[Senate Hearing 107-1132]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 107-1132
 
    OVERSIGHT ON MANAGEMENT ISSUES AT THE NATIONAL MARINE FISHERIES 
                                SERVICES

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

                                HEARING

                               before the

           SUBCOMMITTEE ON OCEANS, ATMOSPHERE, AND FISHERIES

                                 of the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 9, 2002

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation

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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

              ERNEST F. HOLLINGS, South Carolina, Chairman
DANIEL K. INOUYE, Hawaii             JOHN McCAIN, Arizona
JOHN D. ROCKEFELLER IV, West         TED STEVENS, Alaska
    Virginia                         CONRAD BURNS, Montana
JOHN F. KERRY, Massachusetts         TRENT LOTT, Mississippi
JOHN B. BREAUX, Louisiana            KAY BAILEY HUTCHISON, Texas
BYRON L. DORGAN, North Dakota        OLYMPIA J. SNOWE, Maine
RON WYDEN, Oregon                    SAM BROWNBACK, Kansas
MAX CLELAND, Georgia                 GORDON SMITH, Oregon
BARBARA BOXER, California            PETER G. FITZGERALD, Illinois
JOHN EDWARDS, North Carolina         JOHN ENSIGN, Nevada
JEAN CARNAHAN, Missouri              GEORGE ALLEN, Virginia
BILL NELSON, Florida
               Kevin D. Kayes, Democratic Staff Director
                  Moses Boyd, Democratic Chief Counsel
      Jeanne Bumpus, Republican Staff Director and General Counsel
                                 ------                                

           Subcommittee on Oceans, Atmosphere, and Fisheries

                 JOHN F. KERRY, Massachusetts, Chairman
ERNEST F. HOLLINGS, South Carolina   OLYMPIA J. SNOWE, Maine
DANIEL K. INOUYE, Hawaii             TED STEVENS, Alaska
JOHN B. BREAUX, Louisiana            KAY BAILEY HUTCHISON, Texas
BARBARA BOXER, California            GORDON SMITH, Oregon
BILL NELSON, Florida                 PETER G. FITZGERALD, Illinois


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on May 9, 2002......................................     1
Statement of Senator Breaux......................................    10
Statement of Senator Kerry.......................................     1
    Prepared statement...........................................     5
Statement of Senator Snowe.......................................     7
    Prepared statement...........................................     9
Statement of Senator Stevens.....................................    11
Statement of Senator Wyden.......................................    15

                               Witnesses

Benton, David, Chairman, North Pacific Fishery Management Council    21
    Prepared statement...........................................    25
Dalton, Penny, Vice President and Technical Director, Consortium 
  for Oceanographic Research and Education (CORE)................    52
    Prepared statement...........................................    54
Gutting, Richard E., Jr., President, National Fisheries Institute    43
    Prepared statement...........................................    45
Hogarth, Dr. William T., Assistant Administrator for Fisheries, 
  National Marine Fisheries Service, National Oceanic and 
  Atmospheric Administration.....................................    15
    Prepared statement...........................................    18
Iudicello, Suzanne, Author, Marine Conservation Consultant.......    47
    Prepared statement...........................................    48
Kammer, Ray, Consultant..........................................    40
    Prepared statement...........................................    41

                                Appendix

Gutting, Richard E., Jr., President, National Fisheries 
  Institute, letter dated August 1, 2002, to Hon. Ernest F. 
  Hollings and Hon. Olympia J. Snowe.............................    82
Response to written questions submitted by Hon. Max Cleland to:
    Dr. William T. Hogarth.......................................    88
Response to written questions submitted by Hon. Daniel K. Inouye 
  to:
    Dr. William T. Hogarth.......................................    86
Response to written questions submitted by Hon. John F. Kerry to:
    David Benton.................................................    69
    Penelope Dalton..............................................    76
    Ray Kammer...................................................    70
    Dr. William T. Hogarth.......................................    84
    Suzanne Iudicello............................................    71
Response to written questions submitted by Chris Oliver to:
    David Benton.................................................    67
Response to written questions submitted by Hon. Olympia J. Snowe 
  to:
    Penelope Dalton..............................................    81
    Dr. William T. Hogarth.......................................    88
    Suzanne Iudicello............................................    75
    Ray Kammer...................................................    71
Response to written questions submitted by Hon. Ron Wyden to:
    Dr. William T. Hogarth.......................................    87
Sullivan, Thomas M., Chief Counsel for Advocacy and Smith, 
  Jennifer A., Assistant Chief Counsel for Economic Regulation, 
  letter dated May 17, 2002, to Hon. John F. Kerry...............    66
Sununu, Hon. John E., U.S. Representative from New Hampshire:
    Prepared statement...........................................    65
    Letter dated May 8, 2002, to The President...................    65


    OVERSIGHT ON MANAGEMENT ISSUES AT THE NATIONAL MARINE FISHERIES 
                                SERVICES

                              ----------                              


                         THURSDAY, MAY 9, 2002

                                       U.S. Senate,
         Subcommittee on Oceans, Atmosphere, and Fisheries,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 9:33 a.m. in 
room SR-253, Russell Senate Office Building, Hon. John F. 
Kerry, 
Chairman of the Subcommittee, presiding.

           OPENING STATEMENT OF HON. JOHN F. KERRY, 
                U.S. SENATOR FROM MASSACHUSETTS

    Senator Kerry. Good morning. The Subcommittee on Oceans, 
Atmosphere, and Fisheries has already come to order, so we 
thank you. I want to welcome our witnesses and everybody here, 
for what I consider to be an extraordinarily important hearing 
and, I hope, a demarcation point for a rapid reevaluation of 
fisheries management in response to the crisis of our fisheries 
today.
    This morning, I called Secretary Evans just to chat a 
little about where we find ourselves. I wanted to give him a 
heads-up about the Committee's concerns on this issue. 
Unfortunately, between terrorism, homeland security, what's 
happening in the Middle East, health care and a lot of other 
issues, the word ``crisis'' gets obscured to a lot of 
Americans, and people don't have room for more crises. But, 
that is literally what we have in our fisheries, not just in 
this country, but globally, and it's a serious problem. It's a 
renewable resource which is under enormous stress and has been 
for a long time.
    I'm joined by my colleague, Senator Breaux, who has served 
almost as--I guess we've served about the same amount of time 
on this Committee, and that's now a long time, having been in 
the Senate for 18 years. There are a couple of other Senators 
present--Senator Stevens, Senator Hollings, Senator Inouye--all 
of whom have long experience with this issue and some of whom 
were here when Magnuson was first put together. I think I've 
been part of the rewrite of the Magnuson Act, three times, four 
times now, and it is getting increasingly frustrating, because 
fisheries resources are increasingly in jeopardy.
    I remain convinced that, to some measure that we must 
proceed. We tried in the context of the Farm Bill, where we got 
a small authorization for a New England buyout, but it's my 
intention to try to continue to deal with the overcapacity 
issue, which is at the heart of the problem in certain 
fisheries. There is too much money chasing too few fish. That's 
been true before, and it's true today. The whole effort of this 
Committee has been to try to provide those who manage with a 
structure that will empower them to be able to manage 
effectively and efficiently, taking into account the needs of 
our communities, the needs of our fishermen, and obviously, the 
needs of the system itself.
    We had a chart put together of the fishery management 
process after talking with people about what they go through. 
Between the Magnuson-Stevens Act fishery management process, 
the regulatory process, the ESA formal consultation, NEPA and 
CZMA, all of which have to kind of join together simultaneously 
to come out with the same outcome, it's a complicated, 
bureaucratic maze. But it's there because we wanted this to be 
a democratic process. The initial effort was to honor the right 
of those people most involved--fishermen, the local 
communities, those responsible--to be able to make the choices. 
That was the intended structure of the councils all around our 
country, that each council had the proper representatives to 
respond to its own needs.
    Today we're convening this hearing to really look at the 
root causes of what has come to be seen as a national crisis. 
Many of you know that legal challenges to federal fishery 
management plans have been filed on every coast and have 
affected fisheries in the home states of many of our members. 
Most recently, a federal district judge ruled that Framework 33 
to the New England Ground Fishery Management Plan failed to 
comply with the law and has ordered NMFS to implement strict 
interim management measures for the fishery, many of which are 
going to have severe economic consequences for our fishing 
communities.
    We knew the transition to the sustainable fisheries was not 
going to be an easy one, but a troubling picture is now 
emerging of a management system in deep crisis. This new crisis 
is not the disaster that we faced in New England in the late 
1980's when cod stocks were plummeting. On the contrary, 
scientific information shows that we're climbing out of that 
challenge with some stocks at levels not seen in over 20 years. 
But I would remind people, it took a lot of abstinence, a lot 
of nonfishing, and a lot of restraint to make that happen.
    The new management crisis is actually harder to graph or 
measure, but its existence is real, and the conflict is deeply 
affecting everyone in the system--most directly, the fishermen. 
The combination of multiple statutory mandates, complicated 
regulatory procedures and resource limitations, notwithstanding 
the $11 million that we succeeded in getting, as an emergency 
input, which I told Secretary Evans this morning is simply not 
enough, has made it almost impossible for managers or fishermen 
to respond quickly, flexibly or appropriately in order to 
address the management problem.
    In addition, the implementation of the Sustainable 
Fisheries Act has been plagued by conflict, delays, and 
inconsistent interpretations of what we intended in 1996.
    We need to make this management system work. The downside 
of a judicially drafted management plan was driven home 
pointedly in the New England case in recent days. Given the 
possibility that the judge could have closed the fishery 
altogether, we initially were relieved that she adopted the 
agreement that was negotiated among NMFS, the affected states, 
the Conservation Law Foundation and most of the fishery 
interveners. These groups recognized that the fishery was out 
of compliance and made hard choices and brought forward a plan 
for the 2002 fishing season that would improve conservation 
performance without devastating the industry.
    But the judge's order also contained additional interim 
measures that threw off the delicate balance that the 
democratic process had tried to produce, prompting the party 
that filed the lawsuit in the first place, the Conservation Law 
Foundation, to ask the court to reconsider.
    I support the call for reconsideration and I thank the 
Conservation Law Foundation for demonstrating a commitment to 
both restoring the fishery and sustaining our fishing 
communities, which is the heart of the Sustainable Fisheries 
Act. But I don't want to suggest that I'm inviting further 
conflict or that I'm inviting further delay. There's a delicate 
balance there. I am simply suggesting that many people feel 
that the interim measures that went beyond the original 
agreement were based on an averaging that is simply not 
realistic with respect to some of those who haven't fished and 
some of those who have.
    Frankly, these types of hard choices should never have had 
to have been made in court. Court, as we know, allows less room 
for flexibility and discussion. The fact is, the fishery is in 
disarray now. There are protests in our ports, and we're left 
asking how do we help our communities get through this season? 
How do we restore confidence in the fishery management process? 
And how are we going to prevent this from happening again?
    This same scenario has either played out, or is going to 
play out, in coastal communities all around the country. We 
need to work together to develop approaches within the agency, 
within the councils, here in Congress and through the National 
Ocean Commission in order to make this system work. A number of 
recent management reviews, of which many of our panelists today 
were involved, indicate that the combination of an unwieldy 
regulatory process, limited resources for data acquisition and 
analysis, poor management practices, and a litigation-burdened 
staff, which cannot be underestimated in its impact, have 
precipitated this situation.
    NMFS and the fisheries management councils have been the 
subject of widespread criticism and an increasing number of 
lawsuits. As of May 1, 2002, there were 104 open docket cases 
against the agency. Some call the lawsuits themselves a crisis. 
They've certainly placed an incredible burden on the system, 
the managers, and the fisheries. But the lawsuits have also 
illuminated problems. And with this knowledge, my hope is we 
can go about fixing them, and I hope soon.
    That's why we called you here today. Each of you has 
substantial knowledge of the current fishery management system 
we're working on and of how we might fix the problems. 
Obviously, Congress writes the law and we take responsibility 
for ways in which that law may, in itself, create confusion. 
But in the end, the implementation and the execution of the law 
are in the executive branch. The requirement to provide the 
money and to certainly ask for the money is there, as well as 
the decision of what it's going to take to do this properly.
    Dr. Hogarth, I believe, is making a superhuman effort to 
get these things done and to do it sensibly. But I think the 
agency is struggling with how to do this. We're all in this 
together. This not a finger-pointing session. This is a way to 
try to find a solution. We need to hear from each of you as to 
how we can put together a plan that's going to solve some of 
these tough issues.
    The SFA was not supposed to be a paper exercise. It's 
supposed to result in better management, better decisions to 
benefit real people. We thought that successful management 
could involve measurable increases in biomass, smarter 
management, modern techniques, and increase the opportunities 
for our coastal communities. But, frankly, the funding has 
never matched the job that we are requiring people to do, and 
now we're playing catch-up.
    More disturbing, there really appears to be confusion about 
what constitutes successful fisheries management and 
disagreement about how to measure and monitor our progress. I 
think that portrays a fundamental lack of trust in both the 
system and among the constituencies.
    Finally, the system really needs focused resources and 
smart, efficient processes. NOAA Fisheries is the fourth-
largest regulator in the Federal Government, yet the agency 
doesn't have nearly the resources that its counterparts 
receive. It has to have trained staff and coordinated 
procedures that are going to help to effectively meet the 
mandates of a suite of laws--the Magnuson-Stevens Act, the 
Marine Mammal Protection Act, the Endangered Species Act, the 
National Environmental Policy Act, the Regulatory Flexibility 
Act, and reams of executive orders and agency guidance. So 
we've got to have a coordinated plan among the agency, the 
councils, and Congress in order deliver a smart, modern 
management system. That means we need a national plan with 
adequate resources and we must reduce fishing capacity 
nationwide. Without that plan, I don't see how we're going to 
make this successful. We have to be realistic about how long 
it's going to take to put it in place.
    We have a list of endangered species growing from 14 
species in 1973 to 47 in 1999, yet little progress has been 
made to improve protected species management, except where 
litigation has targeted those resources, such as the case of 
the Stellar sea lions or the North Atlantic right whales. The 
lack of preparation places not only protected resources, but 
also a number of activities, including fishing itself, in 
potential jeopardy. That means we've got to improve our 
scientific understanding, which Senators have on this panel 
have talked about year after year for the last 5 or 6 years. 
Every time we agree that the lack of science is a problem in 
being able to make good decisions, and yet we don't get the 
capacity to get the science.
    I know this system is burdensome, it's expensive. I 
apologize for taking a little longer than I might, as Chairman, 
to lay this out, but this is critical. We have got to come to 
grips with how we're going to do this, and we've got to design 
something with all three critical components of sustainable use 
adequately addressed--conservation, number one, societal needs, 
and economic impacts. I hope that we're going to succeed. I 
thank all of you for coming here today to be part of it, and I 
thank my colleagues for their indulgence.
    [The prepared statement of Senator Kerry follows:]

               Prepared Statement of Hon. John F. Kerry, 
                    U.S. Senator from Massachusetts

    Good morning. Today, the Subcommittee on Oceans Atmosphere and 
Fisheries is holding an oversight hearing on the current state of 
fishery and protected resource management in the United States. We have 
convened this hearing to get to the root causes of what has come to be 
seen as a national crisis. This has hit close to home for many of us. 
As many of you know, legal challenges to federal fishery management 
plans have been filed on every coast and have affected fisheries in the 
home states of many of our members. Most recently, a federal district 
judge ruled that Framework 33 to the New England groundfish fishery 
management plan failed to comply with the law, and has ordered NMFS to 
implement strict interim management measures for the fishery, many of 
which are going to have severe economic consequences for our fishing 
communities.
    We knew the transition to sustainable fisheries would not be an 
easy one, but a troubling picture is now emerging of a management 
system in deep crisis. This new crisis is not the disaster we faced in 
New England in the late 1980s, when cod stocks were plummeting. On the 
contrary, scientific information shows that we are climbing out of that 
pit--with some stocks at levels not seen in over 20 years. This new 
management crisis is harder to graph or measure--but its existence is 
real and the conflict is deeply affecting everyone in the system, most 
directly the fishermen. The combination of multiple statutory mandates, 
complicated regulatory procedures, and resource limitations have made 
it almost impossible for managers--or fishermen--to respond quickly, 
flexibly, or appropriately to address a management problem. In 
addition, implementation of the Sustainable Fisheries Act has been 
plagued by conflict, delays and inconsistent interpretations of what we 
enacted in 1996.
    We need to make our management system work. The downside of 
judicially-drafted management plans was driven home in the New England 
case. Given the possibility that the Judge could have closed the 
fishery, we were initially relieved that she adopted the agreement 
negotiated among NMFS, the affected states, the Conservation Law 
Foundation, and most of the fishery intervenors. These groups 
recognized that the fishery was out of compliance, made hard choices, 
and brought forward an plan for the 2002 fishing season that would 
improve conservation performance without devastating the industry. 
However, the Judge's order also contained additional interim measures 
that threw off this delicate balance, prompting the party that filed 
the lawsuit in the first place--Conservation Law Foundation--to ask the 
Court to reconsider. While endless litigation should not be encouraged, 
I do support this call for reconsideration. The Conservation Law 
Foundation and others involved in the negoatiated agreement 
demonstrated a commitment to both restoring the fishery and sustaining 
our fishing communities--the heart of the Sustainable Fisheries Act.
    These types of hard choices should have not have been made in 
court, where there is little room for discussion and flexibility. Now 
the fishery is in disarray, there are protests in our ports, and we are 
left asking--how can we help our communities get through this season, 
how do we restore confidence in the fishery management process, and, 
how will we prevent this from happening again? This same scenario has 
played out--or will play out--in coastal communities around the 
country. We need to work together to develop approaches within the 
agency, within the councils, here in Congress, and through the National 
Ocean Commission to make this system WORK.
    A number of recent management reviews, of which many of our 
panelists today were involved, indicate that the combination of an 
unwieldy regulatory process, limited resources for data acquisition and 
analysis, poor management practices, and a litigation-burdened staff 
has precipitated the situation. NMFS and the Fisheries Management 
Councils have been the subject of widespread criticism and an 
increasing number of lawsuits. As of May 1, 2002, there were 104 open 
docket cases against the agency. Some call the lawsuits themselves a 
crisis, and they have certainly placed an incredible burden on the 
system, the managers, and the fisheries. But the lawsuits also have 
illuminated problems, and with this knowledge, perhaps we can go about 
fixing them.
    This is why we have called you all here today. Each of you has 
substantial and intimate knowledge of the system and are working on 
diagnosing or fixing problems with the current fishery management 
system.
    No one of us can make this system really function well alone--even 
Dr. Hogarth, who is making a super-human effort to get things done 
sensibly and right. The SFA was not supposed to be a paper exercise--it 
was supposed to result in better management, better decisions, to 
benefit real people. We thought successful management would involve 
measurable increases in biomass, smarter management, modern techniques, 
and increasing opportunities for our coastal communities. But funding 
was not matched to the job at hand, and we are now playing catch-up. 
More disturbing, there appears to be confusion about what constitutes 
``successful'' fisheries management results, and disagreement about how 
to measure and monitor our progress. I think that betrays a fundamental 
lack of trust in both the system and among the constituencies. We have 
to repair that.
    This system needs focused resources and smart, efficient processes, 
because the burden is enormous, and the funding is not plentiful. NOAA 
Fisheries is the fourth largest regulator in the Federal Government, 
yet the agency does not have nearly the resources that its counterparts 
receive. NMFS has got to have the trained staff and coordinated 
procedures that will help them effectively and efficiently meet 
mandates under a suite of laws--including the Magnuson-Stevens Act , 
the Marine Mammal Protection Act, the Endangered Species Act, the 
National Environmental Policy Act, and the Regulatory Flexibility Act--
and reams of executive orders and agency guidance.
    We also need a coordinated plan among the agency, the Councils, and 
the Congress to deliver a smart, modern and responsive management 
system to our constituents. This must include a national plan and 
adequate resources to reduce capacity nationwide. We simply have too 
many participants to manage effectively. Without a plan, the drain on 
the system cannot be overcome. We must be realistic about how long it 
will take to accomplish this, but we should not countenance unnecessary 
delay. When we passed the SFA, we asked our fishermen to abide by 
rebuilding targets and timetables. It is time for us to map out a 
framework and schedule for getting our own management house in order, 
so that we can restore confidence that the management system will 
provide long-term benefits to the fisheries.
    Protected resource issues are also an issue. Despite listed 
endangered species growing from 14 species 1973 to 47 in 1999, little 
progress has been made to improve protected species management, except 
where litigation has targeted resources--such as in the case of Steller 
sea lions and North Atlantic Right Whales. This lack of preparation 
places not only protected resources, but also a number of activities, 
including fishing, in potential jeopardy. This means we must not only 
improve our scientific understanding of these species, and the 
ecosystems in which they all live, but we must also ensure we 
coordinate our fisheries management with ESA and MMPA obligations.
    I know the regulatory system is burdensome and expensive, 
particularly if we manage all species individually. We should talk 
frankly about how we can design an integrated regional management 
system that will help reduce, not add to, this burden. Regional 
ecosystem planning will clearly help us meet our procedural and 
management goals. Such plans could revolve around existing Council 
areas of jurisdiction and would be designed to address all 3 critical 
components of sustainable use--(1) conservation; (2) societal needs; 
and (3) economic impacts. We can't just do one at a time, as we do 
today. That means putting some good minds together, looking at all the 
tools at our disposal, and mapping out, step by step, how we can 
simultaneously address the social and economic consequences of a move 
to ecosystem management. We all need to be involved, and perhaps the 
Ocean Commission can help us.
    I thank you all for coming here today to assist this Subcommittee 
to help put such a plan together, and I hope we can count on you to 
continue providing your advice and counsel. In view that we have two 
panels to hear from today, I would request that you limit your opening 
comments to five minutes. With that said, I look forward to your 
testimony before this Subcommittee today and I yield to the Ranking 
Member of this Subcommittee, Senator Snowe.




    Senator Snowe?

              STATEMENT OF HON. OLYMPIA J. SNOWE, 
                    U.S. SENATOR FROM MAINE

    Senator Snowe. Thank you, Mr. Chairman. I certainly concur 
with the comprehensive presentation you've provided on behalf 
of the fishing industry community about the state that we're in 
today. I think this hearing is most appropriate and 
fortuitously comes at a critical juncture, particularly in 
regards to the New England groundfish crisis.
    As the Chairman indicated, we have fisheries management by 
litigation. It's something that I have consistently criticized 
over the years. We seem to be driven by litigation and 
judicial-based remedies and decisions. This is really a failure 
of the system at all levels. I think the New England groundfish 
industry is an illustration of the problems that we are facing 
today. The fishermen risk having their livelihoods eliminated 
as a result of the recent court-based decision and through no 
fault of their own.
    I know Dr. Hogarth, you did yeoman's efforts in helping to 
negotiate the mediated settlement between all the parties. I 
regret that the judge did not abide by that agreement, but 
instead included overly restrictive allocations of days at seas 
and expanded closures. These additional measures are going to 
create a hardship for our fishermen. I appreciate the comments 
last week of Admiral Lautenbacher, who said that you're going 
to appeal the ruling. I hope that is the case, particulary in 
the event the motion to reconsider that was submitted to the 
judge does not suceed.
    I hope the government will commit to filing an appeal on 
behalf of the industry, because this ruling represents 
devastating consequences for the groundfish industry in New 
England.
    I hope this hearing will provide a framework for 
determining how we can best go about improving the fisheries 
management system, creating a cohesive system that ultimately 
brings stability and predictability to fisheries management, 
and breaking this endless cycle of perpetual litigation. 
Currently, NMFS is facing 104 lawsuits and we just learned that 
the Pacific groundfish industry is also facing litigation, and 
their livelihoods could potentially be affected by the outcome 
of any possible court decision.
    Something has gone terribly wrong in our fisheries 
management and I hope today that we will be able to provide 
some recommendations that will visibly improve fisheries 
management. We need this to help us proceed in a much more 
orderly fashion that doesn't present the industry with 
jeopardizing consequences.
    In the New England groundfish industry, for example, they 
had 5 days before the season began to learn what the 
regulations would be. Five days. No other industry in the 
country faces those hardships in trying to run their business.
    I think that we have to determine what will best work in 
terms of restructuring the systems within the agency and make 
those decisions concerning the conflicting laws. I've read from 
the testimonies that are going to be presented here today that 
there are conflicts between NEPA and the Magnuson-Stevens Act. 
We have to determine what the conflicts are and what we can do 
to improve them. We also need to determine what can be done 
through executive decisions and what has to be done 
legislatively. We also have to create a timetable for action. I 
don't think it's going to be enough for us to discuss it and 
then not have a timetable for turning this around.
    Fisheries management needs an overhaul of major proportions 
here. And without it, I don't think we're going to gain the 
confidence of those who are directly affected by these 
decisions. I think one way of breaking the cycle is by 
producing accurate and comprehensive stock assessments. We need 
to have the best science, and we need the best research. 
Without reliable data, no one's going to have any confidence in 
the decisions. Ultimately these decisions are going to result 
in litigation, because we have not provided the most up-to-
date, timely and reliable data.
    I hope this hearing represents a turning point in NMFS' 
direction and helps us plot the course that we need to take. I 
know under your leadership, Dr. Hogarth, that it will be done 
and I know you're doing it as we speak. I know you have 
expressed the hope that we could start over. I wish that we all 
had that luxury, but that's obviously not possible. The 
question is how best to proceed from here. I think this 
requires timely action on both your part and our part, to 
provide some remedies and relief for the industries that are 
directly affected. This is certainly the case with the New 
England groundfish industry.
    Mr. Chairman, I thank you for holding this hearing today. I 
hope that as a result of this hearing we will improve the 
overall system and provide some stability to the decisionmaking 
process, thereby preventing future conflicts. Thank you.
    [The prepared statement of Senator Snowe follows:]

    Prepared Statement of Olympia J. Snowe, U.S. Senator from Maine

    I'd like to thank the Chair for scheduling this very important 
hearing on Fisheries Management.
    I want to welcome you, Dr. Hogarth, and the rest of the witnesses 
to this critical hearing. This hearing needs to look at how to resolve 
the current crisis in New England and provide relief to the struggling 
industry. Our fisheries management system is in a state of utter 
disrepair and we are caught in an endless cycle of litigation-based 
management. The result of this litigation-based management cycle is 
poor fisheries management. And who directly suffers the consequences of 
poor management? The fishing industry, that's who.
    This cycle starts with the Regional Fisheries Management Councils 
submitting fisheries management plans that are not in compliance with 
the law. In the past, NMFS has approved these plans knowing all the 
while that they are not in compliance. And time after time, the 
implementation of these plans leads to lawsuits. Making matters worse, 
when NMFS loses a lawsuit it is our fishermen that pay the price 
through such measures new fishing gear limitations, additional closed 
areas, and reduced days at sea.
    Fishermen in Maine and throughout New England right now are facing 
the possibility of their livelihoods being eliminated by litigation. 
The New England Regional Fishery Management Council prepared Framework 
33, which was based upon a fisheries management plan that predated the 
Sustainable Fisheries Act. NMFS approved the plan, even though there 
were legitimate questions about whether the plan was in compliance with 
the law, and then they were sued. The judge ruled against NMFS in 
December and started the process of determining a remedy--a remedy that 
could potentially and permanently change our coastal communities and 
their way of life.
    This ruling set off a wave of uncertainty within the fishing 
community. NMFS had lost, leaving them facing reduced catches and yet 
another series of rule changes. They saw the plaintiff's recommended 
remedy and then NMFS' response, neither of which they could live with. 
As the judge set about determining the remedy which would directly 
impact their livelihoods, our fishermen had to put up their own money 
to hire attorneys in order to have their voices heard.
    I strongly supported the attempts at a mediated settlement and was 
pleased when many of the parties, including NMFS, arrived at one. While 
the judge used the mediated settlement to guide her in her ruling, I 
share the frustration and exasperation of the fishing community that 
the ruling did not strictly follow the settlement. When is enough, 
enough?!
    The ruling needlessly closes additional areas to fishing and uses 
an overly restrictive allocation system for days at sea. Fortunately, 
at last week's full Committee hearing Admiral Lautenbacher, the 
Administrator of NOAA, stated, and I quote, ``We are going to appeal.'' 
I believe it is imperative that the Federal Government comes through on 
this commitment and files an appeal by May 26, if the Court does not 
modify its ruling in response to the motions to reconsider that have 
been put before it.
    Unfortunately, New England's experience is not unique. There are 
currently over 100 lawsuits pending against NMFS, including one NMFS 
lost just two weeks ago concerning Pacific groundfish. Now fishermen on 
the West Coast have to wait and see how this lawsuit will affect their 
livelihoods.
    We must break this cycle. The courts should not be managing our 
fisheries--that is the job of NMFS and the Regional Fishery Management 
Councils. To do this we must change the way NMFS does business. NMFS 
must use a science-based management approach, not a court-based one.
    We need the best fisheries science and research. Producing accurate 
and comprehensive stock assessments underlies everything that NMFS is 
required and expected to do. When we have stock assessments that are 
incomplete or inaccurate, there is no way NMFS can properly manage the 
fisheries stocks--thereby putting the fishing industry and the fishing 
resource at risk.
    The sad fact is our fisheries management system is in a state of 
disarray. Fisheries management needs to be conducted based upon sound 
science in a reasonable and common sense fashion. We need to inject 
stability and predictability into the process. I know Dr. Hogarth has 
previously stated that he wishes NMFS could stop everything and just 
start over; unfortunately, fishermen do not have that luxury. This year 
fishermen in New England did not know what the fishing regulations were 
going to be until five days before the season started! Imagine the 
outcry if we treated all our industries this way.
    I want to thank Dr. Hogarth and all of the witnesses for appearing 
here today to discuss this very serious issue. Dr. Hogarth, I know you 
have invested much time and effort in rectifying NMFS' management 
problems. I also know that you personally spent five days negotiating 
the settlement for the recent New England groundfish lawsuit. While I 
appreciate your hands-on approach, the fact remains that NMFS should 
not be in the courtroom making management decisions; NMFS needs to make 
sound management decisions on the front end.
    I look forward to working with all of the witnesses in reversing 
this destructive trend. I truly believe that we can get NMFS to manage 
fisheries in a way that promotes sustainable fisheries and allows our 
fishermen to fish.
    I thank the Chairman again for holding this hearing, and I look 
forward to hearing from Dr. Hogarth and the rest of the witnesses.

    Senator Kerry. Thank you very much, Senator Snowe.
    Senator Breaux.

               STATEMENT OF HON. JOHN B. BREAUX, 
                  U.S. SENATOR FROM LOUISIANA

    Senator Breaux. Thank you very much, Mr. Chairman, and 
thank you for having this hearing. This is really the first 
we've had on fishing issues in over a year, and I think it's 
very timely to take a look at where we are. I've been fishing 
for 30 years, 14 years in the House and 16 years in the Senate, 
and still haven't gotten it right. I hope that we can do what 
is necessary to assure that the National Marine Fisheries 
Service, the lead agency in managing the fishing resources of 
the country, can do the work that Congress intended and the 
American public expect.
    I'm concerned. I think we're in a crisis not just in the 
resources, but also in the entire management program. I think 
that we cannot, as Senator Snowe said, manage by litigation. I 
think it has increased to an unacceptable point. Some will 
argue, well, there's nothing wrong with litigation. It's part 
of the American system. And that's true. But, some will argue 
that litigation occurs because the system is broken and not 
running as it was intended. That shouldn't be the answer to the 
problems. We shouldn't have to litigate every issue that comes 
up in order to find the right solution to the problem.
    These management decisions are going to be only as good as 
the people that make them. I remember making--trying to make 
sure, through legislation, that the councils were balanced, 
that they were properly balanced between commercial fishermen 
and recreational fishermen. I think that's, in some cases, out 
of the window now. Some of the councils--my own council in the 
Gulf, I think, has two commercial fishermen on it out of 16. 
That's not balanced and the secretary has to approve these. But 
we're only going to get management plans as good as the people 
are that are making the decisions.
    We've got some good people. Dr. Hogarth, we are on your 
team. Mr. Benton, we are pleased with you, individually, but 
there's some real challenges out there. And hopefully, working 
together, we can improve the system.
    Thank you, Mr. Chairman.
    Senator Kerry. Thank you very much, Senator Breaux.
    Senator Stevens.

