[House Hearing, 109 Congress]
[From the U.S. Government Printing Office]



                           OVERSIGHT HEARING

                               before the


                                 of the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                        Thursday, April 14, 2005


                            Serial No. 109-6


           Printed for the use of the Committee on Resources

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


20-669                      WASHINGTON : 2005
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800  
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001

                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Eni F.H. Faleomavaega, American 
Elton Gallegly, California               Samoa
John J. Duncan, Jr., Tennessee       Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming               Donna M. Christensen, Virgin 
  Vice Chair                             Islands
George P. Radanovich, California     Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Grace F. Napolitano, California
    Carolina                         Tom Udall, New Mexico
Chris Cannon, Utah                   Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania       Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada                  Jim Costa, California
Greg Walden, Oregon                  Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado         Dan Boren, Oklahoma
J.D. Hayworth, Arizona               George Miller, California
Jeff Flake, Arizona                  Edward J. Markey, Massachusetts
Rick Renzi, Arizona                  Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico            Jay Inslee, Washington
Devin Nunes, California              Mark Udall, Colorado
Henry Brown, Jr., South Carolina     Dennis Cardoza, California
Thelma Drake, Virginia               Stephanie Herseth, South Dakota
Luis G. Fortuno, Puerto Rico
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel


                 WAYNE T. GILCHREST, Maryland, Chairman
        FRANK PALLONE, JR., New Jersey, Ranking Democrat Member

Don Young, Alaska                    Eni F.H. Faleomavaega, American 
Jim Saxton, New Jersey                   Samoa
Walter B. Jones, Jr., North          Neil Abercrombie, Hawaii
    Carolina                         Solomon P. Ortiz, Texas
Thelma Drake, Virginia               Ron Kind, Wisconsin
Luis G. Fortuno, Puerto Rico         Madeleine Z. Bordallo, Guam
Bobby Jindal, Louisiana              Nick J. Rahall II, West Virginia, 
Marilyn N. Musgrave, Colorado            ex officio
Richard W. Pombo, California, ex 

                            C O N T E N T S


Hearing held on Thursday, April 14, 2005.........................     1

Statement of Members:
    Drake, Hon. Thelma, a Representative in Congress from the 
      State of Virginia..........................................    30
    Gilchrest, Hon. Wayne T., a Representative in Congress from 
      the State of Maryland......................................     1
        Prepared statement of....................................     2
    Pallone, Frank Jr., a Representative in Congress from the 
      State of New Jersey........................................     2

Statement of Witnesses:
    Bear, Dinah, General Counsel, White House Council on 
      Environmental Quality......................................     7
        Prepared statement of....................................    10
    Frulla, David, Attorney, Collier Shannon Scott, PLLC.........    42
        Prepared statement of....................................    44
    Furlong, Daniel T., Executive Director, Mid-Atlantic Fishery 
      Management Council.........................................    18
        Prepared statement of....................................    20
    Greenberg, Eldon, Attorney, Garvey Shubert Barer.............    38
        Prepared statement of....................................    40
    Hogarth, Dr. William T., Director, National Marine Fisheries 
      Service, National Oceanic and Atmospheric Administration, 
      U.S. Department of Commerce................................    13
        Prepared statement of....................................    15
    Iudicello, Suzanne, Author/Independent Consultant on Marine 
      Conservation...............................................    33
        Prepared statement of....................................    35

Additional materials supplied:
    National Academy of Public Administration, Statement 
      submitted for the record...................................     3

                              POLICY ACT.


                        Thursday, April 14, 2005

                     U.S. House of Representatives

                  Subcommittee on Fisheries and Oceans

                         Committee on Resources

                            Washington, D.C.


    The Subcommittee met, pursuant to notice, at 10:04 a.m., in 
Room 1334, Longworth House Office Building, Hon. Wayne T. 
Gilchrest [Chairman of the Subcommittee] presiding.
    Present: Representatives Gilchrest, Pallone, Drake, and 


    Mr. Gilchrest. The hearing will come to order.
    This morning, the Fisheries and Oceans Subcommittee will 
hold a hearing on the process that NEPA plays in fisheries 
management plans. I have a statement that I will submit for the 
record, and I ask unanimous consent. Without objection, so 
    We appreciate the witnesses coming here this morning to 
discuss this interesting process of NEPA, and the Fishery 
Management Council's complying with the Sustainable Fisheries 
Act, looking for ways to protect the economic and the cultural 
resources of regions around the country and still fully enforce 
and implement the idea of fishery conservation.
    We are in a process to reauthorize the Magnuson-Stevens Act 
along with the Senate, and we hope, and are fairly certain, 
that that can happen in this particular Congress. We do all 
this in the context of both the Pew Commission and the U.S. 
Ocean Commission and their relevant recommendations in this 
most broad arena.
    We will be looking at reauthorizing the Magnuson-Stevens 
Act, and also dealing with some of the recommendations in the 
study ``Oceans 21.'' We are looking closely at the Ocean Action 
Plan that the Administration is setting forth. And in that 
context, we are trying to understand in a broader way the 
physics and its system in the ocean. How do the oceans work? 
What makes them dynamic? What is the interface between the 
oceans' climate and the atmosphere and the air we breathe? And 
all of that in the context of fisheries.
    This is a small but significant part of that process, the 
National Environmental Policy Act, and how does it interface, 
enhance or duplicate, improve or slow down the process of 
instituting, inculcating science into the councils? Can we do 
all of this in a timely fashion, a proper fashion, and engage 
the fishermen, the scientists, and the community for a well 
laid out plan?
    And it is this hearing where we will exchange that 
information, take advice from all of you, and try to come up 
with a process that benefits both the conservation effort that 
we have been pursuing now for some years, and that lone 
lobsterman off of Bar Harbor, or the lone fisherman facing the 
treacherous waters of the Bering Sea, or those in the Gulf of 
Mexico or other areas of the Pacific or other areas of the 
Atlantic. And also, we don't want to forget our friends in the 
    We look forward to your testimony. We take it all into 
consideration. We will try to create a system that will be of 
great benefit to future generations.
    And I will yield now to the great gentleman from the Garden 
State of New Jersey, Mr. Pallone.
    [The prepared statement of Mr. Gilchrest follows:]

         Statement of The Honorable Wayne Gilchrest, Chairman, 
                  Subcommittee on Fisheries and Oceans

    I would like to welcome the witnesses to today's hearing on the 
relationship between the Magnuson-Stevens Fishery Conservation and 
Management Act and the National Environmental Policy Act (NEPA). Both 
Acts are important pieces of this nation's environmental legal 
framework and fulfill important roles in fisheries management.
    In the Subcommittee's efforts to reauthorize the Magnuson-Stevens 
Act, we have heard a number of times that there may be provisions 
within the two Acts that may not work well together. In particular, we 
have heard that some of the time requirements within the two Acts may 
be duplicative and cause unnecessary delays in making fishery 
management decisions. If this is the case, and I hope we will hear more 
from our witnesses about this issue, we need to examine what can be 
done to maintain the important concepts in both Acts while making 
fisheries management more responsive, timely, and environmentally 
    Since this Subcommittee has not dealt with NEPA in the fisheries 
management context, I want to thank Ms. Dinah Bear, the General Counsel 
for the Council on Environmental Quality, who will start us off with an 
explanation of how NEPA works. We will then hear from other witnesses 
with their views on whether there really is a conflict between the two 
    I look forward to hearing from our witnesses and having a healthy 
debate about how these two important environmental statutes work in the 
fisheries management world. I suspect we will not come to any 
resolution on the issue today and I look forward to working with all of 
you in examining this issue further as we work on the reauthorization 
of the Magnuson-Stevens Act.


