole for continuing inaction on bycatch
issues, such as the one provided in the draft bill, will be fully
exploited by the councils given their current non-compliance with legal
mandates. The proposed exception, if enacted, would be a significant
step backward in the effort to reduce bycatch nationally. In addition,
in those cases where the amount of bycatch in the fishery has been
assessed, the draft contains no requirement for actual reductions in
bycatch. We appreciate the intent of a gear development program for
bycatch reduction; however, this may be a program that is more
effective if run regionally under a national mandate. In addition,
without authorized funding, it will be difficult for this program to
realize its goal.
Recommendation:
We strongly recommend that you drop the language that allows
councils to ignore the requirement to develop a bycatch reporting
system. In addition, we urge the adoption of language from H.R. 2570
that requires councils to annually reduce bycatch, sets strict
timelines for implementation of the current requirement for all
councils to develop a standardized reporting methodology, and requires
an annual report on efforts to reduce bycatch.
Essential Fish Habitat
We are greatly concerned that this proposal will severely limit the
application of the SFA requirement to minimize the adverse impact of
fishing on important fish habitats, thus rolling back existing law.
This proposal will restrict the requirement to limit damaging fishing
practices to only essential fish habitat (EFH) that has been identified
based on information on growth, reproduction, and survival rate by
habitat type. The requirement is further restricted by limiting it to
fishing activities that jeopardize the ability of the fishery to
produce MSY. Since this information is not available for nearly all
managed fish species, this proposal will eliminate the requirement to
minimize fishing impacts on EFH for years, if not decades.
In our view, this proposal will significantly rollback existing
law. If this change is approved, it is assured that nothing will be
done to protect EFH from the well-documented damage of some fishing
gears on EFH. Litigation on this issue has been settled and a process
is in place where NMFS is going to come into compliance with the
current regulations. Congress should let NMFS continue its work and if
any changes need to be made, it should be in the form of additional
funding for NMFS to do its job and developing precautionary language
that will prevent the introduction of damaging fishing gear.
Recommendation:
We urge you to protect and strengthen current law by dropping this
proposal to limit the protection of EFH. In its place, please include
language from H.R. 2570, which will ensure that the impacts of damaging
fishing practices will be evaluated and mitigated for before they are
allowed.
Individual Fishing Quotas
Individual fishing quotas (IFQs) grant fisherman and fishing
companies the privilege to catch specific amounts of fish. Congress has
placed a moratorium on the submission, approval, or implementation of
any plan that creates an IFQ program until October 1, 2002.
The Network supports continuing the moratorium on IFQ programs
unless and until Congress adopts legislation containing standards for
the design and conduct of IFQ programs to ensure that these programs
contribute to and enhance the conservation and management of our
nation's fisheries and ensure equity among all fishermen participating
in any IFQ fishery. For your information, I have appended a redline
copy of the Network's proposed legislative language detailing these
necessary standards.
Concerns:
There are a number of positive changes contained in your proposal.
First, we are pleased with your inclusion of language specifying that
IFQs do not create a property right and that they must be reviewed
every five years. There are also a number of provisions that will
protect fishermen and fishing communities including requirements to
provide fair and equitable allocation of quota shares and to establish
limitations on consolidation. Finally, we are pleased with the
requirement that such systems promote conservation.
However, the five-year review will likely be ineffective because it
lacks a consequence i.e. a sunset of the program or some other penalty,
for failing the review. In addition, the qualification on the 10-year
sunset provision which states only that a review has to be conducted,
not that fishing quota programs have to pass the review, virtually
assures that no IFQ program would ever sunset, thus making the initial
IFQ a permanent asset. Also, with no enforcement mechanism behind the
review or requirement that IFQ participants pass the review, there will
likely be no serious consideration of the conservation or equity
requirements of the program. The mandatory consideration of historical
fishing gears, rather than participants, in considering allocation of
quota, will, we believe based on experience, inevitably result in a
codification of current fishing practices leaving little or no room for
changes in the fishery to more environmentally friendly gear. While we
appreciate the inclusion of a double referendum, we believe that it is
a mistake to leave it up to the councils to decide who would be
eligible to vote. All participants in the fishery should have a voice
in the decision on adoption or rejection of an IFQ program. Finally, we
are strongly opposed to the language in the draft that will allow
processor quota shares. As we testified at the February IFQ hearing,
processor quotas are likely to violate protections against anti-trust
laws and are very likely to cause serious economic hardships to
fishermen, while providing no public benefit to either the economy or
conservation.
Recommendations:
Standards must be adopted that, among other things, clarify that
IFQ programs:
Do not create a compensable property right;
Are of set duration, not to exceed five years;
Demonstrably provide additional and substantial
conservation benefits to the fishery (defined as reducing bycatch,
eliminating overfishing, and protecting essential fish habitat);
Are reviewed periodically by an independent body to
determine whether the programs are meeting their conservation goals;
Provide for the review of individual permit holders and
revocation of shares if the share holder fails to pass such a review;
Realize total recovery of costs (the proposed percentages
may not be sufficient); and
Are only transferable if the above standards are enacted.
Additionally, we recommend that the language allowing processor
quota shares be dropped and the removal of any provision stating that
only permit holders can vote in the referendum.
Conserve Atlantic Highly Migratory Species
NMFS is responsible for conserving Atlantic highly migratory
species like tunas, swordfish, marlins, sailfish, and coastal and
pelagic sharks. All of these species, with the exception of sharks, are
also managed under multilateral agreements through the International
Commission for the Conservation of Atlantic Tunas (ICCAT).
In 1990, the Magnuson-Stevens Act and Atlantic Tunas Convention Act
(ATCA) were amended to preclude U.S. fishery managers from issuing
regulations, which have the effect of ``decreasing a quota, allocation
or fishing mortality level,'' recommended by ICCAT. Since then, NMFS
has done little more than implement ICCAT quotas and allocate them
among domestic user groups. Moreover, where no ICCAT recommendations
exist, no precautionary measures have been taken.
Although ICATT sets quotas, measures to implement the quotas and
minimize bycatch mortality, such as area closures and gear
modifications, must be implemented through domestic regulations. NMFS,
however, interprets the law to prevent the U.S. from unilaterally
reducing bycatch if it would affect the ability to fill the U.S. quota.
Concerns:
In cases where domestic management requirements are more stringent
than those agreed to by the international community, NMFS and industry
have often inappropriately interpreted this provision as essentially
exempting U.S. HMS fisheries from the requirements of the Magnuson-
Stevens Act. Such action is inappropriate and inconsistent with the
intent of the Magnuson-Stevens Act and unfair to other commercial
fishermen who must follow U.S. law.
Recommendations:
To address these concerns, the draft should be amended to include
language that:
Gives the U.S. greater discretion and flexibility in the
conservation and management of highly migratory species;
Repeals language that prevents or hinders the U.S. from
implementing management measures that are more conservative than those
recommended under international agreements; and
Requires NMFS to meet the requirements of the Magnuson-
Stevens Act when managing highly migratory species.
Similarly, the ATCA should be amended to remove language limiting
U.S. authority to conserve highly migratory species. Legislative
language implementing these changes is contained in H.R. 2570.
Fishery Management Councils
Although regional fishery management councils are charged with
managing the nation's marine fish for all Americans, representatives of
fishing interests dominate the councils. Interests of the general
public, as well as non-consumptive users of marine fish, such as
divers, are not adequately represented on the councils. Marine fish are
public resources and must be managed in the public trust. Decisions
regarding their management should be made in the public interest, not
simply the economic interest of the fishing industry. Accordingly, the
interests of the public must be adequately represented on regional
fishery management councils.
Concern:
While we support your intention of adding a non-fishing voice to
each council, we feel that it is only a small step toward the balance
that we need and deserve on these fishery management councils.
Recommendation:
To address these concerns, we recommend the provision from H.R.
2570 that calls for balanced representation between commercial
fishermen, recreational fishermen, and individuals who represent the
public and do not derive any of their annual income from commercial and
recreational fishing.
Authorization of Appropriations
Finally, Mr. Chairman, we strongly urge you to increase
significantly the level of authorized funding in the bill. In addition,
we would urge you to look at increased user fees and the proposed
allocation of funds from the Saltonstall-Kennedy program to fisheries
management as proposed in H.R. 2570. These are funds are already being
collected and were originally intended to be used to promote the
fishing industry. We can think of no better way to promote the fishing
industry than through sustainable fisheries management. Let's return a
greater share of these annual funds back to their original purpose.
Conclusion
Once again, I, on behalf of the National Environmental Trust and
the Marine Fish Conservation Network, appreciate the opportunity to
testify on your discussion draft to reauthorize the Magnuson-Stevens
Fishery Conservation and Management Act. The Network looks forward to
working closely with you and your staff to strengthen this draft prior
to its introduction so that we can give it our full support. I would be
happy to answer any questions.
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Mr. Gilchrest. Mr. LeBlanc.
STATEMENT OF JUSTIN LeBLANC, VICE PRESIDENT OF GOVERNMENT
RELATIONS, NATIONAL FISHERIES INSTITUTE
Mr. LeBlanc. Thank you, Mr. Chairman. Thank you for the
opportunity to testify today on the reauthorization of the
Magnuson-Stevens Fishery Conservation and Management Act. I am
Justin LeBlanc, Vice President of Government Relations for the
National Fisheries Institute. I am also here on behalf of the
Seafood Coalition, a growing group of fisheries organizations
and seafood companies from across the country, seeking changes
to the Magnuson-Stevens Act to rationalize the implementation
of the Act while maintaining its core commitments to
conservation and sustainability. The Seafood Coalition member
list is attached to my written testimony.
Mr. Chairman, the implementation of the Magnuson-Stevens
Act over the past several years has revealed serious flaws in
the Act that need to be addressed. These include:
Improving the science base of fisheries conservation and
management by defining the best scientific information
available and ensuring the NMFS stock assessments undergo
periodic peer review;
Focusing the habitat protection efforts on habitat areas of
particular concern instead of the entire exclusive economic
zone;
Incorporating environmental variability into fisheries
management by better defining maximum sustainable yield,
overfished and overfishing;
Initiating cooperative research programs to fill major data
gaps;
Establishing goals and objectives for observer programs and
holding them accountable to those goals and objectives;
And improving the socioeconomic analyses of fishery
management decisions by NMFS by requiring NMFS to consider the
cumulative impacts of its decisions.
These priorities are addressed by the draft Fisheries
Science Improvement Act, a discussion draft outlined by
Representative Tauzin this afternoon in his questions to Dr.
Hogarth. I want to thank the Congressman and his staff for
proposing this important discussion draft and urge the
Subcommittee's favorable consideration of it during the
reauthorization process.
While we believe changes to the Magnuson-Stevens Act are
needed, we are concerned that other legislative proposals
before the Subcommittee may frustrate efforts to not simply
conserve fish but to build sustainable fisheries.
Many of the proposals in H.R. 2570, the Fisheries Recovery
Act, are of deep concern. With its unfunded and unachievable
mandates, this bill has been somewhat playfully nicknamed as
the ``Fisheries Elimination Through Litigation Act'' by some in
our community. In particular, we are concerned that the
National Marine Fisheries Service will be unable to fulfill the
bill's call for the elimination of bycatch, limitations on new
fishing gear and technology until demonstrated to have no
adverse effects on essential fish habitat which requires one to
prove a negative, the implementation of ecosystem-based fishery
conservation and management without the scientific base
necessary to do so, the application of the precautionary
approach as a justification for worst-case scenario management,
and universal observer coverage without clear goals and
objectives for that program. Without dramatic increases in
funding, not just authorized but actually appropriated, these
mandates will open the agency and the commercial fish and
seafood industry to litigation far beyond that which we have
seen to date. And as we have seen over the past several years,
litigation and the courts are no way to build sustainable
fisheries.
We would like to commend the Chairman and his staff for
their efforts to forge a reasonable middle ground. The
Gilchrest discussion draft released by the Subcommittee has
many important provisions in it. We would encourage the
Chairman to incorporate the provisions of the draft Fisheries
Science Improvement Act into the Chairman's bill. We also wish
to offer the following brief remarks on the discussion draft:
The overcapitalization report is an important step toward
addressing this critical issue facing U.S. Fisheries. We
recommend that the Secretary be required to consult with the
commercial fishing sector in each fishery before providing
recommendations for reducing capacity in those fisheries.