                STATEMENT OF HON. TED STEVENS, 
                    U.S. SENATOR FROM ALASKA

    Senator Stevens. Mr. Chairman, I listened with great 
interest to your statement and to Senator Snowe's. As I walked 
over here, I thought about the bill that's on the floor, $7 
billion in addition to what the President requested for the 
farm community for just 1 year. I think part of the problems 
we've had are because we've been just too timid to recognize 
the need for some sort of funding to provide the stability 
that's necessary in the fishery communities.
    Having said that, let me say to you that when the situation 
was different and my party was in the majority, we held a 
series of hearings in New England, the South and on the West 
Coast to track the developments of this act. In waters off my 
state, more than 50 percent of the U.S. fishery products are 
brought ashore. In that area, I think that the 1976 act is 
basically working. It has some problems, but when Senator 
Magnuson and I presented the bill in this Committee in the 
1970s, it was designed to extend the jurisdiction of the United 
States to 200 miles off our shore and actually to Americanize 
the fisheries off Alaska because of the tremendous foreign 
fleets that were there vacuum cleaning the bed of our oceans 
off our shore, representing half of the coastline of the United 
States.
    You're right, we have modified this act several times, 
primarily in the area that I represent, primarily to affect the 
area off Alaska and on the basis of consensus. I don't remember 
a battle over amendments to this act since 1976.
    I'm hopeful that, as we review this act and its great 
problems in New England in the Southeast and also on the West 
Coast--I don't know of many problems in the Gulf----
    Senator Breaux. Ha.
    [Laughter.]
    Senator Stevens. I mean from the point of view of the act 
working there. You have economic problems. We all have economic 
problems.
    But I do think that we have to keep in mind the concept 
that was developed with the Act. I think it's the most 
successful federal-state management program that's been 
devised. We did create councils. And the states yielded some of 
their powers to the councils. And the Federal Government 
yielded some of the federal powers that were delegated to these 
regional councils. Those councils really have one basic duty, 
and that is to protect the reproductive capacity of the species 
within their jurisdiction.
    The act was not an act for fishermen. It was not an act for 
processors. It was not an act for consumers. It was an act to 
protect the basic reproductive capacity of our fisheries. If we 
keep that in mind, I think that there are many amendments that 
could be made, many actions that could be made to make the 
council system work where it's not working.
    But keep in mind, the Governors nominate the members of 
these regional councils and a federal official, the Secretary 
of Commerce, selects from those recommendations. It is still a 
federal-state operation, and I think we have to keep in mind 
that we should listen to some of these Governors along the line 
to see what their comments might be with regard to changing the 
act itself.
    I am concerned about two proposals I've heard. One would 
remove the Governors from this nomination process and bring 
back to Washington the nomination of people to serve on the 
regional councils. If that happened, every one of us would be 
involved in every nomination, and there would be regional 
battles wherever there is more than one state. We tried to 
avoid that and I think we should think seriously before we 
remove the Governors from the process and move the whole 
nomination and appointment process back to Washington.
    Another proposal that I've heard is that we should limit 
the councils to making only allocation decisions and let the 
National Marine Fisheries Service make the conservation 
decisions. Who can make the decision of what's a conservation 
decision and what's an allocation decision? What allocation 
does not have conservation impact? I do not believe we should 
bifurcate the powers of the councils, and I think it would 
render the councils meaningless if that would happen.
    To bring the authority back to Washington to try to 
determine what is right means that we would nationalize the 
fisheries again, and we would have policies designed for New 
England, or for the Gulf, or for the South Atlantic Coast come 
into the practices for the great area off my state. Senator 
Magnuson and I realized the impact of that long coastline in 
Alaska. By the way, those fisheries were then dominated by 
Washington State; we all know that. There is no question that 
what we tried to do was to recognize that in the fisheries off 
the various portions off of our coast, different management 
styles are needed. That is why we regionalized the concept. To 
have this nationalized again, I think it would end up by 
destroying our fishery.
    I don't want to take too much time either, but let me tell 
you just the history of the pollack. Pollack was originally 
taken by the Japanese fisheries, put into a sort of a gory hole 
in the center of the vessel, and everything was ground up and 
it was made into fish meal--no differentiation. I have a 
picture in my office still of fur seals, of halibut, of salmon, 
everything that came in in those nets went into that thing and 
was ground up. It was a devastating fishery that they were 
conducting.
    We were able to get down to where we could look at the 
science of each species. Pollack has increased fivefold in its 
biomass since the Magnuson Act was passed. The reason is, we 
increased the size of the mesh of the nets, allowing the very 
juvenile and mid-generation to go through the net only 
harvesting the larger ones, because the larger ones are 
cannibals. They eat their grandchildren. It was a declining 
species until we managed it, and now it's increasing and is one 
of the major fish consumed by Americans. Now, that is good 
management, and it comes about by regional management, not by 
national management.
    So I urge you, as we discuss this, that you keep in mind 
the problem. I am very sensitive to the problem that's 
developed in New England around lawsuits. We had to survive a 
lot of lawsuits in Alaska. As a matter of fact, they're 
increasing all over the country.
    I don't know if you know this, but I also sponsored, along 
with my friend from Washington, Senator Jackson, the National 
Environmental Policy Act. There are suggestions here that we 
should bring NEPA back into the process of the council so that 
everything that's done by the council should go through a NEPA 
process. My God, one of the problems is right now we are more 
and more relying on imported fish because of what you 
mentioned, Mr. Chairman, the massive regulatory impact of the 
Federal Government on our fisheries today. Chilean salmon, when 
it comes in here, as it does now, by millions of pounds, 
doesn't face any of the controls that our salmon face. I think 
we've done a pretty good job trying to protect our salmon, but 
there's still many questions out there.
    I really come to where I started. We're not going to solve 
this problem until we go to the American people and say fish is 
food, just like food from Nebraska or corn from Nebraska or 
wheat from some other place. We have to have some stability in 
terms of long-term financing for this program. I'd be in favor 
of going out there and taking a billion dollars off that Farm 
Bill and say, ``You don't need it. You're paying enormous 
corporations subsidies, and here we've got this small fishermen 
of the country disappearing because there is no stability under 
them.''
    I really believe the answer is not to really dismantle the 
Magnuson Act. I'm honored to have my name added to it, but at 
the time I wrote that bill, my colleague opposed it. And 
Senator Magnuson said, ``Give it to me and we'll get it 
passed,'' and he did. So the next year, I asked the Congress to 
name it after him. Twenty years later, Senator Magnuson asked--
Senator Hollings that my name be added. But there is no 
question, we needed it in Alaska at the time.
    This bill, the Magnuson Act has worked in Alaska, Mr. 
Chairman. Those of you from other parts of the country, I urge 
that you look to what we've done in order to survive under it. 
We will help you in every way we can to give you whatever 
authority, whatever powers you need, to bring back the 
fisheries off your coast. But, please, let's let what's working 
work. As Senator Hollings used to tell me, ``If it ain't broke, 
don't fix it.'' All right?
    Senator Kerry. Let me just say to the Senator, if I could, 
Senator Wyden.
    First of all, I appreciate his comments and his involvement 
enormously, and he and I have worked on this for a long time. 
In fact, I recall a similar story. I think I wrote the bill one 
year when we were still in charge of the Senate. Then the 
Senate flipped and my bill became your bill. So we've been 
through these sorts of flips and transitions. I know you look 
forward to that again.
    [Laughter.]
    Senator Kerry. But this time, I think we're going to pass 
my bill before that ever happens.
    [Laughter.]
    Senator Kerry. Our bill. Our bill. But let me just say, 
Alaska--you're absolutely correct, Senator, and I applaud 
Alaska for it. Alaska has probably been the most successful 
example of how this could work. I think what you all did in 
Alaska--I say this to my folks, and I say it to other parts of 
the country--I believe you limited access. In doing that, you 
also limited access where you had a larger biomass.
    Our problem is clearly definable. We've got a smaller 
biomass, and we don't have the limited access. We've got this 
struggle; it's an economic struggle. It's people who have got 
mortgages on boats, who have got families to feed, who have got 
years of history in this industry, who are competing with each 
other for this resource that's being denied them.
    That's why you get lawsuits and why some of the tough 
decisions have not been made. One of the ways you make that 
tough decision easier is by providing financial resources. I 
managed to get $10 million into the Farm Bill for some 
additional buyout, and we couldn't hold it in the conference--
$10 million for people who farm from the ocean. Well, billions 
of dollars have gone out to some of these large corporations 
who are just collecting rent on some of these places. They're 
not even there farming and I think it's a disgrace.
    Your powerful position, Senator Stevens, on the 
Appropriations Committee, is critical to us, and I'm delighted 
to hear you say you're going to try to help us do this, because 
we need to help find a way now to deal with the access issue so 
we can bring the biomass level back. I'm going to ask Dr. 
Hogarth today because we don't even know the answer to the 
question: How many boats will our fisheries support? Somebody's 
got to lay this out. Then we've got to come in and, 
accordingly, make that hard choice.
    I agree with the Senator, it has worked in Alaska, and 
they've made some tough choices, and it is a model for what we 
have to do elsewhere. But, part of the reason we haven't been 
able to make some of those decisions is because we haven't been 
able to get adequate science, adequate monitoring, and adequate 
consensus built regarding how to make the choice. Some of that 
is dependent on the resources necessary to be able to do it. So 
we really do need this help, and I hope this will be the year 
we're going to make it happen.
    Senator Wyden.

                 STATEMENT OF HON. RON WYDEN, 
                    U.S. SENATOR FROM OREGON

    Senator Wyden. Thank you, Mr. Chairman. Having written no 
bills in this area, I bring a considerable interest in working 
with you and Senator Stevens on these issues. I think you have 
correctly identified that, without the dollars, it's simply not 
possible to do the work that needs to be done. I also think 
Senator Stevens has made the point that, overall, this is a 
statutory framework that works. The federal-state relationship 
makes sense. It's one that I support.
    In our state, fisheries are a multimillion dollar industry, 
and we now face the prospect that fishery management decisions 
being made 3,000 miles away are sticking a big harpoon in the 
Oregon coast, into a key industry. We have got to have a 
capacity reduction program immediately so we get the right 
number of fishers out there at the right time catching the 
right number of fish, if we're going to have a sustainable 
industry.
    Dr. Hogarth met with me last month to discuss these issues, 
at my request. He's going to Oregon. He's going to be visiting 
the fishing communities, Astoria, Newport, and Coos Bay, next 
week. I think Dr. Hogarth knows that we have got to get beyond 
the kind of paper shuffling that has been so frustrating to 
people in our part of the United States. What has happened is 
we've looked at capacity reduction, better stock assessments, 
and assistance to fishing families and the fishers during the 
critical times, but so often pledges are made without the 
follow-through.
    I appreciate the chance to be with all of you. You all have 
been experts in this area. My sense is--this goes back to the 
point Senator Stevens made--there is the legal authority in the 
Magnuson statute to do virtually all of what we have been 
talking about. So if we can use this legal authority plus the 
resources that Chairman Kerry is talking about, I think we can 
address some of these needs that are so heartfelt in areas of 
our country.
    I thank you, Mr. Chairman, for the chance to be with you.
    Senator Kerry. Thank you, Senator Wyden.
    Senator Kerry. Dr. Hogarth, thank you for your patience 
and, Mr. Benton thank you very much for being here with us. We 
look forward to your testimony. If you could keep it to a 
summary, hopefully 5 minutes, then we will have an opportunity 
to really draw out your testimony in questions, which I think 
is important for the Committee.
    Thank you.

        STATEMENT OF DR. WILLIAM T. HOGARTH, ASSISTANT 
         ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE 
            FISHERIES SERVICE, NATIONAL OCEANIC AND 
                   ATMOSPHERIC ADMINISTRATION

    Dr. Hogarth. Thank you, Mr. Chairman. I am Bill Hogarth, 
the Assistant Administrator for NOAA Fisheries. I'm very happy 
to be here today and discuss this issue with you. It is an 
issue of utmost important to not only us, but the whole entire 
nation. You are the experts that we need to work with as we try 
to work through this process.
    I appreciate the kind comments that you made. When I talked 
to Secretary Evans about this job, I thought that the end of my 
career would be the time to take it, because there are tough 
decisions that need to be made. As I stay in it, I think maybe 
it needs a younger person, not a person like I am.
    But anyway, the emphasis of the National Marine Fisheries 
has changed since 1976, when the Magnuson-Stevens Fishery 
Conservation and Management Act was enacted. The act was 
enacted to get rid of foreign fleets and to develop our fishery 
in the U.S. We did it. We did a great job. Congress gave us the 
tools of loans to upgrade our fishermen with gear, vessels, and 
we did a great job. But in doing it, I think we sort of lost 
track with sustainability. We were too much determined with 
what is the underutilized fishery, how can we buy vessels, how 
can we get people into the fishery, and we didn't stop to think 
about the long-term sustainability.
    As a result, we now have technology that enables fishermen 
to locate fish very quickly. They're much more efficient. And, 
as a result, we have too many fishermen chasing too few fish, 
as people have talk about most of the time. As a result, the 
resources have declined, and fishermen and the communities are 
facing economic disasters. And so now we have to look at about 
how to resolve this.
    And since the 1996, with the passage of the SFA, the 
emphasis has become conservation. The National Marine Fisheries 
Service and the councils are now directed to stop overfishing, 
reduce bycatch, rebuild overfished stocks within a specified 
timeframe, and to protect the central fish habitat. But not 
only was this a change of focus, it was a tremendous change in 
workload and a challenge, not only for the agency, but for the 
councils themselves.
    How did we respond to this? We responded by more 
regulations. I think, as Senator Kerry, you said earlier, we 
have the fourth-largest source of regulatory actions in the 
Federal Government. And these regulations can cause 
considerable socioeconomic hardships to commercial and 
recreational fishermen, processers, and their communities. And 
they're also under very close scrutiny by the environmental 
community.
    While our regulatory burden was increasing, so was the 
complexity of the regulatory process. With the addition of the 
National Environmental Policies Act and the Regulatory 
Flexibility Act, you know, it's much more easy to sue the 
agency for not being in compliance with the process. Given the 
increased mandates and the complex regulatory requirements, we 
have been in litigation. When I took the job, I think there was 
118. We're down to 104, but we need to be much lower than that. 
So I think the process even got you all's attention in the 2002 
appropriations bill when National Marine Fisheries Service 
litigation was referred to as a crisis.
    So with this background, and most of the comments that you 
all have made--I think I agree with one hundred percent--I'd 
like to focus just a minute on what I believe must be changed 
to improve the management of the nation's fisheries.
    The agency and its mandates need to be modernized. We need 
better data collection. We need to be conducting annual 
surveys. We need to be improving our stock assessments. We need 
better infrastructure and mechanisms to reduce overcapacity and 
bycatch. The process needs to be reviewed and streamlined so we 
can be more responsive to changes in the fisheries.
    We are dealing with dynamic systems that are in constant 
flux, but we're managing by regulatory systems that are 
burdensome and do not enable us to respond to these changes, 
especially when the stocks are increasing. It takes at least 1 
year, and closer to 2 years, to respond to the regulatory 
scheme in the act. And, in fact, we have some FMPs, fishery 
management plans, that have taken us up to 4 years.
    However, we have taken steps to improve the process, and I 
want to publicly thank today, not only the employees of 
National Marine Fisheries Services, who I think are some of the 
most dedicated and hardworking people I've been in association 
with, but also the councils in the states for their work. The 
latest status of stocks report to Congress clearly demonstrates 
that we are making some progress. However, I recognize that we 
still have many critical issues to address.
    From the agency standpoint, we are now going through what 
we call a regulatory streamlining process. A study of us said 
that there were 13 layers of duplication within the agency to 
get a rule out: n 13 steps, 13 duplications. We're trying to 
get rid of this duplication. We are frontloading the process 
with the councils. We're getting them to work with us as we go 
through the scoping, and through the alternatives. We are 
delegating to the regions the authority to do more things than 
they've been doing in the past. We also think the Section VII 
process of the ESA--we have delegated to the regions, as of 
April 1st. So we are continuing to try to work through the 
process of getting this out to the field and work with the 
councils to get it done.
    We're also looking internally at our science. How can we 
improve the science internally? What can we do for performance 
measures to make the agency perform better and measure that 
performance? This will be in a workshop on June the 10th we're 
having with our stakeholders.
    This week we had a meeting with our stakeholders to talk 
about IFQs, what should be done. If you remove the moratorium, 
what type of criteria should we put in place?
    We're now undertaking in the agency a review of the 
Sustainable Fisheries Act. It's been in place 5 years and is 
indicative of our efforts, as can be seen by our efforts to 
reduce bycatch. These are, indeed, extremely challenging times 
in our nation's fisheries.
    National Marine Fisheries has three major acts: the 
Magnuson-Stevens Act, the Endangered Species Act, and the 
Marine Mammal Protection Act, but we also have 100 other acts 
that we have to be in compliance with. So we have a major 
workload.
    I believe that we can meet with the challenges with your 
help. Working with the councils, the states, and all of our 
stakeholders in an open, transparent, and honest dialog, I 
pledge my efforts and those of the National Marine Fisheries 
Service to improve the U.S. fisheries with a focus on stability 
and sustainability tailored to capacity.
    Thank you for inviting me today, and I will try to answer 
any question you may have.
    [The prepared statement of Dr. Hogarth follows:]

 Prepared Statement of Dr. William T. Hogarth, Assistant Administrator 
for Fisheries, National Marine Fisheries Service, National Oceanic and 
                       Atmospheric Administration

    Good morning, Mr. Chairman and Members of the Committee. I am Dr. 
William T. Hogarth, Assistant Administrator for Fisheries, National 
Oceanic and Atmospheric Administration (NOAA). I want to thank you for 
the opportunity to discuss living marine resources management issues at 
NOAA Fisheries. In this testimony, I would like to focus on actions the 
Agency is undertaking to address the challenges facing us today, as 
well as outline some of the major issues that need to be addressed.

The Challenge of Marine Resource Management
    NOAA Fisheries has responsibility for the oversight of living 
marine resources and their habitat through a number of statutes, 
including the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act), as amended by the Sustainable Fisheries Act 
(SFA), the Endangered Species Act (ESA), and the Marine Mammal 
Protection Act (MMPA). Resulting conservation responsibilities include 
fisheries, protected marine species and essential fish habitat.
    Since 1976, NOAA Fisheries' mission has changed dramatically from 
promoting fishing in the U.S. exclusive economic zone (EEZ) to placing 
greater emphasis on sustainability and conservation of fishery and 
marine resource considerations and particularly, taking into account 
specific economic, social, environmental, and community issues. The 
SFA, which passed in 1996, included new mandates from Congress that 
represent fundamental changes to fishery management. As a result, a 
marked increase in regulatory activity has occurred. In addition to the 
provisions of the SFA, all of our management operations have to be 
assessed and disclosed to decision makers and the public under the 
terms of the National Environmental Policy Act (NEPA), as well as 
numerous other statutes and executive orders influencing how we go 
about developing and implementing regulations.
    According to a recent study, NOAA Fisheries, which is a relatively 
small federal agency, is the fourth largest source of government 
regulatory actions. Not surprisingly, regulatory action generates 
controversy. Regulations issued by NOAA Fisheries affect not just 
marine resources but also the people, businesses, and communities 
associated with these resources. Impacts on fishing communities under 
such a scenario are unavoidable; the monumental challenge is to keep 
adverse impacts to a minimum while meeting the legal requirements of 
current laws.
    Currently, there are 104 open lawsuits against the agency. These 
cases pending against NOAA Fisheries can be broken into the following 
categories: 37 dealing with Magnuson-Stevens Act and/or SFA claims; 34 
ESA claims; and 25 other cases relating to a variety of issues. The 
legal challenges are distributed roughly equally between commercial, 
recreational, and environmental constituents. Notably, there have been 
three cases of great significance to fisheries management that did not 
involve a separate or discreet Magnuson-Stevens Act or SFA challenge, 
but the intersection of the ESA, NEPA, and SFA processes. These cases 
resulted in the injunction of major federal fisheries.
    As you can see, the regulatory process is complex, requiring 
extensive analyses and documentation of our mandates. Overall, the 
complexity of the multiple mandates and their intersection have 
provided opportunities for litigation, have been difficult to 
reconcile, and challenge the agency to be responsive to the current 
state of fisheries and related resources. The timelines and 
requirements for public process, including NEPA, have challenged NOAA 
Fisheries to develop environmental baselines and documents that are up 
to speed with the actions being considered. NOAA Fisheries' 
implementation of this statute has not been structured to work with 
Magnuson-Stevens Act timelines. NOAA Fisheries is responding to these 
challenges, and done correctly, fishery management plans and NEPA 
analyses actually serve complementary purposes.

Responding to the Challenges
    Several internal reviews have been done, with the goal to identify 
problems and develop potential solutions. In partnership with the 
Regional Fishery Management Councils (Councils), we are focused on 
ensuring full implementation of the SFA (prevent overfishing, restore 
overfished stocks), reducing fishing capacity, and implementing 
measures to monitor and reduce bycatch, and protect essential fish 
habitats--in order to allow long-term sustainable commercial fishing. 
In order to meet these goals, we will need substantial changes to the 
fisheries management status quo, and ensure the use of the broadest 
possible range of measures, including marine protected areas, 
individual fishing quotas, and ecosystem management. Scientific data 
and analyses are necessary to provide sound advice for management 
decisions.
    NOAA Fisheries has embarked on several initiatives to begin solving 
these large and difficult problems, thus serving our resources and 
constituents better. These include the Regulatory Streamlining Project 
(RSP), the SFA Five-Year Review, a study of overcapacity and buybacks, 
implementing budgetary recommendations from the Kammer and (interim) 
National Academy of Public Administration reviews, a review of 
fisheries science, and modernization initiative.

The Management Process: RSP
    NOAA Fisheries has undertaken a major regulatory streamlining 
project with the goal to improve the efficiency and effectiveness of 
regulatory operations and decrease NOAA Fisheries' vulnerability to 
litigation. The RSP initiative highlights the application of NEPA as a 
critical component of the regulatory process. NEPA provides an 
analytical framework or umbrella that can be used to address the 
requirements of many other statutes and ensure environmental 
compliance, consistent with all of the agency's mandates.
    The primary mechanisms NOAA Fisheries will use to improve the 
fishery management process through the RSP are based both on past 
recommendations and new initiatives. These include:

   ``Front-loading'' the NEPA process through the active 
        participation of all regional, science center, and Council 
        staff in key responsibilities at the early stages of fishery 
        management action development. Operational guidelines will be 
        revised accordingly;

   Hiring environmental policy coordinators to ensure national 
        and regional consistency, facilitate front-loading of the NEPA 
        process, provide advice on integrating statutes, coordinate 
        national and regional NEPA training programs, and remain 
        current on national policy issues related to environmental 
        compliance;

   Improving the administrative process by delegating signature 
        authority, where appropriate, from headquarters to the Regional 
        Administrators for certain activities under the ESA and, where 
        appropriate, and eliminating headquarters review of routine 
        actions under the Magnuson-Stevens Act. This may involve some 
        workforce reorganization/prioritization; and

   Improving the fishery management process in cooperation with 
        NOAA Fisheries partners such as through electronic rulemaking 
        and electronic permit application.

    The goal is to provide better analyses and regulatory documents 
that form the basis of our management decisions. In short, within the 
next few years, NOAA Fisheries should have significantly fewer 
litigation losses on process issues and have better relationships and 
service to our constituents, and more effective conservation and 
management of the Nation's living marine resources overall.

Management Standards and Guidance: SFA Review
    Working with our Council partners, NOAA Fisheries has made 
considerable progress in implementing the requirements of the SFA. 
Nevertheless, more work needs to be done in order to fully achieve its 
goals. Recently, I instructed our Office of Sustainable Fisheries to 
lead a review of SFA implementation. The review will be conducted in 
cooperation with all of our regions, science centers, headquarters 
offices, NOAA General Counsel, and the Councils. This is an important 
step in identifying priority tasks over the next year. The SFA Review 
will include the following:

   NOAA Fisheries and the Councils will identify SFA 
        requirements that are not yet completed, and establish a 
        strategy and timeline to complete the work;

   Implementation of National Standards (NS) 1 and 2 and 
        National Standard Guidelines (NSGs) on overfishing and 
        rebuilding are being reviewed. Amendments addressing concerns 
        raised in this review will be undertaken by the Councils and/or 
        NOAA Fisheries;

   A few weeks ago, NOAA Fisheries, Council, and other social 
        scientists met to discuss and exchange information on the 
        methods and research in the area of fishing community impacts 
        (NS 8). The workshop focused on data and analyses for social 
        impact analysis, development of a research agenda, and 
        compilation of a NOAA Fisheries community impacts analysis 
        practitioners' manual; and

   NOAA Fisheries has established a Bycatch Workgroup to review 
        implementation of NS 9. Monitoring and minimizing bycatch and 
        bycatch mortality, and establishing standardized bycatch 
        reporting methodology, are top priorities for the agency. NOAA 
        Fisheries will also review the allocation of observer program 
        funding to ensure the best possible coverage of fisheries for 
        which bycatch monitoring is a high priority.

Addressing Overcapacity and Buybacks
    One of the fundamental problems in fisheries management is 
overcapacity. Even fully rebuilt stocks cannot sustain the level of 
fishing effort associated with fleet sizes in many of the fisheries. 
NOAA Fisheries has prepared preliminary analyses of overcapitalization 
and estimated the number of vessels and costs for buyback programs in 
key U.S. fisheries. In addition, we are reviewing the effectiveness of 
previous buyback programs, such as the one in the New England 
groundfish fishery. NOAA Fisheries is also considering modifications to 
Magnuson-Stevens which would facilitate industry-funded buybacks that 
might be used in concert with complementary management tools, such as 
entry limitations and IFQs.

Budgets
    NOAA Fisheries has taken steps to implement many of the resource 
and process recommendations included in the Kammer Report and other 
reviews, has acquired some of the needed resources, and has initiated 
management actions to improve its activities, such as RSP, as well as:

   Socio-economic analysis--NOAA Fisheries has identified steps 
        to acquire additional data, economists, and social scientists, 
        and is aggressively pursuing actions to improve socio-economic 
        analyses required by the regulatory process;

   Stock assessment improvements--These are fundamental to NOAA 
        Fisheries' success and the agency has recently approved a major 
        improvement plan for these activities;

   Law enforcement--NOAA Fisheries is expanding cooperative 
        enforcement efforts through new agreements with 25 states and 
        territories and is adding staff to handle arrangements;

   Observer and Cooperative Statistics Programs--NOAA Fisheries 
        has increased its number of observers nation-wide and has 
        initiated greater data collection and analysis efforts with 
        industry and regional and state authorities. These steps should 
        help to reinforce other actions underway to improve NOAA 
        Fisheries stock assessments, information on bycatch, and 
        enforcement activities;

   Comprehensive Management--While recognizing that NOAA 
        Fisheries conducts comprehensive reviews to capture the status 
        and requirements for its science support functions, the Kammer 
        Report recommended development of a nationally coordinated plan 
        (status and requirements) for its management functions, i.e., 
        fisheries, protected species, habitat conservation and 
        enforcement. NOAA Fisheries has recently piloted an automated 
        Annual Operating Plan system which will assist management in 
        determining future program requirements and supporting budget 
        requests. This system should be fully operational for FY 2003, 
        and will be capable of determining individual program 
        performance in NOAA Fisheries' regional offices and science 
        centers, as well as provide agency wide crosscuts for national 
        program activities.

   Adjustments-to Base--In recent years, NOAA has been 
        successful in obtaining budget adjustments for inflationary 
        cost increases which have seriously eroded core-mission program 
        operations in the past.

Science: NOAA Fisheries Science Modernization
    Several internal and external studies and reviews of NOAA Fisheries 
have concluded that much of fisheries controversy stems from the lack 
of information necessary in regulations to ensure long-term 
sustainability of living marine resources. Particularly now that so 
many stocks are overfished, implementation of such measures is often 
challenged on the basis that the scientific information supporting 
management is inadequate or lacking. While NOAA Fisheries scientists 
are world leaders at the forefront of developing stock assessment 
models and methodologies, the agency's science is sometimes hampered by 
the lack of adequate data on which to base stock assessments, the lack 
of adequate sampling platforms, and the lack of sufficient staff to 
collect, process, manage, and analyze data; to evaluate the 
implications of the assessments; and to effectively communicate the 
results to managers and stakeholders. Widening gaps between public 
expectation and agency resources required to satisfy such expectations 
have fueled numerous and increasing numbers of lawsuits on the policy 
choices, and have resulted in the agency operating in a continual state 
of crisis management.
    NOAA Fisheries is evaluating a long-term Science Modernization 
Initiative to create the holistic and integrated science 
infrastructure, that when added to the RSP, will begin to move NOAA 
Fisheries out of crisis management. Components of this initiative will 
represent the implementation of recommendations by external reviews, 
such as the National Academy of Sciences, as well as internal reviews, 
such as the Data Acquisition Plan and the Marine Fisheries Stock 
Assessment Plan. Highlights of the Modernization needs include:

   Improve and expand living marine resource stock assessments, 
        including cooperative research; a national observer program; 
        enhanced protected species stock assessment capabilities; a 
        national, web-enabled, state-federal data collection program; 
        increased charter vessel days at sea; and modern acoustically 
        quiet fisheries research vessels;

   Improve forecasting of living marine resource stock status 
        and environmental impacts through advanced assessment 
        technology, applied fisheries oceanography, and advanced 
        conservation engineering technology for bycatch reduction and 
        habitat protection;

   Adequately assessing the human dimension of fisheries by 
        conducting expanded analyses of the socioeconomic impacts of 
        our fishery management programs.

Conclusion
    Mr. Chairman, these are exciting and challenging times in the 
history of the conservation and management of the Nation's valuable 
marine resources. It is natural for many to look at the negative. But I 
think we also have a lot that gives us reason to accentuate the 
positive. Our recent Status of the Stocks report to the Congress showed 
that the number of fisheries listed as overfished is beginning to 
decline. For many of our stocks that are still depressed, we have at 
least been able to eliminate overfishing, giving them the opportunity 
to recover. We are getting better information on our fisheries.
    NOAA Fisheries staff are hard working, talented, and dedicated 
individuals. We are addressing our challenges by working directly with 
the Councils, regions, headquarters offices, and NOAA General Counsel 
to review our SFA implementation, improve the regulatory process, and 
ensure adequate science and administrative support for these efforts. I 
plan to share my vision for NOAA Fisheries with our constituents in a 
series of workshops to be held in key locations around the country 
later this year. This will also provide an opportunity for me to hear 
from our varied constituents about their views for the agency over the 
next 5 to 10 years.
    We in NOAA Fisheries look forward to working with the Committee, 
with your staff, with the Councils, the states, and the commercial 
fishing, recreational fishing, environmental, scientific and other 
marine fisheries communities to continue to improve our operations and 
our effectiveness in meeting the mandates that you have provided.
    Thank you, Mr. Chairman. I would be glad to answer any questions.

    Senator Kerry. Thank you very much, Dr. Hogarth. We 
appreciate it.
    Mr. Benton.

             STATEMENT OF DAVID BENTON, CHAIRMAN, 
            NORTH PACIFIC FISHERY MANAGEMENT COUNCIL

    Mr. Benton. Thank you, Mr. Chairman. For the record, my 
name is David Benton. I serve as the chairman of the North 
Pacific Fishery Management Council and also the chair of the 
North Pacific Research Board, which is a multiagency 
organization, newly formed, to put together a comprehensive 
marine research program for the North Pacific.
    Listening to your remarks, Mr. Chairman, I'm going to 
forego a number of things that I was going to say. I wanted to 
highlight some of the successes we've had in the North Pacific, 
but you all obviously have, in large part, recognized that.
    I want to compliment Dr. Hogarth. In my experience, of some 
20-odd years in fisheries management, I think we have a leader 
in the National Marine Fisheries Service right now who has 
taken the bull by the horns and is doing an excellent job in 
trying to solve some of the problems, endemic problems, that 
that agency has faced for a very long time.
    Mr. Chairman, in your remarks, you acknowledged the record 
that we have in Alaska. I want to touch on, briefly, some of 
the key pieces that make that record a success, and I'd also 
like to touch on, just very briefly, some of the issues that 
are facing all the councils--not just our council, but all the 
councils around the country and the management, in light of 
some of the remarks that you and others on the Committee have 
made.
    We're very proud of our record up north. We have 
sustainable fisheries that we have maintained for 30-plus 
years. We've done that because, as you noted, we made some hard 
choices. We made them early on, and I think they've served us 
well. It's not always been pleasant to sit in a room with 100-
some-odd fishermen and have to tell them, ``Here's the bad 
news.'' And every once in awhile, you do get to sit in a room 
and tell them, ``Here's some good news,'' and that sort of 
makes up for it.
    But the components that make it work, at least for us, 
first off, is that we started off with a precautionary approach 
to fisheries before that term ever became, sort of, the chic 
term of art that it has become, and it started right with the 
very beginning. Our council established what was called the 
``2-million metric ton cap'' in the Bering Sea that said that 
no matter what the size of the stocks, no matter how large the 
stocks grow, we're not going to harvest more than a collective 
2 million tons out of the Bering Sea. Right now, it's about 60 
percent, 65 percent, of what could be harvested, according to 
our scientists. We've always maintained that. We consider that, 
sort of, an ecosystem approach that maintains a real basic 
conservation level.
    Our council insists on a very rigorous scientific review in 
terms of establishing harvest rates and catch limits. The 
scientists that are in National Marine Fisheries Service, the 
State of Alaska, academic sources that sit on our plan teams 
and sit on our SSC, they are the ones that tell us what the 
allowable biological harvest levels should be. Our council has 
never voted to exceed those levels that have been recommended 
to us by our scientific institutional committee, ever, and we 
refuse to do that. Every once in awhile, we'll be a little bit 
more conservative than them, for a variety of reasons, but we 
have never voted to exceed those limits.
    We have a very rigorous in-season monitoring program. We 
have observers on the vast majority of our vessels--30 percent 
on smaller boats, 100 to 200 percent on the larger boats.
    Senator Kerry. Is that industry-paid-for?
    Mr. Benton. The industry pays for them. Now, we have a 
luxury, I think, that, say, in New England, you probably do not 
have, and that is we have--you know, with healthy fisheries, 
the industry can afford to pay for observers. But that program 
started in the late 1980's, early 1990's, and industry stepped 
up to the plate and supported it wholeheartedly at the 
beginning. And, in fact, it was an industry initiative. And I 
think that's a key.
    We, early on, got into the bycatch reduction and control 
business. As Senator Stevens noted, the foreign fleets were 
very indiscriminate in how they prosecuted the fisheries off 
our coast, and we established very strict limits on bycatch. 
And I'm very pleased to say that, right now, bycatch rates for, 
say, halibut, herring, salmon species in the Bering Sea are 
less than or right around 1 percent of what the stock of those 
species is. That's a reasonably decent rate. We need to do 
more, and we're going to do more.
    With economic discards, which is one of the changes that 
you all put in the Sustainable Fisheries Act in 1996, we went 
from 800 million pounds of discarded product; these are target 
species that were being harvested and then thrown away. We've 
reduced that by over half. We've got a lot more work to do 
there. We've got a program that's going to go in place in 2003 
that'll take another big bite out of that discard waste, and 
we're looking--you know, we're looking forward to continuing 
that kind of effort.
    With regard to ecosystem principles, we have, as I noted, a 
2-million metric ton cap. We incorporated that. But we have a 
whole series of ecosystem measures that we're looking at. And 
those include things like Stellar sea lions. You mentioned 
those. Every time the agency has come to us with a sea lion 
problem, we have responded. The litigation you mentioned was 
somewhat of a forcing mechanism. I think that's right. But in 
the end, it also became a stumbling block, because it got in 
the way of actually reaching a solution. We've got 
comprehensive sea bird protection measures. We've got bans on 
forge fish harvest. We've done a lot of those kinds of things.
    I'm going to turn now, Mr. Chairman, very quickly, to some 
of the issues that you all have raised, in terms of process and 
what you've called the ``crisis'' in our fisheries. And from 
our perspective, and I think this is true for all the councils, 
it really is this litigation box that we're finding ourselves 
in, and it does come largely from procedural issues. Very few 
of these lawsuits are based on--or have been won on substance. 
A lot of them have been won on process and procedure. And most 
of those have to do with the discontinuity between NEPA and the 
Magnuson-Stevens Act.
    I see my time's just about up, and so I'm going to wrap 
this up real quickly.
    Senator Kerry. Please finish your thought.
    Mr. Benton. Well, the--I'll give you one of the, to me, 
most perverse results of NEPA litigation. The SFA, in 1996, 
contained provisions to look at designating essential fish 
habitat and protecting fisheries habitat. And I think all the 
councils were well on the way of doing their job on that, some 
maybe better than others. Our council was right on the verge of 
identifying habitat areas of particular concern and getting 
those habitat areas designated and protected.
    Environmental organizations filed a lawsuit, stopped all 
the work on habitat protection. It's now 2 years later. We are 
just now beginning to go at it again, and they just settled 
with the National Marine Fisheries Service for a time line that 
extends out yet another 3 years.
    We're going to find ourselves, the council process and 
National Marine Fisheries Service, being severely criticized 
for not doing enough to protect fisheries habitat. And the 
reason that we're not is because of lawsuits that are 
procedural in nature, that the environmental community mounted 
and put us in a Catch-22. That's one of the more perverse 
results of litigation.
    Senator Kerry. What are they asserting?
    Mr. Benton. Dr. Hogarth could probably comment a little bit 
better on this, but it was basically that the national rules, 
national regulations, were inadequate and that there was an 
inadequate environmental impact statement on those regulations 
and on that program, and they went on the procedural grounds, 
and we have to go back and redo environmental impact 
statements.
    There was no finding in the case, that I'm aware of, that 
said that we weren't doing what we should, that we were not 
looking at protecting habitat. It wasn't an MSA violation. It 
was a procedural violation under NEPA. And, as I said, at least 
in the North Pacific, we were, like, maybe 6 months, 9 months, 
away from finally designating habitat areas of particular 
concern, places that were--we decided were pretty darn 
important to protect fisheries habitat, but that all got 
stopped and put on hold until we go through the drill with 
NEPA.
    And just one other final point on NEPA, Mr. Chairman. It 
has another perverse result. And I know some folks have said 
that, well, you need the NEPA analysis to look at all the 
effects and look at all the--you know, sort of comprehensively. 
All right? I think that the MSA process requires us to look at 
what's happening throughout the marine environment when we take 
an action. I don't think that's the issue.
    But here's one other very perverse result. We are in the 
process of reforming our procedures for setting harvest rates 
to comply with NEPA. Presently, the way that our council does 
its business is, the National Marine Fisheries Service does 
stock assessments that are concluded in the summer. The 
scientists work on the data, and give us the results usually 
around October/November. The council takes that information and 
sets harvest levels in December for the fishery that starts in 
January. That's the way we do it.
    Clearly, that time line doesn't comport with NEPA time 
lines. In order for us to fit within the NEPA time line, what 
we have to do is, we have to go out for public comment, 
rulemaking, more public comment, more rulemaking. What that 
means is that our tax-setting and harvest rate-setting process 
is going to be using 1-year-old data. We will not be able to 
use the most recent data. That's going to put us in a very 
difficult situation.
    If we have--for example, if we have a stock of fish that we 
think is reasonably healthy, we can harvest it at this rate in 
year 1 under our normal process. We would have information at 
the end of year 1 to set that harvest rate for year 2 based on 
what happened--you know, what was going on with that stock. Now 
it's not going to be that way. Now it's going to be, we're 
going to use 2-year-old data, basically.
    Senator Kerry. So what do you think we should do? What's 
the recommendation? How do you reconcile this difference with 
NEPA? Can we adhere to the environmental designs of NEPA and of 
the process without doing damage, but still move the process 
forward? What's the recommendation?
    Senator Stevens. The problem is that the timeframe doesn't 
match.
    Senator Kerry. Right. I know.
    Senator Stevens. And I think we have to look at the concept 
of trying to say, yes, look at the NEPA procedures, but it must 
be within the Magnuson Act timeframes. And if the court was 
told that, they would stay out of the management of fisheries 
more.
    Mr. Benton. Mr. Chairman, if I might, I very much agree 
with that. I don't think that anybody is arguing that there 
should be an exemption from the kinds of environmental impact 
assessment----
    Senator Kerry. But just coordinate it more intelligently.
    Mr. Benton. It just needs to be coordinated. The time lines 
need to be made compatible, and they need to be, as Dr. Hogarth 
has said----
    Senator Kerry. Well, we should do it.
    Mr. Benton.--they need to be real time. I mean, we're 
dealing with a very fluid kind of thing, and we need to have 
the time lines to fit in with making real-time decisions 
instead of things that are geared toward, you know, 10-year 
project time lines.
    Senator Kerry. Fair enough. Both statements, full prepared 
statements--all the statements of each witness will be placed 
in the record in full, as if read in full.
    [The prepared statement of Mr. Benton follows:]

      Prepared Statement of David Benton, Chairman, North Pacific 
                       Fishery Management Council

Introduction
    Good morning Mr. Chairman. For the record, my name is David Benton. 
I serve as the Chairman of the North Pacific Fishery Management 
Council. I also serve as the Chair of the North Pacific Research Board, 
a multi-agency organization which is establishing a long-term, 
comprehensive marine research program for the North Pacific and Bering 
Sea. The NPRB is newly formed, but will over time administer a multi-
disciplinary research program providing research funding at about $10-
15 million per year.
    First off, I want to thank you for the opportunity to offer 
comments to the Committee on our fisheries management process. I would 
liked to touch on two major areas today. Of course, because I am from 
Alaska, I want to highlight for you some of our successes as well as 
the issues facing the North Pacific Fishery Management Council as we 
work to conserve the vast marine resources of the North Pacific. I also 
want to discuss with you some of the issues facing all the Councils.
North Pacific Fisheries Management
    I am going to start with the North Pacific. Needless to say, we in 
Alaska are proud of our record in meeting conservation goals and 
maintaining healthy fisheries. Working together with the National 
Marine Fisheries Service (NMFS) and the Alaska Department of Fish and 
Game, we have been very successful at managing the federal fisheries 
off Alaska. Given the focus of this hearing and the time constraints, I 
will not provide the endless details or numerous examples of these 
accomplishments; however, they need to be recognized and I have 
provided a supplemental folder of materials that summarize the overall 
management philosophy of the North Pacific Council and provides 
examples of what we are doing to conserve fish stocks, protect habitat, 
manage and reduce bycatch, and incorporate ecosystem considerations 
into fishery management decisions. I hope that these materials, which 
are in the white folder with our Council logo, along with my testimony, 
will be of use to the Committee as you consider what is right with our 
fishery management system as well as ways we can strengthen it.
    Alaska's fisheries are valued at over $1.1 billion annually, before 
processing, and provide over half the volume of fish landings in the 
United States. They are a powerful economic engine for coastal 
communities off Alaska, and provide tens of thousands of jobs in the 
fishing and processing industries throughout Alaska and the Pacific 
Northwest. With so much at stake, the North Pacific Council has 
approached fisheries management with an eye towards long-term 
sustainability of marine resources. Our formula for sustainable 
fisheries involves strong science and research programs, an effective 
reporting and inseason management program, a comprehensive observer 
program, limitations on fishing capacity, precautionary and 
conservative catch limits, strict limits on bycatch and discards, 
habitat protection measures, incorporation of ecosystem considerations, 
and an open public process that involves stakeholders at all levels. 
Here are some examples:

Precautionary and Conservative Catch Limits
    Annual catches of our fish stocks are controlled by strict harvest 
limits (which includes all catch for each species whether targeted, 
retained, or discarded). The Council establishes annual harvest limits 
for each stock at a level that never exceeds a biologically safe and 
precautionary harvest level recommended by the scientists on the Plan 
Teams or Scientific and Statistical Committee. Our scientists set 
harvest levels in a precautionary manner; when less is known about the 
dynamics of a stock, the more conservative the harvest rate. Fisheries 
are closely monitored and closed when the harvest limits are reached. 
As an additional precautionary measure in the Bering Sea, the combined 
annual harvest limits for all species is limited to no more than 2 
million metric tons, which is only about 65 percent of what could be 
safely removed without impacting fish stocks. The application of 
conservative catch limits has resulted in sustainable catches. Annual 
North Pacific groundfish harvests have been sustained in the 1.5-2.5 
million metric ton range (3-5 billion pounds) for the past 30 years.
    All of our groundfish stocks are considered to be at healthy 
biomass levels. None of our groundfish stocks are considered to be 
``overfished''. I should note that I dislike that term ``overfished'' 
because it implies that stocks got to low levels because of fishing, 
when in many cases the causes are related to environmental change or 
other factors. The marine ecosystems off Alaska are dynamic, and fish 
stocks increase or decrease in response to environmental changes, and 
generally not in response to the levels of fishing mortality found in 
our fisheries today. Of course, prior to the Magnuson Act, and even 
into the 1980's, some stocks suffered from fishing pressure largely 
from foreign fisheries. But today's management takes into account total 
mortality, and sets very conservative harvest limits to ensure 
sustainability.
    For the two crab stocks in our region that are considered to be 
overfished, we implemented aggressive rebuilding plans--the fisheries 
have been closed entirely--even though scientific data indicated that 
abundance of these stocks depends almost entirely on environmental 
factors. And, bycatch in other fisheries has been significantly 
constrained. Due to these efforts, we are seeing some improvements, but 
recovery will ultimately depend on ocean survival conditions which 
appear to be dependent on long term environmental factors.
    However, in our quest to always look for better ways to meet our 
obligation to conserve our nation's fishery resources, the NPFMC has 
recently established an independent scientific review process to look 
at our overall harvest strategies, especially the process and science 
which we use to establish harvest rates. The Council has contracted a 
group of independent, international experts to critique our system and 
make recommendations for improvements. We expect to receive their 
report later this year.