    Mr. Pallone. Thank you, Mr. Chairman. I do want to express 
some concern this morning that, while over the past six months 
we have received two major reports describing the crisis facing 
our ocean ecosystems and outlining what Congress needs to do, 
we are holding a hearing on something that, in my opinion, is a 
very minor problem, if there is any problem at all.
    I appreciate in the past that the National Marine Fisheries 
Service has experienced a spike in litigation, and has not had 
a good track record of defending its decisions in courts. 
However, as described in the National Academy of Public 
Administrators report released in February, the agency has made 
dramatic improvements that have reduced litigation and improved 
NMFS' record in court. In fact, the academy's report identifies 
inadequate funding for NEPA implementation as the primary 
challenge to NMFS' continued improvement.
    [The prepared statement of the National Academy of Public 
Administration follows:]

               Statement submitted for the record by the 
               National Academy of Public Administration

    Mr. Chairman and Members of the Subcommittee:
    The National Academy of Public Administration appreciates the 
opportunity to submit this statement for the record regarding efforts 
by the National Marine Fisheries Service (NMFS) to improve the nation's 
fisheries management process. The Academy is an independent non-profit 
organization chartered by Congress to assist public institutions in 
improving their performance. The Academy staff recently completed a 
follow-up effort to determine what actions NMFS has taken to address 
significant concerns an Academy Panel first identified in 2002.
    At the time of our first study, both Congress and the agency's 
constituents were increasingly vocal in their criticism of NMFS. The 
Academy Panel, along with a Committee of the National Research Council 
(NRC) of the National Academy of Sciences, made numerous 
recommendations to improve fisheries management, including recommended 
changes in management and regulatory processes, constituent relations, 
and NMFS' program budget and science activities.
    During this follow-up effort, the Academy staff identified numerous 
fundamental changes underway in NMFS that directly address many of the 
concerns the Academy Panel and the NRC Committee reported in 2002. NMFS 
management has expended considerable effort in developing and 
implementing new management approaches aimed at improving the timing 
and quality of fisheries management decisions; the agency's ability to 
set priorities and devote appropriate resources to its many mission 
goals, including its science mission; and interactions with its 
constituencies and partners. However, it remains to be seen whether 
NMFS can successfully implement all of the planned changes, especially 
in light of what agency officials see as limited resources. Success 
will depend on the continued support of Congress and the 
Administration, the fishery management councils, NMFS' constituents and 
partners, as well as NMFS' own strong and determined leadership.
    Below is a discussion of the agency's actions to improve the 
fisheries management process that relate most directly to the subject 
before the Subcommittee today.

Concerns Identified in 2002
    In 2002 the Academy reported that as NMFS and the fishery 
management councils (councils) struggled to develop and implement 
management plans and other management actions, the process had bogged 
down. The Academy's study confirmed many problems that had already been 
identified from internal and external assessments, including lack of 
clarity in responsibilities among NMFS regional offices, centers, and 
the councils; lack of timeliness in decisions on management actions; 
lengthy layered reviews; excessive delays; outdated policies and 
guidance; inadequate analyses; and unpredictable outcomes.
    One critical area of concern was NMFS' ability to successfully 
carry out its responsibilities under the National Environmental Policy 
Act. The Academy reported that of 42 Fishery Management Plans (FMPs) in 
place at the time of our study, 30 had not had comprehensive 
environmental impact statements (EISs) within the last 5 years; 7 had 
no EIS analysis at all. Recent court settlements and decisions had made 
updating EISs an urgent concern. Congress began appropriating funding 
specifically to enable the agency to conduct NEPA activities in FY 
2001, but a year later, the agency had made only limited progress in 
hiring staff or completing NEPA actions.
    However at that time, in response to Congressional direction, NMFS 
was developing its Regulatory Streamlining Project (RSP). The new 
process was designed to improve the agency's ability to meet its 
responsibilities under the many applicable legislative authorities, 
especially NEPA. NMFS was also attempting to improve its capabilities 
with regard to its NEPA responsibilities.
    The Academy supported those efforts and made several 
recommendations that focused on implementing RSP, improving NEPA 
efforts, and revising the Operational Guidelines that support these 
actions. The Academy also made a number of recommendations aimed at 
clarifying roles and responsibilities among the regional offices, 
centers and fisheries management councils; making the process itself 
more seamless and less bureaucratic; and improving the support for and 
documentation of council decisions. As envisioned, RSP would address 
most of these concerns.

NMFS Actions
    NMFS is seeking to make a dramatic change in its approach to 
fisheries management, moving from a laborious, sequential rule-making 
process to a more collaborative, transparent one. NMFS has directed 
considerable resources and effort toward developing and implementing 
RSP, and may be on the brink of a fundamental change in how it 
operates. Some of the key components of RSP, which are discussed in 
more detail, are:
      Improving the agency's ability to meet its 
responsibilities under NEPA
      Reducing review levels and relying more on regional 
expertise and authority
      Frontloading the regulatory process, ensuring 
participation by all responsible parties early and throughout the 
process to better ensure that all important issues are identified and 
dealt with early in the process, not after a final regional or 
headquarters review
      Revising the Operational Guidelines

Improved NEPA Capabilities
    NMFS has made significant progress with regard to its NEPA 
capabilities. In 2002 difficulties in complying with NEPA were seen as 
a primary factor slowing the rule-making process and contributing to 
many of the judicial challenges to NMFS actions.
    Largely funded through specific appropriations, \1\ the agency now 
has 21 positions dedicated to NEPA responsibilities, including a NEPA 
coordinator in headquarters and in each of the regions. In each year 
since 2001, NMFS has allocated over $100,000 of the NEPA appropriation 
to each of the eight councils to improve their NEPA expertise. Academy 
staff spoke to two Council Executive Directors who said that funding 
has been instrumental in allowing their councils to hire staff; one 
specifically noted that the funding allowed completion of several NEPA 
analyses that, otherwise, probably would not have been done.
    \1\In FY 2001 Congress appropriated $8 million for agency-wide NEPA 
effor ts as well as additional funds for some specific NEPA 
responsibilities, such as those related to Hawaiian sea turtles. 
Appropriations for agency-wide NEPA efforts were reduced to $5 million 
in FY 2002 and 2003, and again to $3 million in FY 2004 and 2005.
    NMFS also has established a training protocol for NEPA, specifying 
key subjects to be covered in a variety of classes for NMFS and council 
staff, as well as council members. Over 1,000 people have received 
training in the last two years. Additionally, the agency's NEPA webpage 
provides ``how to'' information, as well as examples of NEPA 
documentation. The NEPA national coordinator has monthly conference 
calls to monitor progress and identify issues that need to be resolved.
    NMFS officials reported that by 2004 EISs for all FMPs had been 
updated, with the exception of two that had been in process for over 
five years.

Reduced Levels of Review
    Several actions have already been taken to delegate authority and 
thereby reduce layers of review and streamline the process for 
approving fishery management actions. Two key delegations are:
      In 2001, signature authority for fishery management 
actions was delegated from the Under Secretary for Oceans and 
Atmosphere in NOAA to the Assistant Administrator for Fisheries.
      More recently, in May 2004, NOAA's Office of General 
Counsel implemented a policy eliminating routine review of fisheries 
regulatory packages by the headquarters OGC for Fisheries.