The buyout provisions may facilitate the use of this tool
as a means of reducing excess fishing capacity. The language,
however, needs to be carefully drafted to avoid unintended
consequences, particularly in fisheries where vessel owners may
own multiple vessels and/or multiple permits.
The section on ecosystem-based management recognizes the
fundamental barrier to effectively implementing such a
management regime: information. This proposal in the draft is
an appropriate first step in the development of ecosystem-based
management.
Similarly, an analysis of the utility, benefits, and costs
of a national observer program is an appropriate step before
Congress considers mandating such a program.
We recognize the need to separate the concepts of
overfished and overfishing. We are concerned, however, that the
proposed definitions are too rigid and recommend the
definitions proposed in the draft Fisheries Science Improvement
Act. We also appreciate the proposal to improve the quality of
the Status of the Stocks Report which, I might add, has
considerably improved this year.
The bycatch section on gear research is a worthwhile
strategy for achieving the goal of National Standard 9.
Including birds in the definition of bycatch, however, is
unnecessary, as seabirds are already addressed by the United
Nations international plan of action on reduction of seabird
bycatch and of course domestically, where necessary, by the
Endangered Species Act.
Redirecting regulatory actions concerning essential fish
habitat to true areas of concern is similar to the emphasis in
the draft Fisheries Science Improvement Act on habitat areas of
particular concern. We strongly support action to refocus our
habitat efforts.
While the Seafood Coalition has taken no position on
individual fishing quotas, the National Fisheries Institute
believes that the current moratorium on IFQs should be
continued until and unless the Magnuson-Stevens Act is amended
to require that harvesters and primary processors be equitably
treated, given the corollary investments in excess fishing and
processing capacity that traditional fisheries conservation and
management regimes have encouraged.
Mr. Chairman, thank you for the opportunity to testify.
More detailed written comments on the bill before the
Subcommittee will be presented to Subcommittee staff. I will be
pleased to answer any questions you may have.
Mr. Gilchrest. Thank you very much, Mr. LeBlanc.
[The prepared statement of Mr. LeBlanc follows:]
Statement of Justin LeBlanc, Vice President, Government Relations,
National Fisheries Institute
Chairman Gilchrest, Representative Underwood, and distinguished
members of the subcommittee, thank you for the opportunity to speak
before you on the reauthorization of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act). I am Justin
LeBlanc, Vice President of Government Relations for the National
Fisheries Institute (NFI). NFI is the leading trade association
representing the diverse fish and seafood industry of the United
States. We are an ``ocean to table'' organization representing vessel
owners, processors, importers, exporters, distributors, retailers, and
seafood restaurants. NFI is committed to providing U.S. consumers with
safe, wholesome, and sustainably harvested fish and seafood choices.
Today, I am also here on behalf of the Seafood Coalition, a group
of fisheries organizations and seafood companies from across the
country seeking changes to the Magnuson-Stevens Act to rationalize the
implementation of the Act while maintaining its core commitments to
conservation and sustainability. The Seafood Coalition member list is
attached to my written testimony.
As this subcommittee has heard through numerous hearings, the
implementation of the Magnuson-Stevens Act over the past several years
has revealed serious flaws in the Act that need to be addressed. The
Seafood Coalition believes there are six critical issues for the
reauthorization process, including: improving the science base of
fisheries conservation and management by defining the best scientific
information available and ensuring the NMFS stock assessments undergo
independent peer review; focusing habitat protection efforts on Habitat
Areas of Particular Concern instead of the entire Exclusive Economic
Zone, incorporating environmental variability into fisheries management
by better defining Maximum Sustainable Yield, overfished, and
overfishing; initiating cooperative research programs to fill major
data gaps, establishing goals and objectives for observer programs and
holding them accountable to those goals and objectives; and improving
the socioeconomic impact analyses of fishery management decisions by
requiring the National Marine Fisheries Service to consider the
cumulative impacts of its decisions.
We believe these priorities are most effectively addressed by
legislation being drafted by Representatives Tauzin, Jones, Grucci,
Walden, and Simmons. On behalf of the Seafood Coalition, I would like
to thank Rep. Tauzin and the other Members for drafting language on
this important issue.
While we strongly support the Fisheries Science Improvement Act, we
are deeply concerned about the impacts other legislative proposals
before this subcommittee would have on the commercial fish and seafood
industry, if enacted.
The Ocean Habitat Protection Act would prohibit the use of bottom-
tending trawl gear with footrope gear larger than 8 inches in diameter.
The Seafood Coalition believes that decisions about fishing gear and
its use are best made on a fishery-by-fishery basis by the Regional
Fishery Management Councils. That said, we also believe this
legislation will actually exacerbate the very problems it seeks to
solve. First and foremost, a ban on large trawl gear could actually
worsen the impact of bottom trawl gear on soft-bottom substrates.
Larger gear has been developed for this type of ocean bottom because it
has significantly less impact in terms of substrate disturbance and
bycatch of nontarget species. In addition, a ban on large trawl gear
could result in modifications to small trawl gear to allow it to
effectively fish in the rocky substrates that the bill seeks to
protect. These modifications could have a more dramatic impact on these
areas of the ocean than the current large trawl gear being used.
If enacted, this bill would cause devastating economic impacts in
fishing communities around the country. Alaska could lose $180 million
worth of groundfish landings annually, the West Coast could lose $65
million worth of groundfish annually, and virtually the entire New
England groundfish, shrimp, and whiting fisheries worth over $130
million annually could be lost. It is because of these environmental
and economic impacts that these types of decisions are best left to the
Regional Fishery Management Councils.
We are also deeply concerned about many of the provisions in H.R.
2570, the Fisheries Recovery Act. With its unfunded and unachievable
mandates, this bill has been nicknamed as the ``Fisheries Elimination
through Litigation Act'' by some in our community. In particular, we
are concerned that the National Marine Fisheries Service will be unable
to fulfill the bill's call for the maximal avoidance of bycatch,
limitations on new fishing gear and technology until demonstrated to
have no adverse effects on essential fish habitat, the implementation
of ecosystem-based fishery conservation and management without the
scientific base necessary to do so, the application of the
precautionary approach as a justification for worst-case scenario
management, and universal observer coverage without clear goals and
objectives. Without dramatic increases in funding, these mandates will
open the agency and the commercial fish and seafood industry to
litigation far beyond that which we have seen to date. As we have seen
over the past several years, litigation and the courts are no way to
build sustainable fisheries.
We would like to commend the Chairman and his staff for their
efforts to forge a reasonable middle ground during this reauthorization
process. The ``Gilchrest Discussion Draft'' released by the
Subcommittee has many important and interesting provisions in it. While
we would encourage the Chairman to incorporate the provisions of the
Fisheries Science Improvement Act into the Chairman's bill, we would
offer the following brief remarks on the discussion draft:
The overcapitalization report is an important step
towards addressing this critical issue facing U.S fisheries. We would
recommend that the Secretary be required to consult with the commercial
fishing sector before providing recommendations for reducing excess
fishing capacity.
The Buyout provisions may facilitate the use of this tool
as a means of reducing excess fishing capacity. While we can recognize
the interest of the subcommittee in eliminating both excess vessels and
permits, the language needs to be carefully drafted to avoid unintended
consequences, particularly in fisheries where vessel owners may own
multiple vessels and permits.
The Section on ecosystem-based management recognizes the
fundamental barrier to effectively implementing such a management
regime: information. This proposal is an appropriate first step in the
development of the ecosystem-based management concept.
Similarly, an analysis of the utility, benefits, and
costs of a national observer program is an appropriate step before
Congress mandates such a program.
We appreciate the efforts of the Chairman to separate the
concepts of overfished and overfishing. We are concerned, however, that
the proposed definitions are far more stringent than the current
National Marine Fisheries Service regulatory guidelines and would
recommend the definitions proposed in the Fisheries Science Improvement
Act. We also appreciate the Chairman's efforts to improve the quality
of the Status of the Stocks Report.
The emphasis in the bycatch section on gear research is an
appropriate approach to achieving the goal of National Standard 9. With
regard to including birds in the definition of bycatch, this provision
is unnecessary as sea birds are already covered by the Migratory Bird
Treaty Act and, where necessary, the Endangered Species Act.
The focus of regulatory actions on Essential Fish Habitat
to true areas of concern similar to the emphasis on the Fisheries
Science Improvement Act on Habitat Areas of Particular Concern is an
appropriate emphasis that we strongly support.
While the Seafood Coalition has taken no position on
Individual Fishing Quotas (IFQs), the National Fisheries Institute
believes that the current moratorium on IFQs should be continued until
and unless the Magnuson-Stevens Act is amended to require that
harvesters and primary processors be equitably treated given the
corollary investments in excess fishing and processing capacity that
traditional fisheries conservation and management regimes have
encouraged.
Mr. Chairman, Thank you for the opportunity to testify. More
detailed written comments on the bills before the subcommittee have
been presented to the subcommittee staff. I would be pleased to answer
any questions the subcommittee may have.
The Seafood Coalition
Peter Leipzig, Executive Director
Fishermen's Marketing Association
320 Second Street, 2B
Eureka, CA 95501
707-442-3789
707-442-9166 FAX
Represent Groundfish and Shrimp Trawlers in California, Oregon, and
Washington.
Nils Stolpe
Communications Director
Garden State Seafood Association
212 West State Street
Trenton, NJ--08608
ph--215 345 4790
fx----215 345 4869
Representing New Jersey's Fish and Seafood Industry
Fisheries Survival Fund
2 Middle Street
Fairhaven, MA 02719
Participants include over 120 full-time Atlantic sea scallop
fishing vessels from New England to North Carolina
Trawler Survival Fund
(same address)
Participants include over 50 groundfish trawlers from Southern New
England through Boston
Represented by David Frulla
Brand & Frulla
923 Fifteenth St. N.W.
Washington, D.C.--20005
202-662-9700 / fax:--202-737-7565
Rod Moore
West Coast Seafood Processors Association
P.O. Box 1477, Portland, OR--97207
503-227-5076 / 503-227-0237 (fax)
WCSPA represents on-shore seafood processors and associated
businesses in Oregon, Washington, and California.--WCSPA members
process the majority of Pacific groundfish, Dungeness crab, pink
shrimp, squid, and coastal pelagic species landed in those states.
Maggie Raymond
The Groundfish Group
Associated Fisheries of Maine
P.O. Box 287
S. Berwick, ME--03908
Representing groundfish, shrimp, and whiting vessels from Maine
John Filose, Vice President
Ocean Garden Products, Inc.
P.O. 85527
San Diego, Ca., 92186-5527
Phone ( 858) 571-5002
Bob Jones
Southeastern Fisheries Association
1118-B Thomasville Road
Tallahassee, Florida 32303
850-224-0612 / fax: 850-222-3663
SFA represents fishermen who use a variety of gear types,
processors, and associated seafood business in the southeastern United
States.
Ed Owens, Executive Director
Coalition of Coastal Fisheries
5132 Donnelly Drive SE
Olympia, WA 98501-5012
Voice:--360-456-1334
Email (2) FHNRForum@home.com
Jerry Schill
North Carolina Fisheries Association
Box 12303
New Bern, NC 28561
NCFA represents fishermen and processors in North Carolina
Rob Ross
California Fisheries and Seafood Institute
1525 I Street
Sacramento, CA 95814
Representing seafood harvesters, processors, importers, retailers,
distributors, and associated businesses in California----
Joe Easley
Oregon Trawl Commission
P.O. Box 569
Astoria, OR 97103
503-325-3384 / fax: 503-325-4416
Representing Oregon groundfish and shrimp trawl fishermen
National Fisheries Institute
1901 North Fort Myer Drive
Suite 700
Arlington, VA 22209
703-524-8884 / fax: 703-524-4619
ATTN: Justin LeBlanc
NFI is the largest fish and seafood organization in the U.S.,
representing nearly a thousand companies, individuals, and
organizations involved in harvesting, processing, importing, growing,
selling, and distributing seafood.