Observer Program and Inseason Catch Monitoring
    Our comprehensive observer program (averaging about 36,000 observer 
days annually) and inseason monitoring program are integral to the 
conservation of our resources. Observers measure catch and bycatch and 
collect biological information. Observers are required on all vessels 
longer than 60 feet, and at all but the smallest shoreside processors. 
Observers are placed on vessels and processing plants through a NMFS--
certified contractor, and the costs for the observers are borne by 
industry, not by the government. Inseason managers at NMFS use 
information provided by the fleet on weekly catch and processing 
reports, as well as daily information from onboard observers, to manage 
complex area and seasonal quotas. The combination of timely reporting 
and observer information allows managers to monitor catch levels and 
close fisheries so that catch and bycatch limits are not exceeded.

Bycatch Reduction
    The Council has been concerned about bycatch of non-target 
organisms since the implementation of the first fishery groundfish 
management plan in 1979. Catch limits have been placed on species 
traditionally harvested by other gear types (halibut, crab, herring, 
and salmon). The intent is to minimize the impacts of bycatch on non-
target populations while at the same time allowing directed fisheries 
to be prosecuted. For example, current allowable bycatch levels in the 
Bering Sea and Aleutian Islands area equate to less than 1 percent of 
the halibut, crab, herring, and chum salmon populations. Bycatch of 
chinook salmon has slightly larger impacts, in the order of 2 percent 
to 3 percent, and the Council is pursuing several initiatives to 
further reduce this level. In addition, the Council has initiated work 
to adopt salmon bycatch controls in the Gulf of Alaska in addition to 
controls already in place on halibut.
    Another type of bycatch is comprised of target and non-target 
species that are caught but then discarded. This discard bycatch is 
thrown back into the sea and considered wasteful by many. We have made 
considerable progress in reducing this type of bycatch. For example, in 
1993, over 17 percent of the groundfish caught off Alaska were 
discarded. By 2001, less than 7 percent of the catch was discarded. In 
raw pounds this equates to a discard of about 350 million pounds in 
2001, down from over 800 million pounds in 1993. This reduction is 
partly due to implementation of full retention and utilization 
requirements--you catch it, you keep it--for major species such as 
pollock and cod. The fishing industry has also worked to reduce bycatch 
in a voluntarily manner by sharing catch information and modifying gear 
to allow unwanted fish to escape. Additionally, the formation of 
cooperatives in the Bering Sea pollock fishery, as prescribed under the 
American Fisheries Act, ended the race for fish. This allowed vessels 
to slow down fishing operations, and combined with our ongoing bycatch 
reduction efforts resulted in further reducing bycatch and discards. 
The cooperatives also aided the development of additional markets for 
lower valued species, and significantly increased utilization rates 
(pound of product per pound of raw fish harvested).
    Further reductions in discards will be achieved with full retention 
requirements for flatfish, which are currently scheduled to be 
implemented in 2003. We also are continuing to evaluate additional 
approaches to bycatch reduction, including assignment of individual 
vessel accountability, bycatch avoidance techniques, and bycatch pools 
under a cooperative-style approach.
    The Council recently started a new initiative to look broadly at 
further bycatch reductions. As Chairman, I will be appointing a 
stakeholder committee to review each of our various fisheries and make 
recommendations for programs to further reduce and manage bycatch. In 
reality, this is a resumption of work the Council had been engaged in a 
few years ago, but was put on hold because of the need to respond to 
litigation, mostly to do with procedural problems under NEPA.

Habitat Protection
    We all know that most fishery resources depend on healthy sea floor 
habitat. Although scientists have only a limited understanding of the 
distribution of benthic habitats off Alaska, and how these affect fish 
production, the Council has established numerous marine protected areas 
to reduce potential effects of our fisheries on habitat. Bottom 
trawling has been prohibited from a large portion of the continental 
shelf to protect sensitive fish and crab habitats. Closed areas in the 
Bering Sea total more than 30,000 square nautical miles, bigger than 
the State of Maine. Closed areas in the Gulf of Alaska are even larger, 
totaling about 45,000 square nautical miles. Management measures 
related to protection of Steller sea lions were implemented this year 
which include additional closures of vast areas of the Gulf of Alaska, 
Bering Sea, and Aleutian Islands to trawling, and in many cases, to all 
fishing with any gear type.
    This work was in progress several years ago following the passage 
of the Sustainable Fisheries Act in 1996, but was subsequently put on 
hold due to lawsuits filed by the environmental community. They 
prevailed on procedural matters, with the overall effect that work on 
habitat protection essentially stopped until NEPA requirements were 
addressed. The Council is back at it though, currently working on an 
accelerated time line to develop and implement alternatives to improve 
the essential fish habitat protection program off Alaska. We are 
conducting a thorough evaluation of our fisheries, through an EIS 
process, and expect to recommend significant actions in 2003.

Ecosystem Considerations
    Over the past several years, the Council has been developing an 
ecosystem-based approach for management of our groundfish fisheries. 
The principles and elements of our approach are essentially the same as 
recommended by the Ecosystem Principles Advisory Panel in their report 
to Congress and by the National Academy of Sciences in their report on 
sustaining marine fisheries. In fact, one of the authors sits on our 
Council and chairs our Ecosystem Committee. While we have yet to take 
the next step and develop specific fishery ecosystem plans, our 
strategy is to minimize potential ecosystem effects while allowing for 
sustainable fish removals as we gain the knowledge necessary to 
implement more specific measures.
    In the meantime, a number of measures have been implemented to 
reduce potential effects of fisheries on marine mammals and seabirds. 
As a precautionary measure, directed fisheries for forage fish species 
are prohibited. In addition, we have dispersed fisheries over time and 
space to reduce potential for competition with Steller Sea lions, and 
prohibited vessels from fishing too close to the areas of land on which 
they haul out or give birth. To reduce seabird bycatch in longline 
fisheries the Council recently approved a suite of regulations 
requiring vessels to use deterrent devices. These are some of the more 
stringent measures in the nation and possibly the world. And, while it 
is anticipated that these deterrent devices will reduce seabird bycatch 
by over 80 percent, the Council is also committed to working with the 
U.S. Fish and Wildlife Service to review and improve seabird avoidance 
measures in the future.
    In concluding my remarks on North Pacific fisheries issues, I want 
to emphasize that the North Pacific Fishery Management Council is 
committed to conservation. We do our best to base our decisions on 
sound science and when there is a question, we try to err on the side 
of conservation. In recent years, much of our effort has, 
unfortunately, been focused on responding to litigation, most of which 
focuses on procedural matters. This has thwarted our efforts to take up 
new initiatives to manage and reduce bycatch and protect important 
fisheries habitat. We have a very transparent process that relies on 
the participation of all sectors of the public. Again, unfortunately, 
much of the litigation we are addressing comes from special interests 
that have decided to not participate in this very public forum. 
Apparently, they prefer to go to court, and then get in a closed room 
and conduct backroom negotiations with federal attorneys. Away from the 
public eye. Away from the science based deliberations that Congress 
intended when you established the Magnuson Stevens Act and NEPA, and 
the other relevant statutes.

General Fisheries Management Issues
    I believe that the current system, a collaboration between the 
Regional Fishery Management Councils, NMFS, and the states is the 
appropriate process for management of our Nation's fisheries resources. 
When it is carried out properly, this process has all the ingredients 
for responsible decision-making. It is based on science. It is 
deliberative. It is transparent. It is representative. And, where it 
has failed to meet the conservation test, it is not because of the 
structure, but because of implementation. With regard to the National 
Marine Fisheries Service, there are several levels of review ongoing 
relative to NMFS' organizational structure and its ability to meet 
mission requirements under multiple authorities. I believe that Dr. 
Hogarth is working hard to address the problems facing the agency. 
Rather than focus on organizational structure of the agency, or 
specific budget and management processes, I would like to provide my 
thoughts on a few overriding issues relative to the collective Council/
NMFS management process. I believe these are fundamental problem areas 
that you should be aware of that are impeding our ability to 
collaboratively accomplish our management mission. I also want to point 
out that several of these issues are discussed in the comments of the 
Council Chairs regarding MSA reauthorization, which I have attached to 
my testimony for your information.

Litigation gridlock
    Litigation is currently the most pressing problem facing the 
agency, and attempting to gird our process against this litigation is 
threatening to cripple our management process. Because of conflicts 
regarding procedure under various statutes, the door is open to often 
frivolous lawsuits over procedural issues, which have the perverse 
effect of thwarting necessary conservation action. While judicial 
remedy should be available to address real shortcomings in our 
management programs, the Catch-22 is that we have reached a point where 
litigation is seriously impeding our very ability to effectively manage 
our fisheries and comply with Congressional direction. Whether this is 
by design, or an inadvertent result, I can't say. I can only note that 
the very interest groups who are calling the loudest for dismantling 
the Council process are often the same groups engaged in these 
procedural lawsuits.
    For example, there has been a dramatic trend in litigation to 
exploit the mismatch between NEPA and the Council process, and 
circumvent the very public process envisioned by this and other Acts, 
by attempting to use the courts to achieve their desired end game, 
rather than participate directly in the Council process. Settlement 
negotiations between NOAA attorneys and plaintiffs, which often follow, 
further circumvent the process by avoiding the deliberative, public 
processes envisioned under all of the Acts. In some cases, litigation 
ostensibly aimed at conservation objectives has actually impeded 
implementation of conservation measures recommended by the Councils. 
Essential Fish Habitat (EFH) is a prime example, where several of the 
Councils' proposed EFH amendments (intended to comply with the 1996 
Sustainable Fisheries Act), were challenged as inadequate. As I 
understand it, the plaintiffs were successful under the NEPA claim that 
the EIS was deficient. The net result of this litigation and attendant 
settlement negotiations is at least a three year delay in 
implementation of amendments which would have defined and provided 
protection for EFH and Habitat Areas of Particular Concern (HAPC), 
while the Councils and NMFS undertake development of a new and 
comprehensive Environmental Impact Statement to implement EFH 
protections.
    Similarly, the North Pacific Council and NMFS have been, over the 
past three years, attempting to develop a comprehensive, programmatic-
level EIS for our groundfish Fishery Management Plans. Through court 
orders and settlement negotiations, where plaintiffs are attempting to 
directly influence the outcome of the EIS process, completion of that 
EIS has been delayed for at least an additional year, more likely two. 
The Council and NMFS devote thousands of hours of valuable, limited 
staff resources to these litigation-driven exercises, compromising our 
ability to focus time and resources to address real management and 
conservation issues. It is further frustrating that many of the groups 
who are criticizing the current fisheries management process have not 
attempted to participate in that process; rather, they have simply 
turned to litigation as their primary means of influencing fisheries 
policy and regulations.

Conflicting Acts
    Among the recommendations from the Council Chairs is the need for 
clarification of the authorities and requirements among the primary 
Acts governing our process. The Magnuson-Stevens Act (MSA) outlines a 
process for public participation, extensive supporting analyses, and 
public participation that is similar in scope to that outlined under 
the National Environmental Policy Act (NEPA). However, there are some 
fundamental differences between these Acts, and some fundamental 
mismatches between the fisheries management process outlined under MSA 
and the process requirements under NEPA. It is these process 
requirements under NEPA that most often provide for litigation 
opportunities, regardless of the validity of the underlying science or 
the completeness of the analyses which support a proposed management 
action. And more importantly, often times despite the conservation 
benefits of the proposed action as well. It appears that the process 
and requirements for fisheries management plans and amendments as 
outlined under MSA satisfies most of the letter of NEPA and certainly 
all of the intent of NEPA, relative to analysis, public participation, 
and ultimately, environmental conservation. The attached Council 
Chair's recommendations contain specific reference to this issue, and 
proposes clarification that failure to comply with NEPA in the 
management of a fishery under MSA should result only in judicial 
guidance regarding NEPA compliance, rather than judicial management of, 
or injunction against, a fishery unless there is a clear MSA violation.
    In addition to the litigation opportunities for procedural lawsuits 
under NEPA, there are some additional problems which result from our 
attempts to comply with both statutes. In the North Pacific, we are 
currently in the process of altering our annual quota-setting process 
so that establishment of Total Allowable Catch (TAC) levels will go 
through a complete and formal rulemaking process under NEPA, including 
lengthy public comment periods at both the Council level (before final 
recommendations by the Council) and the Secretarial level (in reviewing 
the Council's recommendations). Currently the Council sets quotas each 
fall for the upcoming fishing year, based on just-completed scientific 
survey data. One of the keys to success in avoiding overfishing is to 
use the most up-to-date scientific information to judge the health of 
fish stocks and adjust harvest accordingly. Under the proposed change, 
which is being suggested by NMFS to comply with NEPA procedural 
requirements, quotas would be set on year-old survey data rather than 
on the best, most recently available scientific information, as 
mandated by the MSA. This is one example of a perverse, and presumably 
unintended consequence of the literal application of NEPA procedures to 
our management process.
    Our Council is currently attempting to conduct an independent legal 
review of issues surrounding the intersection of these various Acts, 
including MSA, NEPA, and the Endangered Species Act (ESA). We hope that 
this legal review will better inform us how to balance the requirements 
among these Acts, as well as clarify NMFS and the Councils' respective 
roles in promulgating management measure under these Acts.

Regulatory Streamlining
    NMFS has recently undertaken what is being labeled ``regulatory 
streamlining'', in an attempt to ensure that all proposed fisheries 
management programs are legally consistent with the provisions of the 
Acts mentioned above, as well as other applicable laws. One aspect of 
this initiative would require all Fishery Management Plans, or 
amendments to those plans, to illustrate full compliance with NEPA and 
other laws prior to action by a Regional Council. NMFS hopes that this 
will better enable the Councils to make informed decisions and will, 
ideally, better enable the agency to defend these decisions against 
potential litigation. However, given the unique nature of the Council 
process, coupled with the process requirements under NEPA, there are 
concerns whether this initiative will ultimately be successful without 
some clarifications as to the relative applicability of NEPA vs 
applicability of the MSA. Again, the Council Chair recommendations 
contain specific reference to this concern, and suggest a potential 
remedy which would help define a more reasonable application of NEPA to 
our process, without jeopardizing the underlying environmental 
conservation objectives of this Act or the MSA.

Conclusion
    There have been allegations recently that the Regional Council 
system is ineffective at addressing conservation objectives of the 
Magnuson-Stevens Act, and even suggestions that the Council system 
should be scrapped altogether, or, limited to only allocation 
decisions. This is a seductive bit of sloganeering that ignores some of 
the most fundamental lessons of fishery management. Much of the 
business of managing fisheries involves both conservation and 
allocation, and more often than not allocation and conservation issues 
cannot be separated. While some regions have been more successful than 
others at implementing the baseline, conservation oriented management 
measures necessary to preserve and sustain these valuable resources, 
the Council process can work effectively to address both conservation 
and allocation issues. I can cite numerous examples of where our 
Council has taken the lead and approved conservation measures above and 
beyond that deemed necessary based on agency advice. These include the 
Pacific ocean perch rebuilding plan; the Southeast Alaska trawl 
closure; the 2 million mt OY cap in the Bering Sea; Bering Sea closures 
to protect depleted crab stocks, and the closure of the Aleutian 
Islands pollock fishery. I submit that fisheries in the North Pacific 
are a shining example of the ability for this process to directly 
address conservation objectives, and balance the allocation objectives 
that often come into play. It is this collaborative process between the 
Councils, the Department of Commerce, and the public that the drafters 
of the Magnuson-Stevens Act envisioned, which allows for an informed 
group of stakeholders and managers to craft fisheries regulations that 
take into account specific regional considerations.
    This is not to say that our system is perfect by any means, or that 
there is not room for improvement. There are a number of issues we 
still need to address, such as fishery rationalization in our remaining 
open access fisheries, and the effects of such programs on conservation 
and communities, as well as the immediate distributional effects on 
participants. We need a greater understanding of ecosystem processes to 
allow us to manage with more of an ecosystem perspective. We need to 
continually engage in self assessment of our science programs, and our 
management strategies. And, we need to make the system more user 
friendly so that a broad cross section of stakeholders is engaged in a 
transparent process. We need to solve the conflicts among statutes to 
cut the chain of paper chase litigation so we can focus on the business 
of managing our marine resources in a responsible manner. NMFS, with 
input from the Councils, is working hard to achieve a more efficient 
regulatory process, and to ensure that our fisheries plans and 
regulations meet the tests outlined by various Congressional statutes. 
I believe this process is improving, and we stand ready to respond to 
any directions that come out of the Magnuson-Stevens Act 
reauthorization process or other Congressional actions. Again, I 
appreciate the opportunity to speak to you today on these issues. Thank 
you.

    Senator Kerry. Senator Wyden has to leave, and he just 
wanted to make a quick comment before he does.
    Senator Wyden. Thank you for your thoughtfulness, Mr. 
Chairman. As you and I have talked about, the West Coast 
groundfish industry has just been flattened, and Senator Gordon 
Smith and I have a buyback bill. The Senators from Washington 
and California, are very interested in this. I would just like, 
in addition, to be able to pose some questions to Dr. Hogarth 
in writing. I would just like to see if we can work it out so 
that sometime between now and the end of the session, the West 
Coast Senators could get a hearing on this buyback question for 
the West Coast, because all of us are very concerned about it. 
Senator Smith and I have worked in a bipartisan way and--just 
the way you and Senator Stevens have.
    Senator Kerry. Let me just say to the Senator, it's my hope 
that we're going to have a significant buyback program coming 
out, perhaps even from this hearing. Among the questions I want 
to ask about today is some loan structure buy-back through the 
industry that some people are talking about, and various ways 
we might approach it.
    However, we've got to do this soon. We can't wait around on 
this, because the funding process is going now. I want to get 
an authorization done as rapidly as we can through this 
Committee, and I hope I can have the cooperation of this 
Committee in trying to do that.
    Senator Stevens. Mr. Chairman, if I might suggest to you, 
we should explore the concept of the Farm Bill in extending 
financial assistance in times of shortage of fisheries in times 
of rebuilding fisheries, not necessarily taking boats out as 
much as giving them the ability to survive while we're 
rebuilding the species.
    Senator Kerry. I completely concur with that. I'm not sure, 
given the vote yesterday, what the vehicle is but I think 
that's a terrific way to go at it.
    So, Senator Wyden, your questions will be submitted in the 
record. I'm going to leave the record open for a week. All of 
us, I think, will have written questions, because I don't think 
we'll get through all of them here, but there are some serious 
questions we'd like to expand the record on so this is a 
complete hearing.
    Dr. Hogarth, if you'd come back--and we'll just do a quick 
round, series of rounds, here. First of all, to do the things 
you talked about--and I agree with them; I think they're a 
terrific set of recommendations, ranging from the monitoring to 
dealing with the burdensome management; we'll get to some of 
the details of that in a moment--what's it going to take, 
financially? What do you need to do this job? Let's put it on 
the table as directly as we can. What's it going to take?
    Dr. Hogarth. In my opinion--this doesn't represent the 
Administration--from my opinion, to modernize the agency will 
take about $500 million over the next 5 years. And that's what 
we're sort of looking at internally.
    Senator Kerry. The $100 million for this year would be an 
addition to what's already been allocated?
    Dr. Hogarth. Right. That's correct. And this is based on 
some of the studies that have been done of the agency by way of 
looking at the observer needs, the annual surveys. For 
example--well, Senator Wyden has left, but we do a survey on 
the West Coast, the West Coast groundfish, approximately every 
3 years to manage the stock like that, which should be done 
annually. And we need increased stock assessment work and, you 
know, that type----
    Senator Kerry. Monitoring and so forth. Well, I concur 
completely. I think we need to lay it on the line, and I hope 
you'll put that request to OMB and to the Administration 
through Secretary Evans, who I talked to earlier, as I said. I 
think he's prepared to try to fight for more.
    Dr. Hogarth. The other thing in buyback, Deputy Secretary 
Sam Bodman had asked me to look at buybacks--and we're looking 
at that. It's just a little bit more complicated, but we're 
trying to take the fisheries nationwide and put them in some 
kind of priority and then look at what we think would be a 
sustainable fishery.
    Senator Kerry. Well, may I say to you, having been at this 
for as long as I've been at it, if you want to have a political 
science study in state, local community, federal interaction 
and in the difficulties of managing something, here it is. 
Fisheries provide about as diverse a set of circumstances--
we're not a single-species fishery, nor a single methodology, 
so the competition between one type of fishing versus another 
and everybody having an impact on each other--the draggers, the 
scallopers, the long-liners, and--so forth--makes things 
enormously complicated.
    In the end, it's a competition over who's going to have 
access to the fish for what period of time to get sufficient 
revenue. That's the fight. One of the reasons I think Alaska's 
been so successful is they've taken part of that fight off the 
table. We're left floundering around without that.
    I think the buyback is the only fair and sensible way to 
try to come out of it. You've got to have some access 
limitation, then the struggle starts to go away and people know 
what to expect. The consensus is built more easily. I urge you 
to embrace this as rapidly as possible, because this Committee, 
I am determined, is going to try to come up with some kind of 
program fairly soon. I think there are ways to do it with 
enforcement. There are ways to do it fairly. There are ways to 
grandfather certain people--longevity, other kinds of standards 
that can be applied and it's a choice fishermen can make 
themselves to a certain degree. But I think we've simply got to 
find a way to implement it, and I hope you'll support that.
    Dr. Hogarth. Personally, from my standpoint, I do. I don't 
know what the Administration's standpoint is. But I think the 
number-one issue, in my opinion, in most of the fisheries, 
except Alaska, when you're dealing in billions of pounds, when 
the rest of the country is dealing in millions of pounds, is 
that we have got to tailor the capacity to the resource, and 
we've just got to do it.
    I mean, there's right now in this country an estimated 
billion pounds of shrimp, frozen, due to imports and the 
competition with the fleet that we have, that's probably about 
50 percent over capacity right now. We have that throughout. 
The West Coast groundfish, the fishermen themselves have given 
us a proposal for buyback, for buyout on West Coast groundfish, 
saying that they've got to reduce tremendously the number of 
vessels in the fishery. So we've got to, if we're going to 
make----
    Senator Kerry. Can you tell me how much the judge's court 
order has decreased effort in New England?
    Dr. Hogarth. To address latent effort in the groundfish 
fishery, a used days-at-sea (DAS) baseline was determined based 
on the highest amount of DAS fished in any one fishing year 
during the period of May 1, 1996 through April 30, 2001. Once 
the used DAS baseline was established for each vessel, DAS were 
reduced by 20 percent.
    Senator Kerry. Will the Secretary and you recommend 
institutionalizing the removal of latent permits?
    Dr. Hogarth. In my opinion, all latent permits are removed 
from all fisheries.
    Senator Kerry. Assuming the removal of latent permits is 
permanent, how much further reduction in effort would be 
necessary to meet the requirements of Magnuson?
    Dr. Hogarth. I think you've got to look at it fishery by 
fishery, because latent permits right now are not taking actual 
capacity out--the fishing that's taking place. Most of the 
latents are waiting to see, if the stock improves a little bit, 
they may join in. But many fisheries are going to actually have 
fishing capacity that's on the water taken out, and that's what 
we're trying to look at now, as to how much actual capacity 
needs to be removed from each type of fishery.
    Senator Kerry. Can you tell me what you think the 
appropriate amount of fishing is, or the level of boats in our 
fishery?
    Dr. Hogarth. No, sir, because it's got to be fishery by 
fishery, and that's what we're looking at.
    Senator Kerry. How long would it take you to make that kind 
of assessment?
    Dr. Hogarth. We are hoping to finish it within the next 
month. We're in the process now.
    Senator Kerry. With respect to observers collecting fishery 
data, apparently in only 11 of 230 federal fisheries that are 
managed under the authority of the Magnuson do you currently 
have observers: 11 out of 230 federal fisheries. You have 
responsibility for monitoring an additional 25 category 1 and 2 
state and federal fisheries, but we only have coverage in 7 of 
these fisheries. We have long, long urged the Administration to 
improve observer coverage. You heard Senator Stevens refer to 
the extensive coverage that they have, and Mr. Benton. What is 
being done to increase this coverage?
    Dr. Hogarth. Well, fishery by fishery we've asked for 
additional money, and we have gotten additional money each 
year.
    Senator Kerry. Well, how much will it cost to provide 
adequate observer coverage nationwide?
    Dr. Hogarth. Over the next 5 years, NOAA estimates that 
approximately $92.9M in additional funds will be required to 
meet the agency's immediate monitoring requirements and to 
facilitate and enhance compliance with existing laws, 
regulations, fishery management plans, Endangered Species Act 
section 7 consultations, and Federal court orders.
    Senator Snowe.
    Senator Snowe. Thank you, Mr. Chairman, and I thank both of 
you for your comments here this morning.
    First of all, as far as the buyback program, I hope we can 
create a national program with a national approach that will 
reassure the industries that are directly affected by these 
kinds of decisions. I would hope that instead of regionalizing 
this, we could have a national approach that the industry can 
count on. I think this is one of the most effective ways to 
mitigate some of the problems that come from these court 
decisions.
    Dr. Hogarth, with respect to the New England groundfish 
industry, exactly what steps are going to be taken between now 
and May 26th? I would like to have a clear understanding of how 
the government's going to approach this issue. I know the 
states have intervened, requesting the judge to reconsider. And 
then I understand you have until May 26th to appeal that 
decision in the event the judge chooses not to reconsider. So 
that we have a clear understanding of how you will be 
proceeding, please outline for me the actions that will be 
taken by the government, by the Department of Justice.
    Dr. Hogarth. Okay. We are now in the process of looking at 
the motions for reconsideration that the others have made, and 
we'll have to make a decision with Justice by tomorrow 
afternoon. And Justice is--you know, when we get to these type 
of suits, Justice has the final say-so. We make recommendations 
to Justice, but they make the final say-so. So that would be 
the first step, is tomorrow's decision as to whether 
reconsideration. Then the appeal, we will make a recommendation 
to Department of Justice on whether to--we should appeal or 
not. And there are some concerns about the judge telling us 
exactly what measures should be put in place. So we will make a 
recommendation to Justice. Justice makes that final decision.
    Senator Snowe. That is regrettable. Shouldn't you be making 
the final decision? There is a concern here on our part about 
who's going to make the final decision. It concerns me that 
there is this reluctance by the Administration to make this 
decision. Why wouldn't it appeal?
    Dr. Hogarth. The Solicitor General makes the determination.
    Senator Snowe. Right.
    Dr. Hogarth. Well, I guess it's not me to question the 
judicial system of this country. We have to abide by it, and we 
do our best. We do make recommendations and argue pretty 
strongly for the position that we think should be taken. And 
this is a very critical issue for us. You know, we went through 
mediation and we thought we had an agreement, plus--then having 
the judge to give us specific regulations, which we think 
probably should be remanded to us for consideration.
    Senator Snowe. Admiral Lautenbacher was pretty clear in 
last week's hearing that he certainly thought that we should 
appeal. I hope that sentiment prevails and is expressed in very 
strong terms to the Department of Justice. I think it's a real 
surprise that the judgment exceeded this settlement in a very 
restrictive way. These additional measures will represent a 
serious hardship to those directly affected by it, because 
we're talking about the average days instead of taking the 
maximum and the best year.
    That's obviously one serious consequence that will prevent 
a number of people from being able to participate. Moreover, 
the expanded closures and the duration of those closures is 
another serious restriction. Were you surprised by the 
decision?
    Dr. Hogarth. Yes. After we went through the mediation, I 
was surprised. We were expecting a number of hours and then 
when it came back, yes.
    Senator Snowe. We certainly want to be involved in every 
way possible to ensure that we proceed in a timely fashion. I 
just hope that the Department of Justice is going to see to 
that decision and appeal the ruling in the event the judge 
chooses not to reconsider the decision.
    In addition, I would like to hear your recommendations 
about how we can improve NMFS' management structure and 
decisionmaking. I read your testimony and you've outlined a 
number of recommendations that might improve this 
decisionmaking process.
    We obviously have to reverse this destructive trend toward 
litigation which is proliferating. When I was complaining about 
it a few years ago, it did not even compare to where we are 
today. So clearly something has to change.
    I think, frankly, we've got to decide what recommendations 
are going to work, when they are going to be put in place, 
their timetable, and who's going to implement them. If it 
requires action on our part, we need to know that. We also need 
to know when you think you could be in a position to put these 
recommendations in place, because I just don't think we have 
any time for further delays. I think this is a huge crisis, and 
it's not going to dissipate anytime soon unless we choose to 
make a difference. I think, with your leadership, it is clearly 
possible to do so, but I know how things can work in 
bureaucracies. My fear is this will get bogged down.
    There should be a sense of urgency about this, because we 
need to turn this agency around. I understand the burdens, the 
financial impacts, and the impact it has on the morale within 
the agency, when you have lawsuit after lawsuit. At some point 
we have to reverse course, otherwise we're just going to see no 
end to this.
    Dr. Hogarth. Senator, I agree. I think the agency, as a 
whole, has been under attack, the morale. And the people at 
this agency work hard. I don't think there's probably a person 
that works only 40 hours a week. And this is, it's affecting us 
greatly. And I think what we want to do is find a system, and I 
think everyone would embrace it.
    The NEPA is one of the big problems. We've got to get those 
coupled so that we are not--right now, it's a process that can 
easily be sued because we can't get it in sync. And I don't 
know that--I personally feel that Magnuson-Stevens is an equal 
process. The only thing that could be changed there maybe is to 
make sure that there's a warning about having to look at a 
series of alternatives. That's one thing that the NEPA does 
that we may not be doing, you know, otherwise, is to have a 
good series of alternatives that the public has looked at and 
we've addressed. That accomplishes a lot of things. It 
accomplishes the fact that if you have to do a Section VII 
consultation, then you've already got the alternatives 
identified by the councils, and so when you do the Section VII 
or do a biological opinion, it's not a surprise to people what 
you're doing. So that makes the process frontloaded. It makes 
the people really involved.
    But as the law is right now, and I think the council is 
another good example which they didn't mention. When we get 
through with this programmatic EIS we're doing, we'll almost 
immediately be back out of compliance, because then we'll have 
to go change the regulations. Then if you change it differently 
from what's in the programmatic EIS, then you've got to go back 
and, you know, manipulate it again. So we're almost on a do-
loop. We just continue, you know, chasing ourselves. So I think 
we have to look at that process very clearly and try to 
streamline that somewhat.
    Right now, for example, I hate to bring this issue up, 
because it hasn't been brought up, but the monk fish is another 
one, for example. The council had made the deliberate decision, 
based on stock, that, as of May 1st, that stock was--you know, 
it could be zero days at sea. Well, doing the cooperative 
research with the industry, we found out the stock was in 
better shape and we could harvest. We had no mechanism to do 
it, because you had to go through an amendment to the council, 
go through a council amendment which takes 9 to 12 months. So 
now that's what we're doing, is trying to figure a mechanism to 
get that fishery to make a decision on if and how to open that 
fishery and what level of fishing. If it had been an over-
fished stock, we could have done an emergency rule that would 
immediately close the fishery down. So we have to look at 
stocks that are improving, how can we react to that also.
    Senator Snowe. Is there a mismatch in the timetable? Is 
this the only problem related to NEPA and the council process? 
I know Mr. Benton described how this process was established, 
and how critics can circumvent the process and go directly to 
court rather than being directly involved in the council 
process.
    Dr. Hogarth. Well, I think that's one of the big issues. 
And don't get me wrong. I think we need a NEPA process. We need 
to make sure the public is involved. But I think the Magnuson-
Stevens does a good job of doing that. With some tweaking 
there, I think we could get the timing a lot better.
    We need to be making decisions on current data and not data 
that's, you know, 2 years by, and I think that's one of the big 
questions, that the fisherman are out every day, they think 
they see more fish. We agree there's more fish. But by the time 
you get it through the stock assessments, due to the number of 
people we have in the surveys, it is sometimes one to two years 
old. We need to make sure that we can get this process so it's 
timely.
    Senator Snowe. Okay, thank you.
    Senator Kerry. Thank you, Senator Snowe.
    Senator Breaux.
    Senator Breaux. Thank you very much, Mr. Chairman. Thank 
you, gentlemen, for your presentations. There are some who 
would argue that the councils structure is a highly politicized 
operation, that whoever gets the ear of the Governor, through 
supporting the Governor or what have you, gets appointed to the 
councils. We tried to address this process back, Dr. Hogarth, 
in 1976. In fact, I had authored amendments to the process on 
trying to structure the requirements of being on a council that 
you had to have people who, by reason of their occupational or 
other expertise--scientific expertise or training--are 
knowledgeable regarding conservation and management of a 
commercial or recreational harvest of the fishing resources of 
their area.
    We then added Subsection B, which said that, in doing that, 
that the Secretary in making these appointments shall, to the 
extent practicable, ensure a fair and balanced apportionment on 
a rotating or other basis of the participants on the councils. 
It's a hard thing to write. You've got to use your common sense 
here. We tried to write this back in 1976 in a way that said, 
look, the council's going to be a representative of everyone in 
the area. That means recreational fishermen and 
environmentalists and commercial fishermen, as well.
    They tell me that, in the Gulf council, that of the 16 
members of the council, only 2 are from the commercial sector. 
Now, if that is true, that, to me, does not represent balance 
by any way, any shape, or any form. Now, the Secretary has to 
approve these recommendations. He can disapprove them. I mean, 
do we do that? It seems to me that the Secretary is not 
assuring that there is proper balance. I mean, I've got 
recreational people in other parts of the country who say we 
don't have enough recreational representation on there. Now, 
when they sit in the council meeting, they don't have an ``R'' 
on their forehead or a ``C'' to identify which group they're 
representing, but it doesn't take a rocket scientist to figure 
this out.
    How do we ensure that there's a proper balance? Are they 
going to--they're answerable to their constituents, just like 
we are. They ought to be making decisions in the national 
interest, but if you look at the councils, you can say what 
they're going to say before they say it, just depending on 
where they come from.
    In the Gulf, I'm really concerned that what we have is not 
representative. It's not balanced. Can you comment on this 
whole question?
    Dr. Hogarth. Well, yes, sir. Last year, in fact, was the 
first time that Secretary Evans had been involved in this 
process. We wrote back to one state three times, and I called, 
I think, once, asking for additional names, because they were 
taking what appeared to be the commercial fishermen and 
replaced them with what looked like recreational, you know, 
from all the indications we had. The Secretary has no choice 
but to choose from a list that the Governor submits.
    Senator Breaux. Yeah, but he doesn't--he can keep saying no 
until they----
    Dr. Hogarth. Well, you can leave----
    Senator Breaux.--send a balanced list.
    Dr. Hogarth. You can leave the seat unfilled. That's 
correct. And we have discussed that. But then we feel like then 
you wouldn't be getting the representation from that state and 
that would be, you know, a fallacy--you know, would not be very 
good either.
    Senator Stevens mentioned some language--there was some 
language that, I'll be honest with you, I wrote, that flowed 
among our regional administrators and then they got out as a 
draft. We were looking at a way to try to, find a way that the 
Secretary could have some more flexibility to make sure that we 
get well-rounded councils. That was the only thing----
    Senator Breaux. Let me tell you, the law--I mean, this is 
the section I wrote in 1976 in Subsection B, says the Secretary 
making appointments under this statute shall, to the extent 
practicable, ensure a fair and balanced apportionment.
    Dr. Hogarth. And the Magnuson statement said that he will 
select from the list of names submitted by the Governor.
    Senator Breaux. Well, yeah, but he doesn't have to select 
if they're not fair and balanced.
    Dr. Hogarth. We could leave the seat unfilled.
    Senator Breaux. Or you can send to the Governor a strong 
note saying, ``This is not fair and representative. I want 
someone that--we need more recreational fishermen or we need 
more commercial fishermen.'' Make it very clear. The Secretary 
cannot take the position that his hands are tied. He does not 
have to approve a list that Congress has required be fair and 
balanced.
    Senator Kerry. Senator, will you----
    Senator Breaux. Yeah.
    Senator Kerry. We discussed that, as a matter of fact, that 
the Secretary could send them back. If the Governor sent that 
same name again up, that would be vacant, but he has the right 
to give the Governor a second chance.
    Dr. Hogarth. Yeah, and we've done that. But when the 
Governor has said that--continues to send the same names and 
saying, ``I want--I feel like that my state deserves a 
recreation seat, you can look at other states to get your 
commercial seats if you want to,'' then we--get into that 
problem.
    Senator Kerry. Let me interject here, Senator, if I can 
just for a moment--procedural, that's all.
    We're going to have a string of four votes at 11:30, which 
is effectively going to undo whatever intentions we have to 
continue the hearing. So what I want to do is try to be able to 
get through as much as we can, in terms of both testimony and 
questioning, in the next--we've got about 40 minutes, 45 
minutes, before the first vote really requires----
    Senator Stevens. Well, I'll be happy to forego any 
questioning. I just have one statement to make, and that is if 
you're proposing a buyback, you've got to presume limited 
entry. Everyone that's talking about buybacks doesn't 
understand them if they're not ready to have limited entry to 
begin with.
    Senator Kerry. Right, absolutely. And that's, I think 
that's precondition.
    Senator Breaux. Where was I? Who am I?
    [Laughter.]
    Senator Kerry. You were berating him for not having the 
Secretary adequately----
    [Laughter.]
    Senator Breaux. Oh, yeah. I remember now.
    Senator Kerry. And I rescued him, and he was thrilled that 
we were moving on.
    [Laughter.]
    Dr. Hogarth. Well, Senator, we're in that process right 
now, and I will take those words to heart.
    Senator Breaux. You all are the only ones to assure that 
there's balance. The Secretary is the person who has to make 
sure that the councils are balanced. I would suggest that in 
the Gulf council, if what I have is anywhere close to being 
accurate. It is clearly not balanced, and it should be. I want 
it to be balanced.
    Final point--IFQs, individual fishing quotas. And I know 
different members, Senator Stevens has a different opinion, 
from an Alaska perspective. What is the position of your office 
with regard to the establishment of individual fishing quotas 
on a regional basis? What works in the Gulf may not work in 
Alaska, it may not work in New England, and shouldn't be 
imposed upon them. But my point is that if a region thinks that 
IFQs are a reasonable management tool, do you think they ought 
to be able to be allowed within the region that thinks it's a 
reasonable management tool?
    Dr. Hogarth. Yes. It's our opinion that the moratorium on 
IFQs should be removed and we should let the councils have the 
responsibility, on a regional basis, to do that.
    Senator Breaux. It shouldn't be mandatory?
    Dr. Hogarth. It shouldn't be mandatory.
    Senator Breaux. Okay.
    Dr. Hogarth. No, sir. Can I answer one thing real quick, 
because I think I did not give you a good answer about the 
balance. And there's also a real question about what is 
balance. A lot of people will argue that the Gulf council is 
more recreational than it is commercial, so therefore they 
should have more recreational seats. We seem to be talking 
about recreational and commercial. We don't talk about academia 
and environmental as much and, general public that likes--that 
has really an input into this----
    Senator Breaux. It's a very difficult challenge. I agree. 
Thank you.
    Dr. Hogarth. Thank you.
    Senator Kerry. Dr. Hogarth, thank you very much. Senator 
Stevens has agreed to forego his time right now.
    Senator Stevens. I'll only make one statement, Mr. 
Chairman. I remember so well, as the Republican Whip, going to 
a fundraiser for a young Democratic Senator from Louisiana, and 
you've just heard why.
    Senator Breaux. Thank you, I think.
    [Laughter.]
    Senator Kerry. We're not allowed to discuss fundraising 
here in this building.
    [Laughter.]
    Senator Kerry. I was going to ask whether you're offering 
to go again, but I won't.
    [Laughter.]
    Senator Kerry. May I say this, Doctor, we will leave the 
record open. There are additional questions. I have a number of 
them here.
    But let me just say to my colleagues, we're going to move 
on this. I want to get this reauthorization moving--it's been 
sitting around since 1999. It's time to get it done and I'm 
asking your cooperation, if I may, over the course of the next 
month. I hope next month we might be in a position to try to 
move to a markup on that, and I want to try to move a buyout 
bill separately with the hopes that we might be able to get 
that into the farm amendment or somehow work it in in a way 
that makes sense. But, likewise, we're going to try to move on 
that fairly rapidly.
    So I enlist all the parties that are here interested, we're 
going to be pushing on this very hard over the course of the 
next weeks to see if we can try to draw the best of the 
recommendations on how we streamline it. I'm of the opinion, 
with respect to the Magnuson-Stevens Act, that the fundamental 
structure is sound.
    We want this to be a democratic process. We know there are 
regional differences. We've taken this into account through the 
years. It's fundamentally sound, but there are these problems 
of the cross-regulatory, out-of-sync, requirements and all 
these other things. We can address these. We can absolutely 
word specific with respect to issues about who's supposed to do 
what. We've learned enough about it to know how to refine this 
fairly rapidly, I think. I don't think we need some whole new 
reinvention of the wheel here. If you look at the Alaska 
experience, it is that a testimony to the fact that this can 
function. I think it needs some good tweaking and hopefully we 
can all get together and do that in the course of the next 
weeks. So we ask your cooperation on that.
    Dr. Hogarth. You will have it one hundred percent.
    Senator Kerry. Thank you.
    Dr. Hogarth. And we agree that act is a good act that needs 
tweaking. That's all.
    Senator Kerry. Thank you very much, sir. Thank you.
    If I could ask the second panel to come up as rapidly as we 
can, I want to try to maximize the next half hour.
    Thank you very much, all of you, for your patience. We look 
forward to your testimony. We're going to ask each of you, if 
you would, to summarize within the 5-minute period of time. We 
want to try to have time for questions. We will allow everybody 
to testify before there will be any questions.
    And, Mr. Kammer, we'll begin with you. Thank you.