    Frontloading the regulatory process is fundamental to the RSP 
design. Conceptually, frontloading is intended to ensure that all 
parties with responsibility for issues addressed in fishery management 
actions--those responsible, for example, for legal issues, NEPA, 
fisheries, habitat, and protected resources--are involved in the 
process from the beginning and on a continuing basis. This broad and 
early involvement is intended to ensure that all policy and legal 
issues are dealt with early in the process, not at the end. The goal is 
to ``get it right the first time.'' NMFS used the NEPA goals and 
process requirements as the foundation for developing procedures for 
RSP. NEPA serves as the umbrella for considering all impacts of a range 
of regulation options, including socioeconomic impacts and effects on 
endangered species and marine mammals.
    NMFS officials identified two regions that had begun using the 
interdisciplinary action teams that are a key part of the formal RSP 
frontloading. \2\ Academy staff visited one of those regions, and found 
that the region had been making wide use of these teams for developing 
fishery management plans and other key actions. Officials were highly 
satisfied with the frontloading approach. The officials saw the process 
as more timely and efficient, and said through the process, they had 
been effective in identifying and dealing with issues early. Academy 
staff also spoke to the Executive Director of one the region's 
councils. He was very satisfied with the team approach.
    \2\ Headquarters officials stated that although two regions are 
piloting these teams for several management actions, the concept has 
been in use in several regions on an ``ad hoc'' basis for some time.
Revised Operational Guidelines
    NMFS Operational Guidelines set forth detailed procedures and 
standards for fishery management actions. The guidelines were last 
revised in 1997; NMFS has been in the process of revising them again 
since 2002. Agency officials recently set April 29th of this year as 
the expected issue date. Revising these guidelines is a critical step 
in implementing RSP and the frontloading process. Among other things, 
the guidelines will:
      Formalize the frontloading process by establishing 
membership and responsibilities of Fishery Management Action Teams to 
be created for each major action undertaken.
      Establish at least four ``critical feedback points'' at 
which the regional OGC will certify the record to that point is 
``legally sufficient'' and the regional administrator will prepare an 
assessment statement that the process and documents support and provide 
a rational basis for decision-making and that the process can move 
forward. These feedback points are the formal quality control points to 
ensure the decisions are adequately supported by the record. One such 
critical feedback point is after identification of the preferred NEPA 
alternative and adoption of draft analyses. The final one is the 
regional administrator's decision memorandum which forwards the action 
for final headquarters approval. Under RSP these regional decisions 
will receive much less review at headquarters than is currently the 
      Require written operating agreements among regions, 
centers and councils establishing regional priorities and 
responsibilities for achieving those priorities.

Continued Diligence is Needed
    Officials have expressed concern about the agency's ability to 
fully implement plans for RSP, absent sufficient resources. Fully 
implementing frontloading, a core concept, will require dedication of 
additional resources. Components to support headquarters oversight of 
this new, more regionally based process, are not yet being implemented.
    Frontloading, a core principle of RSP, is resource intensive. 
Headquarters officials have cautioned that more staff and funding are 
needed to fully implement the frontloading process, especially in OGC, 
the regions and councils. Field office officials that Academy staff 
spoke with reiterated this concern. They said that the frontloading 
approach added considerably to the staff workload. All three 
organizations (regional office, science center and council) had 
received some additional funding and staffing (largely through the 
specific appropriations for NEPA and socio-economic analysis) and 
officials saw these funds as critical to their success thus far in 
implementing RSP. They all also indicated that, though the teams were 
working well, staffing was stretched and more personnel were needed. 
The region specifically noted that they originally had been able to 
hire 10 additional staff; but three left. Because of the Congressional 
cut in FY 2004's NEPA funding (from $5 million in FY 2003 to $3 million 
in FY 2004), they could not refill those positions. Region officials 
believe the staff is being stretched thin and signs of burnout are 
evident. \3\
    \3\ Officials in the offices visited also cautioned that the use of 
dedicated access privileges (such as individual fishing quotas or 
individual transferable quotas) to manage fisheries may increase 
significantly in the near future. Indeed, in 2004 the U.S. Commission 
on Ocean Policy recommended that Congress amend the Magnuson-Stevens 
Fishery Conservation and Management Act (MSA) to affirm use of this 
management approach, and that NMFS issue national guidelines for 
implementation. Such an approach, officials said, would increase field 
offices' workload in terms of monitoring, which would stretch their 
staff even further--reinforcing the need for additional resources.
    At the time of our staff follow-up review, NMFS was drafting a 
curriculum for the first course in an overall training program for 
rulemaking. The program will be both classroom-based and web-based and 
will provide training for council members and staff as well as NMFS 
field office and headquarters staff. The first course, a ``regulatory 
overview,'' covers the wide array of laws that mandate NMFS 
responsibilities, as well as an overview of the revised Operational 
Guidelines. NMFS was also analyzing data from a survey of regional 
offices, science centers, and councils concerning training needs, and 
anticipates developing other courses in the future. Some high ranking 
needs not being covered extensively in the first course include 
detailed training on National Standards 1 and 2, \4\ and refresher 
training on the Regulatory Flexibility Act. However, officials noted 
that the speed at which the training program is developed and the 
extent to which training is provided will depend in part on the 
availability of resources.
    \4\ MSA lists 10 national standards that FMPs must meet. Standard 1 
requires FMPs to ``prevent overfishing while achieving, on a continuing 
basis, the optimum yield from each fishery for the United States 
fishing industry.'' Standard 2 mandates the use of ``the best 
scientific information available.''
    NMFS also is developing a headquarters-based quality assurance 
program for regional implementation of RSP. NMFS is adapting a 
business-based quality assurance program to the regulatory process. The 
ultimate program will include on-site review of selected projects along 
with a feedback loop, and the program will also allow ``third party'' 
reviewers/auditors to assess quality. NMFS intends to develop baseline 
measures to allow an overall assessment of quality, in addition to the 
individual quality checks the system will conduct. A draft quality 
protocol has been produced and steps are underway to select personnel 
to form one or more Quality Management Teams. However, officials did 
not know, at the time of our staff follow-up review, how soon this 
quality assurance program could be implemented.
    NMFS is also taking steps to develop electronic databases to 
improve headquarters' ability to track actions and assess workloads and 
to facilitate concurrent review of actions in the regions and 
headquarters. Two have been completed: one for consultations required 
under section 7 of the Endangered Species Act and another for 
litigation. The latter was specifically recommended in the Academy's 
2002 report. However, the two databases most directly related to RSP, 
one for regulatory actions and one for NEPA actions, are still being 
designed. Again, the agency was not sure when these databases would be 
deployed and funding, especially for the NEPA database, was a key 
    In summary, although NMFS has designed new processes that have 
potential for significantly improving the fisheries management process, 
and NMFS officials appear committed to implementing them, success is 
not guaranteed. Without sufficient staff and funding the frontloading 
process may be only partially implemented. Additionally, not only is 
the new approach a fundamental change in how the agency does business, 
but an approach that is more reliant on having final actions taken in 
the region. Consequently, related headquarters efforts, such as 
training, quality assurance, development of baseline measures, and 
development of electronic databases to allow tracking and assessment of 
progress, take on increased importance. It is important that these 
oversight and quality assurance mechanisms proceed in tandem with 
implementation of processes that devolve more responsibility to the 
field offices.
    Mr. Pallone. And while I welcome the opportunity to learn 
more about the success of the service in better integrating 
NEPA and Magnuson, I want to emphasize that there are much more 
pressing ocean and coastal issues that we should be addressing 
in this Subcommittee.
    Mr. Chairman, I hope we can work together to lay out a plan 
for how this Committee can meaningfully address the 
recommendations of the U.S. Commission on Ocean Policy and the 
Pew Oceans Commission. I know that you in your opening 
statement did mention that the Committee was going to deal with 
some of those issues, but I really think that since the U.S. 
Commission's recommendations were directed specifically at 
Congress, and specifically for the purpose of ensuring the 
long-term sustainability of U.S. fisheries, we really should be 
having several hearings and trying to deal with both the U.S. 
Ocean Commission's and the Pew Ocean Commission's report in a 
comprehensive way. And it is already April, and we really 
haven't done much, if anything, in that regard.
    Now, I am not saying that serious work doesn't need to be 
done to improve Magnuson-Stevens. It certainly does. It is our 
nation's cornerstone piece of legislation governing the 
management of America's fishery resource. And I hope we can 
begin that work soon. But I really feel that the Subcommittee 
needs to pay more attention to the Ocean Commission's report 
and the recommendations, before it gets too late into the 
calendar year.
    Thank you, Mr. Chairman.
    Mr. Gilchrest. Thank you, Mr. Pallone. And we probably 
should have breakfast next Wednesday morning and talk about the 
strategy that we are working on to do that. About eight 
    Mr. Pallone. When?
    Mr. Gilchrest. Tuesday.
    Mr. Pallone. Tuesday?
    Mr. Gilchrest. Thursday morning.
    Mr. Pallone. Thursday? When?
    Mr. Gilchrest. We will work that out.
    Mr. Pallone. Thursday morning--We will work that out.
    Mr. Gilchrest. Yes, we will figure that out. Thanks.
    Mr. Pallone. We will work that out.
    Mr. Gilchrest. Our first panel this morning is Ms. Dinah 
Bear, General Counsel, White House Council on Environmental 
Quality; Dr. William Hogarth, Director, National Marine 
Fisheries Service; Dr. Hogarth is accompanied by Mr. James 
Walpole, General Counsel; and Mr. Daniel Furlong, Executive 
Director, Mid-Atlantic Fishery Management Council. Thank you 
all very much for attending this morning.
    Ms. Bear, you may begin.