Fishermen's Association of Moss Landing
P.O. Box 44
Moss Landing, CA 95039
ATTN: Kathy Fosmark, Vice President
Bonnie Brady, Executive Director
Long Island Commercial Fishing Association
P.O. Box 191
Montauk, NY 11954
516-527-3099 / 631-668-7654 (fax)
Represents commercial fishermen from 11 ports and 15 gear types
and, so far, 2 fish docks.
Mailing list at present is 300
______
Mr. Gilchrest. Mr. Grader.
STATEMENT OF ZEKE GRADER, EXECUTIVE DIRECTOR, PACIFIC COAST
FEDERATION OF FISHERMEN'S ASSOCIATIONS
Mr. Grader. Thank you, Mr. Chairman, for your kind
invitation to testify before you today both discussing the
reauthorization generally of the Magnuson-Stevens Act and, in
particular, your discussion draft. I have been the Executive
Director for the Pacific Coast Federation of Fishermen's
Associations for the past 26 years. Our organization--
Mr. Gilchrest. Excuse me for 1 second, Mr. Grader.
Kevin, can you put that microphone to the last seat on the
dais here? See that mike sticking up in the air there? Can you
push it down? Right in front of you. So I can see Mr. Grader.
Thanks.
Kevin is a great canoer.
Mr. Grader. Thank you. In any event, you have, Mr.
Chairman, a copy of our written testimony. What I would like to
do here is basically highlight some of the critical issues that
we see in your discussion draft and some other needs we see
that are necessary for this reauthorization go-around of the
Magnuson-Stevens Act.
I want to add at the outset that I think in your discussion
draft there are a number of real improvements being made to the
Act. However, I do have some concerns with some provisions of
it. More specifically, a number of studies are called for. In
many instances, while studies may be of further use to us, I
think really what we are looking at--what really is needed in
some instances is just plain action. We know what needs to be
done and specifically, as an example of that, is the issue of
buybacks. We know in a number of our fisheries that the problem
is that we have excess fishing capacity. We know where that is.
We know what has to be done and we simply have got to get on
with the job of reducing it.
I think the best example is the Pacific Coast groundfish
fishery. Senator Wyden, I think, came up with a good proposal,
working with the industry for reducing that fleet which could
help greatly in stopping the hemorrhaging there. The problem
there wasn't that we needed a study. The problem was that we
needed money.
Just this week the Congress is passing billions of dollars
in subsidies for agriculture. I don't think it would hurt at
all if we spent a few million to help out our fisheries,
particularly when that few million now could go a long way in
helping us rebuild the stocks quicker and help those fishing
communities. And if we spent $100 million or whatever may be
needed on the Pacific Coast groundfish fishery to reduce that
fleet, that, like I said, would help us greatly and would
probably be the last investment we would have to make. But we
need to make it now. Otherwise the problem is just going to
continue to fester. So, again, that is not a matter of
studying; it is just a matter of spending the bucks.
The second issue has to do with essential fish habitat.
This is an issue that is of a great deal of concern to my
members, particularly among the salmon fishermen who have been
arguing for well over 20 years of the need for habitat language
in the Magnuson-Stevens Act. Frankly, I have been looking
around it and trying to determine where EFH language is really
causing a problem to the fishing industry right now. I don't
really know where the real problems exist. I do know it does
cause problems for oil companies and the timber industry and
the farm industry who are apoplectic that they may, for the
first time ever, have to take care in their operations to
protect fishery resources. But I don't know where EFH right
now, as we put it in under the Sustainable Fisheries Act, is
causing any real problem for the fishing industry.
And the other thing I am worried about in this instance,
too, is that organizations such as my own have been arguing for
years, trying to protect fish habitat from nonfishing
activities. If we all of a sudden retreat now from protecting
habitat from damage done by fishing activities, how can we then
in good faith go argue to try and protect habitat that is being
damaged by nonfishing activities? There it really puts us in a
real hypocritical position. We are involved tomorrow morning in
Federal court in Oakland, trying to get some water back into
the Klamath River. We need to have those EFH provisions in
there both to protect fish habitat from our own fishing
activities as well as from nonfishing activities. We cannot
retreat.
The third issue has to do with overfishing. I think here
there is a problem in definition, and one of the concerns I
would have is that anytime we have a depressed stock or
depleted stock, it tends to get listed as overfished. There are
a number of fish stocks right now that are in trouble, many of
them because of habitat degradation. We need to come up with a
better definition in the Act that correctly identifies those
stocks but does not retreat from addressing overfishing where
it is a problem.
And I see my time is nearly up, Mr. Chairman, but let me
just hit on a couple of other issues here. I think in regards
to bycatch--and I would agree with some of what the
recreational fishermen have said--is that there are some
fisheries where bycatch is not really creating a problem; that
is, where the fish are released back alive. For example, in the
Dungeness crab fishery, this is a sustainable fishery that has
been going on for 100 years, we release the females alive, back
over the side. The juvenile males are released back over the
side. It is not a problem. But if we are not careful how to
define bycatch, it could become a problem.
Likewise in the salmon fishing, when we release undersized
salmon with our barbless hooks, they have a good chance for
survival.
What we need to distinguish in bycatch is between that type
of bycatch where there is likely to be high degree of mortality
versus that where there is a low degree of mortality, and that
is the real difference in how we need to define it there.
I think as far as IFQs go, I think you made a good start
here in trying to establish the national standards. I have
identified, I think, some further standards that we think need
to be in that. I want to emphasize again that we need to have
an absolute prohibition against processor-owned or separate
allocation for processors for IFQs. We start allowing
processors to have IFQs, and you are making fishermen
sharecroppers. That is what it amounts to.
Mr. Chairman, there are a few other remarks I want to make,
but I think that concludes--my time is up here, and if you
would like to take a few, I do have to hop out of here pretty
soon to catch a plane.
[The prepared statement of Mr. Grader follows:]
Statement of W.F. ``Zeke'' Grader, Jr., Executive Director, Pacific
Coast Federation of Fishermen's Associations
Chairman Gilchrest, members of the Subcommittee, thank you the kind
invitation for me to provide testimony before you this afternoon on the
reauthorization of the Magnuson-Stevens Act and proposed amendments to
our nation's principle fishery statute. My comments here today will
focus on your discussion draft Mr. Chairman, with some discussion of
elements in Mr. Farr's measure, H.R. 2570 (which we had input into),
and some changes we would urge you consider in this reauthorization of
Magnuson-Stevens.
The Pacific Coast Federation of Fishermen's Associations (PCFFA)
represents working men and women in the West Coast commercial fishing
fleet, mostly owner-operators of small to mid-size fishing vessels.
PCFFA is the largest fishermen's organization on the West Coast and was
established shortly before the passage of H.R. 200, the Fishery
Conservation & Management Act of 1976. Fishermen belonging to PCFFA
member organizations are engaged in a number of different fisheries,
including those for salmon, crab, groundfish, swordfish, shark,
herring, squid, shrimp/prawns, California halibut, white sea bass,
albacore and sea cucumbers. Their gear types are equally as varied
ranging from troll to small trawl, gillnet to purse seine, traps to
longlines.
I have served as executive director of PCFFA since its founding
and, prior to that, worked in and managed fish processing plants while
in high school, college and law school. PCFFA has been involved in
providing comments and drafting language in past reauthorizations of
the Magnuson-Stevens Act and was the first organization to actively
work for inclusion of habitat language within the law. I am pleased
therefore for the opportunity to comment on proposed amendments in this
reauthorization, as well as recommend changes we believe necessary.
Mr. Chairman I would like to use your discussion draft as an
outline for my comments. I should add that my members have not yet had
an opportunity to review that draft so these comments will be based
essentially on past positions of PCFFA on the numerous issues touched
on in your draft.
Section 3. Report on Overcapitalization.
Overcapitalization, or ``excess harvesting capacity'' in the U.S.
fishing industry has been written about extensively over the past two
decades, including the June 2000 GAO report. A report on
overcapitalization, as proposed in the discussion draft, however, could
be useful in identifying those fisheries where there is excess fishing
capacity and to provide guidance on appropriate measures for addressing
excess capacity where it threatens conservation of fish stocks or the
economic viability of the fishery. Such a report should include
recommendations for funding sources for reducing fleet harvest
capacity.
The proposed report identifying the fisheries with ``the most
severe examples of excess harvesting capacity'' should, too,
distinguish between those fisheries where: 1) the fleet capacity
substantially exceeds the maximum sustainable yield of the fishery; 2)
the fleet capacity exceeds the amount of fish currently or foreseeably
available for a sustainable harvest in a fishery where the resource
decline is attributable to non-fishing impacts; 3) the fleet capacity
exceeds the fish available to it, at current ex-vessel prices, for the
participants to achieve on average a reasonable income; or 4) the fleet
is overcapitalized due to some combination of the first three. I raise
this because there are, in fact, at least three different types of
overcapitalization and each may require a different remedy.
The first type of overcapitalization (1 above) clearly would
warrant some form of fleet reduction as the correct remedy. Reducing
fleet capacity would facilitate the matching of fleet harvest size to
the size of the resource.
In the second type of overcapitalization (2 above) an alternative
to reducing the fleet, may be to restore the resource; for example
where disease or habitat loss may have taken a heavy toll on the
stocks. Indeed, fleet reduction, where fishing impacts are not the
cause of the resource decline, could send a fishery into a death
spiral. For example, in the west, how will policy makers allocate water
in a stream between fisheries and agriculture if the value of the
fishery continues in decline due to a shrinking fleet when agriculture
has ``unmet'' water demands? It becomes difficult to argue for the
rebuilding of fish stocks if the fleet has been depleted.
In the third type of overcapitalization (3 above), the remedy may
be to look first at the economic factors driving ex-vessel prices down.
If there is collusion among processors that is resulting in low prices
or if national trade policies are depressing fish prices, should the
fleet be reduced--diminishing the gross economic worth the fishery,
when perhaps the answer may be with the Justice Department or the U.S.
Trade Representative. Alaska's current salmon crisis, for example, is
not because there are ``too many boats and too few fish,'' but the
result of a spate of cheap farm salmon imports.
The final point I want to make regarding Section 2 of the
discussion draft, is that while I agree we should not dump our surplus
fishing fleet on foreign nations, there should be some flexibility
here. Specifically, I suggest language that would allow vessels removed
from the U.S. fisheries to go into the fisheries of other nations if
the Secretary finds that the vessels would: 1) not contribute to
overfishing in that nation; 2) not be used to fish the same stocks U.S.
vessels are fishing (in U.S. or international waters); and 3)
contribute to modernization for improved product quality or fisherman
safety, or contribute to development of individual, private owner-
operator fleets. I bring this up because in places such as the Russian
Far East there is a real need to develop a small coastal fishing fleet
that could employ local fishermen and support local fish processing.
Some of the surplus U.S. vessels, that are still serviceable, could be
used to help with the development of such fleets, where the purchase of
new vessels would initially be prohibitive.
Section 4. Buyout Provisions
The discussion draft provisions for fishing capacity reduction
programs is an improvement over current law, giving guidance on the
conduct of such programs and providing for both the removal of vessels
and their permits from a fishery. The two concerns I have with this
section of the discussion draft are these:
First, as noted in Section 3, there should be discretion to allow
vessels removed from U.S. fisheries to go to the fisheries of another
nation if certain conditions are met (as mentioned above).
Second, and most important, a source of funding needs to be
established for the buyouts to occur. The impediment right now to some
much needed buy-outs, such as for trawlers in the Pacific groundfish
fishery (Senator Wyden's proposed legislation, for example) is not a
good program but a lack of funds. If Congress can provide massive
amounts of subsidies for agriculture, including proposals to buy-out
and retire agricultural lands, then certainly some funds are
appropriate now to remove vessels whose construction the government
encouraged and even helped finance (vessel loan guarantees, for
example). Establishing a fund and appropriating the monies needed now
for buy-backs would help stop the hemorrhaging in many fisheries and
speed the recovery of stocks. A buy-back fund should probably be some
mix of public and industry funds--that mix to be determined by the
circumstance of each fishery.