              STATEMENT OF RAY KAMMER, CONSULTANT

    Mr. Kammer. Thank you, Mr. Chairman. Good morning to you 
all.
    Senator Kerry. If I could just say, I'm going to go with 
Mr. Kammer and then Mr. Gutting, then Ms. Iudicello, and then 
Ms. Dalton. Thank you.
    Mr. Kammer. I'm Ray Kammer. In the past 12 years, I've had 
a variety of management and review experiences with the 
National Marine Fisheries. In the year 2000, the Deputy Under 
Secretary of NOAA, then and now, Scott Goodes, and the 
Assistant Administrator of the National Marine Fisheries 
Service, then Penny Dalton, to my left, asked me to do a 
management review of the National Marine Fisheries Service. The 
executive director was Carol Bellew, and we were asked to 
review the adequacy of funding, the ability of the Marine 
Fisheries Service to comply with its mandates, and the impact 
of litigation.
    Our findings and recommendations are summarized in my 
longer testimony. Our conclusions were that the NMFS did not 
have the people, funds, or flexibility to conduct an adequate 
program and meet their mission. We recommended six major 
steps--base budget analysis systems, such as recommended by a 
NAPA study that was in the same timeframe; institution of a 
system of regular external independent program reviews; 
bringing constituents into planning and budgeting; preparing 
for coming retirements; fill vacant SES positions; and increase 
resources by $186 million on an annual basis.
    Partially in response to the recommendations of this 
report, Congress, indeed, did increase the NMFS major budget 
account by $214 million in Fiscal Year 2001. Of that 214, 109 
was responsive to our recommendations.
    The management priorities that I recommend that NMFS focus 
on in the near future are to continue to organize and conduct 
program reviews, to establish a regulatory calendar and make it 
available over the Internet to the public, implement simplified 
and uniform regulatory procedures in all 8 regions, and reduce 
layers of review, establish routine and continuing analysis of 
all litigation to identify trends and opportunities for 
improvement; and, finally, to establish an annual program of 
external reviews of the NMFS programs, perhaps by some 
combination of the NRC and NAPA.
    This has been discussed by others. There are 7 major laws 
that have a significant impact on NMFS operations, but there 
are over 100 other pieces of, not just substantive legislation 
that governs NMFS activities, but also executive orders that 
give instructions to the National Marine Fisheries Service.
    The reconciliation of all of these laws falls to the NMFS. 
And the sense that the Fisheries Service always has is as each 
of the individual pieces of legislation or executive order 
instruction, it should be dealt with as a top priority. Well, 
you can't have 100 top priorities. It just doesn't work.
    I believe NMFS's ability to meet its mission would be 
enhanced if Congress were able to articulate one set of 
priorities for the Fisheries Service and simplify the 
procedures for achieving fisheries objectives. Therefore, my 
recommendation is that Congress, the Administration, the 
states, the councils, all the other stakeholders begin 
discussing priorities among the fishing objectives with a view 
toward providing a legislative guidance to the National Marine 
Fisheries Service to improve operations.
    Senator Kerry. We appreciated that very much, and I 
appreciate your study very much.
    [The prepared statement of Mr. Kammer follows:]

              Prepared Statement of Ray Kammer, Consultant

    Mr. Chairman and Members of the Subcommittee, I am Ray Kammer.My 
experience with the National Marine Fisheries Service includes an 
assignment as the Deputy Under Secretary of NOAA from 1990 to 1992, 
leadership of a management review in 2000 and current service as a 
consultant to a panel of the National Academy of Public Administration 
that is reviewing the NMFS under a charge from the House and Senate 
Appropriations Committees.I am appearing before this Subcommittee in my 
personal capacity and only I am responsible for my opinions.

Overview of Recent History of U.S. Fisheries
    In 1976, Congress passed the Magnuson Fishery Conservation and 
Management Act.The objective of this Act was to resuscitate a declining 
U.S. fishing industry and supplant foreign fishermen in U.S. waters.The 
Act was hugely successful.The collaboration of the eight Regional 
Councils and the NMFS succeeded in expanding U.S. commercial and 
recreational fishing and making the fisheries in the 200-mile exclusive 
economic zone a U.S. prerogative.
    By the mid 1980's over fishing began to occur.The over fishing and 
the consequent actions to remediate created concerns over conservation, 
the environment, and economic and social impacts on communities and 
fishermen.These concerns manifested themselves in legislative 
instructions to the NMFS which culminated in the Sustainable Fisheries 
Act that renamed the MFCMA as the Magnuson-Stevens Act and established 
more explicit standards for national resource protection and added 
standards for consideration of community impacts, bycatch and 
protection of essential fish habitats.

Management Review of NMFS
    The challenges that the NMFS must address are daunting. In 2000, 
the Deputy Under Secretary of NOAA, Scott Gudes, and the Assistant 
Administrator for NMFS, Penny Dalton, asked me to lead a management 
review of the NMFS.The Executive Director of the study was Carol 
Ballew.We were asked to review the adequacy of funding, the ability of 
NMFS to comply with its mandates and the impact of litigation on NMFS 
operations.We found the following:

   The NMFS budget situation is misleading--NMFS has grown but 
        management has little flexibility to direct funds into needed 
        supporting research

         The NMFS Operations Research and Facilities budget grew from 
        $282M in FY 1996 to $421M in FY 2000
         In that same time period external grants grew by 100 percent
         The non-salmon internal budget grew by 7.2 percent--NMFS 
        missed $32M in adjustments to base
         Programs, Projects and Activities doubled to $105M in 113 
        separate instructions

   The causes of NMFS' management difficulties are not complex

         No adjustments to base
         Lack of support for non-salmon base
         Litigation costs
         Increased workload
         Lack of effective planning
         Weak budget and management processes

   Litigation is hamstringing NMFS

         Before 1997 NMFS had 16 open cases--it was over 110 in 2000

           70 percent of FMP's (25 of 41) have EIS' over 5 years old
           5 percent of ESA listings are complete--have a recovery 
        plan, have critical habitat designation, have delisting 
        criteria

         The costs of increased litigation are not funded--this diverts 
        scarce staff and other resources into court cases
         NMFS is the fourth largest regulatory regime in government 
        (EPA, FAA, FCC)

           No uniformity in creation of regulatory records across the 8 
        NMFS regions
           Paperwork is ad hoc--it is not unheard of to find 
        conflicting opinions in a regulatory case file

   Each regulatory decision endures eleven levels of review 
        within NOAA

    We concluded that the NMFS does not have the people, funds or 
flexibility to conduct a credible program consistent with its mission 
and recommended six major steps:

   Adopt a base budget analysis system based on the 
        recommendations of a 2000 NAPA study

   Institute a system of regular external, independent program 
        reviews

   Bring constituents into planning and budgeting

   Prepare for upcoming retirements

   Fill vacant SES positions

   Increase resources by $186 for adjustments to base ($32M), 
        socio-economic analysis ($10M), modern regulatory system 
        ($15M), stock assessments ($100M), MMPS/ESA recovery ($10M), 
        enforcement ($10M), and observers and cooperative statistics 
        ($9M).

    Partially in response to the recommendations of this report, 
Congress increased the NMFS major budget account by $214M in FY 2001. 
NMFS has developed and continues to develop and implement plans to 
respond to the recommendations of the report.

Management Priorities for NMFS
    In my view, success for NMFS will be achieved through incremental 
progress on many fronts. I recommend that NMFS management focus on five 
actions that will simplify and inform NMFS operations:

        1.  Continue to organize and conduct program and budget 
        reviews. The 50 percent increase in FY 2001 requires that 
        priorities be set and implemented.

        2.  Establish a regulatory calendar and make it available over 
        the Internet to the public.The complexities of the NMFS 
        procedures make them impenetrable to their constituents.

        3.  Implement simplified and uniform regulatory procedures in 
        all eight regions and reduce the layers of review. There is a 
        Regulatory Streamlining Project now under way in NMFS.

        4.  Establish routine and continuing analysis of all litigation 
        to identify trends and opportunities for improvement. The NAPA 
        study now underway will present NMFS with a baseline of 
        litigation analysis.

        5.  Establish an annual program of external review of NMFS 
        programs and operations, perhaps by NAPA and NRC. External 
        review can inform NMFS management of opportunities for 
        improvement.

Simplification of NMFS Legislative Instructions
    I can identify 7 major laws that have a significant impact on NMFS 
operations:

        1.  Magnuson-Stevens Act as amended by the Sustainable 
        Fisheries Act

        2.  National Environmental Policy Act

        3.  Marine Mammal Protection Act

        4.  Endangered Species Act

        5.  Coastal Zone Management Act

        6.  Marine Protection, Research and Sanctuaries Act

        7.  Regulatory Flexibility Act

    While each of these laws is important, each has a separate focus 
and a separate legislative mandate. There are more than 100 pieces of 
substantive legislation mandating NMFS activities, as well as Executive 
Orders governing the NMFS regulatory process. The reconciliation of 
these laws and instructions falls to NMFS with a sense from the 
different laws that each assignment is a top priority.I believe that 
NMFS' ability to conserve the fisheries, protect the environment, 
promote U.S. economic interests, encourage recreational fishing and 
address socio-economic issues would be enhanced, if Congress were to 
make a statement of its priorities for the U.S. fisheries and simplify 
the procedures for achieving U.S. fisheries objectives.
    My recommendation is that the Congress, the Administration, the 
States, the Councils and interested parties representing the 
environment, U.S. commercial fishing and recreational fishing begin 
discussing priorities among U.S. fishery objectives with a view towards 
providing legislative guidance.
    Mr. Chairman, Members of the Committee, thank you for inviting me 
to testify.

    Senator Kerry. Mr. Gutting?

             STATEMENT OF RICHARD E. GUTTING, JR., 
            PRESIDENT, NATIONAL FISHERIES INSTITUTE

    Mr. Gutting. Thank you, Mr. Chairman. I am Dick Gutting, 
president of the National Fisheries Institute.
    The institute is a trade association. We represent 
companies throughout the United States in the fish and seafood 
industry. Our members operate vessels, they grow fish on farms, 
process, import, export, all the way through the distribution 
chain up to the retail. Our members either harvest or sell all 
of the products from the fisheries managed by the National 
Marine Fisheries Service, so we have a lot at stake in how they 
do their job. And we're committed to ensuring that we have 
sustainable fisheries and that the American consumers will 
continue to have a safe and ample supply of seafood.
    I think the importance of seafood for Americans is evident 
in the rising consumption. A fellow up in the State of 
Massachusetts, Dr. Bill Costelli, at the Harvard Medical 
School, told me several years ago, ``Dick,'' he said, ``eating 
fish is good for you, and you ought to eat it at least twice a 
week,'' and I believe him. And I think as more Americans learn 
about the benefits of fish and seafood, that demand is going to 
increase.
    I think we've--I hope you've heard that conservation of 
fisheries is not a failure, that we are making progress. 
Senator Snowe, I was up in the State of Maine yesterday and 
talking to the fishermen up there, and I saw a chart--it's a 
big ``U,'' showing the biomass in groundfish. Low point, 1994. 
And look at that upwards sweep. Conservation works. And we're 
very grateful to everybody in this system who has been 
responsible for the success we're beginning to have. And we 
believe that conservation has to continue to be our highest 
priority.
    Fisheries, however, are more than fish. They also involve 
the fishermen and the fishing communities that depend on them, 
and this is where our concern lies with the National Marine 
Fisheries Service and its programs. Over time, the agency has 
narrowed its mission from maximizing benefits from ocean 
resources to protecting those resources from users.
    Consider the agency's goals in the NOAA plan: recovering 
protected species, sustaining healthy coasts, building 
sustainable fisheries. These goals sound fine. But compare them 
to the Department of Agriculture. There was some talk about the 
Department of Agriculture. What are their goals? Well, first of 
all, the Department of Agriculture calls itself ``the people's 
department.'' Its core mission is helping farmers feed America 
and the world in a sustainable way. Guiding principle: customer 
service. Goals include a strong farm economy, promoting public 
health, enhancing the capacity of communities to prosper. 
Different words. And those different words reflect this drift 
toward protectionism that I mentioned.
    Where did this come from? It came from a lot of often 
complex and inconsistent statutes. It came from long periods of 
time when the agency didn't have leadership, and it came from 
pressures from various outside groups. And what have we wound 
up with? Well, we've wound up with an agency which has a 
persistent them-versus-us attitude, where there's increasing 
confrontation and litigation, where there's loss of community 
support, demoralized agency staff, and deteriorating agency 
services.
    Agency credibility is now under persistent attack in the 
media by groups who are jockeying to replace National Marine 
Fisheries Service as the authoritative voice on how our 
fisheries are doing. Their message to the American people is, 
``Trust us, not them.'' And, unfortunately, until very 
recently, the National Marine Fisheries Service seems to be 
unable to respond and counter these attacks.
    And these media campaigns are being followed up with 
courtroom battles. Resulting building in litigation is 
diverting agency resources from future planning to the defense 
of past actions. Lawsuit settlements only seem to encourage 
more litigation. And agency policymaking seems to be drive now 
by litigation strategy and not good science.
    The agency hesitates. Should it encourage seafood farming, 
or restrict it? Help improve the quality and safety of seafood, 
or leave it to others? Encourage the greater use of available 
resources, or leave them in the water? Should it partner with 
the fishermen, or go it alone?
    Internal debates go on and on, and the agency's bogged 
down. Documents are edited repeatedly in internal review 
processes that can take years to complete. Programmatic offices 
are balkanized. And, unlike the U.S. Fish and Wildlife Service, 
and, unlike the U.S. Coast Guard, there's no systematic 
training program for people in the agency. This is a deficiency 
that's going to become more and more critical as the 
experienced managers leave the agency.
    Now, developing a proactive agency is going to take a lot 
of work. It's not something that can be done in a weekend 
brainstorming session or with the enactment of a new law. It's 
going to take a long-term commitment and a refocus of programs. 
People need to be trained and educated. And somehow, the 
litigation cycle has got to be broken.
    The benefits, if we can pull this off, I think, are 
substantial. They include better conservation, professional 
fleets, modern processing facilities, a vibrant and new ocean 
aquaculture industry. It would be an agency where we could 
enhance stocks using modern technologies, and we would--it 
would be an agency where there would be a creative use of 
fishing opportunities and transitional assistance to help the 
communities that are going through a difficult time.
    Senator Snowe, I met with fishermen last night in Maine. 
They are numb. They are in shock. There is despair. Where a few 
months ago, there was optimism, now people seem to be walking 
around in a daze.
    I think we can turn it around. I thank the Committee for 
holding a hearing like this. It's hearings like this that I 
think are going to make a difference. Thank you.
    Senator Kerry. Thank you very much, Mr. Gutting. We 
appreciate it.
    [The prepared statement of Mr. Gutting follows:]

       Prepared Statement of Richard E. Gutting, Jr., President, 
                      National Fisheries Institute

    Thank you for the opportunity to testify on the programs of the 
National Marine Fisheries Service. I am Richard E. Gutting Jr., 
President of the National Fisheries Institute (NFI).
    The NFI is a trade association representing companies throughout 
the United States in the fish and seafood industry. We are a ``water to 
table'' organization, with member companies located throughout the 
distribution chain, from vessel operators, fish-farmers and those who 
supply them, to processors, importers, exporters, distributors, 
retailers, and restaurants.
    The NFI is committed to the long-term sustainable use of fishery 
resources, and to providing Americans with an ample and safe seafood 
supply. Because our members harvest, process or sell the food produced 
from the fisheries regulated by the National Marine Fisheries Service, 
we have a vital stake in the agency's ability to conserve these 
fisheries.
    The importance of this food to Americans is reflected in rising 
consumption. On average, Americans eat about 16 pounds of seafood each 
year. This compares to about 10 pounds per person in 1960, and 12.5 
pounds in 1980. Recent scientific reports cite the unique nutritional 
and health benefits of eating seafood, and as Americans learn more 
about these benefits, consumer demand should continue to grow.
    Despite the claims of some, fishery conservation is far from a 
failure. The NMFS recently reported to Congress that:

         The size of many fish stocks around the country has begun to 
        increase, while we have halted the decline of other stocks and 
        have begun rebuilding them. This includes many of our most 
        important species. The number of stocks with sustainable 
        harvest rates rose by 45 percent between 1999 and 2001, and 
        those with sustainable stock sizes increased by a third.

    Achieving this level of conservation takes hard work, and we 
appreciate the efforts of the fishery management councils, fishery 
commissions, state agencies and NMFS, as well as the many people in our 
seafood communities who have volunteered their time and money for 
conservation.
    Conservation must continue to be the highest priority. Fisheries, 
however, are more than fish, and while rebuilding depleted fish stocks 
is important, so also are viable fishing communities. What good is 
seafood if there is no one to harvest and process it for consumers? And 
how are the nutritional needs of Americans going to be met in the 
future, if people cannot use ocean resources?
    Herein lies our concern. Over time, the agency has narrowed its 
mission from maximizing benefits from ocean resources, to protecting 
them from users.
    Consider the agency's goals in the NOAA Strategic Plan: Recovering 
Protected Species, Sustaining Healthy Coasts, and Building Sustainable 
Fisheries. Now compare them with those in the strategic plan of the 
U.S. Department of Agriculture which refers to the USDA as ``the 
people's department.'' There the core mission is helping farmers feed 
America and the world in a sustainable way, the guiding principles 
include customer service, and the goals include maintaining a strong 
farm economy, promoting public health, and enhancing the capacity of 
communities to prosper.
    These differences in goal statements illustrate the agency's drift 
towards protectionism--a long-term trend resulting, in part, from a 
proliferation of complex and differing legislative mandates, lengthy 
periods of time with leadership vacancies, and pressures from various 
activist campaigns.
    The results are harmful--both for the NMFS, and for the people who 
depend upon its services. They include:

   Persistent ``them'' versus ``us'' attitudes;

   Increased confrontation and litigation;

   Loss of community support;

   Demoralized agency staff; and

   Deteriorating service.

    Agency credibility is now under persistent attack in the media by 
groups jockeying to replace the NMFS as the authoritative source of 
information on fisheries for the public. Their message is ``trust us--
not them.'' Unfortunately, the agency seems unable to defend itself and 
its conservation accomplishments.
    These media campaigns are being followed up with courtroom battles. 
The resulting buildup of litigation is diverting agency experts from 
future planning to defense of past decisions. Lawsuit settlements only 
seem to encourage more litigation, and agency policy-making now appears 
to be driven more by litigation strategy and less by strong science.
    The agency hesitates. Should it encourage seafood farming, or 
restrict it? Help improve the quality and safety of seafood, or leave 
it to others? Encourage greater use of available resources, or leave 
them in the water? Should it partner with fishermen to gather 
scientific information, or do it alone? Internal agency debates go on 
and on. In the meantime, opportunities are lost.
    And the agency is bogged down. Documents are edited repeatedly in 
an internal review process that can take years to finish, and their 
incompleteness is used to avoid statutory deadlines. Programmatic 
offices remain balkanized. And unlike the U.S. Fish and Wildlife 
Service and the U.S. Coast Guard, there is no system for training to 
improve performance--a deficiency becoming more critical as experienced 
managers reach retirement age.
    There are no easy solutions or quick fixes.
    Developing a proactive agency culture requires more than a weekend 
brainstorming session, or the enactment of a new law. It will take a 
long-term commitment to strengthen needed core values and refocus 
agency programs. Investments need to be made in training and education 
to upgrade management and communication skills. Care must be taken in 
delegating regulatory power and in providing for systematic oversight 
of decisions. Somehow the litigation cycle needs to be broken.
    The benefits would be substantial.
    In addition to conserving fish, a vibrant proactive agency would 
help fishing communities maintain efficient and professional fishing 
fleets and modern processing facilities, and build a thriving and 
sustainable ocean-based aquaculture industry. It also would apply 
modern stock enhancement technologies to accelerate recovery of 
depleted stocks, help rationalize overbuilt fisheries with transitional 
assistance and the creative use of fishing opportunities, and help 
Americans more fully enjoy seafood by encouraging use of available 
resources.
    Hearings such as this one can help. Thank you again for the 
opportunity to testify.

    Senator Kerry. Ms. Iudicello?

  STATEMENT OF SUZANNE IUDICELLO, AUTHOR; MARINE CONSERVATION 
                           CONSULTANT

    Ms. Iudicello. Good morning, Mr. Chairman and Members of 
the Subcommittee. I appreciate the opportunity to be able to 
talk to you today about the issues that we don't often spend 
time on in hearings, the nuts and bolts of management and 
implementation. Thank you for having this hearing. I think it 
comes at an important time, as everyone has said.
    Since my statement will be included in the record, what I'd 
like to do is take the little time that we have and hit some 
issues that keep coming up among the statements of all the 
witnesses and you, yourselves.
    First of all, I would like to say, as others have said, the 
system isn't broken. The system is functioning. Litigation is a 
part of our American system. We have three branches. Litigation 
occurs when the implementation of the law, or compliance with 
the law, isn't complete.
    I think the changes to the Magnuson Act that occurred in 
1996 were to put some concrete handles, timetables, measurable 
objectives on what had been, to that point, a very slippery 
business. Fishery management was totally discretionary. You 
couldn't hold people to task. Passage of the Sustainable 
Fisheries Act did that, and I think it is working. We've had 5 
years, and if you look at the report that Dr. Hogarth gave a 
couple of weeks ago, the status of stocks is improving where 
there have been conservation measures in place in compliance 
with the law. There are fewer over-fished fisheries. We know 
more about the status of stocks, about more of the stocks than 
we did a number of years ago. So I would say the system is 
working.
    What's not always easy is integrating all of the mandates. 
You've heard a lot about the Endangered Species Act, about the 
National Environmental Policy Act. Yes, there are numerous 
mandates. They are not incompatible. There are some time line 
issues.
    I had the privilege and the opportunity to work on NEPA 
compliance with Dr. Hogarth and Penny Dalton earlier and the 
people at the National Marine Fisheries Service, and I would 
like to second Dr. Hogarth's comment that they are some of the 
hard-workingest and creative and trying-to-do-the-right-thing 
people you can find. We had a number of workshops and sessions, 
both with staff and with the council, and with other agencies 
in the Federal Government who are resource managers and were 
sitting 10 years ago in the litigation tunnel that the National 
Marine Fisheries Service is sitting in today.
    What you've heard about timing conflicts and lack of 
integration between NEPA, ESA, and Magnuson Act deadlines, I 
think, is not an insurmountable problem. I think that if there 
were some way to convene some really good minds from the 
Council on Environmental Quality, from the Department of 
Justice, from the general counsels' offices of the various 
agencies, and pull in the experience of resource managers who 
have gone through this before--and granted, that forest plans 
are not fishery management plans, if you're looking more at big 
ecosystem regional management plans, that could be like a 
forest plan over a longer period of time--I think you might 
have an opportunity to avoid this push and tug of completing 
Els's and stock assesments. Magnuson says the agency must get 
the authorization for fishing out within a time certain, but 
NEPA says it must also go through all of this alternatives 
analysis. I truly believe there is a way to mesh these two.
    So how do you do that? Dr. Hogarth didn't bring it up 
today, but I have heard him in many venues say, ``I wish we 
could just have a moratorium. I wish we could just have a 
moratorium on litigation, on actions.'' It reminds me, if I 
date myself, of the old song ``Stop the World, I Want to Get 
Off.'' I'd like to suggest that we stop the world because we 
want to get it right.
    Now, certainly the Congress can't jump out and say, ``No 
more lawsuits.'' But maybe the Congress, or maybe even the 
agency could say, ``Two years, no more messing with the fishery 
management plans. Everything stays the way it is right now 
while we catch up. Let's breathe. Let's plan. Let's figure out 
where we want this system to be. Let's let the regions and the 
stakeholders articulate what success looks like and how we 
would evaluate it. Take a time out.''
    A lot of the changes to fishery management plans on a year-
to-year basis are really minor and incremental. When you look 
at the monumental amount of resources that go into the public 
hearings and development the background documents, to bump the 
up a million here, a hundred thousand there, 25,000 there--it's 
insane. So why can't we just stop changing the plans annually 
and take a breather? Give it a try.
    If that's not possible--and it probably isn't, but we could 
try--and you're look forward in the coming months to 
reauthorization possibilities, I would like to point you to 
some of the suggestions that came out of a year-long effort the 
Heinz Center sponsored and that was participated in by hundreds 
of fishermen, policy people scientists, academics and 
environmentalists. The project produced a book called ``Fishing 
Grounds.'' At the end of that book there is a chapter called 
``Looking Ahead,'' and I think the best thing that the Congress 
can do is begin to articulate the national policy.
    We don't need more prescriptive, detailed tinkerings of 
time lines and this objective means this and that definition 
means that. We are looking to you to have the leadership in a 
national conversation that says, ``What do we want our fishing 
future to look like? What do we want our communities to look 
like? How do we make that work for the smallest island in the 
Aleutians and for Cape Cod and for everywhere? How do we bring 
in what local people want to see as their future and say what 
the big national policies are and leave to the stakeholders and 
the councils to tinker the details to fit that? ''
    Thank you very much for the opportunity.
    Senator Kerry. Thank you very much.
    [The prepared statement of Ms. Iudicello follows:]

           Prepared Statement of Suzanne Iudicello, Author; 
                     Marine Conservation Consultant

    Good Morning, Mr. Chairman and Members of the Subcommittee. Thank 
you for the opportunity to testify at this oversight hearing on 
management issues in the National Marine Fisheries Service. My name is 
Suzanne Iudicello; I offer my remarks today as an independent 
consultant in marine conservation. You have asked for views on several 
important management issues at the agency, including its litigation 
burden and the adequacy of the organizational structure to meet 
requirements under multiple statutory authorities. My observations on 
these topics are drawn from three activities in which I have 
participated:

   A project conducted for the National Marine Fisheries 
        Service on requirements under multiple statutory authorities;

   The U.S. Fishery Management Program of the H. John Heinz III 
        Center for Science, Economics and the Environment that produced 
        the book Fishing Grounds; and

   Six years of service on the Marine Fisheries Federal 
        Advisory Committee, MAFAC.