    Ms. Bear. Mr. Chairman and members of the Subcommittee, 
thank you very much for the opportunity to testify this morning 
about the National Environmental Policy Act. While this is a 
law that is often referred to as ``America's environmental 
magna carta,'' it is often misunderstood, and hence 
    Despite what you may have heard or may surmise from what 
you hear, the purpose of NEPA is neither to produce lengthy 
documents, nor to document a lengthy process. The purpose of 
NEPA is exactly what its title suggests; which is to implement 
our national environmental policies.
    The process to implement NEPA set out in CEQ's regulations, 
binding on all Federal agencies, provides a method of both 
developing and evaluating high-quality information by Federal 
decisionmakers, state, local, and tribal representatives and, 
very importantly, the public. In the words of our regulations, 
ultimately, of course, it is not better documents, but better 
decisions that count.
    NEPA's purpose is not to generate paperwork, even excellent 
paperwork; but rather, to foster excellent action. And the CEQ 
regulations in fact were written with the idea of reducing 
delays, paperwork, and duplication.
    CEQ's procedural regulations are generic in nature. In 
other words, they set out the basic procedural requirements, 
and ask each agency to develop their own NEPA procedures that 
take our requirements and bring them down to fit each agency's 
specific mission activities. We ask each agency in those 
procedures to identify the typical types of actions that the 
agency takes that would normally require preparation of an 
environmental impact statement or an environmental assessment, 
or actions that can normally be categorically excluded. I will 
very briefly discuss each of these classes, and then move to 
the issue of flexibility under our regulations.
    The environmental impact statement is the most well-known 
document in NEPA, but it is also by far the rarest. It 
basically starts off when an agency publishes a notice of 
intent, telling the public that they plan to prepare an EIS. 
The next step is the scoping process, which is a time to get 
organized. It is a time to identify the other agencies and 
interested parties that will be involved in the process; to 
designate cooperating agencies and their responsibilities; to 
set time lines and page limits for the EIS; to identify studies 
or information that needs to be obtained early in order to do 
an adequate analysis. In other words, to get organized. There 
is no particular timeframe or specific requirements on how to 
do the scoping.
    The EIS itself is supposed to be written in plain English, 
readable English, and generally to be no longer than 150 pages. 
It is to contain a brief description of the agency's purpose 
and need for taking the action; a brief description of the 
affected environment; the reasonable alternative ways of 
achieving the agency's purpose and need; the environmental 
consequences of all of the alternatives, direct, indirect, and 
cumulative effects. And that draft EIS is put out for public 
review and comment, generally for a 45-day period. That is what 
our regulations require, unless the agency asks for an 
exception to that. In the final EIS, the agency needs to 
respond to those comments received.
    There is occasionally a need to supplement an EIS, either a 
draft or final. That need arises if the agency itself makes 
substantial changes to its proposal, or if there is significant 
new information or circumstances that bear on the environmental 
effects of the action.
    The heart of the EIS is alternatives analysis. NEPA 
requires that the agency looks at reasonable alternatives. 
There is no set number of required alternatives, and there is 
no need for agencies to develop so-called ``strawman'' 
alternatives to analyze. There is a requirement that agencies 
always look at the no-action alternative. That doesn't mean in 
the context of management of public resources no management; it 
simply means whatever management regime is in place at the time 
the EIS is being prepared.
    The EIS process concludes with the preparation of a record 
of decision, and that document contains any monitoring or 
mitigation provisions that the agency is committed to.
    Types of actions that either individually or cumulatively 
do not have significant effects on the human environment in the 
agency's experience can be categorically excluded from the NEPA 
process. We ask for an administrative record that shows the 
justification for a categorical exclusion; but once that 
categorical exclusion is promulgated, then there is no 
requirement under NEPA for any further paperwork for that kind 
of action.
    The agency does have to look for any extraordinary 
circumstances that in one particular instance may in fact 
require additional analysis. But if a categorical exclusion is 
crafted appropriately, then normally that shouldn't happen. 
There should just be no further analysis at all.
    The vast majority of actions fall somewhere between the 
need to prepare an EIS and categorical exclusions. And those 
are the kinds of actions for which agencies prepare an 
environment assessment. An environment assessment is supposed 
to be a very brief document. Our guidance is ten to 15 pages. I 
am well aware that it often exceeds that. But an environment 
assessment is supposed to, again, briefly identify the need for 
the proposed action; most of the time, reasonable alternatives; 
environmental consequences; and just simply a list of who 
prepared the EA.
    Agencies have flexibility as to how to involve the public 
in that process. There are no set time limits. At the end of 
the environment assessment, an agency needs to determine 
whether or not it thinks there will be significant impacts from 
the proposed action. If there are, it would proceed to do an 
EIS. If it finds there will not be significant impacts, it 
signs a document called a ``Finding of No Significant Impact.'' 
In a couple of unusual circumstances, the finding of no 
significant impact needs to go out for 30 days of public 
review, but that is the only required time line associated with 
the EA process.
    Agencies do have quite a bit of flexibility under our 
regulations. The only set time periods in the whole process are 
the 45-day comment period for a draft EIS; there is a 30-day 
waiting period between a final EIS and when the record of 
decision can be signed; and in two rare cases, a 30-day period 
on a finding of no significant impact.
    We encourage agencies to integrate the NEPA analysis with 
other documents, like plans. They are free to change the 
recommended format of an EIS. We encourage them to think 
through carefully what the scope of the proposed action is, and 
how they can tier from the original analysis to future actions.
    There are also provisions in our regulations to develop 
alternative arrangements to comply with our regulations in 
several circumstances, such as emergencies or supplemental 
EIS's or when time periods need to be reduced for various 
compelling reasons of national policy.
    In the case of the National Marine Fisheries Service, we 
have approved alternative arrangements six times. My testimony 
references the two most recent circumstances. In one of those 
earlier instances, we actually developed and approved what are 
essentially permanent alternative arrangements for one 
particular fishery.
    There are, just briefly, three Federal agencies that do 
have a role in overseeing NEPA: CEQ, of course, promulgates the 
regulations binding on Federal agencies. The Supreme Court has 
set our interpretation as ``owed substantial deference.'' The 
Environmental Protection Agency reviews and rates individual 
EIS's. And in 1998, Congress established a new agency, the U.S. 
Institute for Environmental Conflict Resolution, that works 
with us to help resolve conflicts between Federal agencies, and 
to help implement Section 101 of NEPA, the policy provisions of 
    I think that is really all I want to say in my testimony at 
the moment. I would ask that my full testimony be entered for 
the record, and am happy to answer any questions.
    [The prepared statement of Ms. Bear follows:]

               Statement of Dinah Bear, General Counsel, 
                    Council on Environmental Quality