Section 5. Data Collection
In a number of U.S. fisheries the recreational catch may equal or
exceed the commercial harvest. In some fisheries the recreational
impact may be greater as well, including significant bycatch. It is
therefore important that a good data collection system be established
for the marine recreational fishery. The proposal in your discussion
draft could greatly improve recreational data collection. Two
recommendations I would to this section are:
First, the data collection program should also be required to
gather information on bycatch in the recreational fishing by fishery
and gear type. This information will be needed by fishery managers and
anglers in addressing those fisheries or types of recreational tackle
with significant catch mortalities.
Second, observers should be part of the data collection program to
better ensure the quality of the information gathered. This could,
perhaps, be tied into the observer program in Section 7 of the
discussion draft.
Finally, the discussion draft also addresses the availability of
economic data in the commercial fishing sector from fish processors.
The problem with some of this data is that it may either be incomplete
or inaccurate. Steps must be taken to ensure a system exists, and
enforced, for the accurate reporting of all catches and the true ex-
vessel price paid for the fish.
Section 6. Ecosystem-Based Management
Some of us have long recognized that it is not possible to conserve
and manage fish stocks without considering the habitats of the fish,
including water quality, and predator-prey relationships. Fishermen in
my organization, at least, have long been cognizant of the importance
of habitats and have been careful observers of predator-prey
interactions. For a quarter century now my organization and a few other
fishing groups around the country have worked to protect water quality,
freshwater flows and fish habitats. They understand the importance of
maintaining forage stocks. Commercial fishermen in California, for
example, favored conservative quotas for their herring fishery,
recognizing those fish were forage for salmon and other commercially
and recreationally important species. They also drafted and lobbied the
passage of state legislation banning the take of white sharks, a top of
the food chain predator, and a prohibition on fishing for krill, an
important species near the bottom of the ocean food chain. All of this
is to say that the importance of ecosystems have long been understood
by many in the fishing industry; this isn't rocket science. And, it
makes sense therefore that we should manage fisheries based on an
ecosystem approach.
The language in the discussion draft making it U.S. policy to
support and encourage ecosystem management is sound. However, I think
we need to go beyond just talking about ecosystem management and begin
implementing it. To that end, I suggest the Subcommittee look at the
language in H.R. 2570 (Section 8) calling for implementation of fishery
ecosystem plans. I believe the language in the discussion draft,
establishing U.S. policy for ecosystem management and defining the term
ecosystem, can be melded with that in H.R. 2570 setting forth the
development of ecosystem plans and a new national standard in the
Magnuson-Stevens Act.
Finally, let me emphasize with regards to ecosystem management,
that lack of information about an ecosystem or the lack of an ecosystem
plan should never be an excuse for doing nothing where overfishing, or
habitat destruction, or unacceptable levels of bycatch are known to
exist. The too often heard phrase in the implementation of the ESA,
Magnuson-Stevens and other conservation laws, that ``we can't do
single-species management,'' is nothing more than the rationale of
those who do not want to act. Yes, we need to make it U.S. policy to
support ecosystem management. Yes, we need to put in place a timetable
for establishing ecosystem management plans. But in the meantime, we
should not let the lack of ecosystem data, or the lack of ecosystem
plans, prevent implementation of sound fishery conservation and
management measures based on what is known.
Section 7. Observers
There is considerable resentment among many in the fishing industry
regarding on-board fishing observers. It is felt by many to be an
invasion of privacy--``Big Brother,'' an inconvenience at best and, at
worst, another mouth to feed, someone who is in the way, a potential
source of liability, and someone who may not necessarily be recording
information accurately or who is engaged in more than just scientific
data gathering. At the same time, most recognize the value of on-board
observers. On the West Coast, information from on-board observers in
the Pacific whiting fishery helped to model regulations aimed at
avoiding the take of salmon. On-board observers in the Pacific
groundfish fishery can provide the independent data on the levels of
bycatch among different gear types, as well as the effectiveness of new
or modified gear to avoid the take of non-target species. Longline
swordfish fishermen in the Pacific are wanting to have observers aboard
whose data may quell the allegations made against that fishery
regarding turtle and sea bird bycatch and the take of immature fish.
Off the north coast of California, salmon trollers will be taking
observers aboard this summer to determine contact rates with coho
salmon. It is their hope independent observer data will show what the
fishermen believe to be true: that the contact rates are low and a
liberalized season for chinook salmon can be justified without
impacting recovery of the ESA-listed coho.
I don't think there is any question on the need for a national
fishery observer program. The issue is what are the needs of such a
program. Many of the needs for a national observer program, I believe,
are known. For that reason, I suggest the Subcommittee consider the
language in H.R. 2570 (Section 7) that would both develop and fund a
national fishery observer program. A study could be useful for further
delineating needs, providing it not delay establishment of a national
observer program (such as that proposed in H.R. 2570). Many of the
recommendations requested in the needs study, proposed in the
discussion draft, are for questions I think we already have answers to.
However, if a study is to go forward, it should request recommendations
for: 1) observers in the recreational fisheries; 2) observer training
and salaries; 3) observer usage in the testing of new or modified
fishing gear and experimental fisheries; and 4) observers for new
coastal and open ocean aquaculture operations. Again, I want to
emphasize that we cannot wait for further study to establish a national
observer program and I urge your adoption of the observer language in
H.R. 2570.
Section 8. Overfishing
The definition of overfishing in the Magnuson-Stevens Act has been
particularly troubling to my organization, especially with regard to
the way it has been applied to the salmon fishery. Many salmon stocks
on the West Coast are depressed, some even listed under the ESA,
primarily due to destruction of these populations' in-river spawning
and rearing habitat. Because there was no other way to describe
depressed fish populations, they were categorized as ``overfished,''
leading many to believe--wrongly--that simply by removing fishing
effort, stocks would rebound. In developing its own ``mini-Magnuson''
act, California wrestled with the definition in its 1998 Marine Life
Management Act, and developed its own language for a depressed fish
stock, which includes under it overfished stocks (see 90.7 and
97.5 in the attachment). I worry, however, with the change in
the overfished definition proposed in the discussion draft that it may
become an excuse for regional councils or the National Marine Fisheries
Service to attempt to blame oceanographic or some other conditions for
the cause of stock declines and not address excess fishing effort or
develop stock rebuilding plans.
Finally, I would recommend to the Subcommittee the language in H.R.
2570 calling for the elimination of overfishing where it exists.
Addressing overfishing, and enacting cutbacks in quotas, reducing days
fished and other fishing restrictions can cause severe economic and
social hardships in the fishing industry. However, if overfishing is
not addressed promptly, the remedy, though delayed, will be even more
painful. The hardships that may befall fishing families and communities
when overfishing is addressed can be ameliorated in part, I believe,
depending on the fishery, with buy-backs (where there is
overcapitalization), short-term disaster relief, and engaging fishermen
and their vessels in fishery research or restoration programs.
Section 9. Bycatch
The discussion draft improves current law by enacting a one-year
deadline to begin enacting a standardized catch reporting system. The
concern I have is that the language also provides the regional councils
an exemption if they publish a report explaining why they can't comply.
The discussion draft also includes seabirds under the definition of
bycatch, which really brings makes the law consistent with current
practices which treat the hooking or netting of seabirds as bycatch.
Indeed, considerable and laudable efforts have been made by longliners
in the North Pacific and gillnetters in the Pacific Northwest to modify
their deployment or use of the fishing gear to avoid an incidental take
of seabirds. In both of these instances, it was the fishermen's
associations that led the effort to protect the seabirds.
The language in H.R. 2570 also strengthens the bycatch provisions
of the current law. The one area that is of concern to my organization
is how bycatch is defined and addressed. Specifically, some fisheries
take non-target fish/shellfish in the course of the fishing operation
(female Dungeness crabs in traps, undersized salmon on barbless hooks
are two examples) and release them live back into the wild and their
survival is high. Some distinction must be made between those types of
operations where there is very little mortality associated with the
take and release of non-target species and those where most of the
bycatch is either dumped dead or will soon die. It is this latter form
of bycatch that is problematic and must be reduced.
The discussion draft also acknowledges the need for research and
development on fishing gear that will minimize bycatch. I appreciate
Congress' attention to this matter and would recommend incorporation of
some of the language in H.R. 2570, specifically the utilization of
Saltonstall-Kennedy Act monies to help fund this research and
development, in the Subcommittee mark-up of Magnuson-Stevens Act
reauthorization amendments.
Section 10. Essential Fish Habitat
Of all the provisions in the Magnuson-Stevens Act, the section on
habitat is probably the most important to the PCFFA. PCFFA had begun
calling for inclusion of habitat language in the FCMA shortly after its
passage when both the Pacific Council and NMFS refused to consider the
impacts of habitat destruction on salmon stocks. I am concerned
therefore with what I read as a constriction on essential fish habitat
(EFH) in the Magnuson-Stevens Act proposed in the discussion draft.
This language in the draft, I fear, would reverse the progress that has
been made in identifying and protecting EFH, as part of finally
considering ecosystems in the conservation and management of our
fisheries. My organization has been outspoken, and rightfully so, in
its efforts to protect fish habitat from many non-fishing impacts. If
we do not have strong language to prevent the damage to habitat by
fishing gear, how can those of us in the fishing industry argue for
protection of habitat from non-fishing impacts? Weakening EFH language
in Magnuson-Stevens does not make it easier on the fishing industry by
allowing the destruction of the very ecosystems that are critical for
abundant fish stocks, and it makes it much more difficult for us to
advocate the protection of habitat affected by non-fishing activities.
I think the language in H.R. 2570 is preferable here to that in the
present discussion draft, Mr. Chairman.
Section 11. Demonstration for Oyster Reproduction Sites
Mr. Chairman, I applaud your effort here to develop a program for
the design, construction, and placement of oyster reproduction sites in
the Chesapeake Bay. I urge you to expand this program, however, to also
establish a similar West Coast program for San Francisco Bay. San
Francisco Bay, as you may know, is the most important estuary on the
west coast of North and South America. This bay is not simply the
pathway between the Sierra streams and the sea for chinook salmon, nor
simply a spawning or nursery area for Pacific herring and Dungeness
crab, it is also habitat for a once significant oyster population.
Prior to World War II, San Francisco Bay had a large and thriving
oyster fishery. Some native oysters are still found in the Bay, but are
currently at such low levels that they may warrant listing under the
Endangered Species Act. Rather than waiting for a listing, or the
extinction of these remnant populations, I suggest an aggressive
program, similar to that being proposed in the Chesapeake, be
established for restoring San Francisco Bay native oyster populations.
Funding, in part, for a San Francisco Bay program might by achieved by
redirecting some of the existing CALFED restoration funds. I would be
happy to discuss this matter further with you, Mr. Chairman, and your
staff.
Section 12. Individual Quota Limited Access Programs
Despite the hype from a lot of free-market theorists, as well as a
few environmental groups and bureaucrats looking for easy fixes, PCFFA
has found most individual fishing quota (IFQ) systems in place in the
U.S. and around the world to be unmitigated disasters--mostly
consolidating ownership of the fisheries into a few corporate hands and
relegating fishermen to sharecroppers. They have had virtually no
conservation benefit (over and above normal limited entry programs) and
the safety aspects touted for them soon disappear as shoreside
interests scoop up the quotas. For that reason, PCFFA supports the
continued moratorium on the implementation of IFQ systems in the U.S.
fishery.
If, however, the IFQ moratorium is lifted, then specific standards
must be imposed, to assure the systems are not abused. NMFS and the
regional councils cannot be given carte blanche in developing IFQ
systems. The discussion draft provides a start on setting out
guidelines to the councils for establishing IFQs, however, it does not
go nearly far enough. The standards proposed by the Marine Fish
Conservation Network, of which PCFFA is a member, we fully support. The
following elements, we believe, are critical for IFQs if the moratorium
is lifted:
1. Referendum. Prior to any IFQ program being established a
referendum must be conducted among those individuals, who participated
in the fishery considered for an IFQ system, with documented landings
in that fishery during one of the past three or more years, and who are
still eligible to participate or have permits to participate in the
fishery in question. A 60 percent approval, as proposed in the
discussion draft, is the minimum that should be required for an IFQ
system to proceed. The rules for a referendum cannot be left up to
either NMFS or the regional councils.
