[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) [email protected]

    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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