    The focus of these observations is on NMFS's compliance with 
statutory requirements, particularly those of the National 
Environmental Policy Act, and whether the agency has the capacity in 
its budget, organization, structure and management processes to meet 
requirements under multiple statutory authorities and national 
policies. It is my view that the system for effective stewardship and 
procedural compliance exists, but isn't always implemented well. For 
the most part, the system does not need to be changed; the extent and 
amount of tools and resources we give NMFS to operate in the system, 
however, does require change. Finally, as the Subcommittee moves from 
its oversight role to legislative deliberations over the 
reauthorization of the Magnuson-Stevens Fishery Conservation and 
Management Act, there are some changes I recommend you consider. These 
lie not in the realm of nuts and bolts, ever more prescriptive details, 
or ratcheting down timetables, but rather in clarifying national policy 
and articulating what we think the future of fisheries in America 
should be.

Litigation is Part of the System, not an Indication That the System is 
        Broken
    Reading fishing industry publications and listening to the 
complaints and hand-wringing of officials and commentators over the 
past couple years, I get the impression there is an odd notion afoot in 
the land that we have somehow become a government of two functions, not 
three, and that the courts are no longer--or shouldn't be--part of the 
old ``checks and balances.'' I must respectfully disagree. Litigation, 
seeking redress in the courts, is part of our system, not an indication 
that the system is broken.
    It is true that the system and the rules changed significantly in 
1996, and that litigation over compliance with those rules has taken a 
heavy toll on the National Marine Fisheries Service. Many of the 
changes that were advocated by the conservation community in passage of 
the Sustainable Fisheries Act were precisely for the purpose of 
providing litigation handles on what previously had been a slippery, 
unaccountable and largely discretionary system. The law now includes 
specific targets, timetables, and concrete requirements to stop 
overfishing, reduce bycatch and protect essential fish habitat. It 
should not have come as a big surprise that when the new law's 
deadlines and targets were not met, advocates used litigation to hold 
the agency accountable, and that environmental groups are responsible 
for about a third of the action in the courts.
    What is important to note about environmental group litigation is 
that while it may be new for the National Marine Fisheries Service, it 
is not new in the history of natural resource management. NMFS is about 
10 years behind the U.S. Forest Service, National Park Service and 
other resource managers in suffering through litigation, particularly 
challenges to its analysis of the impacts of fishery management actions 
required in the Magnuson-Stevens Fishery Conservation and Management 
Act, National Environmental Policy Act, Regulatory Flexibility Act and 
various Executive Orders. The agency finds itself in what one NEPA 
expert has described as ``Stage II'' in the evolution toward 
compliance, a stage that occurs after numerous court orders and 
injunctions, where money is made available for contractors and 
consultations, detailed prescriptions emerge from general counsel, and 
the agency does enough to demonstrate that it is trying to respond to 
litigation. NEPA managers in these other agencies can tell you that 
what the Fisheries Service is experiencing now is familiar ground, and 
that there are ways to improve performance, comply with the laws, and 
get resource management done. We can learn from the experiences and 
approaches tried elsewhere, even if it seems at times the only relevant 
lesson is ``you are not alone.''
    The good news is that the National Marine Fisheries Service is no 
longer in ``Stage I,'' or denial that NEPA applies to fishery 
management actions. The agency has undertaken numerous activities to 
tap experience of other resource agencies, use the planning and 
brainstorming ingenuity of its own and council staff, and employ 
resources provided by Congress to expand training in NEPA and other 
procedural requirements, improve consistency in document preparation 
and get tough on the quality of decision record that will be approved.
    This progress should not be thwarted by attempts to exempt the 
agency from NEPA or to declare that the Magnuson-Stevens Act public 
participation and decision process is equivalent to NEPA. The two laws 
are not inconsistent, and in fact are comparable in their policies. But 
the fishery management planning process and the environmental impact 
assessment process are neither the same nor redundant. The purpose of a 
fishery management plan or amendment is, at the most basic level, to 
authorize fishing. The purpose of an environmental impact statement is 
to provide decision makers and the public with a full exposition of the 
alternatives and consequences of authorizing fishing in the manner 
proposed in the plan. It does not seem unreasonable that decision 
makers at the council and in the agency would want to know the 
potential effects of a fishery management proposal on not just the 
target stock, but related fish, other animals in the ecosystem, the 
market, participating user groups, communities and so forth. And while 
fishery management plans do incorporate information about all these 
aspects of the human and natural environment, they do not provide the 
alternatives analysis that is the heart of a well-prepared EIS. Whether 
it is a vote by a council or final approval of a plan by the Department 
of Commerce, the fishery management plan process does not, without 
NEPA, provide a mechanism whereby the decision maker and the public can 
evaluate an array of alternatives and their consequences.
    The difficulties in merging the respective steps of fishery 
management and environmental impact analysis lies, in my opinion, not 
in some incompatibility of the two statutes or processes, but in lack 
of clarity about roles and responsibilities for decision-making between 
NMFS and the fishery management councils. Who is the decision-maker? 
When is a proposal a decision? To what action does the alternatives 
analysis apply? How many alternatives? Are they alternatives to 
authorizing fishing or just alternative catch levels? Are there really 
alternatives if the council has already voted? Can the agency analyze 
alternatives the council has not put forward? These are not 
insignificant issues, and the agency has begun to tackle them under the 
leadership of Dr. Hogarth, who has made it clear to the councils that 
the documents they produce will be sent back if they don't pass muster.

Stop the World, I Want to get it Right
    Dr. Hogarth has noted in numerous venues that he would like to call 
a time out, not just on litigation, but on council action, agency 
action, all of it, so NMFS could catch its breath and have a moment in 
which it was not responding to crisis. It reminds me of the old tune 
``Stop the World, I Want to Get Off.'' In this case, a better title 
might be, ``Stop the world, I want to get it right.'' There are lots of 
ideas for doing a better job, there is just no time to flesh them out 
or test them.
    Recognizing that litigation is part of our system, nevertheless, it 
does have the effect of trumping all other activity, not only for the 
agency, but for stakeholders. Once the agency is in court, it no longer 
has the flexibility to try different approaches, convene stakeholders 
for negotiation, or work with councils to improve background and 
analytical documents. If an organization is not a plaintiff or 
intervenor, it doesn't have a seat at the table or a role in crafting 
solutions. Once suit is filed, participants are either on the docket or 
on the sidelines. Not only does this not elicit diverse ideas, it sucks 
up agency resources that are desperately needed to conduct basic 
business, let alone plan ahead or think creatively to find ways to 
integrate disciplines and mandates.
    In the past year, internal and external assessments, consultations, 
workshops and strategy sessions have generated notebooks full of ideas 
and possible approaches the National Marine Fisheries Service could 
explore to improve its performance under NEPA, the Endangered Species 
Act, Regulatory Flexibility Act and other mandates. Many of the 
suggestions are actions NMFS can implement itself, or in conjunction 
with general counsel at both NOAA and Department of Commerce levels. 
Some will require coordination and cooperation with the regional fisher 
management councils. Some ideas need more work and investigation. Other 
resource agencies and the Council on Environmental Quality have offered 
their experience and assistance in such endeavors, including technical 
assistance to better blend and find more flexibility in the timing 
requirements of environmental impact statement and fishery management 
plan development. This Subcommittee and its counterpart in 
appropriations have provided resources for responding to court-ordered 
document preparation and improving overall NEPA performance.
    These actions are all to be commended, but they are not enough. At 
the risk of sounding as though more money is the only answer--and I 
don't believe it is--I must still observe that the resources provided 
the National Marine Fisheries Service are not sufficient to meet the 
basic requirements of the Sustainable Fisheries Act, let alone be fully 
responsive to environmental and economic impact analysis required by 
NEPA, the Regulatory Flexibility Act, and Executive Order 12866 
(economic impact of regulations). When Endangered Species Act 
compliance enters the picture, the resource burden is even greater, and 
the basic infrastructure is even farther behind the funding curve. For 
example, although agency and council staff and officials agree that 
having regular participation of staff from the Office of Protected 
Resources in fishery management planning discussions would improve 
background documents, information exchange, and understanding of 
recovery goals, they recognize current resources make this impossible.
    But even if we had sufficient fiscal and personnel resources, there 
are still policy issues for the Congress to resolve.

Looking Ahead: Articulating National Policy
    When the Heinz Center embarked on its fishery management project 
several years ago, one goal was to produce a book that would capture 
information and ideas relevant to the reauthorization of the 
Sustainable Fisheries Act in 2000. Dozens of interviews, decades of 
collective experience, numerous meetings, reviews, comments and 
reactions to discussions of fishery management were brought together in 
the book Fishing Grounds. I think I can speak for my co-authors Susan 
Hanna, Heather Blough, Dick Allen, Bonnie McCay and Gary Matlock in 
saying we appreciate the opportunity to share some of the ideas and 
voices of Fishing Grounds with you as you begin your deliberations on 
the Sustainable Fisheries Act. I would also like to thank the Heinz 
Center for making copies of the book available to Subcommittee Members.
    Despite--or perhaps because of--the diversity of the contributors 
to the project, common themes emerged, cutting across issues, interest 
groups, regions and fisheries. How can we best learn from our 
experience and integrate complex management objectives? How can we 
create expectations for stewardship, maintain the diversity of 
fisheries, and still make the transition to sustainability?
    As noted above, much of what has drawn the fire of litigation has 
occurred because we have not been successful at integrating management 
objectives. The Magnuson-Stevens Fishery Conservation and Management 
Act should be reviewed in conjunction with other important marine 
statutes to see if we can integrate the entire system in a way that 
improves coordination, reduces conflict, and moves toward ecosystem-
based approaches to fishery management. That is not to say that fishery 
law can replace NEPA or the Marine Mammal Protection Act or the 
Endangered Species Act, but perhaps it is time to consider 
comprehensively what are our national goals and policies for the marine 
and coastal environment? How can integration across disciplines, 
regions, agencies, and jurisdictions be encouraged?
    One of the pitfalls of environmental impact analysis, stakeholder 
participation, best available science and all the other terms, concepts 
and buzz words we use to talk about fishery management is that we often 
assume that information will set us free. ``If we just get more data, 
better stock assessments, clearer understanding of ecosystem 
relationships, then we'll get it right and nobody will challenge the 
outcome.'' Although I would be the last to say we need not do a better 
job at information gathering and management, this view leaves out 
completely the importance and effect of differing societal values on 
fishery management decision making. Even if we had every last scintilla 
of information about Steller sea lions, pollock, Northern fur seals, 
climate change in the Bering Sea, and the complete set of food web 
relationships from tube worms to school lunch fish sticks, these facts 
would not resolve the differences in point of view that are at play in 
the North Pacific. That does not mean we cannot act, or that we cannot 
manage. It means that we must take into account values as well as 
numeric and objective information, and that our decision processes must 
make room for debate over goals and expectations as well as how many 
fish, where, by when, at what price and by whom.
    The critical task for which neither the agency nor the councils 
have had sufficient time is an exploration and reconciliation of our 
expectations and goals for American fisheries. Management and 
allocation of scarce resources cannot be all things to all people. 
Short-term benefits or long-term ones? Managing for continued 
participation by all or for economic efficiency? Fishing as a privilege 
or a right? Realistically, how can they grapple with what managers and 
stakeholders think ``success'' would look like in 5 to 10 years, when 
everyone (and all the agency resources) is consumed with what the total 
allowable catch will be for the upcoming season?
    One possible way to carve out time for that kind of consideration 
would be to grant Dr. Hogarth's wish for a ``time out.'' Another might 
be to have a national conversation about it during the reauthorization. 
If we were to engage in that conversation at a level aimed at 
articulating a national policy, and creating consistent expectations 
for stewardship, I offer these major policy choices and reauthorization 
issues identified by contributors to Fishing Grounds:

   Define ``greatest overall benefit to the nation''

   Develop a strategy to reduce fishing capacity

   Resolve access to fishery resources

   Resolve the individual fishing quota moratorium

   Develop clear allocation criteria

   Clarify the respective roles of the regional fishery 
        management councils, their advisors, the National Marine 
        Fisheries Service, the Secretary of Commerce and Congress

   Diversify participation in the regional fishery management 
        council system

   Consider user fees as a means of cost recovery or to provide 
        returns to the public

   Define the role of industry in data collection and research

   Strengthen the biological scientific basis for fishery 
        management

   Strengthen the social scientific basis for fishery 
        management

   Develop an evaluation framework

   Strengthen education and training

   Bring fishery management incentives into line with long-term 
        goals for fisheries

    As we observed in Fishing Grounds: ``These choices are not easy, 
particularly when much of what Americans value about fishing are its 
history and tradition--which will inevitably come in conflict with the 
future realities of fishing. Will we learn from this history, or cling 
so steadfastly to tradition that we are doomed to repeat it?''
    Thank you for the opportunity to share these views. I will be 
pleased to answer any questions.

    Senator Kerry. Ms. Dalton? Welcome back.

         STATEMENT OF PENNY DALTON, VICE PRESIDENT AND 
              TECHNICAL DIRECTOR, CONSORTIUM FOR 
          OCEANOGRAPHIC RESEARCH AND EDUCATION (CORE)

    Ms. Dalton. Good morning, Mr. Chairman and Members of the 
Committee. Thank you for inviting me to testify. I'm Penny 
Dalton, vice president of the Consortium for Oceanographic 
Research and Education. It's an association of 66 of the 
country's leading ocean science institutions. I also was of 
course, a former head of the National Marine Fisheries Service 
and a staffer on this Committee.
    Earlier this year, all the former NMFS directors were 
invited by Bill Hogarth to spend a day and a half together 
comparing notes. We went to Galveston and discussed the agency 
over the past 30 years. What was really striking about the 
experience was not the differences among us, although there was 
a fair spread in age and also in background, but rather the 
similarities of the experiences that all of us had had. 
Controversy and political pressure, budget constraints, 
difficult regulatory decisions, and scientific uncertainty are 
not new to the National Marine Fisheries Service. And many of 
the remedies also remain the same: improved communications, 
transparency in the process, an investment in better science.
    On the other hand, the former directors recognized that the 
problems the agency currently faces are particularly serious. 
In my statement this morning, I'd like to highlight five 
issues.
    First is what everyone has talked about this morning, 
regulations and court cases. Both have risen pretty strikingly 
since 1996, but it's been for a variety of reasons. One of the 
things that hasn't come up is that the Regulatory Flexibility 
Act became judicially reviewable in 1996, so you began to see 
court cases brought under that. So there are a lot of things 
that people don't think about that really do impact litigation.
    Probably the biggest problem, though, is that NMFS often 
doesn't succeed whenever a court case is brought and decisions 
are challenged. Before 1994, the government lost very few 
cases. In the past 4 years, more cases have been lost then won. 
This raises the expectations of potential litigants, and issues 
that you could resolve by the give and take in the regulatory 
process end up in the courts.
    I agree with Suzanne that litigation has a positive side. 
It pointed out needed areas for investment, like collection and 
analysis of social and economic information. It also led to 
efforts by the agency to do a better job with laws like the 
National Environmental Policy Act. But losing lawsuits is 
really bad for morale, and litigation places greater demands on 
personnel to meet court requirements and deadlines.
    The second issue is budget. This is one area where Congress 
has contributed to real progress since the Kammer Report. The 
biggest remaining hurdle may be to reach agreement on a budget 
structure that provides adequate flexibility to address things 
that you don't expect to come up at the agency but also ensure 
that all of the administration and congressional priorities are 
met.
    The third one, that hasn't come up very much this morning, 
is work force trends. The NMFS staff is among the most 
dedicated and talented in the Federal Government, but they're 
getting older. A 2000 NRC report on recruiting fishery 
scientists pointed out that up to 50 percent of the NMFS's 
scientists could retire within 5 years. This graying of the 
work force is a potential serious near-term loss, but it also 
offers an opportunity to develop new skills and expertise in 
areas such as social science, stock assessments, and ecosystem 
management. It also provides a chance to seek greater work 
force diversity.
    Fourth is the interaction of NMFS's missions and legal 
mandates within the laws it administers and with those of other 
state agencies and international organizations. In the fishery 
management process, roles are not well defined among NMFS, the 
fishery management councils, interstate fish commissions, and 
the states. Far too much time is spent wrestling for control 
because there are no clear boundaries. It's a little like 
throwing together several large jigsaw puzzles, with each of 
the laws being a puzzle. Each individually forms a coherent 
picture, but it's difficult to assemble a collective picture of 
the ecosystem from the combined pieces.
    The fifth, and one that is near and dear to the CORE 
institutions, is improving NMFS science. Not surprisingly, our 
institutions recommend that NMFS pursue a strong program of 
extramural basic research. In 2000, CORE held a workshop on the 
role of scientific information in fisheries management. The 
panel recommended support for collaborative research efforts. 
They also felt that while NMFS's research methods are sound, 
peer review is limited, and this can undermine its credibility. 
Nonetheless, long-term NMFS records have been invaluable for 
studying changes that occur at the ecosystem level, and the 
records should be made widely available to academic researchers 
and others. This, again, highlights the need to look at 
ecosystem management. It's a little bit like the weather. 
Everyone talks about it.
    With support from NMFS and private foundations, CORE 
currently manages a research program called the Census of 
Marine Life. The goal of the Census is to expand our 
understanding of quantity and distribution of life in our 
world's oceans so that changes can be monitored and understood. 
It's unique among global marine research programs in focusing 
on diversity.
    An ecosystem approach to both science and management could 
provide a rational mechanism to move NMFS out of its current 
reactive management approach. The big question is how to get 
there. What is needed is an opportunity for the agency to work 
with its constituent groups and without the help of folks like 
OMB to define long-term priorities and a strategy to improve 
our understanding and sustainable use of living marine 
resources.
    The toughest criticism of NMFS usually comes from its most 
consistent supporters--fishermen, anglers, environmentalists, 
and the Congress--who genuinely want the agency to succeed. 
Once priorities are established, it will be necessary to 
evaluate current laws and practices and make necessary changes. 
The strategy must address still unresolved issues like 
overcapacity and access, user fees, agency and organizational 
roles in the transition to ecosystem management. Although 
intellectually challenging to develop, and politically 
difficult to implement, it would offer real promise for 
breaking out of crisis management. As part of the evaluation, 
consideration should be given to the development of new 
legislation that would incorporate existing single-focused laws 
into an ecosystem-based management approach.
    Today a new commission on ocean policy is considering the 
elements of a comprehensive national policy. That commission 
should be audience for the outcome of the NMFS priority-setting 
process. The difficulty of such an effort may seem overwhelming 
when one considers the breadth and complexity of the issues 
facing NMFS. Nevertheless, with the support from this 
Committee, I am confident that it is a goal that can be 
reached. Thank you.
    One last comment. I think one thing that you really do need 
to do is separate out short-term and long-term goals. Most of 
the things you've been talking about this morning are short-
term needs. And the kinds of things that Ray Krammer and Bill 
Hogarth have been working on are really going to help address 
them. But I also think that we haven't paid enough attention to 
the long-term aspects of the problem.
    Thank you.
    Senator Kerry. I think we would concur with that. I wanted 
to actually ask a question about the long-term.
    [The prepared statement of Ms. Dalton follows:]

   Prepared Statement of Penny Dalton, Vice President and Technical 
  Director, Consortium for Oceanographic Research and Education (CORE)

    Good morning, Mr. Chairman, and Members of the Committee. Thank you 
for the opportunity to be here today. I am Penny Dalton, Vice President 
and Technical Director of the Consortium for Oceanographic Research and 
Education (CORE), an organization that represents 66 of the nation's 
leading academic institutions in the ocean sciences. While my testimony 
includes CORE views on fishery-related research and education issues, 
its primary focus will be on my experience as former director of the 
National Marine Fisheries Service (NMFS).
    My tenure with NMFS was relatively brief--just 21 months--but what 
it lacked in length was more than made up by the intensity of the 
experience. When I came to NMFS, my goal was to initiate some needed 
changes. For years, NMFS has been an agency of concern for fishermen, 
environmentalists, state officials, and the Congress. Through 
incremental changes in the responsiveness and transparency of the 
agency decision-making process, I hoped to begin to address those 
concerns.
    Unfortunately, my existence was taken over by regulatory processes, 
litigation, negotiations, Secretarial briefings, Congressional 
testimony, public meetings, budget problems, and reporting deadlines. I 
found that the pace and immediate requirements of day-to-day operations 
drove the organization, subsuming efforts to develop or pursue long-
term goals. Life at NMFS was a little like being on the F/V Andrea Gail 
in the Perfect Storm; you constantly felt that the next wave might well 
be the one that would capsize the boat.
    There also were enormously positive aspects. For the most part, the 
NMFS staff must number among the most dedicated in the Federal 
Government, working long hours to meet impossible deadlines in the face 
of almost constant controversy. While the agency frequently was the 
subject of criticism, the comments usually were well-intentioned and 
came from stakeholders--fishermen, anglers, environmentalists, and the 
Congress--who genuinely wanted NMFS to succeed. Over the years, this 
support has been essential for maintaining the integrity and morale of 
the agency and I want to take this opportunity to thank those of you 
here who have been part of that effort.
NMFS Management and Budget Challenges
    How did we get to where we were in March 2000? To answer that 
question, Deputy Under Secretary Scott Gudes and I commissioned an 
independent review of the NMFS budget and management processes. We were 
delighted when Ray Kammer, head of the National Institute of Standards 
and Technology and the former NOAA Deputy Under Secretary, agreed to 
head the review team. He delivered his initial report in June 2000. In 
addition, other groups, including the H. John Heinz III Center for 
Science, Economics and the Environment (Heinz Center) and the National 
Research Council (NRC) examined different aspects of the agency's 
mission and operations. Collectively, these reports point out a number 
of challenges that must be addressed by NMFS if it is to move beyond 
its current problems.
    Regulations and litigation. In 2000, NMFS regulatory activities 
ranked fourth among federal agencies based on the number of 
publications in the Federal Register. The top three were the 
Environmental Protection Agency, the Federal Aviation Administration 
and the Federal Communications Commission. While the Federal 
Communications Commission budget is relatively modest, the other two 
agencies have budgets and personnel numbers that far exceed those of 
NMFS.
    Accompanying this intense regulatory activity has been a surge in 
litigation. Beginning in 1996, legal challenges have risen from an 
average of 1 or 2 each year to a current high of 26 in 2001. While much 
of the rise has been blamed on enactment of the Sustainable Fisheries 
Act, a larger proportion of the new cases have been challenges under 
the National Environmental Policy Act, the Endangered Species Act and 
the Regulatory Flexibility Act. For example, a major contributor to the 
agency's caseload came about when the Regulatory Flexibility Act became 
subject to judicial review in 1996.
    More troubling than the cases themselves has been the decline in 
the ability of NMFS to prevail when agency decisions are challenged. 
Before 1994, the government lost very few cases. In recent years, 
however, this record has been reversed and in the last four years the 
agency has lost more cases than it has won. This gives rise to 
expectations of success by other potential litigants, and issues that 
might have been resolved by the give and take of the regulatory process 
are remanded for consideration by the courts.
    The rise in legal activity has had both positive and negative 
effects on NMFS. On one hand, it has served to point out programmatic 
areas where additional resources are necessary, such as the need to 
improve the collection and analysis of social and economic information 
relating to the marine activities NMFS regulates. Litigation also has 
led to greater awareness of and investment in strengthening agency 
compliance with procedural statutes such as the National Environmental 
Policy Act. On the other hand, the litigation itself creates demands on 
personnel to meet court requirements and deadlines. This may cause the 
agency to fall further behind in the regulatory process in other areas, 
since the people responding to the court requests are also integral to 
the regulatory process. In addition to the increased workload, a 
negative court decision often has a serious adverse impact on morale 
and contributes to staff ``burnout'' that can negatively affect agency 
capabilities to respond in subsequent cases.
    Budget constraints. While NMFS has received substantial funding 
increases over the past decade, severe fiscal constraints persist in 
some regions. The Kammer report highlighted a number of contributing 
problems in the NMFS budget structure, including: (1) failure to fund 
full costs for non-discretionary increases like pay raises; (2) 
dedication of budget increases to new initiatives and stagnant funding 
for base program activities; (3) lack of base budget analyses; and (4) 
delays in allocation of appropriations and limited flexibility due to 
proliferation of budget accounts. In the time period since the Kammer 
report was completed, Congress and the Administration have worked 
together to address overall budget shortfalls, substantially increasing 
the funding available to the agency. In addition, Dr. Hogarth is 
continuing efforts to develop procedures for base budget analysis and 
to improve the allocation process. The biggest remaining short-term 
challenge in this area may be to reach agreement on a budget structure 
or process that provides the agency with adequate flexibility to meet 
unanticipated needs but still ensure that Administration and 
Congressional priorities are met.
    Interacting missions and legal mandates. NMFS is the federal agency 
with primary responsibility for stewardship of this nation's living 
marine resources. However, that mission and legislative authority 
interact with those of other federal and state agencies and 
international organizations, and the boundaries among these entities 
are often far from clear. The Department of the Interior, the 
Environmental Protection Agency, the Army Corps of Engineers, and 
international fishery commissions all have statutory mandates for 
programs that directly affect living marine resources. Even within 
NOAA, the National Ocean Service has responsibility for coastal zone 
management and marine sanctuaries and the National Sea Grant College 
Program carries out important research, outreach and education 
activities. Nor are the relative roles well-defined in the fishery 
management process among NMFS, the regional fishery management 
councils, the interstate marine fisheries commissions and the states. 
As a result, far too much time is spent in debating who is in charge 
and in competing for fiscal resources.
    Another obstacle to effective marine resource management is that, 
while a number of entities may be affected by or have defined roles in 
the decision-making process, legal accountability is construed 
narrowly. The result is that participants such as the regional fishery 
management councils are important in formulating fishery regulations 
but are not formal participants in a legal challenge, even if they are 
willing to be. Similarly, the councils have no legislatively defined 
role in development of a biological opinion under the Endangered 
Species Act for fisheries that affect a listed species. This situation 
contributed substantially to initial problems in the biological opinion 
for the North Pacific groundfish fishery. It was effectively addressed 
through administrative action to include the North Pacific Council as a 
full partner in the process. A related issue is the application of our 
marine resource statutes to U.S. participants in international 
fisheries, particularly where there is a U.S. mandate to take 
conservation action, but little international consensus on the need. 
Consequently, our fishermen may be restricted in their activities while 
foreign fishermen operating in the same international waters continue 
to fish with the potential to undermine U.S. conservation efforts.
    These and similar examples illustrate the need for flexibility and 
cooperation in the dealing with interacting missions and laws. In the 
areas where NMFS has been able to work through an interjurisdictional 
process, the agency has achieved some notable successes, like the 
recovery of Atlantic striped bass populations and steady increases in 
the number of endangered Kemps Ridley sea turtle nests.
    Workforce trends. Over the next decade, one serious concern for 
NMFS will be the ``graying'' of its workforce. In July 2000, the Ocean 
Studies Board of the NRC conducted a workshop on recruiting fishery 
scientists. The report of that workshop states that, ``Similar to other 
federal agencies, NMFS anticipates regular retirement of 30 percent of 
its scientists within the next 5 years; an additional increment of as 
much as 20 percent will leave because of early retirement incentives.'' 
That translates into a potential loss of up to half of the agency's 
scientific workforce within a relatively short period of time.
    In addition to replacing retired scientists, NMFS also must respond 
to changes in the skills and expertise needed by existing and potential 
personnel. The agency already is working with Sea Grant to increase the 
number of economists, social scientists, and stock assessment experts 
on staff. Transition to ecosystem-based management will require 
development of indicators of ecosystem conditions and more attention to 
ocean observing systems that monitor changes in those indicators. 
Training in public outreach, adaptive management and ecosystem function 
also are likely to be priorities. Finally the agency must continue to 
seek greater diversity in its workforce.
    Scientific basis for marine resource management. CORE institutions 
stand ready to assist NMFS in both education and research efforts. The 
CORE institutions represent the best marine research capability in the 
world. Almost all are engaged in scientific investigations relevant to 
fishery resource management to varying degrees and many work with NMFS 
to provide information and analyses for management.
    Much of the research and monitoring work of NMFS is focused on 
stock assessments that answer the narrow question of ``how many fish 
are there?'' These stock assessments have historically been the 
centerpiece of the NMFS scientific effort and are essential for making 
management decisions on individual species. In times of limited 
budgets, NMFS has devoted the majority of its research resources to 
this very important, but necessarily limited endeavor.
    While this research is methodologically sound, it generally 
receives very limited peer review in the conventional sense. Typically 
the need for the data is immediate and management decisions benefit 
from its rapid availability. The data may be examined by regional 
scientific and statistical committees or receive an internal review, a 
practice which does not meet traditional academic standards. Such 
limited review can undermine the credibility of the NMFS scientific 
effort. Nonetheless, these long-term records have been invaluable for 
the re-analysis of changes that occurred at the ecosystem level. Making 
this information more widely available to academic researchers and 
others could add an important dimension to the overall scientific 
effort.
    There is no question but that accurate, timely and comprehensive 
stock assessments are essential for making good management decisions. 
Narrowing the margin of error is in the best interest of all 
stakeholders and controversial decisions based on sound science are 
more likely to be met with agreement than those arrived at by other 
means. In 1998, the NRC noted that ``the quality of data used in five 
stock assessment models was more important than the particular model 
used.'' One major contribution to improving resource information will 
be the construction of a new series of modern fishery survey vessels, 
the second of which is proposed in the Fiscal Year 2003 budget 
currently pending before the Congress. CORE institutions recognize and 
support the strong leadership provided by the Commerce Committee and 
its members on this issue, as well as on the need for renewal of the 
academic research fleet.
    In addition to the new fishery vessels, CORE believes that NMFS's 
scientific credibility could be enhanced if it supported a robust 
program of external independent research that would serve as a 
validation of the rapid, task-oriented, narrowly focused surveys 
conducted by the agency today. In 2000, CORE held a workshop examining 
the role of scientific information in fisheries management. In addition 
to recommending that scientific information pass independent scientific 
review, the panel recommended that collaborative data collection and 
research efforts be encouraged among agency scientists, independent 
scientists and representatives of industry and public interest groups. 
Increased investment in such partnerships should increase the 
reliability and quality of the NMFS scientific effort.
    In addition and as mentioned earlier, NMFS typically has focused 
its scientific effort on science that is very close to the decision at 
hand; be it counting fish or understanding the life cycle of salmon, 
the avenue of investigation has been relatively narrow. We now realize 
the limitations of such an approach and today NMFS is beginning to 
consider managing fisheries as comprehensive ecosystems. In their 2000 
report on marine fisheries data, the NRC recommended that NMFS needed 
to ``[improve its] understanding of the functioning of the marine 
ecosystems affected by fishing activities by studying important non-
target species to determine their feeding habits, their distribution, 
and their prey and predators.'' This inclusive approach to fisheries 
management is one that CORE supports.
    With the backing of NMFS and non-governmental foundations and under 
the guidance of a group of ten senior marine scientists from around the 
world, CORE currently manages a comprehensive research program called 
the Census of Marine Life. The goal of the Census is to expand our 
understanding of the quantity and distribution of life in our world's 
oceans so that changes can be monitored and understood. Its unique 
niche among global marine research programs comes from its focus on 
diversity through the higher levels of food webs, the discovery and 
classification of newly discovered species, and its examination of 
timelines extending back beyond the limits of modern ocean science.
    The benefits of this line of study in such areas as climate change 
and commercial fishery management have become clear. Ecosystem 
management requires the development of new technologies as well as 
knowledge and understanding of poorly studied non-commercial and rare 
species that are the focus of the Census. Earlier this week, the 
Washington Post ran a major story on how jellyfish ``blooms'' affect 
other marine life. One reason that single-species management of 
fisheries around the world has failed to provide sustainability is that 
competition from poorly studied species, such as jellyfish, can 
displace more valuable fish species. Part of the Census is a rapidly 
growing ocean biogeographic information system to house comprehensive 
biological records and to make them available online. The transition to 
ecosystem management will require imaginative and broadly based 
analysis of the best available records, including those from NMFS.
    Without broader knowledge developed from a robust research and 
cataloging effort, such as that being undertaken by the Census, 
ecosystem management of fisheries will be difficult, if not impossible. 
Thus, it is important for NMFS to invest in a strong program of 
independent basic research to support the task of implementing a 
comprehensive ecosystem management strategy.

Conclusion
    The Heinz Center book, Fishing Grounds, stresses the importance to 
NMFS of evaluating the impacts and effectiveness of its management 
decisions. It states that, ``Management decisions tend to be reactive, 
rather than strategic actions based on long-term goals and objectives. 
For this reason, the resolution of one problem often leads to the 
generation of another, and decisionmakers continue to jump from one 
crisis to the next.''
    As Bill Hogarth and Ray Kammer have indicated in their testimony, 
NMFS has taken steps and will soon receive a number of recommendations 
for addressing the challenges outlined above. However, many of these 
steps are short-term solutions that are not likely to move the agency 
out of its current reactive management approach.
    What is needed is an opportunity for the agency to work with its 
constituent groups to define long-term priorities and a strategy for a 
coordinated program to improve our understanding and sustainable use of 
living marine resources and to make the transition to ecosystem 
management. Once those priorities are established, it will be necessary 
to evaluate our current laws and practices and make necessary changes. 
The program must address such still unresolved issues as overcapacity 
and access in fisheries, user fees, agency and organizational roles, 
and the transition to ecosystem management. It would be intellectually 
challenging to develop and politically difficult to implement, but 
offers real promise for breaking out of the cycle of crisis management. 
As part of the evaluation, consideration should be given to the 
development of new legislation that would incorporate existing single 
focus laws into a single, ecosystem-based marine resource management 
statute.
    Today, a new Commission on Ocean Policy has been established and is 
considering the elements of a comprehensive national policy that will 
guide marine resource decisions in the decades to come. The foundations 
of our current marine resource policies can be traced back to 1969 and 
the recommendations of the first ocean commission named for its 
chairman, Julius Stratton. The Watkins Commission should be the 
audience for the outcome of the priority-setting process outlined 
above. The difficulty of such an effort may seem overwhelming when one 
considers the breadth and complexity of the issues facing NMFS and the 
Commission. Nevertheless, with support from this Committee, I am 
confident that it is a goal that can be reached. Thank you.