2. Eligibility. Eligibility for an initial grant of quota in an IFQ
fishery should be open to all those individuals or vessels with
landings, no matter how small, who participated in the fishery during
one of at least three previous years and who are still eligible to
participate in that fishery or who have permits to the fishery in
question. If free markets are to work then allow those who are eligible
trade and sell quota among themselves to determine what amount they
need for an economically viable fishery.
3. Ownership. Ownership of quotas should be limited to individuals
holding fishing licenses and who are on board and engaged in the
fishery for the quota. Where companies own vessels and may be eligible
for quota share based on a vessel's catch history, they should be
``grandfathered'' in, but any lease or sale thereafter of their quota
could only be to an individual licensed and on-board fishing for the
quota.
4. Quota Caps. Any IFQ system must have in place an effective
method for controlling the amount of quota owned by any one individual,
family unit, partnership or corporation.
5. Program Duration. Finally, any IFQ system established should be
for not longer than five years duration, after which point it may be
abandoned or renewed following a review of its achievements for
improving fish conservation, safety, product quality, and individual
vessel ownership.
Let me also emphasize my organization's, and most fishing
organizations, adamant opposition to granting quotas to fish
processors. Fish processors who own vessels engaged in fisheries should
be considered for eligibility for quota for those vessels, however,
with the clear caveat that any subsequent sale or transfer of any or
all of that quota can only go to a licensed fisherman operating a
vessel in the fishery for which the quota is for. Moreover, the idea of
splitting the overall quota for a fishery and giving a portion of it to
processors is unacceptable. Mr. Chairman, many of our fisheries in this
nation are in horrible shape. Making fishermen sharecroppers or
permitting fish processors a cartel controlling a public resource, will
just make a bad situation far worse. I strongly urge the Subcommittee
and the Congress to reject the issuance of fish quotas to processors,
except for those owning vessels that have a catch history in a fishery.
Section 13. Cooperative Education and Research
In addition to that proposed in the discussion draft, I would also
urge the Subcommittee consider the language in H.R. 2570 promoting
cooperative fishermen-science research programs.
Section 16. Council Membership
Membership on the regional councils is an issue, like habitat, that
has been of concern to PCFFA and other fishing groups. In the 1986
reauthorization our organization worked to include language that
council members had to be knowledgeable regarding fisheries. What is
important to us is not that the public members of regional councils be
simply those from the fishing industry, but the individuals, whoever
they are be knowledgeable about the fisheries. Fishermen--commercial,
recreational and tribal--provide valuable expertise on the councils.
But I question whether the lobbyists, the lawyers or the executive
directors of those associations have such first hand fishing experience
and whether they simply should be prohibited from serving. Moreover, I
also believe it is time to examine closely the conflicts of interests
that may arise not just among commercial or recreational fishing
representatives, but among other interests with an economic stake in a
council vote (a promotion or continued employment, for example),
including the state fishery directors.
Additional Issues
Mr. Chairman, there are three additional issues, not included, in
the discussion draft, that I believe may merit consideration in this
reauthorization of Magnuson-Stevens. They are:
Precautionary Approach. I believe a definition of the precautionary
principle is needed in the Act and a directive to begin implementing
it. H.R. 2570 (Section 11) contains such language. I say this not so
much because I believe its implementation now can undo what has been
done when we threw caution to the wind and built up, following passage
of the FCMA, a fleet with a greater catch capacity than there were
stocks to support. But, because I worry greatly about NMFS'' and some
of the state's fascination with new forms of coastal and open ocean
aquaculture that I believe may be the next great threat to our native
fish stocks if caution is not adhered to. Proposals for open ocean
aquaculture could lead to harm to both ecosystems and endanger the very
stocks we are now trying to rebuild. Making matters worse is the
biotech industry's push for genetically-modified fish for aquaculture
operations. We are working hard to rebuild damaged fish stocks, the
nation is spending millions to prevent and control marine invasions,
are we going to throw that all away now, because someone has bit into
the hype of more fish to feed the world's starving masses. We need, I
believe, a precautionary principle, not to correct previous mistakes
but to make sure we don't make more mistakes with our fisheries in the
future.
Professionalization. A study not included in the discussion draft,
but one that I believe is needed, is to examine whether a
professionalization program is needed for our nation's fishing fleet.
Canada is currently embarking on such a program and other nations have
them in place as well. Should we not examine whether and how a program
for the education and training of those engaged in the harvest or our
nation's fishery resources could or should be established?
Funding Fishing Programs. Last some method needs to be considered
to provide for a financial contribution from the industry to help pay
for many needed fishery programs that are not adequately funded.
Whether it should come in the form of an ad valorem tax on all seafood
sold in the U.S. or some other means, I don't know, but part of the
reason for the crisis we're in is due to our failure to fund the
research, stock assessments, and enforcement needed for the proper
conservation and management of our fisheries.
Mr. Chairman and members thank you again for your invitation to
testify here today. I will be happy to answer any questions you may
have.
______
ATTACHMENT
CALIFORNIA MARINE LIFE MANAGEMENT ACT
DEFINITIONS
http://www.dfg.ca.gov/fg--comm/mlma/appendix/a.html
Sec. 90.1. ``Adaptive management,'' in regard to a marine fishery,
means a scientific policy that seeks to improve management of
biological resources, particularly in areas of scientific uncertainty,
by viewing program actions as tools for learning. Actions shall be
designed so that even if they fail, they will provide useful
information for future actions. Monitoring and evaluation shall be
emphasized so that the interaction of different elements within the
system can be better understood.
Sec. 90.5 ``Bycatch'' means fish or other marine life that are
taken in a fishery but which are not the target of the fishery.
``Bycatch'' includes discards.
Sec. 90.7. ``Depressed,'' with regard to a marine fishery, means
the condition of a fishery for which the best available scientific
information, and other relevant information that the commission or
department possesses or receives, indicates a declining population
trend has occurred over a period of time appropriate to that fishery.
With regard to fisheries for which management is based on maximum
sustainable yield, or in which a natural mortality rate is available,
``depressed'' means the condition of a fishery that exhibits declining
fish population abundance levels below those consistent with maximum
sustainable yield.
Sec. 91. ``Discards'' means fish that are taken in a fishery but
are not retained because they are of an undesirable species, size, sex,
or quality, or because they are required by law not to be retained.
Sec. 7090(b) ``Emerging fishery,'' in regard to a marine fishery,
means both of the following:
A fishery that the director has determined is an emerging fishery,
based on criteria that are approved by the commission and are
related to a trend of increased landings or participants in the
fishery and the degree of existing regulation of the fishery.
A fishery that is not an established fishery. ``Established fishery,''
in regard to a marine fishery, means, prior to January 1, 1999,
one or more of the following:
A restricted access fishery has been established in this code or in
regulations adopted by the commission.
A fishery, for which a federal fishery management plan exists, and in
which the catch is limited within a designated time period.
A fishery for which a population estimate and catch quota is
established annually.
A fishery for which regulations for the fishery are considered at
least biennially by the commission.
A fishery for which this code or regulations adopted by the
commission prescribes at least two management measures
developed for the purpose of sustaining the fishery. Management
measures include minimum or maximum size limits, seasons, time,
gear, area restriction, and prohibition on sale or possession
of fish.
Sec. 93. ``Essential fishery information,'' with regard to a marine
fishery, means information about fish life history and habitat
requirements; the status and trends of fish populations, fishing
effort, and catch levels; fishery effects on fish age structure and on
other marine living resources and users, and any other information
related to the biology of a fish species or to taking in the fishery
that is necessary to permit fisheries to be managed according to the
requirements of this code.
Sec. 45. ``Fish'' means wild fish, mollusks, crustaceans,
invertebrates, or amphibians, including any part, spawn, or ova
thereof.
Sec. 94. ``Fishery'' means either of the following:
One or more populations of marine fish or marine plants that may be
treated as a unit for purposes of conservation and management
and that are identified on the basis of geographical,
scientific, technical, recreational, and economic
characteristics.
Fishing for or harvesting of the populations described in (a).
Sec. 8100. ``Limited entry fishery'' means a fishery in which the
number of persons who may participate or the number of vessels that may
be used in taking a specified species of fish is limited by statute or
regulation. (Note that limited entry is a type of restricted access.
See Appendix D.)
Sec. 96. ``Marine living resources'' includes all wild mammals,
birds, reptiles, fish, and plants that normally occur in or are
associated with salt water, and the marine habitats upon which these
animals and plants depend for their continued viability.
Sec. 96.5. ``Maximum sustainable yield'' in a marine fishery means
the highest average yield over time that does not result in a
continuing reduction in stock abundance, taking into account
fluctuations in abundance and environmental variability.
Sec. 8586(a) ``Nearshore fish stocks'' means any of the following:
rockfish (genus Sebastes) for which size limits are established under
this article, California sheephead (Semicossyphus pulcher), greenlings
of the genus Hexagrammos, cabezon (Scorpaenichthys marmoratus),
scorpionfish (Scorpaena guttata), and may include other species of
finfish found primarily in rocky reef or kelp habitat in nearshore
waters.
Sec. 8586(b) ``Nearshore fisheries'' means the commercial or
recreational take or landing of any species of nearshore finfish
stocks.
Sec. 8586(c) ``Nearshore waters'' means the ocean waters of the
state extending from the shore to one nautical mile from land,
including one nautical mile around offshore rocks and islands.
Sec. 97. ``Optimum yield,'' with regard to a marine fishery, means
the amount of fish taken in a fishery that does all of the following:
Provides the greatest overall benefit to the people of California,
particularly with respect to food production and recreational
opportunities, and takes into account the protection of marine
ecosystems.
Is the maximum sustainable yield of the fishery, as reduced by relevant
economic, social, or ecological factors.
In the case of an overfished fishery, provides for rebuilding to a
level consistent with producing maximum sustainable yield in
the fishery.
Sec. 97.5. ``Overfished,'' with regard to a marine fishery, means
both of the following:
A depressed fishery.
A reduction of take in the fishery is the principal means for
rebuilding the population.
Sec. 98. ``Overfishing'' means a rate or level of taking that the
best available scientific information, and other relevant information
that the commission or department possesses or receives, indicates is
not sustainable or that jeopardizes the capacity of a marine fishery to
produce the maximum sustainable yield on a continuing basis.
Sec. 98.2. ``Participants'' in regard to a fishery means the
sportfishing, commercial fishing, and fish receiving and processing
sectors of the fishery.
Sec. 98.5. ``Population'' or ``stock'' means a species, subspecies,
geographical grouping, or other category of Fish capable of management
as a unit.
Sec. 99. ``Restricted access,'' with regard to a marine fishery,
means a fishery in which the number of persons who may participate, or
the number of vessels that may be used in taking a specified species of
fish, or the catch allocated to each fishery participant, is limited by
statute or regulation. (Note that there are several types of restricted
access, including limited entry and individual quotas. See Appendix D.)
Sec. 99.5. ``Sustainable,'' ``sustainable use,'' and
``sustainability,'' with regard to a marine fishery, mean both of the
following:
Continuous replacement of resources, taking into account fluctuations
in abundance and environmental variability.
Securing the fullest possible range of present and long-term economic,
social, and ecological benefits, maintaining biological
diversity, and, in the case of fishery management based on
maximum sustainable yield, taking in a fishery that does not
exceed optimum yield.
______
Mr. Gilchrest. Does anyone else have to leave within 15
minutes?
I guess we can start with you, Mr. Grader. The essential
fish habitat versus--some have recommended that we put in the
Magnuson habitat areas of particular concern to define that.
And I understand essential fish habitat--the provisions that
are contained in Magnuson you feel have not caused a problem in
the fishery in any particular way. What NMFS has begun to do,
which some people have asked us to do, is to look at habitat
areas of particular concern. Is that something that should be
clarified, put in the Act in some form, or can we just deal
with essential fish habitat language that is in there now
without weakening it?
Mr. Grader. I think my preference would be for the latter,
to stay with the existing definition. Some have complained that
we don't want to begin changing definitions again. We are just
now getting acclimated to what is in the SFA. I would see where
we are. I think as we learn more about these ecosystems, as we
learn more about the habitat's environment, we will be able to
define that; and in many cases it will probably become
narrower, because we will determine that the fish really don't
use habitats. And in other cases we may find that we define
habitats too narrowly. But I would be hesitant right now to
retreat from that, and I think if we do begin retreating from
that, we are going to see a lot of other nonfishing interests
here at the table clambering also for retreating in their
areas.
