[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 *
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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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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 *
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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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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?