    Senator Kerry. Thank you very much, all of you, for your 
testimonies. They're helpful, and we'll try to use these next 
minutes as valuably as possible.
    I'll just limit myself to 5 minutes, and then we'll take 
each of our colleagues and see where we wind up.
    Mr. Kammer, just quickly, if we can, I understand you're 
working with the National Association of Public Administration 
and NRC on a report now?
    Mr. Kammer. Yes, we are.
    Senator Kerry. What's the current status of that report?
    Mr. Kammer. The NRC has actually completed their 
deliberations. And they focused on the science and the----
    Senator Kerry. When could Congress expect the report?
    Mr. Kammer. I think we're about 2 weeks away from the 
complete report.
    Senator Kerry. And what are the issues that are going to be 
covered in this report?
    Mr. Kammer. Progress in solving some of the management 
issues that were raised in----
    Senator Kerry. Does it complement the previous study?
    Mr. Kammer. Yes, it does.
    Senator Kerry. It does.
    Mr. Kammer. It follows on from that and expands into some 
other areas.
    Senator Kerry. Are the findings consistent with the 
previous study?
    Mr. Kammer. There have been some improvements. The--one of 
the things that was quite extraordinary is Congress provided 
$19 million in increases for enforcement. Up until 9/11, the 
Marine Fisheries Service relied on the Coast Guard, who 
obviously had other assignments, to assist in enforcement. And 
because that $19 million was there, they were able to establish 
collaborative programs with the states so that they continued 
enforcement.
    Senator Kerry. Let me just ask you quickly, on the 
financial picture, in your preliminary report, you talk about 
the funding proposals, additional base resources needed, and 
you came up with a total increment of $186 million. Over what 
period of time was that? For 1 year?
    Mr. Kammer. That would ultimately be an annualized basis. 
For most of the area----
    Senator Kerry. That figure is much larger than what Bill 
Hogarth said. Dr. Hogarth said $500 million over 5 years, $100 
million a year. You're talking $186 million in the first year 
and each year after.
    Mr. Kammer. Well, Congress provided, in 2001, about $109 
million----
    Senator Kerry. Yes, that was just for 1 year, though.
    Mr. Kammer. It appears from the----
    Senator Kerry. Well, on an annualized basis, I understand. 
But that still leaves you $86 million shy.
    Mr. Kammer. Yes.
    Senator Kerry. So you need that additional.
    Mr. Kammer. Yes. Plus, we did not address adequacy of ships 
for data gathering, because----
    Senator Kerry. So you're not that far off where he was.
    Mr. Kammer. No. No, when he said the number, I thought, 
``Well, that's about right.''
    Senator Kerry. Now, in June of 2000, which is your report--
--
    Mr. Kammer. Right.
    Senator Kerry.--you had a series of--you had an agency 
progress report on requirements. You talked about the FMPs with 
EISs, frequent stock assessments conducted, the marine mammal 
stocks, the ESA, the Endangered Species Act listings, and you 
had a graph showing them at their current levels. In the 2-
years since that, I think that has not changed almost at all, 
has it?
    Mr. Kammer. The only change that I've really been able to 
detect is there were only 41 fishery management plans when I 
did the review. There's now 42. And, of course, the one that's 
been added is----
    Senator Kerry. So that's a 2-year period. It's just been 
stalemated.
    Mr. Kammer. Most of the people that are capable of doing 
this work are also the people that are necessary for assisting 
in litigation.
    Senator Kerry. Okay. Litigation happens because you don't 
have consensus. You have aggrieved parties, or people who sense 
they are aggrieved. Dr. Benton didn't come in here and talk 
about a lot of litigation in Alaska. What does that say about--
does it say anything about the way in which the management 
council is working? Does it say something about the competing 
interests that aren't adequately addressed, i.e., limited entry 
and/or buyout and/or--I mean, aren't the economics simply not 
being addressed?
    Mr. Kammer. That's my personal view, yes, definitely. I 
think that the way out for the non-Alaskan fisheries is 
probably some combination of buybacks to reduce capacity, 
limited entry--don't buy back without limiting entry--economic 
assistance, and economic development. And it's a huge problem, 
and it merits a lot more attention than it's gotten so far.
    Senator Kerry. Let me just move quickly, because I want to 
limit my time so my colleagues get their opportunity there.
    Anybody--particularly Ms. Dalton, I'd like you to address 
this, and Ms. Iudicello--but you're talking about the time out. 
Here we have a monk fish situation where we can't get--for some 
reason, the agency deems itself incapable of making a change to 
allow people to go into a fishery where there's increased fish. 
I mean, that just drives people nuts. Are we really that 
incapable of responding? What's the problem here?
    Ms. Dalton. There was one example I can think of on sea 
turtles. We had emergency regulations to shut down shrimping 
whenever leatherback turtles went through an area. When the 
initial regulations came out, we talked to the shrimpers. They 
said, ``That's fine, as long as you open it back up again.'' 
The way that the regulations were written, there was no way to 
open it back up.
    Senator Kerry. So do we have to change the way it's 
written, or could the Secretary not exercise discretion?
    Ms. Dalton. We have to become more careful upfront. If you 
don't assume that the fishery is going to get better when you 
write the regs, they are geared more toward ratcheting down 
than toward the recovery. So part of the solution is to build 
more flexibility into the rulemaking process so that you can go 
back and adjust things.
    Senator Kerry. Do you think Ms. Iudicello, that would be 
beneficial? We don't want to stop doing that. We don't want to 
leave fishermen for 2 years and stop everything and not change 
that.
    Ms. Iudicello. No. I think Penny's right. The flexibility 
is the issue. And the tighter we have ratcheted down the 
objectives and the numbers and the time, the less flexibility 
the agency has. On the other hand, you know, you don't want it 
to slide back to the pre-1996 situation where there was so much 
flexibility that you couldn't tell if somebody wasn't acting 
when they needed to.
    Senator Kerry. Well, in 1996, I specifically remember 
writing the discretion in. Ms. Dalton, I think you were here 
when we did that. We gave the secretary the power to make these 
decisions where they weren't being made. Certainly we're not 
going to undo that authority. So the Secretary now ultimately 
should have this kind of discretion so he can break deadlocks, 
move forward, have flexibility at a level where it's really 
based on the science, the goals and objectives of the act 
itself. The responsibility has to fall somewhere, ultimately. 
It's the lack of that responsibility for a long period of time 
that's put us in this predicament.
    Ms. Iudicello. I think that's right, and I think Mr. 
Gutting has mentioned it, Dr. Hogarth mentioned it. One of the 
big issues that has caused problems, especially in the 
procedural aspects of ESA, NEPA, and Magnuson, and their 
interface, is this notion of roles and responsibilities. Who is 
in charge? Who is the decisionmaker? When is it really a 
decision? Is it when the council votes, or is it when they make 
a recommendation? I know the agency is grappling with this, and 
they are trying to produce some clarity. At the moment, I'm 
working with the Gulf council as one of the contractors helping 
them produce an EIS, and there still isn't agreement among the 
various offices and lawyers about these issues. So I think 
consistency and clarity of where the responsibilities and 
decisions are for these various actions are very important.
    Senator Kerry. Well, we need to do that. I'm going to leave 
the record open for my own questions to be submitted in 
writing, and any other Senator, for the period that I stated 
earlier. I hope each of you will help us build this record 
adequately and responsibly.
    Senator Snowe.
    Senator Snowe. Thank you all very much. Mr. Kammer, first 
of all, let me just ask you this. Your report was conducted and 
completed in June of 2000, and there's been 2 years since then.
    Mr. Kammer. That's right.
    Senator Snowe. Are there any updates to these 
recommendations? Is that what this other additional report will 
provide? Second of all, which of these recommendations, beyond 
the funding issues, have not been implemented, and why?
    Mr. Kammer. Yes, the NAPA report will update, and----
    Senator Snowe. How will it update the original study?
    Senator Kerry. Could I just interrupt for a minute? I need 
to go to a meeting right now. I'm going, Senator Snowe will 
question, and then Senator Breaux will end the hearing on the 
last question.
    I just want to thank everybody for taking the time. This is 
obviously urgent. We're going to treat it thusly, and we hope 
everybody will help us to do what is thoughtful, sensible, and 
respond adequately, and we thank you for being here.
    Thank you, Senator Snowe.
    Senator Snowe. Thank you.
    Mr. Kammer. In the intervening period, I think a lot of 
progress has been made on law enforcement, on observer and 
cooperative statistics activities, and some of the protected 
species programs. Unmet things still: the NEPA programs, 
socioeconomic analysis is an unmet need, and it's very 
important, and I think the most daunting one is actually stock 
assessment improvements.
    Senator Snowe. Right. I noticed that. I thought it was the 
most notable in your funding request, that, of all the funding 
requests, it represented the greatest increase of $100 million. 
You have said that we should be taking immediate steps to 
improve the situation by providing a comprehensive assessment. 
I sense urgency with respect to that recommendation. So that 
requires some action on the part of Congress and obviously the 
agency, as well.
    Mr. Kammer. Yes. The steps in stock assessment are, you 
have to go out on a ship and gather data. You have to bring it 
back to highly specialized individuals, of which there are 
about 200 educated in the United States today, all, of the 
entire population, there's only about 200. And then they have 
to put them into models and make a prediction, because the 
regulation is all about predicting what next year is going to 
be like, not so much what this year is. And that's very hard. 
The state-of-the-art needs to be advanced. I totally agree with 
Ms. Dalton, that more investment needs to be made in research. 
The models need to get better.
    This is a hard area, and it's almost intractable. It's not 
going to get better quick. Right now, doing a stock assessment 
every 3 years is just crazy. It's not fair. It's not fair to 
anybody in the system to be basing all of your decisions on 
data every 3 years instead of every year.
    Senator Snowe. Do you think that your recommendations, if 
fully implemented, would be able to ease the crisis in 
fisheries management that we have today, especially with this 
litigation-based management? How far would it go toward 
accomplishing that? What recommendations can you make to this 
Committee to help us in improving fisheries management over 
both the short term as well as in the long term?
    Mr. Kammer. I think that there are key steps: program and 
budget reviews, set priorities within the agencies--this is 
something NMFS does to itself; this isn't something other 
people have to do to it--establishing a regulatory calendar and 
putting it on the Internet. It drives the constituents crazy 
that they don't know what the status of a regulation is, and 
then they have to spend money, and then they may be wasting 
their money. It's not a reasonable situation. Simplify 
regulations, make them uniform, get rid of these 13 levels of 
review that Bill alluded to. Nobody's responsible when there's 
13 people reviewing a decision. That's crazy.
    Senator Snowe. That's exactly right.
    Mr. Kammer. Analyze the litigation, figure out where we're 
going wrong so we can fix that and keep doing it. And then 
external review: I'm a firm believer in any laboratory program 
having regular external review so that you can make sure you 
stay near the state-of-the-art and you stay competent.
    Senator Snowe. Ms. Iudicello, you mentioned the fact that 
the system is working. Obviously, there is disagreement in that 
regard, in terms of it working. I certainly wouldn't suggest 
that it's working in the New England groundfish industry. 
Litigation has really overtaken the decisions that directly 
affect the fisheries and it's to the exclusion of almost every 
other decision. That is the problem. Litigation should be the 
last resort, not the first resort. As Mr. Benton said earlier, 
it has perverse consequences as well, because it forestalls 
further progress that can be made in environmental mitigation, 
in protecting the habitat and so on, because it brings 
everything to a halt.
    Do you think that there are some areas which really need 
redress here with respect to the process and the 
inconsistencies, as well as the conflicts between the two 
approaches, between NEPA and the Magnuson-Stevens Act?
    Ms. Iudicello. Well, first, I would like to say that I 
don't think any of the litigation--I haven't analyzed all of 
the cases, but in the cases that I have looked at closely, I 
would agree with Mr. Benton that the Essential Fish Habitat 
litigation did have a perverse result in a couple of regions. 
But I think that if you look at, for example, the lawsuit in 
the North Pacific over Stellers sea lions, there really was a 
lack of compliance with the laws. NEPA is not a new 
requirement. NEPA was on the books before the Magnuson Act, so 
the necessity to comply with that kind of environmental impact 
analysis predated the fishery management planning process. The 
litigation was over an EIS that was out of date.
    I think that if you do what Mr. Kammer is suggesting and 
you analyze the lawsuits and you see where you lost and what 
went wrong, some of them are over substance. They are over not 
meeting the Magnuson Act. Some of them are over procedure, over 
not comporting with regulatory flexibility. And they are not 
all, by the way, from environmental groups. Environmentalists, 
anglers, and commercial fishermen are responsible for this 
litigation. It's not just one stakeholder group.
    So I think it would be glib to say--for me to say that all 
the litigation has been good, or for anyone else to say that 
it's all been bad. I think certainly the consequences of 
litigation are bad, not only for the agency, because it absorbs 
all of their time and energy and people. But it's also bad for 
stakeholders, because if you are not a litigious group or 
person or company, the minute the papers are filed in court, 
you either have to be on the lawsuit or you're standing on the 
sidelines. Maybe you have a great idea to negotiate something 
out. Maybe you have a good idea to do something better, but we 
can't talk--people in that situation can't talk to the agency. 
They are excluded from the process once a lawsuit is filed. So, 
yes, you're either in court or on the sidelines.
    Senator Snowe. Okay. Thank you. I wish we had additional 
time, but I can see that we're progressing toward the vote. 
Thank you all very much, and we appreciate your thoughts.
    Senator Breaux. I just had a question. Ms. Iudicello, I was 
underlining and reading a book. It's a good historical 
perspective of everything that we've done. I remember back in 
the mid 1970's--maybe someone in the audience is old enough to 
remember, as well--that the whole focus of the American 
Fisheries Act, Magnuson Act now, was to get rid of the foreign 
fishermen. In fact, I had coined the phrase in the legislation 
that the purpose of the act was the ``phase-out of foreign 
fishermen.'' Poof, they're gone. P-o-o-f, phase-out of foreign 
fisherman. We accomplished that. But, then the question becomes 
the allocation of those resources to the American fishing 
industry, and that's the real challenge today.
    Mr. Gutting, you point out that in your opinion, that the 
agency has drifted toward protectionism as opposed to, what you 
would consider to be proper management. My question is, isn't 
it--you've got to protect the resource so that you can manage 
so that you can allocate it. If you don't protect it, you're 
not going to have anything left to allocate to commercial and 
recreational, and put enough fish on the table for an American 
consumer, who more and more eats more and more fish, which is 
good, I think. So can you comment on what you mean that they 
are moving toward protectionism?
    Mr. Gutting. Thank you, Senator. Yes. I think their focus 
has been on looking at the fish in the water, and that's very 
important, being sure there are fish going to be in the water. 
But, as you point out, we've got to bring those fish ashore for 
people to benefit from them, whether you're a recreational 
fisherman, whether you're a commercial fisherman, whether you 
just like to go out and look at what's out there, 
nonconsumptive use.
    The users count, and they need to be thought about. Things 
like buyback programs that the Committee expressed an interest 
in is what I'm talking about. We need to focus on the needs of 
people and how to address those needs to make the system work 
for them so we can have the recreation and we can have the 
food. And that's where the agency has not been looking, not 
been creative, not been coming forward with solutions. It's 
left it up to the Congress. It's left if up to you to try to 
fashion some kind of mechanisms. There's no leadership. There's 
no getting-ahead-of-the-problem kind of thinking in the agency.
    Senator Breaux. Well, one of the concerns--I think that we 
created this dual management area--and, you know, I always 
point out that when everyone is in control or everyone is in 
charge, no one is in charge.
    Mr. Gutting. Right.
    Senator Breaux. So we've got the councils--8 councils out 
there making major decisions with a sort of oversight process 
in Washington. We've got Washington, on the one hand, looking 
at it, and we've got the various states with the political 
process of who is on those councils making decisions. So it's a 
natural conflict here, and I'm not sure whether we were right 
back in the 1970's the way we established it or not.
    Mr. Gutting. I think we need to clean up the process and 
make it more efficient. I think we need to be sure that the 
managers have the tools they need to get the job done. And then 
I think we need to hold them accountable.
    Senator Breaux. Penny, you had a comment?
    Ms. Dalton. Yes. An other problem that you've got along the 
same lines is there's no defined role for the councils in laws 
like the Endangered Species Act. A big part of the problem we 
had with Stellar sea lions initially, was how to deal with the 
council and get them involved in the process, as well. So that 
kind of thing creates a real issue, as well.
    Senator Breaux. Well, let me thank all of you. 
We could continue this for a long time. But unfortunately, we 
don't have a long time to continue it. Therefore, I'll thank 
all of you. We'll stay in touch.
    And, with that, the Committee will stand adjourned until 
further call of the chair.
    [Whereupon, at 11:45 a.m., the hearing was adjourned.]

                            A P P E N D I X

              Prepared Statement of Hon. John E. Sununu, 
                 U.S. Representative from New Hampshire

    Mr. Chairman, thank you for allowing me this opportunity to present 
testimony before the Subcommittee, and in particular, for allowing me 
to discuss a matter that I believe is of utmost concern to the men and 
women who fish the Gulf of Maine waters of New Hampshire, Maine and 
Massachusetts.
    Mr. Chairman, the federal groundfish decision handed down two weeks 
ago by the U.S. District Court in the matter of Conservation Law 
Foundation v. Donald Evans, will be, I fear, catastrophic to the in-
shore fishing industry in the state of New Hampshire and to small boat 
owners across the Northeast. The net effect of this ruling will force 
hundreds of small business owners out of business.
    Under this decision, District Court Judge Gladys Kessler declared 
that the National Marine Fisheries Service (NMFS) had not done enough 
to stop overfishing in the Gulf of Maine. As a result of her decision, 
new rules were set forth that close off more sections of fishing areas 
and drop the maximum days at sea a fishing vessel may operate each year 
from 88 to 70. In addition, net sizes were required to be changed to 
allow smaller fish to avoid being caught accidently. The decision also 
set the effective date for these changes as May 1st--just 5 days after 
the decision was handed down.
    We need to strengthen our fish stocks in the Gulf of Maine to 
maintain the long-term viability of the Northeast fishing industry; 
something every fisherman knows. However the rigid decision of the 
Court and the suddenness of its implementation provides no flexibility 
to those who fish the Gulf of Maine waters, and will push many small 
boat owners into bankruptcy.
    Mr. Chairman, over the past few months, I have been working to help 
lessen the blow New Hampshire's fishing fleet might feel as a result of 
any new restrictions on fishing by the court. However, I was surprised 
that the District Court's ruling went beyond the negotiated settlement 
reached between fishing and conservation groups, and I am urging action 
to hopefully remedy the ill-effects of this decision. Just yesterday, I 
wrote to the President and to U.S. Commerce Secretary Donald Evans and 
asked that portions of the decision be reconsidered, or the decision be 
appealed in its entirety by the Administration. I ask unanimous consent 
that a copy of my letter be made a part of the Record.
    Mr. Chairman, we need to look at all our options if we are to 
preserve not only New England's fishing industry but also a sea-going 
heritage that is as old as our nation itself. I would like to commend 
you and Senator Snowe, the Subcommittee's ranking member, for your 
diligence and your hard work on behalf of the Northeast's fishing 
industry over the years and for your continued concern for the well-
being of this crucial component of New England's economy.
    Once again, thank you Mr. Chairman for this opportunity to present 
testimony on such an important issue. I look forward to working with 
you, Senator Snowe and our Congressional colleagues from the New 
England region in our effort to find a remedy to this decision.
                                 ______
                                 
                     United States House of Representatives
                                                        May 8, 2002
The President,
The White House,
Washington DC.

Dear Mr. President:

    U.S. District Judge Gladys Kessler has dealt a devastating blow to 
New Hampshire's groundfish fishing industry with her April 26 ruling 
regarding fishing restrictions in the Gulf of Maine (GOM). I believe 
her order is arbitrary and capricious, and encourage the Administration 
to evaluate opportunities to file for reconsideration or appeal of this 
case.
    In handing down her decision, Judge Kessler exceeded the 
restrictions negotiated in a settlement agreement that resulted from 
mediation between conservation and fishing groups. The Judge deepened 
the reduction in fishing days, or Days at Sea (DAS), that would be 
allowed and closed down additional fishing areas. It is unclear to me 
why she felt compelled to go beyond the agreement reached in mediation.
    Moreover, the order's May 1 effective date is unreasonable. Since 
it will be some time before the groundfish fleet can procure the 
necessary materials to conform to the increased net mesh size mandated 
in Judge Kessler's order, immediate compliance with gear requirements 
is impossible, An appropriate period of adjustment is required.
    According to the information I have received from the fishing 
community, the Judge's decision reflects outdated biological data and 
does not build constructively on the significant progress that has been 
made toward replenishing GOM groundfish stocks. Our fishing community 
supports efforts to rebuild groundfish stocks, and it is my 
understanding that the National Marine Fisheries Service has evidence 
that the stocks are rebounding at a faster rate than the agency 
expected.
    Judge Kessler's ruling as it presently stands creates an economic 
disaster for New Hampshire's in-shore fishery. I do not believe that it 
is appropriate to so callously discard an important part of our culture 
and heritage, to say nothing of the livelihood and future of our 
fishermen and their families.
        Sincerely,
                                            John E. Sununu,
                                                Member of Congress.
    cc: Commerce Secretary Donald L. Evans
                                 ______
                                 
                         U.S. Small Business Administration
                                                       May 17, 2002
Hon. John F. Kerry,
Chairman,
Subcommittee on Oceans, Atmosphere and Fisheries,
Commerce, Science, and Transportation Committee,
Washington, DC.
                               Re: Statement for the Record

Dear Chairman Kerry:

    On May 9, 2002, the Senate Subcommittee on Oceans, Atmosphere and 
Fisheries held an oversight hearing on the National Marine Fisheries 
Service (NMFS) Management Issues. The hearing focused on the current 
state of fishery and protected resource management in the United 
States. The steps that need to be taken to rescue it from its current 
state of crisis were also discussed at the hearing.
    As Chief Counsel of Advocacy, I am charged with monitoring federal 
agencies' compliance with the Regulatory Flexibility Act (RFA) \1\, as 
amended by the Small Business Regulatory Enforcement Act of 1996 
(SBREFA).\2\ I appreciate the opportunity to comment for the record on 
your hearing. Please note that, as an independent office, these views 
reflect the Office of Advocacy's position and do not necessarily 
reflect the views of the Administration or the U.S. Small Business 
Administration.
---------------------------------------------------------------------------
    \1\ 1. 5 U.S.C. Sec. 601 et seq.
    \2\ Public Law 104-121, 110 Stat. 857 (codified at 5 U.S.C. 
Sec. 601 et seq.)
---------------------------------------------------------------------------
    The viability of the fishing industry and the activities of NMFS 
are a great concern to Advocacy. As Dr. William Hogarth, Assistant 
Administrator for Fisheries, National Oceanic and Atmospheric 
Administration (NOAA), stated in his testimony, regulations issued by 
NOAA Fisheries affect not just marine resources but also people, 
businesses, and communities associated with the resources. Advocacy's 
statistics indicate that 99 percent of commercial fishing businesses 
are small.\3\ Many of these small businesses operate out of small 
communities. Those small businesses and communities are directly 
impacted by NMFS activities.
---------------------------------------------------------------------------
    \3\ Employer Firms and Employment by Employment Size by North 
American Industry Classification System Code. United States Census 
Bureau, Department of Commerce, prepared under contract by the Office 
of Advocacy, Small Business Administration, Washington, DC, 1999.
---------------------------------------------------------------------------
    In the past, Advocacy has met with members of the fishing industry 
to discuss their concerns. One of the issues raised by the fishing 
industry during those discussions is NMFS's failure to use the best 
available science in formulating regulations. Dr. Hogarth articulated 
this same concern at the hearing. Specifically, he testified that ``the 
agency's science is sometimes hampered by the lack of adequate data.'' 
\4\
---------------------------------------------------------------------------
    \4\ Testimony of Dr. William T. Hogarth, Assistant Administrator 
for Fisheries before the Subcommittee on Oceans, Atmosphere and 
Fisheries, Commerce, Science and Transportation Committee, U.S. Senate, 
Washington, DC, May 9, 2002, pages 5-6.
---------------------------------------------------------------------------
    Advocacy submits that NMFS's lack of adequate data may have a 
negative impact on small entities associated with the fishing industry. 
Without adequate data, NMFS cannot determine the appropriate course of 
action for protecting the species and the fishing industry. Proper 
science will produce a better foundation for action and aid NMFS in 
performing a more accurate economic analysis for its compliance with 
the RFA.\5\ The proper science may also assist NMFS in developing and 
implementing less burdensome regulatory measures that may be beneficial 
to the fishing industry.
---------------------------------------------------------------------------
    \5\ Ray Kammer, consultant to the panel of the National Academy of 
Public Administration that is reviewing NMFS under a charge from the 
House and Senate Appropriations Committees, identified the RFA as being 
one of seven major laws that have a significant impact on NMFS 
operations. Testimony before the Senate Committee on Commerce, Science 
and Transportation, Subcommittee on Oceans, Atmosphere and Fisheries by 
Ray Kammer, May 8, 2002, pages 3-4.
---------------------------------------------------------------------------
    Several other concepts were discussed at the hearing that may also 
be helpful to small entities. Advocacy supports not only the 
implementation of legislation which will assist NMFS in obtaining and 
using the reliable science, but also other concepts that may assist in 
rescuing the fishing industry from its current state of crisis.
    If you have any questions about this matter, please feel free to 
contact me at (202) 205-6533. Thank you.
        Sincerely,
                                        Thomas M. Sullivan,
                                        Chief Counsel for Advocacy.
                                         Jennifer A. Smith,
                   Assistant Chief Counsel for Economic Regulation.
                                 ______
                                 
        Response to Written Questions Submitted by Chris Oliver 
                           to David Benton *
---------------------------------------------------------------------------
    * Due to Mr. Benton's unavailability, not all of the questions are 
provided with complete answers.
---------------------------------------------------------------------------
    Question 1. In 2000, Ray Kammer of the National Institute for 
Standards and Technology released the report, ``An Independent 
Assessment of the Resource Requirements for the National Marine 
Fisheries Service.'' This report made a number of recommendations for 
improving NMFS' management. What is limiting NMFS' ability to further 
implement some of these recommendations? Which of the recommendations 
do you think NMFS should focus its attention?
    Answer. As stated in written testimony, a major impediment to NMFS 
implementing recommendations lies in the regulatory process mandated by 
NEPA, and the related litigation which takes advantage of the mismatch 
between our process as outlined under MSA, and that which is required 
by NEPA. Excessive layers of review within NMFS, NOAA GC, DOC GC, and 
0MB further frustrate the process. The unique nature of our process 
makes it very difficult to fully comply with all provisions of NEPA, 
even when we are complying with the spirit intended.

    Question 2. One of the Kammer report's recommendations was to 
increase the resources devoted to towards providing better quality 
socioeconomic analysis to address requirements such as the Regulatory 
Flexibility Act and National Standard 8 of the Sustainable Fisheries 
Act. While NMFS acknowledges that socio-economics is important, they 
have yet to demonstrate that socioeconomics is a top NMFS priority, 
particularly when it comes to funding. Exactly where does socio-
economics fit into the councils' list of priorities? From a council 
viewpoint, is socioeconomics given enough importance by NMFS? What kind 
of socio-economics program would be helpful to the councils?
    Answer. Current restrictions in the MSA on collecting economic 
information (from processors) impedes our ability to fully address 
these requirements. However, even with a relaxation on that 
restriction, we are a long ways from being able to conduct fully 
comprehensive assessments of socioeconomic impacts for every action. In 
some cases, the information does not exist, or only allows for 
qualitative, cursory assessments. Emphasis on social and economic 
analysis, and hiring of analysts in these fields, appears to remain a 
lower priority for NMFS. Thousands of biologists are currently employed 
by NMFS, but only a few dozen sociologists and economists nationwide. 
Our Council staff currently has three staff members in this area, or 
about 30 percent of our professional, analytical staff resources. A 
majority of the analyses in this area are conducted by these relatively 
tiny Council staffs (5-8 analysts overall per Council on average), or 
through outside contracting. Greater assignment of economists and 
sociologists from the regional science centers to Council activities 
would be helpful.

    Question 3. The Kammer Report recommended that NMFS implement a 
comprehensive stock assessment improvement plan that would enable NMFS 
to address its need for better resource information. Better stock 
assessments will help bring science to the forefront. From a council 
viewpoint, how would a comprehensive stock assessment improvement plan 
be helpful? What do you see as the roadblocks?
    Answer. Our region currently has a well-respected, comprehensive 
stock assessment program.

    Question 4. Cooperative research programs serve the dual purposes 
of promoting mutual understanding between scientists and fishermen 
(thereby improving relationships and reducing conflict) and serving 
programmatic data collection needs. Expanded efforts in both of these 
areas were recommended in the Kammer report on NMFS. From a council's 
perspective, where do you see needs for new or expanded cooperative 
programs? Do we need a national program for further developing 
cooperative research? Can you tell us about some of the impacts you've 
seen from current cooperative programs?
    Answer. We believe that information from fishermen should be 
utilized to a greater extent. It is unclear whether a national level 
program is the most appropriate way to address the issue, as opposed to 
a more regionally tailored approach.

    Question 5. The issues you face with the North Pacific council are 
in many ways different from those faced by other councils. Therefore, 
in creating federal fisheries management laws, we must strike a balance 
between meeting national standards and maintaining regional 
flexibility. This can become difficult for an issue like capacity 
reduction. Even though capacity problems may vary among regions, there 
may be some rationale for having a nationally-coordinated and 
consistent program for reducing excess capacity. From the council's 
viewpoint, how do we strike the balance between national coordination 
and regional flexibility? Would a nationally coordinated capacity 
reduction program be effective at reducing some fishing pressures? How 
should such a program be designed?
    Answer. Again, we believe that regional issues warrant regional 
solutions. In our region we are already well on our way to reducing 
overcapacity through existing programs. It is important to note that, 
in some regions, overcapacity is viewed as a resource conservation 
issue; i.e., it contributes to overexploitation and other conservation 
concerns, while in some regions (those who operate with strict catch 
and bycatch quotas) overcapacity is simply an economic issue (albeit an 
important one). We believe that each region should be given the 
ability/opportunity for buy-back programs, but we do not support a 
national-level program.

    Question 6. Since the fisheries management council structure was 
created, councils structure and function have been the subject of great 
scrutiny. We know councils have been handed more responsibility over 
time, and the FY03 budget request includes an increase of $1.9 million 
for each council to help meet their increased workload. From your 
viewpoint, are councils empowered with the authority they need to do 
effectively manage fisheries? If you could improve on the council 
structure or function or support in any way, what would you do? Do you 
think council membership truly reflects those who are most affected by 
the fisheries? If not, does this tend to vary by region? How would you 
improve stakeholders' representativeness?
    Answer. The fisheries management process has, in many ways, 
outgrown the infrastructure of the Councils and NMFS. Additional 
funding is certainly helpful, but does not alone solve this problem. 
The threat of litigation, the ever-growing analytical demands to fully 
comply with various laws and avoid litigation, and the ever-growing 
review role and authority of NOAA GC appear to be outpacing the funding 
and infrastructure. We believe the current Council structure in the 
North Pacific does indeed reflect those most affected by the fisheries. 
We also support the current process for appointment of Council members.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. John F. Kerry 
                            to David Benton
Tools Needed to Improve Compliance
    Question. Ms. Iudicello states that the existing compliance system 
isn't always well implemented, She also concludes that while the system 
does not need to be changed, we do need to change the tools and 
resources we provide to NIMFS and the Councils.

         Do you agree?
         What are the tools and resources you see as being essential to 
        this task?
         Given the current litigation burden, is this possible?
         Do you see statutory changes being needed to accomplish this?

    Answer. It is unclear what Ms Iudicello is referring to with regard 
to the phrase ``existing compliance system.'' Therefore, I cannot 
answer this question, other than to make the general statement that 
statutory change is necessary to clarify the authority of the Magnuson-
Stevens Act, relative to NEPA. For example, we believe that compliance 
with the MSA and National Standards satisfies 95 percent of the letter 
of NEPA and 100 percent of the intent of NEPA.
Socioeconomic Analysis
    Question. From reading the ``Kammer Report'' and other reviews, we 
appear to lack the infrastructure necessary to systematically conduct 
socioeconomic analyses mandated under the Regulatory Flexibility Act 
and National Standard 8 of the SF> Each Stock Assessment and Fishery 
Evaluation report (SAFE) is required to summarize the social and 
economic condition of the fishery's recreational, commercial, and 
processing sector, as well as the most recent biological status of the 
fishery.

         Does NMFS currently perform any social science evaluations at 
        the regional level?

    Answer. I understand that NMFS recently hired a social scientist at 
the Alaska Fisheries Science Center. It is unclear what role that 
person will play in the management process. Jam unaware of any social 
science evaluation that occur at the regional level. Most of the work 
in this area has been conducted by the Council staffs, or under 
contract by the Council.

    Question. From your point of view, are Councils better equipped for 
this than NMFS?
    Answer. Presently, none of us are adequately equipped to address 
this aspect of fisheries management. Again, with the very small size of 
Council staff we cannot afford a full-time sociologist, and most of the 
work is done under contract.

    Question. Based on the variations in current Councils make-ups, are 
the personnel in place in each of the regions to adequately perform the 
requirements under Standard 8 of the SFA?
    Answer. Absolutely not. Variations in Council make-ups have little 
or no relevance to staffing in the NMFS regions.
Council Accountability
    Question. While a number of entities may be affected by or have 
defined roles in the decision-making process, legal accountability is 
construed narrowly. The result is that participants such as the 
regional fishery management Councils are important in formulating 
fishery regulations but are not formal participants in a legal 
challenge, even if they are willing to be. Similarly. the Councils have 
no legislatively defined role in development of a biological opinion 
under the Endangered Species Act for fisheries that affect a listed 
species.

         What can be done to address this issue of accountability?

    Answer. While the Councils likely do not want to be the direct 
subjects of litigation, we do believe we have a legitimate role in the 
development of Biological Opinions that is not being recognized by 
NMFS. The legal standing and role of the Councils, and their stature as 
an `executive agency of the Department of Commerce', needs to be 
clarified.

    Question. Have you identified how NMFS can address the concerns of 
the lack of accountability without adding to the complexity of 
management?
    No answer.

    Question. Do you still consider the Councils to be the proper 
mechanism for regional representation?
    Answer. Absolutely.

    Question. If so, how do you respond to criticisms of the Council 
process--including representativeness--and suggest repairing confidence 
among stakeholders?
    Answer. Some of the criticisms of the Council process are really 
misdirected criticisms of the outcomes of the process; i.e., if the 
Council process is not doing what some folks want, or not doing it fast 
enough, they claim the process is flawed. The current process allows 
for State Governors and the Secretary to achieve proper representation 
on the Councils. The unique nature of our process, and the time 
required for promulgating regulations under this process, means that 
stakeholders have to display a level of patience. They also have to 
participate in the current public process, rather than shoot at it from 
the sidelines.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. John F. Kerry 
                             to Ray Kammer
Tools Needed to Improve Compliance
    Ms. Iudicello states that the existing compliance system isn't 
always well implemented. She also concludes that while the system does 
not need to be changed, we do need to change the tools and resources we 
provide to NMFS and the Councils.

    Question. Do you agree?
    Answer. I agree that the compliance system is not always well 
implemented. I also agree that modern equipment such as the Vessel 
Monitoring System (VMS) and additional resources are also needed. I 
think that there are opportunities to expand the use of Joint 
Enforcement Agreements (JEA) and Cooperative Enforcement Agreements 
(CEA). I am also concerned about the downward trend of U.S. Coast Guard 
assistance in supporting NMFS regulations. The number of cutter hours 
devoted by the USCG to NMFS enforcement has declined by 25 percent in 
the last six years and it appears that support will decline another 12 
percent this year.

    Question. What are the tools and resources you see as being 
essential to this task?
    Answer. NMFS needs USCG support to achieve compliance. If this is 
no longer possible because of the necessity to focus the USCG on other 
priorities, I think that NMFS should consider contracting for 
enforcement rather than attempting to staff up and acquire more 
vessels.
    VMS, JEA's and CEA's are all successful enforcement strategies and 
I believe should be expanded. I believe that VMS will be discovered to 
be the most cost beneficial choice in many circumstances where it is 
not now used.

    Question. Given the current litigation burden, is this possible?
    Answer. The litigation burden is onerous. Each case appears to 
require the attention of two NMFS staff members full time. So about ten 
percent of the staff is focused on litigation. The litigation is not 
likely to go away quickly. I think that contracting tasks out is the 
most likely strategy to work in the next few years.

    Question. Do you see statutory changes being needed to accomplish 
this?
    Answer. No, I do not think that statutory changes are needed to 
enforce NMFS regulations.
Measurable Performance Criteria
    While the SFA required NMFS to establish objective and measurable 
criteria to evaluate rebuilding progress, many believe that there is 
also a need to evaluate the effectiveness of the science and the 
management system itself, to promote continuous improvement of the 
system. We also want to have continuous improvement in our management 
measures--i.e., use ``adaptive management''.

    Question. What kind of a performance review would be appropriate 
for the agency and the Councils?
    Answer. I believe that the Assistant Administrator for NMFS should 
hold annual program reviews using announced criteria to evaluate all of 
the NMFS programs for effectiveness and value and share the results 
with the NMFS staff.
    I also recommend that NMFS commit to annual external reviews of 
both management and science with publicly available reports of findings 
and recommendations.

    Question. Given some of our data and analytical gaps, the 
variability of projections, and the interest in using ``adaptive 
management'', do you think that we should try to agree on interim 
performance measures toward rebuilding goals?
    Answer. Absolutely yes, I think that key to improving NMFS is 
committing to making systems and programs better rather than trying for 
a perfect and complete solution that will never be within reach.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Olympia J. Snowe 
                             to Ray Kammer
Need for Resources to Improve Socio-economic Analysis
    In your report, one of the recommendations was to increase the 
resources devoted toward providing better quality socio-economic 
analysis to address requirements such as the Regulatory Flexibility Act 
and National Standards 8 of the Sustainable Fisheries Act. I believe we 
have to better understand these socio-economic factors if we are going 
to improve fisheries management. In the study you and your team 
recommended an increase in socio-economic analysis by $10M. When we 
look at the Administration's Fiscal Year 2003 budget proposal, we see a 
total of $4 million recommended for socio-economic analysis, which is 
only an increase of $1.5 million over the previous year.