Specifically, I dread to think what is going to happen,
those that are affecting wetlands. If we start retreating now,
they are going to be right here demanding exemptions or, you
know, what they are doing to wetlands not be considered. And as
we all know, wetlands are critical to our coastal fish stocks.
Mr. Gilchrest. So you feel that the provisions that are in
existing law and the way NMFS is dealing with that, we will
allow NMFS a little more time to work on an issue and resolve
any problems that they have, and don't have any language in
dealing with habitat areas of particular concern.
Mr. Grader. My feeling is only that making sure they stay
on some sort of time line, that we hold them to that. But I
think right now, let us try to enforce what we have there now,
see how well it works. We may have to revisit in a couple of
years, but right now I would be really hesitant to try to
retreat at all from any of that or constrict in any way that
existing language. On the West Coast it is absolutely critical
to us that we protect some of these habitats. We have lost so
much already. In the salmon habitat, in some cases we have lost
up to 90 percent of the spawning habitat for some of these
critical fish. We can't afford to lose any more. Likewise, we
have lost 90 percent of our wetlands, and likewise we ought not
to be damaging with our fishing gear critical habitats. It is
not in our best economic interest. It is foolhardy to be
damaging that habitat.
Mr. Gilchrest. And we are going to try to save that
habitat.
Mr. Grader. Thank you.
Mr. Gilchrest. The other issue that you raised was over
capitalization and the buyback provisions. The Wyden bill that
you mentioned, it is my understanding that based on the
criteria they use, and I think it is estimated it would cost
$50 million in that one fishery, would be under the
jurisdiction of Resources, Transportation, and Ways and Means
Committees. So we would have our work cut out for us under
that. But your comment, which is eminently logical and
reasonable, that we spend billions of dollars in agriculture,
versus how much money we spend to try to deal with the
fisheries, is pretty enormous. So we will make an extra effort
to look at those areas as expeditiously as we possibly can.
Mr. Grader. Thank you, Mr. Chairman. I should add, I
greatly appreciated your section there on oysters, and hope we
could do a similar oyster rebuilding plan for San Francisco Bay
as well. And in fact, I think we have identified the source of
funds for it. All we need is the language to kind of tweak it
to make it happen. But the oyster restoration is critical, and
I appreciate the work you have done in the Chesapeake Bay, and
I would hope we could do the same thing in San Francisco Bay,
which also at one time had a huge oyster fishery.
Mr. Gilchrest. Apparently, according to Mr. Hayes, we only
need a little bit of tweaking to make this one go. As long as
there are grass-roots contributions to the protected areas
around those oyster reefs, we could make that happen.
One last question before I let you go, Mr. Grader, and that
is I am going to ask Mr. Houde if he has some type of timeframe
for an expedited ecosystem fisheries management--whatever you
want to call that--approach. We don't have a time line in our
bill. In your testimony, you made a comment that there is a lot
of information out there already. We need to continue to study
it, but we have to hold--these are my words--Councils' feet to
the fire and begin some type of deadline for an ecosystem
fisheries approach.
Do you have some type of recommendation for a deadline or
how we should proceed with that, or is there a Council that
might have a pilot program in the next year or 2, 3, that could
institute a pilot project?
Mr. Grader. Actually, I was thinking when you asked that
question to earlier witnesses, I think we could do salmon
fishing, which I am most familiar with, on the West Coast. We
could probably do it there. We know what a lot of the ecosystem
needs are of those fish. We have had to in order to save them.
So that one would lend itself very well to it.
Groundfish, on the other hand, would be far more difficult
because there is a lot that we don't know about those
resources, but certainly the salmon could be a good one for a
pilot project on that. It is a little bit different than most
marine fish, but I think it would be an interesting one to do
because we do have so much information on it.
Mr. Gilchrest. So, have the Pacific Council do a salmon
ecosystem fisheries management plan just for salmon?
Mr. Grader. I think it would be an interesting one to try.
Keep in mind, I don't dare go back unless I can get some
assurance that we could get some funding to do it as well, but
I think there are probably some others around the coast where
we do have good information and we could use them on atrial
basis and see how they work. But in other words, to get moving,
not just talking about it, but let us do something.
Mr. Gilchrest. Thank you, Mr. Grader, and it is about 20
of, so if you feel you have to depart we certainly appreciate
your traveling this distance, giving us your testimony.
Mr. Grader. Thank you very much Mr. Chairman.
Mr. Gilchrest. And we will do our best to include your
recommendations into the heart of the bill.
Mr. LeBlanc, you mentioned in your testimony the unfunded
and the unachievable, which is understandable because we don't
want to have the Councils or NMFS do things that they can't do
with money they don't have. No one is going to be successful.
But you also made a comment about the application of the
precautionary approach.
And I would like to ask you if you could be a little bit
more specific on why you would be opposed to what it seems to
me has been a scientific principle for a century or two, which
in essence is the principle of uncertainty when dealing with a
whole range of issues and the principle of uncertainty dealing
with one of the most uncertain aspects, the fisheries. I would
assume that the principle or the precautionary approach would
benefit the fishery plus the commercial fishing industry, and
certainly the recreational fishing industry, when you
understand the huge range of the dynamic eastbound and flow
that these fisheries go through.
And also if we look, and it seem to me we are moving in the
direction of an ecosystem approach, which means there is more
than just fishermen that impact the fishing, there are a whole
range of things, and nature itself is dynamic; but in a
precautionary approach, it tries to assure that in that one
aspect that is not dynamic, which is the steady impact of the
fishery--you used a precautionary approach in all the other
arenas that affect that stock--would be beneficial to the
fishery and to the industry.
Mr. LeBlanc. Mr. Chairman, I think everyone agrees in
general with the idea that the more uncertain you are, the more
cautious you need to be. So in general, I think everyone agrees
that you should take a precautionary approach to fisheries
management. The problem becomes when you attempt to define what
you mean by precaution, and just how cautious is cautious
enough. And I think from my perspective, you have to look at
this in the context of risk assessment essentially.
Scientists don't come to Fishery Management Councils and
say, you can catch this many fish. They come to Fishery
Management Councils and say, if you catch this many fish, you
have this probability of overfishing the resource; and if you
catch that many fish, you have that probability of overfishing
the resource. And you have to weigh those risks against other
risks, and those risks are social and economic impacts, and
make a decision that is not a purely scientific one but a
scientifically informed social decision. So in that context, a
precautionary approach is appropriate. But what we are told the
precautionary approach means is worst-case scenario management.
That is, you want to reduce any probability of overfishing a
resource, which is simply not practical and could have
devastating social economic impacts.
There is no right answer. Is a 75 percent chance of not
overfishing appropriate, or is a 50 percent chance of not
overfishing appropriate? And how you choose between those
numbers may depend, at least in part, upon what the relative
social and economic costs are of making those two different
decisions.
Mr. Gilchrest. So is the term or concept ``precautionary
approach'' a relative term, depending on whose interpretation
you are using, or is there in fact a definite definition for
precautionary approach which can be applied in a myriad of
circumstances?
I guess I would like to ask Dr. Houde to comment on Mr.
LeBlanc's statement about precautionary approach.
Dr. Houde. I think precautionary approach is the present
expression of the ethic that we have had for 100 years. That is
true. Before precautionary approach was popular, we talked
about risk-averse management. So it is a way to avoid risk.
But where I disagree with Mr. LeBlanc is that it is not an
open-ended, hard-to-define approach for any particular fishery
management plan. What you wish to be precautionary can be
easily defined. It could be that 75 percent, or it could be
that 50 percent, and I would argue that this is the kind of
language that we need to see in the Act.
There are examples in recent years, for instance, with one
of our fisheries on the East Coast where NMFS in their stock
assessment gave the probability of overfishing as 50 percent if
a certain fishing mortality rate were applied. The Council
chose a rate that was much less than that, and then the final
agreement was somewhere in between 50 percent and something
like 3 percent. And that went to court and the NMFS and the
Councils lost. Had there been a definition, the plan that said
50 percent probability was the precautionary rate that one
would accept, a lot of trouble would have been avoided.
Mr. Hayes. Mr. Chairman, I think there are a couple of
things here that are important. One, a precautionary approach
is defined. It exists in an annex to the Straddling Stock
Convention which the United States has signed and is a party
to. It is the application of the precautionary approach, as Mr.
Houde suggested, Dr. Houde suggested, that is the difficulty.
And what I believe Mr. LeBlanc was referring to was his concern
that the Farr bill defines the precautionary approach in a way
that is overly conservative. Frankly, I don't think that
definition is consistent with what is in the Straddling Stock
Convention, and maybe other people do--
Mr. Gilchrest. Would you suggest that we use the definition
from that Convention in the Magnuson Act?
Mr. Hayes. I would suggest that that is already domestic
law and it is unnecessary to apply it to the Magnuson Act.
Mr. Gilchrest. If it is unnecessary, would it be overly
burdensome if we are already complying it with and then put it
in the Magnuson?
Mr. Hayes. The definition--I haven't read it in maybe 6 or
8 months, but the definition that is in the Straddling Stock
Convention is not exactly a precise statement, as Dr. Houde
would suggest. In other words, it doesn't suggest to you that
50 percent probability is the right level of probability. What
it gives you is a series of criteria that you should look at in
order to make a conservative judgment with respect to the
application of scientific data when you are doing it in a
fishery context.
Mr. Gilchrest. So, Mr. Hayes, you are saying it is not
necessary to put a definition or any type of criteria defining
the precautionary approach in the Act at this time?
Mr. Hayes. What I am suggesting is that Fishery Management
Councils are already obligated to apply the definition in the
Straddling Stock Convention to the thing that they are doing,
and that that definition is probably adequate if in fact they
would go ahead and apply it.
Mr. Gilchrest. Would you agree with that, Dr. Houde?
Dr. Houde. I can't argue with Mr. Hayes with respect to
whether it is already incorporated into domestic law. I can
tell you that in fishery management organizations, agencies,
and institutions around the world, it appears repeatedly over
and over. I think that the precautionary approach definition
appeared before the Straddling Stock Conventions that were
held. It came out in Food and Agriculture Organization papers
back in 1995. I think it comes out of the Rio Convention in
1992, where I believe it was first discussed.
Dr. Houde. So it appears, and it strengthens the management
language in many fisheries, agencies, institutions around the
world, and I think it would be a good thing to have in
Magnuson-Stevens.
Mr. Gilchrest. Why do you say that, Doctor? What advantage
would there be to including that in the Magnuson Act, since it
is so widely understood?
Dr. Houde. Well, I am not so sure that it is widely
understood in its application, but if language were in the M-S
Act that said that the precautionary approach will be taken,
and then some language that defined what was meant by
precautionary approach in terms of risk assessment and
analysis, as Mr. LeBlanc has suggested, this might require that
each Council specifically address the issues of risk and what
an acceptable risk is.
Mr. Gilchrest. Mr. Leape.
Dr. Houde. I guess I wouldn't be tied to saying that the
precautionary approach is exactly the wording that has to be in
the Magnuson-Stevens Act. As I said, it is the present
expression of an ethic that has been around for a long time.
Mr. Leape. Well, it has been our experience. It is great
hearing this discussion about the precautionary approach,
because that is part of getting to where we need to be. We feel
it wouldn't be redundant to have it mentioned in the Act, and
people may disagree. But in the Farr bill we attempted to have
some manifestations of what an interpretation of the
precautionary approach could be in terms of buffers when you
are setting quotas to account for the potential that scientists
are wrong, when they are setting their allowable biological
catch levels, and in beginning to shift the burden of proof to
fishermen who want to introduce new gears, because the burden
really should be on those who would benefit from the new
activity to prove that it is not going to increased detriment
to that fishery.
It shouldn't be the burden of the public, and the Councils
are already overburdened by themselves, and so that is why we
felt it was appropriate to put in elements like that to at
least have an effort at implementing the precautionary
approach.
Mr. Gilchrest. Yes. Mr. LeBlanc.