    Mr. Chairman and Members of the Subcommittee, thank you for the 
opportunity to testify about the National Environmental Policy Act 
(NEPA). In NEPA, Congress set forth a general environmental policy for 
the nation and mandated a systematic examination of the environmental 
effects of proposed federal actions to help carry out that policy.
    The Council on Environmental Quality (CEQ) oversees implementation 
of the Act, and promulgates the regulations binding all federal 
agencies to implement the procedural requirements of NEPA (40 C.F.R. 
Parts 1500-1508). The purpose of the NEPA process is to inform the 
decisionmaker of the environmental consequences of his or her proposal, 
based on high quality, accurate scientific analysis, agency expertise 
and public involvement. The regulations were written with the goals of 
reducing paperwork and delay in mind, and state that, ``NEPA's purpose 
is not to generate paperwork-even excellent paperwork-but to foster 
excellent action.'' 40 C.F.R. Sec. 1500.1(c).
    CEQ's regulations are generic in nature--that is, they lay out the 
components of the NEPA process, but do not address requirements for 
specific types of actions. Instead, they require federal agencies to 
issue their own NEPA procedures that implement the CEQ NEPA 
requirements in the context of each agency's specific mission. The 
individual agency NEPA procedures identify which types of actions will 
typically require preparation of an ``environmental impact statement 
(EIS)'', which types of actions may typically be ``categorically 
excluded'', and which types of actions generally trigger the need to 
prepare an ``environmental assessment (EA)''.
    The most well-known type of document under NEPA, but, I must add, 
also the rarest, is an environmental impact statement (EIS) 
1. The trigger for an EIS is a ``proposal for legislation 
and other major federal actions significantly affecting the quality of 
the human environment''. 42 U.S.C. 4332(2)(C) 2.
    \1\ There was a total of 597 draft, final and supplemental EISs 
prepared by all federal agencies in 2004.
    \2\ The term ``major federal action'' reinforces, but does not have 
a meaning independent of ``significantly'' under NEPA law. Minnesota 
PIRG v. Butz, 498 F.2d 1314 (8th Cir. 1974), incorporated into the CEQ 
regulations at 40 C.F.R. Sec. 1508.18.
    An agency initiates the EIS process by publishing a notice of 
intent in the Federal Register, 40 C.F.R. Sec. 1508.22 3. 
The next step, ``scoping'', is a process to determine the significant 
issues to be addressed and eliminate from detailed study issues that 
are not significant or have been covered by prior environmental review; 
identify interested and affected parties, including state, local and 
tribal governments as well members of the public; identify cooperating 
agency involvement and assignment of responsibilities; identify other 
environmental review and consultation requirements so that analyses and 
studies required other under federal, state, local or tribal laws may 
be prepared concurrently, rather than, sequentially, with the EIS; and 
set time and page limits for that particular EIS. 40 C.F.R. 
Sec. 1501.7. There are no set time periods for scoping that need to be 
met prior to preparation of the draft EIS. Scoping includes internal 
and interagency discussion, as well as dialogue with the public through 
whatever form the agency determines is most effective.
    \3\ The NOI should be a very brief notice stating the agency's 
intent to prepare an EIS for a particular proposed action, including 
possible alternatives identified, information about the scoping 
process, and an agency contact person.
    The EIS may be prepared either by the federal agency or by a 
consultant or contractor selected by and working for the agency who 
must execute a public disclosure statement to the effect that they have 
no financial or other interest in the outcome of the decision 
4. The EIS is to be written in plain language, typically be 
no longer than 150 pages, 40 C.F.R. Sec. 1502.7 5, and 
include a discussion of the purpose and need of the proposed action, 
alternative ways of achieving that purpose and need, a brief 
description of the affected environment and an analysis of the 
environmental consequences (direct, indirect and cumulative) of all of 
the alternatives set forth in the EIS. 40 C.F.R. Sec. 1502.
    \4\ 40 C.F.R. Sec. 1506.5.
    \5\ An agency may include material substantiating analysis in the 
EIS, including discussion of methodology, in an appendix to an EIS. The 
appendix must either be circulated with the EIS or be readily available 
on request. 40 C.F.R.Sec. Sec. 1502.18; 1502.24. Agencies may also 
incorporate existing material by reference when the effect will be cut 
down on bulk without impeding agency and public review of the action. 
40 C.F.R. Sec. 1502.21.
    As the CEQ regulations state, the ``heart'' of the EIS is the 
analysis of alternatives 40 C.F.R. Sec. 1502.14. The agency must 
identify and analyze reasonable alternatives that meet the agency's 
purpose and need. It need not develop so-called ``strawman'' 
alternatives, nor is there any set number of required alternatives 
6. Outside parties may propose alternatives and the agency 
must consider whether they are ``reasonable alternatives'' and 
therefore need to be analyzed. An agency must analyze a full range of 
the effects of those reasonable alternatives identified in the EIS, 
including ecological, cultural, economic, social, and health effects. 
40 C.F.R. Sec. 1508.8(b).
    \6\ An agency does have to analyze a ``no action'' alternative in 
an EIS. In the case of management of public resources, ``no action'' is 
whatever the status quo management regime is at the time the analysis 
is being written. 40 C.F.R. 1502.14(d); also see ``Forty Most Asked 
Questions Concerning CEQ's National Environmental Policy Act 
Regulations'', 46 Fed. Reg. 18026, Question 3.
    Absent modification of the comment period, the agency must allow 
the public at least 45 days to comment on the draft EIS. In an agency's 
final EIS, it must consider those comments and either modify the 
information in the EIS or explain why the comments do not warrant a 
change. 40 C.F.R. 1503.4. The agency decisionmaker is free to make his 
or her decision once thirty days has passed following publication of 
the final EIS. 40 C.F.R. Sec. 1506.10 7 The record of 
decision includes information about any applicable monitoring of the 
action chosen, as well as an explanation of the rationale for the 
    \7\ An agency may make a decision simultaneous with publication of 
the FEIS if the proposal at issue is rulemaking for the purpose of 
protecting public health or safety or if there is a formal internal 
appeal process that exists within the agency. Id.
    NEPA does not require that the most environmentally preferable 
alternative be chosen. Agencies may make whatever decision they choose 
based on relevant factors including economic and technical 
considerations and agency statutory missions. 40 C.F.R. Sec. 1505.2.
    An agency must prepare a supplement to either a draft or final EIS 
if: i) the agency makes substantial changes in the proposed action that 
are relevant to environmental concerns, or ii) there are significant 
new circumstances or information relevant to environmental concerns and 
bearing on the proposed action or its impacts. Supplements are prepared 
in the same manner as regular EISs, except that scoping is not 
required. 40 C.F.R. Sec. 1502.9(c). If a draft EIS must be 
supplemented, the agency should prepare a draft supplement analyzing 
the specific issue or new information triggering the need for the 
supplemental EIS. That information, along with the comments and 
responses to comments, would then be incorporated in the final EIS. A 
new alternative in a final EIS that is within the range of previously 
considered alternatives generally does not require a supplement to an 
EIS, but if the agency develops a new alternative that is so different 
that the public has not had a fair opportunity to comment on it, a 
supplement is required.
    Types of actions that individually or cumulatively do not have a 
significant effect on the environment, as demonstrated by an agency's 
experience with those types of actions, may be categorically excluded. 
Categorical exclusions must be published in an agency's NEPA 
procedures, and must allow for the possibility that in a particular 
circumstance, an action that normally is categorically excluded will 
require preparation of an EA or EIS. A categorical exclusion is 
available once it has gone through public notice and comment and is 
promulgated in final form after consultation with CEQ to confirm that 
it conforms to NEPA and the CEQ regulations. No additional paperwork 
under NEPA is required in the agency's record accompanying the proposal 
to document the use of a categorical exclusion.
    For proposed actions that fall into neither an EIS nor categorical 
exclusion category, or when an agency is uncertain of the level of 
environmental effect, it must prepare an environmental assessment (EA). 
An EA is meant to be a concise 8 public document that 
briefly provides sufficient evidence and analysis for determining 
whether to prepare an EIS, aids in an agency's compliance with NEPA 
when no EIS is necessary, and includes a brief discussion of: i) the 
need for the proposed action, ii) identification of reasonable 
alternatives if there are unresolved conflicts concerning alternative 
uses of available resources, iii) the environmental effects of the 
various alternatives, and iv) a list of agencies and persons consulted 
in the preparation of the EA. 40 C.F.R. 1508.9. If the agency 
determines that the proposed action will not have a significant effect 
on the human environment and therefore does not require preparation of 
an EIS, it signs a ``finding of no significant impact''. 40 C.F.R. 
    \8\ CEQ's guidance is that the length of an EA should generally be 
10-15 pages. Question 36a, ``NEPA's Forty Most Asked Questions''.
    Agencies enjoy flexibility under CEQ's implementing regulations for 
tailoring their compliance in several ways to meet their own needs and 
the interests of the affected public. As mentioned earlier, neither 
form nor timelines are prescribed for scoping. Agencies may generally 
fashion public involvement for EAs in whatever manner they believe will 
be effective 9. CEQ encourages agencies to combine or 
integrate the NEPA document with plans or other relevant documents. 40 
C.F.R. Sec. Sec. 1502.25, 1506.4. They may modify the recommended 
format for EISs.
    \9\ See 40 C.F.R. Sec. Sec. 1501.4, 1506.6.
    There are few prescribed time periods associated with the NEPA 
process. If a proposed action that requires preparation of an EIS 
arises in the context of an emergency, CEQ has the authority to develop 
``alternative arrangements'' for compliance with our regulations. CEQ 
may also develop and sanction alternative arrangements for supplemental 
EISs. And for all EISs, the Environmental Protection Agency may, upon a 
showing of compelling reasons of national policy, reduce the 45 day 
comment period for draft EISs and/or the 30 day period following the 
final EIS.
    There are three federal entities involved in overseeing and 
assisting in the implementation of NEPA, generally. First, of course, 
CEQ interprets NEPA's requirements, promulgates implementing 
regulations and engages in both dispute resolution and development of 
alternative arrangements for compliance with NEPA in unusual 
circumstances. The Supreme Court has stated in several decisions that 
CEQ's interpretation of NEPA is owed ``substantial deference''. 
    \10\ Marsh v. Oregon Natural Resources Council; 490 U.S. 360, 372 
(1989) Robertson v. Methow Valley Citizens Council, 490 U.S. 322, 356 
(1989); Andrus v. Sierra Club, 442 U.S. 347, 358 (1979).
    Second, the Environmental Protection Agency reviews and comments on 
EISs under Section 309 of the Clean Air Act. 42 U.S.C. Sec. 7609. If 
the Administrator (or by regulation, the head of other federal 
agencies) determines that a proposed action is unsatisfactory from the 
standpoint of public health or welfare or environmental quality, the 
matter must be referred to CEQ. 11
    \11\ To date, no action proposed under the Magnuson-Stevens Fishery 
Conservation and Management Act or its predecessor has been the subject 
of a referral to CEQ. The process for referrals is laid out at 40 
C.F.R. Part 1504.
    Third, in 1998, Congress established the U.S. Institute for 
Environmental Conflict resolution as part of the Morris K. Udall 
Foundation, an independent federal agency located in Tucson, Arizona. 
Its primary purpose is to assist parties in resolving natural resource 
and environmental conflicts involving federal agencies. It was also 
charged with assisting in achieving the policy goals of NEPA laid out 
in Section 101.
    Given the focus of this hearing, let me say a few words about our 
recent involvement with the National Marine Fisheries Service/NOAA. 
First, NOAA last amended its NEPA procedures in 1999. On November 14, 
2003, NOAA requested approval of proposed alternative arrangements to 
complete a supplemental EIS for federal management of pelagic fishery 
resources in U.S. waters and the Exclusive Economic Zone in the Western 
Pacific Region. CEQ granted approval on November 20, 2003. On January 
29, 2004, NOAA asked for alternative procedures for rulemaking for sea 
turtle bycatch and bycatch mortality reduction in the Atlantic Pelagic 
Longline Fishery. CEQ approved these alternatives arrangements on 
February 4, 2004. On June 3, 2004, NOAA requested a modification of 
those alternative procedures; that modification was granted on June 22, 
2004. In addition, NOAA's marine protected area program recently asked 
us and Duke's Nicholas School of the Environment and Earth Sciences to 
develop NEPA training specifically for their staff based on a series of 
NEPA courses that we co-sponsor with Duke.
    I would be happy to answer any questions you might have.
    Mr. Gilchrest. Without objection. Thank you very much.
    Ms. Bear. Thank you.
    Mr. Gilchrest. Dr. Hogarth.