    Question. What should be NMFS' plan for developing a comprehensive 
socio-economics program? What additional resources should we direct 
toward this, both in the short and long term?
    Answer. I continue to believe that a total socio-economic program 
of $12.5 million is justified. I also recommend that most of the 
funding be spent on grants to Universities in the affected regions to 
do the analyses. I believe that this approach will be quicker, cheaper 
and result in a more informed product.
Improving Education and Scientific Qualifications Within the NMFS 
        Workforce
    Question. Another one of your report's recommendations was to 
increase the education level and the level of science within the NMFS 
workforce. NMFS personnel work in a very specialized field in which 
corporate knowledge is critical. The report also revealed that the most 
critical personnel shortages are in the areas of stock assessments and 
socio-economics. It is not a coincidence that these are the areas where 
NMFS has its greatest deficiencies. These problems are further 
exacerbated by the fact that 47 percent of the entire NMFS Ph.D. 
population is eligible or will soon be eligible for retirement. What 
should NMFS be doing to implement these recommendations and better hire 
and retain the personnel it needs to carry out its mandates? I 
understand that funding limitations are contributing to this problem. 
What increases in funding do you think NMFS needs to maintain its 
workforce? Should NMFS establish training centers for its employees? 
What other ways could NMFS improve its training? What other obstacles 
is NMFS facing in improving the caliber of its workforce?
    Answer. The total number of qualified fish population modelers in 
Government and University is about 200 people. A few new PhD's in this 
area are awarded each year. The current circumstances will not yield 
qualified people in the numbers that NMFS needs. I believe that NMFS 
will have to make a long term granting commitment to appropriate degree 
granting departments in Universities to increase the number of PhD's in 
the desired disciplines. $20M a year in grants to Universities would 
make a huge difference in this area.
    NMFS can also support the Universities programs by sending its 
staff to Universities to be trained. The relationships established 
while the NMFS staff is educated will yield continuing value for NMFS.
    Morale in NMFS is not good. I think that staff is daring to hope 
that they will have the resources to do their jobs because of 
Congressional support and engaged and capable leadership. NMFS has a 
unique and exciting mission that will continue to attract staff. I 
believe that if the resources are available to accomplish the NMFS 
mission, NMFS will be able to attract and keep high quality people.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. John F. Kerry 
                          to Suzanne Iudicello
1. Need for Statutory Changes
    Question. Some claim the increase in litigation demonstrates the 
need for changes to the Magnuson-Stevens Act--either to make it more 
stringent or to make management more flexible. Others believe most 
problems can be addressed through internal reforms, with some minor 
changes to the law. Still others see that the problems will not be 
addressed by single statute changes, but that a comprehensive legal 
regime may be needed as the nation moves toward ecosystem management.

         In view that the Agency and others have expressed a need for 
        greater flexibility in management, what legislative changes 
        would facilitate the flexibility necessary to streamline the 
        regulatory process?

    Answer. I do not see any need for statutory change to accommodate 
existing legal requirements on the National Marine Fisheries Service. 
To say that either the National Environmental Policy Act or the 
Magnuson-Stevens Fishery Conservation and Management Act must be 
amended because the agency is losing lawsuits is akin to saying we have 
to raise the speed limit because too many speeders are getting tickets. 
If NMFS follows the law, they may get sued, but they won't lose.
    Both NEPA and M-S FCMA contain sufficient flexibility to be 
synchronized and integrated. In fact, you can see by the attached 
diagram that NMFS already has advised the councils and staff who 
prepare fishery management plans on how to integrate NEPA analysis with 
fishery management planning. As early as 1991 the Assistant 
Administrator announced to Regional Directors a policy of evaluating 
the impacts of fishing on the environment and protected species through 
EAs and EISs, and provided guidance in an Administrative Order dated 
June 21, 1991.
    What recent litigation is about is not the incompatibility of 
marine living resource statutes, it is about non-compliance with those 
statutes.
    The difficulty most cited by council and agency staff is one of 
timing. They claim that they cannot mesh the timelines and respective 
requirements for notice, scoping and comment periods of NEPA and M-S 
FCMA. Council and agency staff will point out that periodic stock 
assessments are conducted in the summer, results are available in the 
fall, council decision meetings occur in November or December, with 
decisions on TAC-setting necessary by the beginning of the year for 
many fisheries, at latest by early spring. They state further that this 
4-6 month time frame does not provide sufficient time to conduct the 
kind of environmental analysis anticipated by NEPA.
    This characterization fails to recognize that there is more than 
one alternative to preparation of a full EIS for every annual 
adjustment of the catch quota. It does not take into account the 
possible use of programmatic EIS's, nor does it clearly grasp what NEPA 
is aiming for in analysis of the ``proposed federal action.''
    In my view, the ``federal action'' at hand is authorizing fishing, 
not bumping a TAC up or down by a few thousand pounds in response to a 
new stock assessment every autumn. The decision to authorize fishing--
or not--does not need to be made on an annual basis, and in fact, could 
be made relative to a sustainable fisheries program, a stock recovery 
policy, a regional or ecosystem program, a capacity reduction program, 
or a target range for catch for a period of years. If the agency does a 
thorough job of environmental analysis in a set of programmatic or 
supplemental EISs on entire fisheries, or overall fishery management 
plans--not on an amendment that changes mesh size or ups the catch--
such a document would provide the foundation for subsequent EAs and 
FONSIs or for tiering. (See 40 CFR 1502.20, 1508.28; 40 Questions 
#24(c)).
    One of the other areas most often cited as presenting timing 
difficulties is the triggering of Section 7 Consultation under the 
Endangered Species Act. The issue is that the Office of Protected 
Resources is not called upon to provide consultation on effects on 
endangered species until a preferred alternative has been selected by a 
council. This puts off the sharing of information, advice, and 
consideration of an array of conservation or mitigation measures until 
late in the decision process. If it turns out the preferred alternative 
is likely to cause jeopardy, participants in the process are left with 
the feeling they were ``sandbagged;'' that they have to go back and 
begin again, only to wait until the last minute for another jeopardy 
opinion.
    The problem arises more from the area of fiscal and personnel 
resources than statutory disconnect, however. Nothing in the ESA 
prohibits staff in the Office of Protected Resources from informally 
consulting with councils and fishery managers before an action is 
defined precisely. If OPR had staff to provide expertise and liaison 
with councils and fishery managers on an ongoing basis, rather than 
after a specific alternative needed to be analyzed in a biological 
opinion, the factor of ``surprise'' late in the decision process could 
be avoided. The key question is how can NMFS provide the councils with 
information on impacts of fishery management measures to threatened and 
endangered species associated with the full array of alternatives 
before they select the preferred alternative? This, too, is possible 
without statutory change.
    In my view, the current hand-wringing about ``incompatible 
mandates'' and ``irreconcilable timelines'' has gone on long enough. 
It's time for mangers to find a way to get thorough environmental 
analysis done in a way that informs their decisions, not thwarts them. 
NEPA, ESA and M-S FCMA give them a framework to do that, NMFS guidance 
provides the nuts and bolts of how to do it, and CEQ has repeatedly 
offered its assistance to help find additional flexibility where 
needed.
2. Council Accountability
    Question. While a number of entities may be affected by or have 
defined roles in the decision-making process, legal accountability is 
construed narrowly. The result is that participants such as the 
regional fishery management councils are important in formulating 
fishery regulations but are not formal participants in a legal 
challenge, even if they are willing to be. Similarly, the Councils have 
no legislatively defined role in development of a biological opinion 
under the Endangered Species Act for fisheries that affect a listed 
species.

         What can be done to address this issue of accountability?
         Have you identified how NMFS can address the concerns of the 
        lack of accountability without adding to the complexity of 
        management?
         Do you still consider the Councils to be the proper mechanism 
        for regional representation?
         If so, how do you respond to criticisms of the Council 
        process--including representativeness--and suggest repairing 
        confidence among stakeholders?

    Answer. The ambiguity of roles and responsibilities between 
councils and NMFS, between regions and headquarters, between Office of 
Protected Resources and Office of Sustainable Fisheries has evolved 
because over the years no one at NMFS asserted leadership or demanded 
accountability from the councils. The councils accreted authority as 
NMFS abrogated it. As I read the M-S FCMA and its 20-year legislative 
history, the idea was to use the regional, hands-on expertise of the 
councils and their representative process to develop plans. No where do 
I find a basis for delegating to these bodies the authority of final 
decision-making, promulgating regulations, standing as the government 
in court, or developing biological opinions under the ESA. The councils 
advise the agency. The agency is the decision-maker. But in practice, 
if councils did not produce documents up to the standard of quality 
called for in law, regulations and guidance, NMFS did not disapprove 
them, as it was required to do, but let them go by. NMFS (not the 
councils) got sued, the actions and decisions of record did not pass 
muster, NMFS paid the consequences. Dr. Hogarth has stated that this 
way of doing business is over. He has made clear to regional directors, 
councils and senior management that incomplete documents, insufficient 
records of decision, non-compliant management measures will not slide 
through. If he sticks to his guns, the issue of accountability will be 
resolved, because he has stepped up to the plate and said he will be 
accountable and will hold staff and councils to be accountable also. 
Your question has four parts:

    Question. What can be done to address this issue of accountability?
    Answer. The Congress can support the Assistant Administrator in his 
stance of accountability and hold him to it. Support includes 
appropriations, oversight, communication, and respect for what are 
legislative decisions and what are administrative ones. Micro-managing 
or trying to legislate every decision the agency must make has 
contributed to the current ambiguity. Stakeholders believe (because 
they have seen evidence) that whenever they don't like an agency 
decision they can run to their elected officials and get it changed. 
This has undermined confidence and leadership.

    Question. Have you identified how NMFS can address the concerns of 
the lack of accountability without adding to the complexity of 
management?
    Answer. The Kammer report targets a number of actions that can be 
taken to remove the layers of review through which fishery management 
plans and amendments must struggle. In addition, NMFS staff identified 
in several workshops a number of actions to enhance ``front end'' 
communication and review, before documents and proposed actions are 
developed in detail. I assume that many of these are incorporated in 
``Dr. Hogarth's Plan'' you refer to in Question 3. NMFS staff from 
regions, headquarters, science centers and various offices also 
developed with council executive directors and chairmen a list of 
actions that would more clearly define roles, including where regional 
diversity is important and where consistency is important. For example, 
the decision as to whether council staff, contractors, or agency staff 
prepare EISs for management plans is one that can be made by the 
various councils depending on their particular staffing and expertise. 
What is in the documents, however, needs to be consistent across 
regions and must be vetted by the agency, which is the accountable 
decision maker. All of these suggestions were written up following the 
workshops in May and July of 2001 and provided to Dr. Hogarth.

    Question. Do you still consider the Councils to be the proper 
mechanism for regional representation?
    Answer. Yes. If so, how do you respond to criticisms of the Council 
process--including representativeness--and suggest repairing confidence 
among stakeholders? If there were an area where statutory change could 
be useful, this is probably it. First, the agency, not the councils, 
should clearly have the authority to set an overall catch limit. A 
consultative process using existing advisory panels, scientific and 
statistical committees could interact with the agency, but at the end 
of the day, it must be the Secretary of Commerce/NMFS AA that says how 
many fish. Then it is up to the council to decide by whom, by when, and 
how. If the political climate is not such that this change can be made 
in the law, then it goes back to the overall question of 
accountability: if a council sets a TAC that clearly violates a 
National Standard, the agency must be able not only to disapprove the 
FMP or amendment, but to send it back to the council with a 
recommendation on what will pass muster and why. Secondly, there needs 
to be a reconsideration of the nomination of possible council 
appointees by the governors. We heard testimony at the May 9 hearing 
that some governors repeatedly submit the same names though they are 
rejected by the Secretary of Commerce and do not meet the M-S FCMA's 
requirement to ``ensure a fair and balanced apportionment'' among 
stakeholders. The notion that seats be designated in the Act for 
various interests has never gained much support. Perhaps one or two at-
large seats could be reserved for the Secretary's discretionary 
appointment as needed to ensure balance?
3. Coordinating Marine Statutes
    Question. At the hearing, you and Ms. Dalton both discussed the 
need for coordination or integration of statutes governing management 
of living marine resources.

         Do you think Dr. Hogarth's plan fully achieves this goal?
         If not, what can we reasonably expect from the plan, and by 
        when?
         What additional actions and processes will be require to 
        achieve integration in the long-term?
         Who should be involved in these efforts?

    Answer. Since I am not familiar with ``Dr. Hogarth's plan'' for 
coordination and integration of statutes governing management of living 
marine resources, I cannot comment on the first part of your question. 
Regarding additional actions and processes to achieve integration in 
the long term, there are a number of avenues to consider. First, two 
commissions, one congressional and one private, are now deliberating 
management of both living and non-living ocean resources. Their 
recommendations should be considered in discussions. Furthermore, the 
National Marine Fisheries Service is drafting guidance for 
incorporating ecosystem-based approaches into fishery management. This 
effort, which draws substantially from the report prepared for Congress 
on this subject, will provide additional ideas for consideration.
    Marine resource statutes contain directives to managers to consider 
the ecosystem. Yet these laws produce management regimes that focus on 
single species or species complexes. Some emphasize yield and 
management, others focus on recovery or protection, still others on 
coastal development or multiple use. What are we saying about overall 
U.S. policy toward the marine environment (if we even have an overall 
policy)? Where do the approaches converge or conflict? Do we have any 
mechanism to integrate them? If not, should we? These are questions 
that could be asked in the context of reauthorizations, or in 
consideration of some new enabling legislation for a comprehensive 
living marine resource program, or in further consideration of 
ecosystem-based approaches.
4. Measurable Performance Criteria
    Question. While the SFA required NMFS to establish objective and 
measurable criteria to evaluate rebuilding progress, many believe that 
there is also a need to evaluate the effectiveness of the science and 
the management system itself, to promote continuous improvement of the 
system. We also want to have continuous improvement in our management 
measures--i.e., use ``adaptive management''

         What kind of a performance review would be appropriate for the 
        agency and the Councils?
         Given some of our data and analytical gaps, the variability of 
        projections, and the interest in using ``adaptive management, 
        do you think we should try to agree on interim performance 
        measures toward rebuilding goals?

    Answer. Before you can measure performance, you must establish the 
criteria against which you will evaluate it, which may be the toughest 
step in moving toward evaluation. Chapter 8 of Fishing Grounds is 
devoted to the idea of adaptive management, performance measures and 
evaluation, and is directly responsive to the first part of your 
question. We concluded that routine evaluation is a necessary part of 
helping managers determine whether they have been effective. But even 
those who agree with the idea of evaluation admit that it would be 
difficult. It requires data, criteria and analysis, and at the outset a 
set of objectives we can all agree would be the standard against which 
management is evaluated--not just biological objectives, which we have 
in the National Standards and Guidelines--but also economic and social 
objectives. These have yet to be articulated in fisheries in each 
region.
    With regard to your specific question about interim performance 
measures toward rebuilding goals, this might be useful in determining 
whether management measures have rebuilding on course. I would be 
careful, though, of creating yet another litigable standard.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Olympia J. Snowe 
                          to Suzanne Iudicello
    Question 1. NMFS has received many recommendations to increase the 
resources devoted toward providing better quality socio-economic 
analysis to address requirements such as the Regulatory Flexibility Act 
and National Standard 8 of the Sustainable Fisheries Act. We have to 
better understand these socio-economic factors if we are going to 
improve fisheries management. Fisheries management directly affects--
and is affected by--people and their communities. What should be NMFS' 
plan for developing a comprehensive socio-economics program? What 
additional resources should we direct toward this, both in the short 
and long term?
    Answer. A first step in developing a comprehensive socio-economics 
program would be a commitment to having one. NMFS has increased its 
personnel and resources dedicated to collecting and analyzing social 
and economic information over the past several years, but it is not 
clear that there is a plan or strategy for getting the job done or how 
that job responds to what fishery managers need to know in order to do 
their jobs. A second step would be an analysis of what information is 
needed, where it fits in the fishery management process, and what is 
needed to acquire it. For example, some information is not available 
because the agency hasn't had time or resources to collect or compile 
it. Other information cannot be gathered because of legal constraints, 
considerations of privacy and proprietary information and 
so forth. Something that might be explored is 
whether there are resources or expertise at the Bureau of the Census 
(also in Department of Commerce) that might be called upon to help NMFS 
design a program, or to provide information that is collected for other 
demographic purposes and that can be useful for purposes of defining 
fishing communities and so forth. As to the specific question about 
additional resources, it seems you would want first to see a plan: what 
information is NMFS trying to gather an analyze, what do they need to 
acquire it, how will they go about doing that, by when, and so forth.

    Question 2. Our ability to manage our fisheries stocks is 
significantly hampered by the amount of by-catch that is often caught 
in individual fisheries. By catching the wrong fish or catching 
targeted fish that are too small we are increasing the mortality for 
fish that won't even go to market. In a multi-species fisheries such as 
New England groundfish, the by-catch of species such as cod is hurting 
our rebuilding efforts. How can we improve these efforts to reduce by-
catch? In what ways can we encourage fishermen and scientists to 
research more and better ways to reduce by-catch? What incentives can 
we provide fishermen which will help encourage by-catch 
reductions?
    Answer. One of the best bycatch reduction incentives I have seen to 
date was that associated with the openings of scallop areas that had 
previously been closed on Georges Banks. In this case, the scallop 
opening lasted until a specific bycatch cap of yellowtail flounder was 
reached, resulting in landings of 6 million pounds of scallop meats 
worth about $36 million. With the incentive to keep the lucrative 
scallop fishery open as long as possible, fishermen employed 
techniques, such as communicating among themselves to avoid ``hot 
spots'' where they were taking flounder in association with the 
scallops. The bycatch cap wasn't hit until November, and they cut 
bycatch rates of yellowtail to well below what had been predicted. 
Similar techniques are used in the North Pacific, where bycatch caps, 
communication among fishermen, peer pressure, real-time information, 
observers and gear changes have reduced bycatch rates significantly.

    Question 3. In creating federal fisheries management laws, we must 
strike a balance between meeting national standards and maintaining 
regional flexibility. This can become difficult for an issue like 
capacity reduction. Even though capacity problems may vary among 
regions, there may be some rationale for having a nationally-
coordinated and consistent program for reducing excess capacity. One of 
the concerns raised whenever the issue of overcapacity comes up is the 
loss of the smaller fishermen and their coastal communities. How can we 
better address this issue of overcapacity, without overlooking the 
socio-economic effects? How can we preserve our historic, small fishing 
operations while at the same time reducing pressure on the fisheries?
    Answer. Decisions about the fall-out of capacity reduction on 
coastal communities can and should be made at the local level. I 
believe it is possible to set national standards and priorities for 
capacity reduction, for example, what do we mean by a unit of effort, 
by how much do we need to reduce capacity as expressed by amount of 
effort required to take OY, what will be a standard formula for a 
combination of government and industry support for buyouts, how will 
licenses and latent effort as well as vessels be handled, what will be 
the standard processes for bidding in buyouts and so forth. This is 
necessary so that all regions have an equitable position in their 
capacity reduction efforts, so that vessel owners are treated fairly in 
the process, and the public gets a fair return if tax dollars are used 
to retire effort. When it comes to what the fishery should look like 
after those who want out can do so, that should be flexible, regional, 
and decided at the community level. So, for example, if Region X needed 
to reduce capacity by 60 percent in order to bring effort in line with 
yield in the fishery, it would be up to local people to decide what the 
fleet looked like when the reduction was over: the mix of vessel sizes, 
gear types and so forth. This kind of discussion should occur at the 
council level or even more locally; port by port. One region might want 
one, gigantic catcher-processor while another might prefer 60 30-foot 
hand-liners. As long as the catch in the fishery was within sustainable 
levels and the effort was curbed to the point that vessel operators 
could make a profit without overfishing, in my view it is purely a 
local decision how the fishing gets done. It seems to me that we have 
been unable to discuss this issue nationall (or rationally!) because 
every time one region has a desire to reduce capacity or devise a quota 
system for its own fleet, they are blocked because another region 
doesn't want to allow it, even if no one is compelling them to do so in 
their home territory. It is just as unfair for one region to thwart 
another in its local desires and decisions to undertake capacity 
reduction as it would be for a national program to force a uniform 
reduction program on every region. Effort reduction needs to happen in 
fisheries on every coast in the U.S. It is time for coastal communities 
to articulate what they want their fleets to look like when they are 
profitable and matched to the fishery resource instead of continuing to 
block discussion of the issue because they fear some imagined outcome.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. John F. Kerry 
                           to Penelope Dalton
Role of Ocean Commission
    As NMFS and the Councils struggle to fulfill basic, and often 
conflicting, statutory mandates, it is obvious that there is also an 
urgent need for development of a workable and coordinated management 
regime for all living marine resources. But as Dr. Hogarth observes, 
this kind of thinking requires a ``time out.''
    The National Commission on Ocean Policy, created under the Oceans 
Act of 2000, is planning to address some long-term issues.

    Question. Should we ask the Commission to convene an outside group 
of resource management experts and scientists to look at these 
questions, in consultation with some agency and counsel personnel?
    How else can this Subcommittee assist in this long-range planning 
effort?
    Answer. The National Commission on Ocean Policy represents a unique 
opportunity to take a fresh look at U.S. management and governance 
issues related to living marine resources. Such issues have been a 
primary focus of testimony at Commission regional meetings and in the 
questions raised in its interim report, ``Toward a National Ocean 
Policy.'' Given this national interest, it would be constructive to 
request that the Commission convene a group of independent experts, 
from both inside and outside the government, who are familiar with 
current management regimes. The group would work to develop policy 
options for responding to the issues raised and for exploring more 
coordinated and integrated management. One challenge for the group 
would be to work through issues on a timeline that is responsive to the 
Commission's very tight schedule for completing its work. Another 
challenge would be to define an appropriate scope of discussion. While 
the activities of the National Marine Fisheries Service and the 
Councils are central to development of a comprehensive management 
regime, other parts of NOAA also must be involved, as well as other 
federal agencies, state officials and stakeholders.
    The Subcommittee on Oceans, Atmosphere and Fisheries will continue 
to have an important role in this long-range planning effort through 
continued oversight of NMFS activities, consideration of new 
legislative approaches, and sponsorship and participation in the 
working group.
Need for Statutory Changes
    Some claim the increase in litigation demonstrates the need for 
changes to the Magnuson-Stevens Act--either to make it more stringent 
or to make management more flexible. Others believe most problems can 
be addressed through internal reforms, with some minor changes, but 
that a comprehensive legal regime may be needed as the nation moves 
toward ecosystem management.

    Question. This Committee has been of the general opinion that the 
provisions of the Sustainable Fisheries Act should be fully implemented 
before we could determine the results of the Act. Being that you are 
involved in both the development of the legislation and its initial 
implementation, can you share with us how you would respond to these 
diverging views on statutory needs?
    Answer. There is neither a single cause nor a simple solution to 
the upsurge in litigation over the past five years. As the recent 
report of the National Academy of Public Administration (NAPA) 
indicates, the Magnuson-Stevens Act provides the basis for less than 
half the legal challenges of NMFS decisions or about 40 percent of the 
litigation from 1997 through 2001. NAPA characterizes the increases in 
Magnuson-Stevens Act challenges as ``modest'' and cites major increases 
in cases based on a number of other statutes such as the National 
Environmental Policy Act, the Endangered Species Act (ESA), and the 
Regulatory Flexibility Act. The diversity of this litigation gives rise 
to a wide range of environmental, social and economic consequences when 
an adverse court ruling occurs. For example, although Magnuson-Steven 
Act actions comprised the largest caseload during my tenure with NMFS, 
adverse outcomes on ESA cases generally had more serious implications 
for NMFS and affected communities. In addition, over time the agency 
has lost more than 60 percent of the ESA cases initiated, so even 
though more actions are brought under the Magnuson-Stevens Act, the 
loss numbers under the two statutes are roughly comparable. This 
situation illustrates the importance of dealing with litigation 
comprehensively and to the extent possible through internal agency 
administrative reforms rather than relying on specific changes to 
individual laws.
    With respect to the Magnuson-Stevens Act, both the amendments made 
by the Sustainable Fisheries Act and implementation of those amendments 
have contributed to the increase in litigation. The 1996 changes were 
the most significant revision of the Magnuson-Stevens Act since its 
enactment in 1976. Consequently, some litigation was expected. One goal 
of the Sustainable Fisheries Act was to ensure that the Councils and 
NMFS took timely action to prevent and end overfishing, rebuild fishery 
stocks, and develop management plans. The intent was not to completely 
redo every fishery management plan, but rather to mandate that 
necessary elements of a management regime, such as overfishing 
definitions, were in place for each fishery. Nor were the revisions 
intended to eliminate all flexibility on the part of the Councils and 
NMFS in dealing with complex issues such as multispecies management and 
rebuilding plans. However, NMFS gave up significant agency flexibility 
in its initial efforts to establish clear implementation guidelines and 
substantially increased information requirements. The result has been 
increased pressure on NMFS resources and a strain on its relationship 
with the Councils. Dr. Hogarth currently is completing a review of 
implementation issues that could lead to revision of the guidelines or 
recommendations for changes to the law.
The Future of U.S. Fisheries
    Some suggest that an agency straining to meet legal mandates, 
respond to litigation and implement administrative changes, is not in 
the best position to take a long, critical look at needed reforms over 
the next 5 to 10 years.

    Question. Based on the testimony here today, I can see that the 
need exists to look at the full universe of options to address our 
future needs. Do you feel that NMFS is in the proper place to develop 
such a plan internally or is this something that would be better suited 
to outside or Congressional assistance?
    Answer. NMFS currently is focused on meeting current missions and 
responsibilities, streamlining regulatory processes, strengthening 
outreach and communications, and improving its science. These 
activities are essential to meet the agency's immediate needs and 
should place it on a sounder footing for the future. At the same time, 
the crush of short-term demands leaves the agency with little time or 
resources for looking strategically 5 or ten years down the road.
    As I stated in my written testimony to the Committee, what is 
needed is an opportunity for the agency to work with its constituent 
groups to define long-term priorities, develop a strategy for a 
coordinated program to improve our understanding and sustainable use of 
living marine resources, and begin the transition to ecosystem-based 
management. I don't think that this can or should be done as an 
internal agency exercise, but it is essential that NMFS staff 
participate--not as agency representatives but as experts on the 
science and management of fisheries. The Commission on Ocean Policy and 
the Congress clearly could provide both a forum and an audience for 
such a process. The process could be convened under the auspices of 
these two entities, under an existing organization such as the Marine 
Fisheries Advisory Committee, or through a grant or contract with an 
external non-governmental organization. The strategy must address still 
unresolved issues such as overcapacity and access in fisheries, user 
fees, agency and organizational roles, and the transition to ecosystem-
based management. It would be intellectually challenging to develop and 
politically difficult to implement, but offers real promise for ending 
the current reliance on crisis management. Once the priorities and 
strategy are established, it will be necessary to evaluate our current 
laws and practices and make necessary changes. As part of the 
evaluation, consideration should be given to the development of new 
legislation that would incorporate existing single focus laws into a 
single, ecosystem-based marine resource management statute.
Innovative Techniques
    Mr. Benton outlined some impressive accomplishments in the Alaska 
groundfish fishery that seem to be entirely appropriate for use in all 
parts of the country--including New England. I am particularly 
impressed by the bycatch reduction and the independent scientific 
review process in the North Pacific Council. I also understand that 
they are also pioneering work in ecosystem management.

    Question. What are the barriers to making these techniques work in 
a fishery like the New England groundfish fishery?
    How close are we to getting to multispecies management in the North 
Pacific?
    Would it be beneficial to get the North Pacific Council together 
with our New England council to discuss strategies that might be 
transferable?
    What would you propose to move us along this path?
    Answer. About two years ago, NMFS arranged for John Gauvin, 
Executive Director of the Groundfish Forum, to attend a meeting in 
Gloucester with local fishermen to discuss bycatch reduction. Mr. 
Gauvin has been at the forefront of efforts to reduce bycatch in North 
Pacific fisheries for several years. Members of the New England fishing 
industry seemed interested in his ideas but were somewhat skeptical 
about their applicability in the Northeast. Probably the biggest 
barrier to making new conservation techniques work in New England is 
differences in the management approach adopted by the two Councils. In 
the North Pacific fishery, bycatch limits often constrain fishermen's 
ability to catch the full allocation of the target species, so there is 
a real incentive for them to work cooperatively to provide real time 
information for avoiding bycatch ``hotspots'' and to develop 
technologies for reducing catches of prohibited species. Few similar 
incentives exist in New England. In addition, there are differences in 
fishing operations and in the vessels and gear employed in the two 
regions that may limit direct transfer of techniques from one region to 
the other. This is not to say that we shouldn't continue to work to 
improve communication of good ideas among the Councils and fishermen.
    While there have been problems in a few North Pacific fisheries 
like crab and some salmon runs, the State of Alaska, NMFS and the 
Council have successfully maintained a conservative harvest regime that 
sustains numerous healthy North Pacific fisheries. In fact, the Marine 
Stewardship Council recently certified the Alaska pollock fishery. I 
would defer to Council and NMFS staff in the region on how close they 
are to multispecies management. One of the few positive aspects of the 
Steller sea lion crisis is that it has highlighted the need to 
incorporate broader ecosystem considerations into the North Pacific 
fishery management process.
    I think it would be very beneficial to bring members together from 
all of the Councils to exchange regional strategies that work well. One 
way to do this might be to build on the ongoing Council Chairmen's 
meetings, expanding them to include a symposium or workshop on 
promising new conservation techniques and topics. Other possible 
mechanisms would be to encourage personnel transfers among the staffs 
of the Councils and NMFS, and to ask NMFS headquarters to establish a 
clearinghouse of successful management approaches that have worked in 
each region.
Council Accountability
    While a number of entities may be affected by or have defined roles 
in the decision-making process, legal accountability is construed 
narrowly. The result is that participants such as the regional fishery 
management councils are important in formulating fishery regulations 
but are not formal participants in a legal challenge, even if they are 
willing to be. Similarly, the Councils have no legislatively defined 
role in development of a biological opinion under the Endangered 
Species Act for fisheries that affect a listed species.

    Question. What can be done to address this issue of accountability?
    Have you identified how NMFS can address the concerns of the lack 
of accountability without adding to the complexity of management?
    Do you still consider the Councils to be the proper mechanism for 
regional representation?
    If so, how do you respond to criticisms of the Council process--
including representativeness--and suggest repairing confidence among 
stakeholders?
    Answer. To answer the first question, it is necessary to recognize 
that there are different types of limitations on Council 
accountability. The first is the Councils' limited accountability to 
participate in litigation under the Magnuson-Stevens Act. While I'm not 
an attorney, my understanding is that the Councils have a legislatively 
defined role in the fishery management process, but are not proper 
defendants in a legal challenge against the Federal Government. This is 
because they are not considered to be federal decision-makers but 
rather advisory groups. The only way to alter that limitation would be 
to amend the Magnuson-Stevens Act to clearly vest them with federal 
regulatory authority. This would be a fundamental change in their 
position under the law that would require changes in the appointment 
process to avoid constitutional issues. The second is a limitation on 
accountability stemming from the absence of a defined Council role in 
laws such as the ESA. In the second case, accountability can be 
addressed administratively to the extent consistent with the underlying 
statute. This is the approach that NMFS is taking in situations like 
the Steller sea biological opinion for the North Pacific groundfish 
fishery. An alternative approach would be to amend laws like the ESA, 
similar to the amendment adding section 118 to the Marine Mammal 
Protection Act. This section, of course, establishes a specific regime 
for regulating the taking of marine mammals in commercial fishing 
operations. Either approach would provide NMFS and the Councils with 
greater accountability, but could add to the complexity of management.
    The Councils really are a unique management structure, but we have 
made little effort to objectively evaluate them. When they work well, 
as in the case of the North Pacific and South Atlantic Councils, they 
offer constructive and effective systems for resolving management 
issues and maximizing stakeholder participation. On the other hand, the 
Councils struggle with persistent problems like unbalanced 
representation among interest groups, conflict of interest concerns, 
and uneven work loads. As Senator Breaux pointed out at the hearing, 
many of the provisions applicable to Council selection have been 
revised in almost every Magnuson-Stevens Act reauthorization. In 
preparing for the next authorization, it might be useful to ask an 
appropriate group to develop objective performance standards and 
criteria and conduct an independent evaluation of the effectiveness of 
each Council. The results could be used to make adjustments to 
individual Council areas of responsibility, increasing accountability 
and pulling them together in a more consistent national network. 
Changes to the Council's responsibilities and makeup also should be 
considered as efforts are made to move towards more integrated resource 
management.
The Rx for Fishery Disasters--Regional Plans?
    Sadly, New England has been the site of a very difficult 
transitional process starting with the closure and fishery disaster 
declaration. I look back o the ways we have tried to help our fishing 
communities get through this trying time, and now that we have another 
crisis, I wonder if we could have done it better.
    Penny Dalton has worked through this issue both on the Committee 
and in the agency, and Dr. Hogarth is now struggling with this issue. 
We have learned a lot over the past 6 years. Since we are rethinking 
how we do business I'd like your thoughts.

    Question. How can we best streamline federal assistance when a 
``disaster'' is declared?
    What must be included for communities to successfully transition?
    What are the top 3 barriers to getting there? Can we help break 
through them?
    Does it make sense to call on the Agency and stakeholders to hold 
meetings over the next few months and draft up a plan for the operation 
of the New England groundfish fishery for the next 3-5 years?
    If so, what are the top issues that must be included in such a 
discussion? (I assume that capacity is #1.)
    Answer. Fishery resource failure determinations have covered 
diverse situations ranging from the Long Island lobster die-off, to 
hurricanes in the Southeast, to the collapse of groundfish fisheries on 
both coasts. Because of this diversity, the first step in the process 
must be to clearly define the rationale for the determination and 
identify needed assistance for dealing with it.
    While there was no disaster determination involved, the 
rationalization of the Bering Sea groundfish fishery under the American 
Fisheries Act was probably the most successful transition in recent 
years. It would be useful to evaluate that transition to identify 
transferable strategies for other fisheries. Among the key elements 
were a substantial government and industry funded vessel buyout program 
and allocation of catches through the establishment of fishery 
cooperatives.
    It does make sense to develop a plan for the New England groundfish 
fishery to guide transition to a more sustainable fishery. One of the 
first activities after the initial disaster determination in New 
England was initiation of a ``visioning'' process within New England 
fishing communities to discuss priorities and try to reach consensus on 
common goals for what the fisheries would look like when they were 
rebuilt. While this process generated a lot of good discussion, most 
communities did not complete a long-term recovery plan that could have 
been useful in addressing this most recent crisis. Dealing with 
overcapitalization, latent capacity and impacts on fishing communities 
are top issues that must be included in such a discussion. While 
conservation requirements must be dealt with in the fishery management 
plan, transition planning also should consider the implications of 
management options to address all Magnuson-Stevens Act requirements, 
including identification of essential fish habitat, reduction of 
bycatch and reducing fishing impacts on habitat.
Coordinating Marine Statutes
    At the hearing, you and Ms. Iudicello both discussed the need for 
coordination or integration of statutes governing management of living 
marine resources.