Mr. LeBlanc. Thank you, Mr. Chairman. I just wanted to--
this has been an interesting discussion regarding the
application of the precautionary approach.
I think one of the other concerns that I have certainly
heard from a number of folks in the commercial fish and seafood
industry is, I guess for lack of a better term, what I call the
redundant application of precaution. And that is, as you move
through the system of analysis, and you go through the
scientific process and the modeling process, and you apply
precaution to the variables you apply to your model, and then
you apply precaution to the output from that model, and then
you apply precaution when the Fishery Management Council has to
make a TAC based upon that stock assessment, at what point have
you applied precaution enough; and that gets, again, into the
vagueness of its application. That raises, I think, a lot of
concerns. And where is the appropriate level and do you have to
do it multiple times?
Mr. Gilchrest. Mr. Hayes.
Mr. Hayes. I just wanted to make clear that we are not
opposed to the application of the precautionary approach. In
fact, I think CCA in 1998 testified in this room, asking for it
to be included in the Magnuson Act, because, at the time, there
was no FAO definition and there was no attachment of that
definition to the straddling stocks convention.
I think something in this bill that simply says that it has
to be applied, and, as Mr. LeBlanc might suggest, that it has
to be applied at a specific level, i.e., has to be applied by
the Secretary prior to implementing fishery management
regulations, might be an appropriate spot. It is a perfectly
acceptable way to do it. The problem with the precautionary
approach is that--this is just like Justice Stewart's problem
with obscenity: Everybody knows it when they see it, but it is
very difficult to define it. And when you begin to define it,
you get very controversial questions about what it is. And that
is why I suggest it is already defined. It may be defined in a
way in which it is subject to some interpretation, but it does
exist in its domestic law.
Mr. Gilchrest. Well, we will take a closer look at that and
see what we can do, at least with some range of--it seems to me
the maximum sustainable yield, when you take a look at that,
you have a range of high, middle or low, as far as the
allocation is concerned. And I would think that a precautionary
approach would be to stay on the low end of that allocation,
within the range but on the low end of that range. And to me, a
layman, that is the precautionary approach.
Getting back to ecosystem approaches for fisheries, Dr.
Houde, you mentioned an incremental approach to the--you used
the term ``incremental.'' could you give us--I think you used
the term ``incremental approach'' to an ecosystem-based
approach. Can you give us some idea of what the first increment
would be, the second increment, the third increment?
Dr. Houde. I think that some of the language already
written into the discussion draft to me implies increments. One
could just look at the bycatch language, for instance. Reducing
bycatch, to me and to many fish ecologists, is an ecosystem-
based approach. You talk about understanding species
interactions in the discussion draft. Species interactions are
primarily predator-prey relationships. Most of us who worry
about bycatch and the impact of bycatch on marine ecosystems,
it is because we are concerned about the effect that bycatch
has on predator-prey relationships in the marine ecosystem. So
solving the bycatch problem would be an incremental step toward
implementing ecosystem-based management.
Defining essential fish habitat into specific kinds of
habitat, perhaps HAPCs, is another incremental step for
individual fisheries, so that we can categorize those habitats
that are critical for certain life activities of species; and
those that aren't, this is an incremental approach. The bycatch
issue of whether birds should be included as bycatch,
identifying birds as bycatch, and by doing that implying that
we are no longer going to catch birds while we are fishing, to
me is an incremental step toward--
Mr. Gilchrest. Would you include marine mammals? Would you
suggest the inclusion of marine mammals in the Act? Is that
necessary?
Dr. Houde. I would include them. In fact, before this
discussion took place, I in my mind had always assumed that
anything not intended to be caught was bycatch. We certainly in
a trawl fishery aimed at groundfish, for instance, consider the
crabs and lobsters and squid bycatch. They are not fish.
Mr. Gilchrest. Mr. Leape?
Mr. Leape. Now, the Marine Fish Conservation Network
doesn't have an opinion on marine mammals, but I do. I have
been through many tortuous negotiations around section 118 of
the MMPA, which is the exemption for commercial fisheries. They
should be brought in. In those cases where there are
interactions with commercial fisheries, let us treat them
holistically. We are bringing in sea birds. Let us bring in
marine mammals as well, because this is all part of moving
toward dealing with this as an ecosystem and stop dealing with
this as separate parts, let us deal with it holistically, and
including marine mammals would be a step toward that.
Mr. Gilchrest. So that would be an incremental step--the
incremental steps would be improving bycatch, including sea
birds and marine mammals, certainly. Both you and Dr. Houde
said--and Mr. Grader as well--have stressed that there is a
good deal of information out there about ecosystems and that we
aren't moving fast enough to implement that approach, and there
is no firm language as to what is going to happen after 5
years. So is there a suggestion on a possible--like Mr. Grader
made a comment about the salmon being a part of the pilot
project. Do you have any recommendations, or is it
incorporating the recommendations in 1275?
Mr. Leape. 2570.
Mr. Gilchrest. 2570.
Mr. Leape. No. I think the idea of doing a pilot program is
a laudable one, if it can be done within the timeframe of the
authorization. What the message we have been trying to get
across is let us not let this new authorization of MSA expire
without having a deadline at the end of the game requiring the
Councils to act. Certainly a necessary part of that is to say
let us try this out, but we should endeavor to try and do that
within the first 2 to 3 years. So when we get 5 or 6 years down
the road, we can have the Councils on the road to getting this
be the rule rather than the exception for fisheries management.
Mr. Gilchrest. Mr. LeBlanc.
Mr. LeBlanc. Thank you. I just wanted to comment that with
regard to marine mammals, I think they are adequately protected
by the Marine Mammal Protection Act and the quote-unquote
exemption for commercial fishing isn't exactly an exemption. It
is more of a scheme for dealing with the interaction of
commercial fishing with marine mammals. But I have suggested to
the extent that we are going to include marine mammals in
bycatch, we may--and we are moving toward ecosystems-based
management--that has profound implications for how we manage
marine mammals and their interactions with fisheries, salmon
being a notable one on the West Coast. And to the extent that
we want to begin to factor in marine mammals into fisheries
management under the Magnuson Act, I think we would have to
look at how we deal with ecosystem-based management and
interaction of what may be argued as overabundant marine mammal
populations and their interaction with other components of the
marine ecosystem.
Mr. Gilchrest. It just gets more complicated the more you
talk about it.
I would like Mr.--or Dr. Houde, you mentioned marine
protected areas, MPAs, as a possible--how would you like to see
marine protected areas included in the Magnuson Act, in the
policy of the Magnuson Act, in the national standards? Is there
some way that we can include that in the Magnuson Act in a way
that it hasn't been?
Dr. Houde. I don't think we want--or at least I don't think
that a national standard is appropriate at this time, but I
think that the Act should recognize that we can move
effectively toward using spatially explicit management more in
marine fisheries--now, we have used closed areas and some kinds
of spatial management for hundreds of years in fishery science
and fishery management, so it is not entirely new; but we
haven't used it as effectively as we can, because we have
been--it seems bound by the traditional approach of controlling
catch and controlling fishing effort rather than considering
how to effectively manage by using space.
Part of this relates to the history of open access to
marine areas, particularly in zones that are more than 3 miles
away from the coast of nations. But there are many ways that we
can effectively manage fish stocks by using space and time
better than we do, and marine protected areas are one
expression of this.
Now, I think that some people in the environmental
community in particular look at marine protected areas, of
course, as permanently closed; no fishing areas. But there are
lots of models for marine protected areas. Some stocks could be
fished, some not. Some protected areas could be open sometimes,
not at others. Also there can be time limits on marine
protected areas.
I think many in the environmental community would disagree
strongly with me on this, but marine protected areas are again
a part of this uncertainty in marine ecosystems that we have
right now. If we were going to institute them, it would seem to
me to be prudent to put some time limits on many of these
marine protected areas for fishery management. There are a lot
of models. I think that the Act ought to recognize this. It
ought to advocate research on them, at the very least, and
implementation where appropriate. We have seen some
implemented. The Georges Bank closed areas for scallops, for
instance. That is a good example. There are some others.
Mr. Gilchrest. In your testimony, Dr. Houde, you talked
about the full spectrum of human activities and need to protect
ecosystem structure and function in talking specifically about
what you would recommend as part of an understanding of marine
protected area. Could you explain, since the Magnuson Act would
not--I think would just control the fisheries, it wouldn't have
anything to do with the oil and gas industry--could you explain
what you meant by the full spectrum of human activity?
Dr. Houde. Well, I think that I might not have been
expressing myself as critically as I should have, now that you
have, you know, brought this to my attention; but I was
referring to all of the kinds of activities that can take place
and that one would choose an area to be protected based upon
the spectrum of activities that might take place. For instance,
there are a lot of areas one might not want to designate as
marine protected area for managed fisheries, because of some of
these other activities that we are talking about, or because of
activities that are taking place upstream a ways. For instance,
the sewer outflow a mile upstream might make an area downstream
not suitable.
Mr. Gilchrest. Does anyone else want to comment on marine
protected areas as concerning the Magnuson Act, and we would
possibly put some language in the Magnuson Act to recommend at
least to the Councils that that be a consideration in their
toolbox? Mr. LeBlanc.
Mr. LeBlanc. Thank you, Mr. Chairman. I was just--borrowed
Bob's copy of the Act to double-check my thinking, but section
303(b)(2) already provides the Councils with the authority to
establish no fishing zones and time and area closures or gear
restrictions. So it has a broad discretion to design at least
the no fishing component of the marine protected area under the
council's jurisdiction already.
Mr. Gilchrest. So then in that section 303 of contents of
fishery management plans, we can be more specific in the
language for marine--for marine protected areas? More so than
it is already? Just a suggestion.
Mr. Leape.
Mr. Leape. I am here on behalf of the Marine Fish
Conservation Network, which, as you know, has both fishing
organizations as well as environmental groups. And so we
basically have folks who are ardently in favor of these things
and folks who are ardently against. So similar to what I have
heard my friend Justin on behalf of NFI, the Network doesn't
have a position on marine protected areas. So I should probably
stop there.
Mr. Gilchrest. Mr. Hayes.
Mr. Hayes. The Coastal Conservation Association does have a
position. We think that there are a couple of things that ought
to be done here. Marine protected areas ought to be aired both
by their scientific value, what they are, and I think
ultimately we ought to develop some guidelines as to how one
would use them. The economic impacts and the social impacts of
excluding the American public from a public resource is pretty
significant. And so when someone says we are simply going to
take area X, and for whatever good other reason they may have,
exclude the public from that, that has got a pretty significant
impact on the public. And I think it is incumbent upon the
people that are doing that to have a great deal of certainty as
to the scientific validity of why they did it, to ensure that
when that scientific purpose, be it a conservation measure or
whatever it is, when it is achieved, that the public regains
access to that resource, that there is a significant amount of
public participation in that decision so that you can get
people to buy in to the answer.
Now, that is not to suggest that you couldn't ultimately
put one in place; but it is to suggest is that you can't do it
on a whim, it can't be done just arbitrarily--to exclude a
commercial activity or a recreational activity. And as I think
Dr. Houde has pointed out, MPAs may well be a better tool, a
more effective management tool, than the tools that are now
being used. CCA is certainly not opposed to time and area
closures.
Mr. Gilchrest. You give excellent recommendations, and that
is the process that should be followed.
I happen to believe in MPAs and ecosystem approaches. I
think we have reached a level of our understanding about how
things function in the natural world. I think we should be a
part of that process and not degrading that process. Whether it
is the Chesapeake Bay with phytoplankton and zooplankton and
menhaden and rockfish and sea grass and oysters and crabs and
the whole range of other things that are a part of that
ecosystem approach, I think marine protected areas are one
aspect that can be a very valuable tool.
I think the problem, though, in some areas, especially, to
some extent, my good friends in DNR in Maryland, but other
areas as well; that is, they aren't looked at seriously or with
as much vision as they need to be looked at, because people are
worried about the political ramifications. And so some entity
needs to take a position to allow a better ebb and flow of
ideas in all of the various aspects of these management tools
that we will deal with when we are dealing with marine
ecosystems and the fisheries and the commercial industry.