    Dr. Hogarth. Thank you, Mr. Chairman and members of the 
Subcommittee, for the opportunity to testify on the 
reauthorization of the Magnuson-Stevens Fishery Conservation 
and Management Act; specifically today, on the relationship 
between the Magnuson-Stevens Act and the National Environmental 
Policy Act. My written testimony has been submitted for the 
    To understand where we are today, I think we have to take a 
look back a little bit at the progress we have made since 
implementing the 1996 Sustainable Fisheries Act. This Act 
ushered in a major expansion in fishery management policy. It 
required us to do things in quite a different manner, and has 
led us to try to manage targeted species more carefully.
    Since 1996, some of the key accomplishments include 
rebuilding plans for nearly all of the over-fished stocks; 
addressing the ongoing concern with bycatch by adopting a 
national bycatch plan and by reducing capacity in many of our 
more important commercial fisheries through a variety of 
dedicated access programs.
    The SFA presented many challenges, and we have successfully 
met most of these challenges. Now it is time to reexamine the 
legal mandates and address new issues. We began this process 
with the 2003 administrative proposal to reauthorize the 
Magnuson-Stevens Act which included about 23 amendments. And 
while many of those were technical in nature, others were 
pretty significant changes; including distinguishing between 
the terms ``over-fishing'' and ``over-fish,'' requiring the 
submission of economic data from the processors, and 
establishing standards for new IFQ programs.
    In light of the President's U.S. Ocean Action Plan, we are 
reviewing the Administration's June 2003 proposed Magnuson-
Stevens amendments, and are considering new issues. We will 
consider a wide range of possible Magnuson-Stevens Act 
proposals, and plan to prepare a formal package for internal 
review as soon as possible.
    We anticipate the major topics covered to include ecosystem 
approaches to management; dedicated access programs; refinement 
of the essential fish habitat; discussion of the Magnuson-
Stevens Act and NEPA intersections, particularly in the fact 
that we have to, I think, look at the management of this as to 
how we can make the process more timely. One of the biggest 
criticisms we get from fishermen is what they see today takes 
us two years to implement. So I think we have to look at how we 
can make this whole process more timely.
    A few weeks ago, council members, staff, and public 
discussed many of these issues at the Washington, D.C. 
conference, ``Managing Our Nation's Fisheries II.'' And we plan 
to continue working closely with the councils and our 
stakeholders to better understand their views on the matters 
that came up.
    One issue related to the reauthorization of the Magnuson-
Stevens Act that has prompted considerable discussion and 
debate in recent years is the relationship between the 
Magnuson-Stevens Act and NEPA. We have always recognized that 
NEPA provides a useful framework for the fishery management 
process, and we have used NEPA as our main vehicle for 
frontloading the process associated with our regulatory 
streamlining program. A thorough analysis of the ecosystem 
impacts on a reasonable range of alternatives is a key step in 
the public process allowing for a more informed public 
discussion on the management measures.
    In recent years, Congress and the Administration have 
committed significant resources to improve our regulatory 
process. These efforts have yielded positive results. First, 
from 1996 to 2002, NMFS won only about 42 percent of our NEPA 
decision court cases. Since 2003, we have prevailed on the NEPA 
issues in all eight Magnuson-Stevens cases arising from the 
NEPA claims. This track record indicates that we are, by and 
large, doing a credible and defensible job in applying NEPA 
requirements to our fisheries management actions.
    However, I think maybe now, in reaction to making sure that 
we win these cases, we are now producing documents that 
fishermen feel, and the constituents, are too long and involved 
for them to really be able to read and understand. Some of our 
documents are up to 7,800 pages, and I think that is something 
we have to work with.
    And although we are doing a better job in complying with 
NEPA requirements, concerns remain regarding NEPA's flexibility 
and timeliness. While the two laws are not in conflict in 
principle, there are differences in scope, degree of analysis, 
and regulatory timeliness.
    First, NEPA requires careful consideration of alternatives 
and a reasonable analysis of why some are selected and others 
are not. The Magnuson-Stevens Act, on the other hand, does not 
mandate this assessment.
    Second, NEPA mandates the assessment and consideration of 
the cumulative effects of management measures. However, 
cumulative impacts are not explicitly addressed in the 
Magnuson-Stevens Act.
    And third, the Magnuson-Stevens Act includes precise time 
lines that are not always consistent with compatible time lines 
in NEPA. Even though NEPA may not have specifics, there are 
timings with how we do the Magnuson-Stevens and then when we 
can do NEPA documents. And normally, this requires us to take 
more time.
    As we heard during last month's conference, these are 
complicated policy and regulatory issues, and deserve careful 
consideration. I think we need to work together with CEQ and 
Congress and others to have a better understanding between the 
relationship of these two laws. And if there is the need for 
legislative changes, we should make sure that this will 
accomplish what we are intending to do.
    Mr. Chairman, thank you for the opportunity to discuss the 
reauthorization of the Magnuson-Stevens Act and its 
relationship with NEPA. I will be happy to answer any questions 
you may have.
    [The prepared statement of Dr. Hogarth follows:]