    Question. Do you think Dr. Hogarth's plan fully achieves this goal?
    If not, what can we reasonably expect from the plan, and by when?
    What additional actions and processes will be required to achieve 
integration in the long-term?
    Who should be involved in these efforts?
    Answer. Last year, Dr. Hogarth initiated the NMFS Regulatory 
Streamlining Project (RSP) with the goal of improving the efficiency 
and effectiveness of NMFS operations and increasing compliance with all 
procedural requirements. The project builds on a number of agency-
sponsored evaluation efforts including two that were initiated during 
my tenure with NMFS, the Kammer Report and the Integration Project. 
When fully implemented, the RSP will reduce significantly the number of 
levels of internal review, delegate signature authority for many 
actions from NOAA to NMFS and within NMFS to the regions, strengthen 
and standardize NEPA compliance, and provide staff training. These are 
all actions that should improve accountability within NMFS and reduce 
the agency's vulnerability to legal challenges. The RSP also should 
result in substantial improvements in the coordination and integration 
of living marine resource statutes for which NMFS has responsibility.
    Although the changes proposed by the RSP are long overdue and badly 
needed, the plan by itself will not fully achieve the goals outlined by 
Ms. Iudicello and myself in our testimony. NMFS is the federal agency 
with primary responsibility for stewardship of this nation's living 
marine resources. However, that mission and legislative authority 
overlap with those of other federal and state agencies and 
international organizations, and the interagency boundaries are often 
far from clear. The Department of the Interior, the Environmental 
Protection Agency, the Army Corps of Engineers, and international 
fishery commissions all have statutory mandates for programs that 
directly affect living marine resources. Even within NOAA, the National 
Ocean Service has responsibility for coastal zone management and marine 
sanctuaries and the National Sea Grant College Program carries out 
important research, outreach and education activities. A stepwise 
approach could be used to resolve this broader issue, building on the 
RSP and extending it first within NOAA and then to other agencies. This 
effort should be coupled with the priority setting and strategy 
development process outlined in the response to previous questions.
                                 ______
                                 
    Response to Written Questions Submitted by Hon Olympia J. Snowe 
                           to Penelope Dalton
    Question 1. We are currently caught in an endless cycle of 
litigation-based management. We are experiencing poor management 
decisions leading to litigation which leads to still more poor 
management decisions. More often than not, when NMFS loses a lawsuit it 
is our fisherman that suffer the consequences. Given your experience 
with the Senate, NMFS, and CORE, how do you think we can break this 
cycle of litigation-based management? What steps should NMFS be taking 
both in the short term and over the long term? What internal NMFS 
processes could be improved to end this endless litigation?
    Answer. As I stated previously, there is neither a single cause nor 
an easy solution to the upsurge in litigation over the past five years. 
The recent analysis by the National Academy of Public Administration 
(NAPA) indicates that NMFS has been challenged in the courts under at 
least six statutes and the total number of challenges has risen from an 
average of 1 or 2 each year to a high of 26 in 2001. While much of the 
rise has been blamed on enactment of the Sustainable Fisheries Act, a 
larger proportion of the new cases has resulted from challenges under 
the National Environmental Policy Act, the Endangered Species Act and 
the Regulatory Flexibility Act.
    I believe that the key to these trends and to reversing them lie in 
the agency's win-loss record. Before 1994, the government lost very few 
cases. More recently, however, its success rate has dropped 
substantially and in the last four years NMFS has lost more cases than 
it has won. Put simply, the best way for the agency to deal with 
lawsuits is to standardize its procedures and ensure that it is in 
compliance with the law. For this reason, the focus of recent NMFS 
efforts has been to identify the problems that give rise to litigation 
vulnerabilities and to take steps to correct them. This approach has 
suggested programmatic areas where additional resources are necessary, 
such as the need to improve the collection and analysis of social and 
economic information relating to the marine activities NMFS regulates. 
It also has led to immediate results in a few areas. For example, the 
NAPA report points out that NMFS has strengthened its analyses under 
the Regulatory Flexibility Act and prevailed in every challenge under 
that law in 2000 and 2001.
    Taking this approach, Dr. Hogarth has initiated the NMFS Regulatory 
Streamlining Project (RSP) to improve the efficiency and effectiveness 
of NMFS operations and increase compliance with all procedural 
requirements. The project builds on a number of agency-sponsored 
evaluation efforts including two that were initiated while I was at 
NMFS, the Kammer Report and the Integration Project. The RSP offers 
real promise for strengthening agency compliance with all the statutes 
for which it has responsibility and putting litigation on a downward 
trend.

    Question 2. Over the past couple of years we have repeatedly seen 
NMFS make errors which could have been identified during a review and 
easily corrected. These mistakes range from typographical errors to 
major flaws which should have been highlighted. Unfortunately, these 
errors are made even after several levels of review and inherently lead 
to litigation. In all, this indicates inherent flaws in the NMFS review 
process and suggests that we need to find ways to make NMFS and its 
personnel more accountable. Having seen this process first-hand, how do 
you think we can better hold NMFS personnel accountable? Are additional 
levels of review needed? How would this work?
    Answer. The way to improve accountability within the regulatory 
process is not to add additional layers of review, but rather to reduce 
them. All too often during my tenure with NMFS, I received memos, 
decision documents, and Congressional responses that had serious 
problems in content and even with grammar. A tracking sheet usually 
accompanied the document and was filled with signatures from agency 
personnel who had reviewed it from various perspectives. After I added 
my signature, the document frequently underwent additional layers of 
review in NOAA headquarters, the Secretary's Office and the Office of 
Management and Budget. From this experience I concluded that when 
everyone reviews a document, no one really reads it. Individual 
accountability is lost in a cumbersome and endless clearance process. 
One of the objectives of the RSP is to ensure that agency documents are 
reviewed comprehensively but not unnecessarily.
                                 ______
                                 
                                                     August 1, 2002
Hon. Ernest F. Hollings,
Chairman,
Senate Committee on Commerce, Science Transportation,
Washington, DC.

Hon. Olympia J. Snowe,
Ranking Member,
Senate Subcommittee on Oceans & Atmosphere, & Fisheries,
Washington, DC.

Dear Senators Hollings & Snowe:

    Thank you for the opportunity to testify on May 9 2002 regarding 
the management of the National Marine Fisheries Service (NMFS) as well 
as this opportunity to respond to follow-up questions. The future role 
of the NMFS in conserving and managing fishery resources is a critical 
issue to the members of the National Fisheries Institute (NFI) and we 
welcome the oversight of the Senate Commerce Committee.
    The NMFS has a vital role to play in conserving fishery resources, 
and in promoting their sustainable use by fishermen and fishing 
communities. Over time, however, the agency has drifted away from this 
dual historic mission towards the view that it should be protecting 
resources from users. This drift, we believe, has been accompanied by 
the emergence of a confrontational ``us vs. them'' relationship between 
the agency and its fishing constituents.
    In light of these broader comments, I am pleased to answer the 
questions posed by Senator Snowe:
    As the aquaculture industry develops, it will continue to face 
challenges like poor genetic diversity, disease outbreaks, and 
pollution--all of which can threaten recovery efforts of endangered 
wild Atlantic salmon. Given these interrelated aspects of salmon 
production, NMFS can have an important role in this industry. One issue 
that keeps arising is what NMFS' role in aquaculture should be. What 
does your organization feel NFMS' role in aquaculture should be? How 
would this compare to the role of the Department of Agriculture? Where 
should the jurisdictional line be? Is there anything that Congress need 
to do to better define NMFS' role in aquaculture?
    Aquaculture can and should play a vital role in the future 
production of fish and seafood. Farming fish and seafood is expanding 
rapidly in many parts of the world and is becoming an increasingly 
important for the United States market. Experts advise us that within 
the next few decades, domestic and foreign farming will generate the 
majority of the U.S. supply of seafood.
    Some aquaculture practices do pose environmental risks, 
particularly in marine and estuarine waters. And abuses have occurred. 
As farming matures, however, stringent codes of practice and 
technological advances are addressing environmental concerns. What's 
critical, in our view, is that the future regulation of marine 
aquaculture be based upon the best available science and a scientific 
assessment of both risks and benefits.
    In this regard the NOAA has two important roles to play. One role 
is to foster the development of new food production technologies 
through research and education. The other role is to ensure that 
commercial operations do not damage the environment. The USDA should 
continue to perform these tasks for fresh-water species. NOAA should be 
responsible for marine species.
    There is currently a regulatory vacuum for the development and 
regulation of open-ocean aquaculture. The NMFS does not have clear 
authority regarding farming and other agencies claim jurisdiction over 
some aspect of open-ocean aquaculture, including the Army Corps of 
Engineers and the Environmental Protection Agency.
    Legislation is needed to establish the NMFS as the lead agency with 
regulatory authority to address issues including the impacts of open-
ocean aquaculture on wild stocks and wild fisheries. NMFS also should 
be directed to create incentives for the development of aquaculture 
within the EEZ and promote the development of the industry in a 
sustainable manner.
    Finally, the NMFS should be directed to consider using aquaculture 
technology as an enhancement tool for the recovery and enhancement of 
wild fish stocks. We encourage the Committee to consult with Ken Leber 
at the Mote Marine Laboratory at 941-388-4441, part of the Scientific 
Consortium for Ocean Replenishment and Enhancement (SCORE) about the 
possible role of aquaculture technology in sustainable fisheries 
enhancement.
    In summary, legislation is needed to establish the NMFS as the lead 
regulatory authority, establish promotional and developmental programs 
and incentives, and further research the role aquaculture technology 
can play in wild stock enhancement and rebuilding.
    Our ability to manage our fisheries stocks is significantly 
hampered by the amount of bycatch that is often caught in individual 
fisheries. By catching the wrong fish or catching targeted fish that 
are too small, we are increasing the mortality for fish that won't even 
go to market. In a multi-species fishery such as New England 
groundfish, the bycatch of species such as cod is hurting our 
rebuilding efforts. How can we improve these efforts to reduce bycatch? 
In what ways can we encourage fishermen and scientists to research more 
and better ways to reduce bycatch? What incentives can we provide 
fishermen which will help encourage bycatch reductions?
    Reducing bycatch and waste requires a productive relationship 
between NMFS and fishermen. Establishing such a relationship will take 
time.
    For example, the purported bycatch of scup in other Mid-Atlantic 
fisheries has resulted in the establishment of large Gear Restricted 
Areas (GRAs). The NFI Scientific Monitoring Committee believes, 
however, that the bycatch of scup in these areas is inconsequential and 
has been attempting to engage in cooperative research with the NMFS to 
study this further. It has taken years for the agency to become willing 
to work in a cooperative fashion on this issue.
    New incentives to cooperate are needed for both officials and 
fishermen. One way to encourage cooperation is to designate a portion 
of Saltonstall-Kennedy funds for cooperative research into bycatch 
reduction. Another is to condition a portion of agency funding upon the 
establishment of cooperative agreements.
    In creating federal fisheries management laws, we must strike a 
balance between meeting national standards and maintaining regulatory 
flexibility. This can be become difficult for an issue like capacity 
reduction. Even though capacity problems may vary among regions, there 
may be some rationale for having a nationally coordinated and 
consistent program for reducing excess capacity. How can we address 
this issue of overcapacity, without overlooking socio-economic effects?
    While some argue that overcapacity inherently leads to overfishing, 
in the presence of a robust conservation and management regime, 
overcapacity is fundamentally a socio-economic issue. This accounts for 
the difficulty in defining exactly what is ``overcapacity.''
    The existing authorities under Section 312 of the Magnuson-Stevens 
Act and the Interjurisdictional Fisheries Act provide adequate policy 
frameworks to develop and implement capacity reduction programs that 
are fishery specific. Some policy issues, however, need to be 
considered further by Congress, including:
    Some lament that the removal of latent capacity through a capacity 
reduction or buy-back program has no real-world effect in the present 
and that the compensation of individuals for the removal of such 
capacity is somehow not fair. It is important to remember, however, 
that the removal of latent capacity does eliminate the threat of future 
active capacity and that the owner is compensated, perhaps not for 
present returns on his or her investment, but for the lost future 
opportunity the latent capacity represents.
    Some argue that the costs of buy-back program should be borne by 
the beneficiaries of the capacity reduction, usually considered to be 
the remaining participants in the fishery. The willingness of remaining 
participants to fund buy back programs, however, is contingent upon the 
perceived future benefits. To the extent that the remaining 
participants feel that their investment, not only in their own capacity 
but also in the removal of some of their competitors, will yield a 
reasonable return, they will be willing to invest. However, if the 
return on the investment is inconsistent with the cost, their 
willingness will necessarily evaporate. As a practical matter, 
therefore, government funding may be needed if buy back programs are to 
work. Others argue that government incentives created the excess 
capacity in many U.S. fisheries and that, therefore, government funding 
should be used to solve the problem it helped create.
    Unless some sort of national funding mechanism is established, it 
is likely that the fishermen in many fisheries will be unable to 
generate sufficient funding for capacity reduction, and Congress will 
continue to be asked to fund specific buyback programs.
    For these reasons we believe that Congress should allow 
Saltonstall-Kennedy and Capital Construction Fund resources to be used 
for capacity reduction. However, appropriated dollars may also be 
necessary, both in terms of direct funding and the underwriting of 
federal loans to industry participants.
    The race for fish can generate excessive investments in both 
harvesting and processing capacity. Fish caught quickly need to be 
processed to enter the marketplace. In these fisheries, one sector 
cannot exist without the other. The same social and economic chaos that 
can result from marginally operating harvesting capacity and 
bankruptcies can result from similar primary processing operations. As 
Congress considers rationalizing U.S. fisheries through capacity 
reduction programs, primary processing capacity needs to be considered.
    One way to reduce capitalization is through the assignment of 
individual fishing quotas (IFQs). Consistent with the statements above, 
any new IFQ authority should allow for the inclusion of primary 
processors (both one-pie or two-pie approaches) if the Council 
determines that it is appropriate.
    Once again, thank you for the opportunity to submit these 
additional comments. Please do not hesitate to contact me should you 
need additional information.
        Sincerely Yours,
                                   Richard E. Gutting, Jr.,
                                                 President,
                                      National Fisheries Institute.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. John F. Kerry 
                      to Dr. William T. Hogarth *
---------------------------------------------------------------------------
    * The witness response to the questions was not available at the 
time this hearing went to press.
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Fisheries Observers
    Question. NMFS currently deploys observers to collect fishery 
dependent data in only 11 of the 230 federal fisheries that it manages 
under the authority of the MSA. NMFS also has responsibility for 
monitoring an additional 25 category I and II state and federal 
fisheries under the MMPA, yet currently only has coverage in 7 of these 
fisheries. We have long urged the Administration to improve observer 
coverage, and now increased coverage is being required by court 
decisions--such as the one in New England.

         What is being done to increase this coverage?

         Have you identified how much it will cost to provide adequate 
        observer coverage, nationwide?

         Will you be able to get the required number of observers out 
        for the New England fishery this season?
Socioeconomic Analysis
    Question. From reading the ``Kammer Report'' and other reviews, we 
appear to lack the infrastructure necessary to systematically conduct 
socioeconomic analyses mandated under the Regulatory Flexibility Act 
and National Standard 8 of the SFA. Each Stock Assessment and Fishery 
Evaluation (SAFE) report is required to summarize the social and 
economic condition of the fishery's recreational, commercial and 
processing sectors, as well as the most recent biological status of the 
fishery.

         Does NMFS currently perform any social science evaluations at 
        the regional or national scale?

         Are Councils better equipped for this?

         What is the agency's current staffing capacity to collect and 
        analyze social and economic information relating to the marine 
        activities NMFS regulates under SFA and RFA?

         What plans are there to address this increasing need to employ 
        enough qualified economists, sociologists, and anthropologists?
New England's Capacity Situation
    The District Court Judge in CLF v. Evans has issued an order that 
would substantially reduce effort in the New England Groundfish 
Fishery. The order's baseline method for determining the DAS cut is 
devastating to our inshore fisherman, and I hope that Judge Kessler 
does reconsider that portion of the order. Beyond that, it is important 
for us to understand what the order does to the fishery over the coming 
year.
Effort Reduction by Court Order
    Question 1. How much has the Judge's order decreased effort?

    Question 2. Will the Secretary/you recommend institutionalizing the 
removal of latent permits?

    Question 3. Assuming the removal of latent permits is permanent, 
how much further reduction in effort will be necessary to meet the 
conservation and capacity requirements of the Magnuson-Stevens Act?

    Question 4. Assuming the removal of latent permits and 20 percent 
DAS reduction is permanent, how much further reduction in effort will 
be necessary to meet the conservation and capacity requirements o th 
Magnuson-Stevens Act?

    Loan Prospects While we need to provide short term emergency 
assistance to some of our communities, it would also be sensible to 
embark on long-term planning, through industry-financed voluntary 
buyouts, so that those who stay in the fishery ``pay'' for those who 
want to leave.

    Question 5. How would you recommend we proceed along this path in 
New England? Will the Amendment 13 process suffice, or do we need 
another venue?

    Question 6. Will you work with this Subcommittee on legislation 
that would provide loan authority for capacity reduction--in this and 
other fisheries?
Low Frequency Sonar
    Question. NMFS is considering a request for a letter of 
authorization (LOA) that would allow the Navy to incidentally ``take'' 
marine mammals, which is expected to result from the Navy's proposed 
use of low frequency active sonar (LFA). The intended use of LFA is to 
detect quiet submarines. NMFS plans to make a final determination on 
the LOA by mid-May. NMFS received approximately 10,000 comments in 
response to its notice regarding the Navy proposal, from scientists, 
environmental groups and others.

         I understand that NMFS is poised to make its final 
        determination with respect to the Navy's proposed use of low 
        frequency active sonar, or ``LFA.'' However, it is my 
        understanding that when this new technology was tested on 
        marine mammals for potential impacts, it was tested at decibel 
        levels well below what the letter of authorization would allow. 
        Is that correct?

         Am I correct that if issued, the authorization to the Navy 
        will include conditions that would prohibit the use of LFA if 
        impacts were more adverse on marine mammals than anticipated?
Flexibility in Decisionmaking
    Question. With all this talk of process, it feels like we are going 
down a path of less flexibility in management decisionmaking. The lack 
of flexibility is incredibly frustrating both to fishermen and--I would 
assume--to managers. For example, I understand that when stock 
assessments came back with better news than expected for Monkfish, the 
agency could not issue a rule that would change the 0 harvest default 
rules in time for the season, and the fishery is now closed.
    Let me repeat: We have had to close a fishery that can have 
increased harvest! This makes no sense.

         Doesn't the agency have enough discretion to change management 
        measures when the news is good? What is the sticking point?

         How can we inject flexibility in this process?

         How can expect to meet procedural requirements like NEPA and 
        still make quick decisions that respond to new information?

    Question I understand from your comments that you are working 
through a process to open this fishery in an expedited fashion.

         How long will this process take?
The RX for Fishery Disasters--Regional Plans?
    Question. Sadly, New England has been the site of a very difficult 
transitional process starting with the closure and fishery disaster 
declaration. I look back on the ways we have tried to help our fishing 
communities get through this trying time, and now that have another 
crisis, I wonder if we could have done it better.
    Penny Dalton has worked through this issue both on the Committee 
and in the agency, and Dr. Hogarth is now struggling with this issue. 
We have learned a lot over the past 6 years. Since we are rethinking 
how we do business I'd like your thoughts.

         How can we best streamline federal assistance when a 
        ``disaster'' is declared?

         What must be included for communities to successfully 
        transition?

         What are the top 3 barriers to getting there? Can we help 
        break through them?

         Does it make sense to call on the Agency and stakeholders to 
        hold meetings over the next few months and draft up a plan for 
        the operation of the New England groundfish fishery for the 
        next 3-5 years?

         If so, what are the top issues that must be included in such a 
        discussion?

    I assume capacity is #1.
Innovative Techniques
    Question. Mr. Benton outlined some impressive accomplishments in 
the Alaska groundfish fishery that seem to be entirely appropriate for 
use in all parts of the country--including New England. I am 
particularly impressed by the bycatch reduction and the independent 
scientific review process in the North Pacific Council. I also 
understand that they are also pioneering work in ecosystem management.

         What are the barriers to making these techniques work in a 
        fishery like the New England groundfish fishery?

         How close are we to getting to multispecies management in the 
        North Pacific?

         Would it be beneficial to get the North Pacific Council 
        together with our New England Council to discuss strategies 
        that might be transferrable?

         What would you propose to move us along this path?
The Future of U.S. Fisheries
    Question. Some suggest that an agency straining to meet legal 
mandates, respond to litigation and implement administrative changes, 
is not in the best position to take a long, critical look at needed 
reforms over the next 5 to 10 years.

         Do we know what the goals of U.S. fisheries are over the next 
        10-25 years? Is there a plan in place to develop or pursue 
        long-term goals for fisheries and reconcile some of the 
        difficulties created by the multiple statutes?
Tools Needed to Improve Compliance
    Question. Ms. Iudicello states that the existing compliance system 
isn't always well implemented, She also concludes that while the system 
does not need to be changed, we do need to change the tools and 
resources we provide to NMFS and the Councils.

         Do you agree?

         What are the tools and resources you see as being essential to 
        this task?

         Given the current litigation burden, is this possible?

         Do you see statutory changes being need to accomplish this?
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Daniel K. Inouye 
                      to Dr. William T. Hogarth *
---------------------------------------------------------------------------
    * The witness response to the questions was not available at the 
time this hearing went to press.
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Pacific Islands Region
    The State of Hawaii is blessed with an abundance of ocean and 
marine resources. Situated in the middle of the largest body of water 
on the planet, the state and its people are uniquely poised to serve as 
stewards, managers, and custodians of these natural treasures. 
Regrettably, these efforts have been hampered by a lack of support from 
the Federal Government, and in particular, from the National Marine 
Fisheries Service (NMFS). A few years ago, NMFS recognized the 
deficiencies and considered two strategies: either creating a new 
region for the Pacific, or opening an Pacific Island Area Office 
(PIAO), that would operate like a satellite to the NMFS Southwestern 
region. At that time, NMFS opted to establish the PIAO in the hopes 
that such a satellite would provide the federal support necessary for 
Hawaii's stewardship role.
    Since that time, however, it has become clear that the satellite 
office strategy has proven insufficient to address the large number of 
issues arising in the Pacific, and I am very pleased that the NMFS has 
agreed with this assessment, and is supportive of the formation of a 
new Pacific Islands Region.

    Question 1. Please discuss your vision of the new Pacific Islands 
Region (PIR). Will it be a full, robust NMFS region with real decision-
making authority and ample funding to address the myriad issues arising 
in the Pacific ocean, or will it merely be a re-named PIAO with neither 
funding nor authority to address Pacific issues.

    Question 2. Please discuss your vision of how science and resource 
management will be integrated in the new PIR. Will the NMFS laboratory 
be collocated with the PIR's offices? What steps will be taken to 
ensure that the research conducted by NMFS scientists will directly tie 
in to current resource management issues? How will NMFS scientists 
partner with other researchers from NOAA, the University of Hawaii, the 
Oceanic Institute, and other institutions in order to pool resources 
and more effectively complement one another's efforts.

    Question 3. The current FY02 spending plan for the PIR transition 
funds that the Congress appropriated contains $100,000 for ``PIR 
Science Center Costs.'' Please describe in detail what these costs are, 
and why they are being paid from the PIR transition funds.

    Question 4. What is your time frame for implementing the PIR?

    Question 5. The PIR FY02 spending plan calls for $50,000 for new 
permanent hires, and mentions that $400,000 will be needed in FY03. 
Please describe in detail the new permanent hires that will be made.

    Question 6. The PIR FY02 spending plan calls for $50,000 for 
``Transition Manager Costs.'' Please describe in detail what costs will 
be incurred by the Transition Manager, and explain why they are 
appropriately taken from the PIR transition funds.

    Question 7. Generally, the PIR FY02 spending plan calls for the 
expenditure of funds for different kinds of enhancements to both 
material resources and personnel. Please share with me the underlying 
analysis that led the NMFS to its conclusions as to the specific dollar 
needs in these specific areas. For example, was there a study or needs 
assessment conducted? If so, please share these results with me.
Northwest Hawaiian Island Sanctuary Designation
    Question 1. Detail the NMFS' specific role in working with the 
National Ocean Service regarding the Sanctuary designation process.

    Question 2. Please outline in detail the research and data 
gathering and analysis that you feel must be completed as part of the 
designation process, prior to the identification of a preferred 
alternative. For each level of the outline, please also estimate the 
cost of the individual research and analysis items.
                                 ______
                                 
       Response to Written Questions Submitted by Hon. Ron Wyden 
                      to Dr. William T. Hogarth *
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    * The witness response to the questions was not available at the 
time this hearing went to press.
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    Question 1. BUYBACKS
    As we have discussed, my legislation to get a buyback program going 
on the West Coast has not been embraced by this administration. I asked 
Vice Admiral Lautenbacher last week about this, and he suggested that 
my proposal along with other possibilities for capacity reduction is 
being looked at.
    In addition to my buyback bill, what other actions is NMFS 
considering to address long-term capacity reduction?

    Question 2. BUYBACK FOLLOW UP:
    The buyback bill is a homegrown initiative.
    Do your other ideas have the support of affected fishers?

    Question 3. SLOW RELEASE OF DISASTER FUNDS
    Another issue that seems to come up every year is the slow pace 
with which NMFS and NOAA release disaster funds. Again this year, the 
funds, which I fought to secure for fishers and fishing families, are 
not getting to the recipients within a reasonable time frame. I am 
certain that you will hear about this during your visit to Oregon.
    You know that my legislation seeks to address this bureaucratic 
black hole, and I would like you to comment on what NMFS is doing to 
remedy this situation.

    Question 4. BETTER STOCK ASSESSMENTS
    Stock assessments and fisheries research in general are an 
important part of the management process. And the cooperative research 
program is something that fishers have been very supportive of. But, 
without good, solid information, decision-making becomes a game of pin-
the-tail-on-the-donkey. And it's the fishers and fishing communities 
that end up feeling like the donkey.
    It's my understanding that stock assessments are conducted yearly 
in just about every fishery except the West Coast groundfish fishery, 
where they occur only every three years. You know that I have argued 
for yearly stock assessments for some time. Can you assure me that NMFS 
will begin this year to conduct annual stock assessments for West Coast 
groundfish, and if not, why? What are your concrete plans for further 
improving how we collect and use the data to make management decisions?

    Question 5. BYCATCH
    I received a letter from Vice Admiral Lautenbacher recently that 
addressed some of the steps that NOAA and NMFS are taking to address 
bycatch in our fisheries. In his letter, Vice Admiral Lautenbacher 
mentions that you, Dr. Hogarth, are working on an implementation plan 
to address bycatch, which will be an update to NMFS' 1998 report.
    Now that the courts have ruled against NMFS on the protection of 
Pacific bottom fish, what changes is NMFS planning to address the 
bycatch issue?
                                 ______
                                 
      Response to Written Questions Submitted by Hon. Max Cleland 
                      to Dr. William T. Hogarth *
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    * The witness response to the questions was not available at the 
time this hearing went to press.
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    Questions.
    I have been informed by Georgia officials that the trawl fisheries 
have been closely monitored for stray turtle catches, and I support 
this monitoring. However, also off the coast of Georgia, I have heard 
from officials that shark drift gillnet fisheries in Georgia waters, at 
the height of the season this year, operated unmonitored. Why have 
steps not been taken to protect sea turtles from shark drift gillnet 
fishery at a time when Georgia has recorded high sea turtle mortality 
rates? Is there a reason that the prohibition was not evenly applied to 
both the trawl fisheries as well as the shark drift gillnet fisheries?

    What measures are you taking to ensure that prohibitions are 
applied across the board?

    Do you have records of any of the shark drift gillnet fisheries 
been documented to take sea turtles in recent months?

    Do you have plans to buy out any shark drift gilinet fisherieis 
operating in north Florida?
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Olympia J. Snowe 
                      to Dr. William T. Hogarth *
    Question 1. The Administration has requested a total of $741 
million for NMFS in its FY03 proposal, compared with $796.7 million 
appropriated for FY02. Are there any specific programs that you think 
may be under-funded? If NMFS was authorized additional funding, what 
are the programs that NMFS would channel the money to? NMFS' 
operational budget has shifted more toward management and away from 
research over the past few years. What has been the effect of this? 
Should we be putting more emphasis on research or management? What do 
you think is the appropriate balance?

    Question 2. The New England groundfish litigation recently 
concluded with a decision handed down from Judge Kessler. I was pleased 
to see that this decision was largely based on an agreement that most 
of the parties--including NMFS--reached, but I'm concerned about how 
the additional provisions added by the judge may affect fishermen and 
fishing communities. What are the specific socio-economic impacts on 
fishermen and communities that NMFS is anticipating from this decision? 
Considering the impacts on fish and fishermen, what are NMFS' short and 
long term plans for moving forward in this region? How will NMFS change 
how they work in this post-litigation fishery?

    Question 3. In 2000, Ray Kammer of NIST released the report, ``An 
Independent Assessment of the Resource Requirements for the National 
Marine Fisheries Service.'' This report made a number of 
recommendations for improving NMFS' management. Which of these 
recommendations does NMFS intend to implement? What is limiting NMFS' 
ability to further implement some of these recommendations? Do you plan 
to review the findings of the report and document your actions in 
response to it?

    Question 4. Time after time we see poor communication within NMFS 
leading to poor information being passed to our fishermen and other 
agencies. When the regulations for the new fishing season were changed 
to comply with the ruling in the New England Groundfish litigation, 
NMFS offices were releasing conflicting guidance. On April 19th, the 
Office of Enforcement told the Coast Guard that all vessels with nets 
sizes not complying with the new regulations were to return to port. 
That same day the NMFS Northeast Region sent a letter out to all permit 
holders detailing the new regulations and informing draggers that as 
long as they left before May 1st they could continue to fish with the 
smaller mesh net for the duration of the trip. Unfortunately for 
several fishermen, on May 1st the Coast Guard used the guidance it had 
been given by NMFS Office of Enforcement and sent them back to port for 
not meeting the new regulations. This internal miscommunication led to 
upset fishermen who eventually lost valuable days at sea never mind the 
investment they made in the trip. Unfortunately miscommunications like 
this are all too common. How can get NMFS to better communicate within 
its own agency? Is this an agency culture problem? Is it a technology 
problem? Is this an issue of how NMFS is structured?

    Question 5. Over the past couple of years we have repeatedly seen 
NMFS make errors that should have been identified during a review and 
easily corrected. These mistakes range from typographical errors to 
major flaws which should have highlighted. Unfortunately, these errors 
are made even after many levels of review and inherently lead to 
litigation. In all, this indicates inherent flaws in the NMFS review 
process and suggests that we need to find ways to make NMFS and its 
personnel more accountable. How can we better hold NMFS personnel 
accountable and ensure that these errors are not made in the first 
place?

    Question 6. One of the Kammer report's recommendations was to 
increase the resources devoted to towards providing better quality 
socio-economic analysis to address requirements such as the Regulatory 
Flexibility Act and National Standard 8 of the Sustainable Fisheries 
Act. The Kammer report recommended an increase in socio-economic 
analysis funding by $10 million. When we look at the Administration's 
Fiscal Year 2003 budget proposal we see a total of $4 million 
recommended for socio-economic analysis which is only an increase of 
$1.5 million over the previous year. While NMFS acknowledges that 
socio-economics is important, it has yet to demonstrate that socio-
economics is a top NMFS priority, particularly when it comes to 
funding. Exactly where does socio-economics fit into NMFS' list of 
priorities? What specific steps has NMFS taken to improve its 
understanding and analysis of socio-economic systems? What evidence can 
you provide of progress in this area? What is NMFS' plan for developing 
a comprehensive socio-economics program? What additional resources are 
you directing towards this, both in the short and long term? Do you see 
this as a temporary or permanent part of NMFS' future?

    Question 7. One of my concerns with the recent spate of litigation 
is that no adequate socio-economic analysis has been conducted in 
constructing the remedies. While the remedies may be in compliance with 
other portions of the Magnuson-Steven Act, they may not be in 
compliance with National Standard 8--thereby possibly prompting more 
litigation. To what extent was NMFS able to consider socio-economic 
impacts in constructing its proposed remedies? Do you anticipate any 
countersuits or appeals from the industry, based on the lack of socio-
economic studies required by law? If so, how would this affect the 
status of fish and the fishery? In many western watersheds, critical 
fish habitat designations are being repealed because of claims that 
socio-economic impacts were not considered. This repeal may hurt 
important conservation efforts in some areas. How can NMFS ensure that 
all future management decisions that they make will incorporate 
legally-defensible socio-economic considerations?

    Question 8. Another one of the Kammer report's recommendations was 
to increase the education level and the level of science within the 
NMFS workforce. The people who work for NMFS work in a very specialized 
field where corporate knowledge is critical. The report also revealed 
that the most critical personnel shortages are in the areas of stock 
assessments and socio-economics. It is not a coincidence that these are 
the areas where NMFS has its greatest deficiencies. These problems are 
further exacerbated by the fact that 47 percent of the entire NMFS PhD 
population is eligible or will soon be eligible for retirement. What is 
NMFS doing to implement these recommendations and better hire and 
retain the personnel it needs to carry out its mandates? Funding 
limitations may also be contributing to this problem. What increases in 
funding do you need to maintain your workforce? What other obstacles 
are you facing in improving the caliber of the NMFS workforce?

    Question 9. The Kammer Report recommended that NMFS implement a 
comprehensive stock assessment improvement plan that would enable NMFS 
to address its need for better resource information. Better stock 
assessments will help bring science to the forefront. The report 
recommended that funding for this effort be increased by $100 million. 
What progress has NMFS made in implementing this recommendation? What 
roadblocks are you facing in improving stock assessments? Are there 
enough resources devoted to assessments?

    Question 10. New Hampshire has successfully petitioned the ASMFC to 
allow their lobster fishermen to set 1200 traps inshore or offshore 
under a new licensing scheme that includes an open-access ``limited 
license.'' This would put the thousand-plus Maine lobstermen at a 
distinct disadvantage, undermine cooperative efforts, and violate 
National Standard 4 of the Magnuson-Stevens Act (requiring equal 
treatment of states under fishing rules). This measure was included in 
the proposed rule by NMFS. I have expressed to NMFS and the ASMFC our 
strong concerns about this rule. What is the current status of this 
rule? What, if anything, has NMFS changed about the content of this 
rule? What is NMFS' timeline for proceeding on this issue? If NMFS goes 
forth with this rule, how will it satisfy National Standard 4?

    Question 11. Under the Dynamic Area Management system for right 
whales, NMFS has lowered the threshold to trigger a closure from 5 
whales to 3. Considering the ramifications of a closure triggered by 
sighting, sightings must be accurate and reliable. How does NMFS 
justify that 3 is the appropriate number of whales to trigger a 
closure? Who qualifies as an observer? What kind of training do they 
undergo? A DAM closure has already been implemented in New England 
waters this year, which requires fishermen to temporarily remove all 
fishing gear. Gear removal can be very dangerous to do in the required 
48 hours. I understand that NMFS has stated that gear modification was 
not a current option for a DAM. Apparently, NMFS has yet to do the 
necessary paperwork to allow the use of modified gear, even though you 
can use modified gear within the Seasonal Area Management (SAM) system, 
where we know the whales are going to be. Does NMFS plan to allow 
modified gear in DAM areas? What are your plans for proceeding with 
this? Considering that a DAM is now being implemented, what is your 
timeline on this?

    Question 12. In developing the SAM system, NMFS issued an advanced 
notice of proposed rulemaking dealing with SAMs and solicited comments 
from the public. The notice also indicated that they would prepare a 
full environmental impact statement (EIS) that would include an 
economic analysis of the possible options. Before this could be 
completed, the court ordered NMFS to implement the SAM system, which 
went into effect March 1st. I understand that NMFS still sought comment 
from the public and intends to complete the EIS process. What is the 
status of the EIS? When will it be completed? What can you tell me 
about the findings so far? Is there anything that you think may cause 
NMFS to reopen the rulemaking process and create a new final rule?

    Question 13. As the aquaculture industry develops, it will continue 
to face challenges like poor genetic diversity, disease outbreaks, and 
pollution--all of which can threaten recovery efforts of endangered 
wild Atlantic salmon. Given these interrelated aspects of salmon 
production, NMFS can have an important role in this industry. What role 
should NMFS have in regulating or managing aquaculture? How is NMFS 
planning--now and in the long run--to work with this industry?

    Question 14. The federal recovery plan outline for endangered wild 
Atlantic salmon encompasses much of what was included in the Maine 
Atlantic Salmon Conservation Plan. When completed, the draft recovery 
plan will be put out for public comment and public hearings are likely. 
What is the status of the federal plan? What timeline are you looking 
at? Will you be holding public hearings once a draft is released?

    Question 15. I understand you are reviewing both NMFS' regulations 
and the Magnuson-Stevens Act to determine if changes can be made to 
either to increase flexibility, and that NMFS will have recommendations 
for both regulatory and statutory changes after the review is completed 
this spring. What is the status of this review? What is its timeline 
for completion? At this time can you give me any indication of what 
you'll be recommending? What have you determined about our ability to 
increase flexibility?

    Question 16. Cooperative research programs serve the dual purposes 
of promoting mutual understanding between scientists and fishermen 
(thereby improving relationships and reducing conflict) and serving 
programmatic data collection needs. Expanded efforts in both of these 
areas were recommended in the Kammer report on NMFS. What are NFMS' 
current and future plans on cooperative programs? It's clear how 
cooperative research can help with stock assessments, but what role 
will these programs play in other areas like gear innovation, vessel 
monitoring, and socio-economic impact assessments? Where do you see 
other needs for more cooperative efforts? Do we need a national program 
for further developing cooperative research?

    Question 17. The issues facing one regional council are in many 
ways different from those faced in other councils. Therefore, in 
creating federal fisheries management laws, we must strike a balance 
between meeting national standards and maintaining regional 
flexibility. This can become difficult for an issue like capacity 
reduction. Even though capacity problems may vary among regions, there 
may be some rationale for having a nationally-coordinated and 
consistent program for reducing excess capacity. How do we strike the 
balance between national coordination and regional flexibility? Would a 
nationally coordinated capacity reduction program be effective at 
reducing some fishing pressures? How should such a program be designed?

                                  
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