I think you mentioned something about the Sassafras River
before. The Sassafras River, the northern shore has some
beautiful tidal basins off that estuary, and basically that is
what the Sassafras River is, is a large tidal basin. But they
have these tidal ponds where, for almost an arbitrary reason,
there was some human activity backed off a couple of them, and
the grass came back, and the rockfish started to spawn there
and the turtles came back and the eagles are teaching their
young how to catch fish. Well, bingo, just like that, there is
a whole lot of human activity in there, that in a short period
of time if that little sensitive tidal pond is not protected,
will disappear again. And I have asked my wonderful State DNR
to begin considering about not allowing in certain areas
motorized craft, or no fishing, because I think maybe the bald
eagles to some extent have--besides the fact that they are
beautiful, and to watch them and the osprey and the blue heron,
their places are continuing to be diminished. So if we don't
have a plan to protect those areas, that is at this point
somewhat aggressive, albeit intelligent and with a grassroots
support and with everybody's full knowledge that this is what
we are doing, we just begin losing all of these little pieces
that, as a result of a number of acts, the Clean Water Act, the
Clean Air Act and so on, have started to come back to life.
So in my way of thinking, we have got to move forward with
a sense of patient urgency on a lot of these issues and raise
the concern and begin talking about them. And when we start
doing that--and Maryland and Mr. Hayes, I will ask you to come
along and be our partner with all of these astonished DNR
folks.
Mr. Hayes. I would be happy to join you.
Mr. Gilchrest. Thank you very much. I know the hour is
late, and if I could just get a couple of quick comments on
some other quick issues.
Gerry, you mentioned you had some concerns about our
definition of ``overfished'' and how we broke it out. Would you
not want to see the two distinctions, ``overfished'' and
``overfishing''? Do you have a recommendation or a
clarification for us?
Mr. Leape. Certainly, Mr. Chairman, and I appreciate the
opportunity to clarify that for you. Our concern is not the
separation of the two definitions. We understand the need for
that. It was the inclusion of the phrase ``natural
fluctuation.'' It is that clause that we fear could encourage
more fishing in already stressed fisheries, and that we could
see a continuation in some areas of using it beyond--you know,
as an excuse to hide the fact that there actually is
overfishing going on.
Mr. Gilchrest. If I can give you my perspective on natural
fluctuation; that is, there could be a lot of reasons and there
are a lot of reasons for a fish stock falling. And we want to
know what they are besides just the fishing pressure.
Mr. Leape. Right.
Mr. Gilchrest. And if there is--if it is caused by some
habitat problem nearby or some other human activity or some
other natural activity, that doesn't mean that because it
wasn't caused by the fishing industry, that we shouldn't reduce
the quota and understand that it is overfished across the board
regardless of who does it. But your concern would be that that
would not be interpreted that way?
Mr. Leape. Well, it was trying to figure out really what
problem we were trying to fix, and we are sympathetic to the
idea that overfishing is not always, the primary cause in many
of the fisheries that up to now have been classified as
overfished. That is why we suggested that if you are interested
in a third definition to clarify for folks that it was actually
depleted and not overfished, then we could understand that and
could accept that, as long as it was tied to that affirmative
obligation to implement a rebuilding program that might
involve, as you said, a lower level of fishing, but also was
very clear that the primary blame for the continuing decline on
the stock wasn't fishermen.
Mr. Gilchrest. OK. I think we are on the same track with
that. We can probably work the language out.
Dr. Houde.
Dr. Houde. I don't disagree with anything that Mr. Leape
has said, but I also looked at the language of the definitions
and came away with much the same impression that the definition
as now given confuses the state of the stock with respect to
fishing and natural fluctuations, and I think a firmer
definition is needed. I can tell you that historically the word
``depletion'' is associated with fishing. I think in more
recent literature in the last 20 years, we have got away from
that, but there is a classic paper that defines depletion, and
it says it is the result of overfishing and only overfishing.
And I teach this to my students.
Mr. Gilchrest. So should we use or not use ``depleted''?
Dr. Houde. You know, historically, depletion is related to
overfishing. If depletion is defined very carefully in the Act,
it might serve in this case.
Mr. Gilchrest. All right. Thank you. Mr. LeBlanc.
Mr. LeBlanc. Thank you, Mr. Chairman. I am a little bit
perplexed. I strongly agree with the idea that, one, we need to
separate the definitions of ``overfished'' and ``overfishing.''
I also think it is appropriate that a fishery that is
classified as overfished should be at its low level of
abundance relative to some high because of fishing activity.
Other fisheries that are low abundance due to other causes are
not overfished, they are of low abundance, and you need to
manage to that level of abundance in a sustainable manner. But
to call them overfished is inappropriate.
My other concern is that if the stock is of low abundance
because of something other than fishing, it is not clear to me
how regulating fishing is going to bring that stock back. It
wasn't the cause of the decline. And so you have to sustainably
manage the fishery, but you may not have to implement a
rebuilding plan to achieve a goal that is unattainable.
Mr. Gilchrest. I think that the goal we have is to
understand what there is out there depleting the fish stocks so
that we can manage the fisheries in a much more whole way:
Corrective sewage treatment plan, correct dredging somewhere
for a port, correct whatever needs to be corrected. Or
understand that it was El Nino. But if the fish stock is down,
then we have to manage that in a way that we don't want to
further deplete it. So I think that--
Mr. LeBlanc. I absolutely agree. You have to manage to the
level of abundance. You have to sustainably manage that fishery
relative to its variable abundance, but that is different from
calling it overfished and implementing a rebuilding plan.
Mr. Gilchrest. I think that is why we wanted to make a
distinction between overfished and overfishing.
One of the last items dealing with IFQs, we have been here
a long time, so I can't remember what any of you said, but I
can reread your testimony, I guess. Is there anybody here that
would be patently opposed to the concept of ITQs, IFQs?
Gerry, you made a comment that we need national standards
before we lift the moratorium. The language in the draft
doesn't reach the level of significant criteria in your mind?
Mr. Leape. We appreciate a lot of your effort here. First,
you have included conservation as an important standard. You
also have included equity standards in the draft and those are
all good things. One of our primary concerns is the way you
have characterized this review and how it would work. You have
a review at 5 years, but there is currently no requirement in
the draft for a fishery to pass the review. The review just has
to be undertaken.
Second, there is no consequence at 5 years if a fishery's
participants fail that review? There is a sunset at 10 years in
your draft, but it is not keyed to the review.
Mr. Gilchrest. You don't feel that NMFS has the authority
now to deal with someone that has violated a fisheries
management plan?
Mr. Leape. Well, I think they would appreciate the
reinforcement related to IFQs if you would spell it out in the
terms needed, you know, in the terms of establishing these
programs, so there are no surprises. One thing we hear all the
time is where did that come from, where did that regulation
come from? There would be an understanding up front that each
program was going to be reviewed at 5 years, and if you passed
the review, you could expect to be renewed. If you didn't pass
it, you wouldn't be renewed. So, from the outset, there would
be that incentive that the good fishermen obviously wouldn't
need, however, some might appreciate a little sort of extra
incentive to do even better than they had been doing within
that period prior to being subject to that 5-year review.
Mr. Gilchrest. OK. Mr. LeBlanc.
Mr. LeBlanc. Thank you again, Mr. Chairman. I think from
NFI's perspective, a moratorium needs to be continued unless
the Act is modified to provide for, again, equitable treatment
of both the harvesting in the primary processing sectors. I
want to be clear that that doesn't mean you give processors
harvesting quota, and you don't create indentured servants out
of fishermen under that kind of framework, what is generally
referred to as a two-pie quota system in which total allowable
catch is allocated out in both harvesting shares and processing
shares.
With regard to Gerry's comments about the sunset, I think
obviously reviews are appropriate and making sure that an IFQ
program is meeting its objectives is appropriate, but you have
to keep in mind that sunsets--the intent of an IFQ, of course,
is to rationalize a fishery by creating an economic value
system. Sunsets are going to inherently devalue what you are
creating, and it is going to affect the willingness of
participants to make the kinds of investments we want them to
make in order to rationalize the fishery or to get out of the
fishery or other things. So sunsets are going to have a
dramatic impact on how quota shares are valued within that
fishery.
Mr. Gilchrest. Do you feel that the ITQs in the clam
industry in Maryland are successful?
Mr. LeBlanc. That is a difficult question, sir, given the
diversity of some of our membership. I would say that it is
certainly rationalized--
Mr. Gilchrest. Well, sometimes Gerry says this is my
personal opinion, so you can feel free to give us your personal
opinion.
Mr. LeBlanc. The IFQ plan in administering quahog has
certainly rationalized that fishery. It has certainly reduced
excess fishing capacity, and it has certainly allowed for
sustainable management. In fact, they are looking at increases
in abundance in those resources, such that they are slowly
ratcheting up the total allowable catch for those species.
However, there have been primary processors that have been
seriously harmed, seriously economically devalued, their
capital assets and their general business plan have lost
millions and millions of dollars because they were not included
in that initial allocation. Most of the folks in that fishery,
of course, don't want to roll things back and have adjusted to
it one way or the other. But certainly many of the primary
processors in that fishery, had processor shares been an option
when that fishery was developed, would certainly have opted for
them.
Mr. Gilchrest. Gerry.
Mr. Leape. Another point. And I also wanted to make sure
that--to convey this very clearly from the Marine Fish
Conservation Network, that unless Congress really is able to
enact the standards or the safeguards covering those areas that
I detail in my testimony, that we really don't--prior to
expiration of the moratorium these mandatory safeguards--that
we would be opposed to having them be transferrable; because
without these safeguards, we think transferability can result
in many of the concerns that have been raised to you, Mr.
Chairman, about consolidation and lack of equity. And certainly
we feel it would have an impact on conservation.
Mr. Gilchrest. I think one of the major issues with us as
far as ITQs are concerned or IFQs is that they shouldn't be
concentrated in just a few hands.
Are there any other comments from the witness?
Mr. Hayes.
Mr. Hayes. I would like to say one thing about ITQs, if I
could. I spent the morning with the Minister of Fisheries from
Iceland, and it was a very--but in that discussion we began
talking about ITQs. The Icelandic fisheries are about the size
of our North Pacific fisheries without the crab stocks, so the
finfish stocks, the pollock stocks, the Pacific cod stocks the
Sable fish stocks, largest stock in the United States, worth
billions of dollars. That is about the size of the Icelandic
fishery. So they have a significant economic value. They manage
all of their stocks through ITQs. They have taken care of the
small boat problem. They have taken care of the concentration
problem. They have taken care of the processor preference
problem. They have found a way over the last 15 years to--
Mr. Gilchrest. We should have had them testify here this
afternoon.
Mr. Hayes. I suggested that to them, quite frankly. But
they have found a way to manage their fisheries in a way that--
and this is--I found stunning. Their biologists basically
designate what the tact will be, and he used the cod stock as
an example. They have a rebuilding plan for their cod stock,
which is to rebuild it to 350,000 metric tons. Compare that to
ours. Ours is 5 to 10 metric tons of 10,000. But it is
considerably slower. It is considerably lower than what the
Icelanders are talking about. In order to do that, they had to
reduce the annual take by about 40 percent for the last 2
years. They simply went to the people who now own the fishery,
had a vested conservation interest in rebuilding it, and a
clear economic interest, went to them, explained it and they
are in the process of doing that.
Now, that is a little different story than we are getting
played out in the United States. What he told me about the
difficulties in putting ITQ systems in place was exactly the
discussion that I just heard here, which was one side having
great fear about what might happen saying, gosh, we have got to
control this in every conceivable way, and another side having
an economic interest in the outcome and basically saying I have
got to protect those economic interests.
Basically what they did is they gave the authority to do
that to a group of people, in this case the fisheries
ministers, by statute to go ahead and implement systems on a
case-by-case basis. And that brings me back to what our
suggestion was, which is to give this authority, without great
limitations, to the Fishery Management Councils and let them
apply it in the ways that are appropriate in each of the
fisheries around the country.
Mr. Gilchrest. Thank you, Mr. Hayes.
Dr. Houde, Mr. Hayes, Mr. Leape, Mr. LeBlanc, thank you all
very much. You have made a great contribution here this
afternoon. Thank you for coming. The hearing is adjourned.
[Whereupon, at 6:23 p.m., the Subcommittee was adjourned.]
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