  Statement of William T. Hogarth, Ph.D., Assistant Administrator for 
  Fisheries, National Marine Fisheries Service, National Oceanic and 
        Atmospheric Administration, U.S. Department of Commerce

    Thank you, Mr. Chairman and Members of the Committee, for the 
opportunity to testify before you regarding the reauthorization of the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act). I am William T. Hogarth, Assistant Administrator for 
Fisheries in the National Oceanic and Atmospheric Administration (NOAA) 
within the Department of Commerce. My testimony today will focus on the 
Administration's ongoing efforts to implement the 1996 Sustainable 
Fisheries Act and to develop a Magnuson-Stevens Act reauthorization 
proposal. Per your request, I will also comment on our responsibilities 
under the National Environmental Policy Act (NEPA) and on the 
relationship between the Magnuson-Stevens Act and NEPA.

The 1996 Sustainable Fisheries Act
    To understand where we are today, we need to look at the progress 
we have made in implementing the 1996 Sustainable Fisheries Act (SFA). 
The SFA ushered in a major expansion in fisheries management policy, 
leading all of us--the Regional Fishery Management Councils, commercial 
and recreational users, and the National Marine Fisheries Service 
(NMFS)--to manage targeted species more carefully.
    Most significantly, the SFA contained several key new provisions, 
including: managing fisheries to avoid overfishing and, if managed 
stocks are overfished, developing rebuilding plans; reducing bycatch; 
identifying essential fish habitat (EFH) and mitigating the adverse 
effect of fishing operations on these areas; and, taking into account 
the importance of fishery resources to fishing communities, providing 
for sustained participation of these communities and minimizing adverse 
economic impacts on them.
    As a result of these new provisions, we pay more attention to the 
impacts of fishing operations on non-target species and the marine 
environment. In addition, we are more mindful of the effects of 
management measures on people, their communities, and their safety. In 
the years following passage of the SFA, the Councils and NMFS have made 
a major and sustained effort to implement these changes. We have faced 
many challenges, but I believe our marine fisheries are healthier and 
are managed more effectively than a decade ago.
    I would like to outline some of our key accomplishments.
      We have developed rebuilding plans for nearly all 
overfished stocks, and, as our annual congressionally mandated report 
on the status of stocks shows, we are reducing both overfishing and the 
number of overfished stocks.
      To address the ongoing concern with bycatch, we are 
factoring it into our fishery management process and now have a 
national bycatch plan that will help us reduce overall bycatch as well 
as bycatch mortality.
      Through a variety of dedicated access privilege programs, 
we are reducing overcapitalization in many of our most important 
commercial fisheries in Alaska. These initiatives could serve as models 
for dedicated access privilege programs in the rest of the country.
      We are assessing and addressing overcapacity in the 
harvesting sector through a series of quantitative and qualitative 
capacity reports, the U.S. National Plan of Action for the Management 
of Fishing Capacity, industry-funded buybacks, and the development and 
implementation of individual and community based quotas.
    Although we have achieved much, we also face many obstacles. The 
SFA presented many challenges on several fronts, and we have gone a 
long way toward successfully meeting those challenges. Now, almost a 
decade after the enactment of the SFA, it is time to reexamine our 
legal mandates and address new issues.

The Administration's U.S. Ocean Action Plan
    Our discussions of the Magnuson-Stevens Act are taking place within 
a larger debate on ocean policy and governance. On December 17, 2004, 
the White House issued the U.S. Ocean Action Plan. I would like to 
focus on a few aspects of this plan that have significant implications 
for fisheries management.
    The U.S. Commission on Ocean Policy, in their Final Report, urged 
the United States to move away from the focus on managing single 
species and toward a more comprehensive, ecosystems approach. The U.S. 
Ocean Action Plan explicitly endorses ecosystems approaches to 
management (EAM) and places it in a larger policy framework of working 
with regional and local authorities. The plan states:
        ``The Administration will continue to work toward an ecosystem-
        based approach in making decisions relating to water, land, and 
        resource management in ways that do not erode local and State 
        authorities and are flexible to address local conditions.''
    We now need to focus on how best to achieve this transition in 
fisheries management in light of its regulatory complexities and the 
need for new and additional science. The 1996 amendments to the 
Magnuson-Stevens Act--in particular the provisions relating to bycatch 
and essential fish habitat--can support significant progress toward 
    EAM is incremental; we are already doing it to some extent in 
several federally managed fisheries, most notably in the Western 
Pacific, North Pacific, and South Atlantic. We have a Coral Reef 
Ecosystem Fishery Management Plan (FMP) in the Western Pacific, and we 
are developing several EAM pilot projects on the East Coast. 
Additionally, a number of ``conventional'' FMPs have been substantially 
modified and expanded in recent years to incorporate principles of EAM.
    The U.S. Ocean Action Plan includes several elements that will 
continue to enable us to take further steps toward ecosystems 
approaches to management.
    1.  Regional Fishery Management Councils should continue to make 
every effort to base their management proposals on the best available 
science, and NMFS--specifically the NMFS Fisheries Science Centers 
where stock, economic, and social analyses assessments originate--
should continue to play a key role in providing the best possible 
scientific information. In fact, the U.S. Ocean Action Plan, on page 
19, commits NOAA to ``establish guidelines and procedures for the 
development and application of scientific advice for fisheries 
management decisions.'' The Administration supports the use of peer-
reviewed science in resource management decisions.
    2.  Regional Fishery Management Councils should have more broadly 
based membership. The Administration is considering transmitting a 
proposal to amend the Magnuson-Stevens Act to require governors to 
submit a slate of Council member nominees that represent a balanced 
apportionment in marine fisheries in their respective states.
    3.  Regional Fishery Management Councils and the Administration 
should promote greater use of market-based systems for fisheries 
management or dedicated access privilege programs, such as individual 
fishing quotas (IFQ), as a management measure to mitigate overfishing 
and overcapacity, as well as to contribute to the economic well-being 
of the marine fishery sector. NOAA has committed to develop, in 
consultation with the Regional Fishery Management Councils and 
interested parties, national standards and guidelines for the 
development and implementation of IFQ allocations. These guidelines 
will draw on the 1999 congressionally mandated report Sharing the Fish: 
Toward a National Policy on Individual Fishing Quotas, as well as the 
ongoing debate on standards and requirements for IFQs, a type of 
dedicated access privilege. Dedicated access privilege programs raise 
many complex and contentious issues, but the key question centers on 
how best to balance the principles of efficiency and equity under these 
programs. We have worked closely in the past several years with the 
Government Accountability Office in their studies of various IFQ-
related issues, and this collaboration has helped us refine our views 
on how to develop and administer these programs.
    We have worked with several Regional Fishery Management Councils in 
the past few years on dedicated access privilege programs in federally 
managed fisheries. For example,
      In the North Pacific we are implementing an Alaska crab 
rationalization program that includes IFQs, community quotas, and 
fishing cooperatives, and we are working on a Gulf of Alaska groundfish 
rationalization plan that will also include a number of distinct 
dedicated access privilege programs.
      In the Pacific, we are developing a groundfish IFQ 
      In the Gulf of Mexico, we are resuming work on the red 
snapper IFQ program.

Reauthorization of the Magnuson-Stevens Act
    In light of the current discussions surrounding the U.S. Ocean 
Action Plan, last year we decided to review the Administration's June 
2003 proposed Magnuson-Stevens Act amendments and consider new issues. 
The 2003 Administration proposal to reauthorize the Magnuson-Stevens 
Act included 26 proposed amendments. Many of these were technical in 
nature but others would make significant substantive or procedural 
changes. These include:
      distinguishing between the terms ``overfishing'' and 
      requiring submission of economic data from processors;
      establishing standards for new IFQ programs;
      streamlining fishing capacity reduction programs;
      increasing maximum fines and penalties; and
      authorizing the means to fund observer programs.
    NMFS is now considering a wide range of possible Magnuson-Stevens 
Act proposals and plans to prepare a formal package of amendments. We 
anticipate the major topics covered would include ecosystems approaches 
to management; National Standards 1 (overfishing), 2 (best available 
science) and 9 (bycatch); Council operations; dedicated access 
privilege programs; permits and fees; and essential fish habitat.
    A few weeks ago, Regional Fishery Management Council members, 
staff, and the public discussed many of these issues at the Washington, 
D.C. conference, ``Managing Our Nation's Fisheries II.'' I plan to work 
closely with the Councils and other interested parties to better 
understand their views on these matters. Magnuson-Stevens Act 
reauthorization is a major topic to be addressed at the Council Chairs 
and Executive Directors meeting in southern California the last week of 

The Magnuson-Stevens Act and NEPA
    One issue related to reauthorization of the Magnuson-Stevens Act 
that has prompted considerable discussion and debate in recent years is 
the relationship between the Magnuson-Stevens Act and the National 
Environmental Policy Act (NEPA). NMFS applies NEPA in the Exclusive 
Economic Zone as a matter of policy and has always recognized that NEPA 
can provide a critical framework for the fisheries management measures 
that the Regional Fishery Management Councils develop and we approve. 
NEPA can establish the ground rules for public participation in 
developing these decisions, the assessment of environmental impacts, 
and the consideration of alternatives to the selected measures. The 
NEPA analytical and regulatory framework provides important benefits to 
the Administration, the Regional Fishery Management Councils, the 
fishing industry, and the general public.
    In recent years, Congress and the Administration have committed 
significant resources to programs to improve our implementation of the 
NEPA framework. NMFS has developed and implemented a Regulatory 
Streamlining Program that highlights the importance of applying NEPA, 
and hired national and regional NEPA coordinators. For the past several 
years, with support from Congress, we have worked hard to upgrade the 
quality of our NEPA assessments, in particular the Environmental Impact 
Statements. In our FY 2005 appropriation, $3 million is dedicated 
specifically for NEPA training and other NEPA-related work, and a total 
of $8 million is requested for FY 2006.
    These efforts have yielded positive results. From 1996 to 2002, 
NMFS won only 42% of the NEPA claims in Magnuson-Stevens Act cases. 
Since 2003, however, NMFS prevailed on the NEPA issues in all 8 
Magnuson-Stevens Act cases raising NEPA claims that resulted in final 
decisions in District Courts. This track record indicates that we are 
by and large doing a credible and defensible job in applying NEPA 
requirements to our fisheries management actions.
    Although we are undeniably doing better in applying NEPA 
requirements, concerns remain regarding NEPA's impacts on flexibility 
and timeliness of fisheries management actions. Past implementation of 
some NEPA requirements has duplicated some steps already required by 
the Magnuson-Stevens Act. Real time within year management decisions on 
fisheries management actions recommended by the Councils particularly 
highlight this issue. In other words, while there are obvious and 
significant benefits flowing from NEPA and we have improved our 
compliance over the past few years, there have been costs in terms of 
time spent, resources expended, lack of flexibility and duplicative 
reviews in complying with the NEPA process.
    In your letter inviting me to present testimony at this hearing, 
the House Subcommittee asked that I comment on ``conflicts'' between 
our natural resource statutes, in particular the Magnuson-Stevens Act 
and NEPA. The two laws are not in conflict in principle, but as there 
are certain differences in the scope and degree of analysis and in the 
regulatory timelines, I think it is useful to identify the three key 
    First, NEPA requires the careful consideration of alternatives and 
a reasoned analysis of why some are selected and others are not. The 
Magnuson-Stevens Act, on the other hand, does not mandate an assessment 
of alternatives. In many cases, the Regional Fishery Management 
Councils must make difficult choices among a number of options, each 
with its own benefits and costs. Their decision-making process benefits 
from careful consideration and assessment of alternatives.
    Second, NEPA and, in particular, the Council on Environmental 
Quality's (CEQ) regulations for implementing NEPA, mandate the 
assessment and consideration of the cumulative effects of management 
measures. However, cumulative effects are not explicitly addressed in 
the Magnuson-Stevens Act. In a sector in which a series of regulatory 
actions can have a significant aggregate effect over time, 
consideration of cumulative impacts is worthwhile and necessary.
    Third, the Magnuson-Stevens Act includes precise timelines for the 
development, consideration, and approval of management measures that 
are not always entirely consistent with the NMFS' comparable timelines 
for compliance with NEPA. Magnuson-Stevens Act timelines governing the 
review and approval of Council actions and their publication in the 
Federal Register do not always correspond with NEPA timelines. While 
NMFS consults with CEQ on administrative ways to reduce or eliminate 
those inconsistencies, application of the two statutes sometimes 
results in a disjointed regulatory process with inconsistent deadlines.
    As we heard during last month's ``Managing Our Nation's Fisheries'' 
conference, these are complicated policy and regulatory issues that 
deserve careful consideration. I would be happy to work with Congress 
to better understand the relationship between these two laws, and the 
need, if any, for legislative changes.

    Mr. Chairman, thank you for the opportunity to discuss the 
reauthorization of the Magnuson-Stevens Act. The scope of issues has 
changed significantly in the past several years. Until a few years ago 
the major concerns centered on implementing the specific provisions of 
the 1996 amendments. In the past few years we have gained a wider 
perspective. Today our attention is focused on ecosystems approaches to 
fisheries management as opposed to single-species management, dedicated 
access privilege programs instead of open access fishing quotas, and 
more broadly representative Regional Fishery Management Councils. 
Therefore, we have been seriously studying and considering these larger 
issues and rethinking our views on important regulatory and procedural 
    I look forward to working with you, other members of this 
committee, and interested members in both the House and Senate. I would 
be happy to answer any questions you have.
    Mr. Gilchrest. Thank you, Dr. Hogarth.
    Mr. Furlong, Dan. Dan, you are up next.


    Mr. Furlong. Thank you, Mr. Chairman. And good morning. And 
I would like to point out that the Mid-Atlantic, as your 
servicing council, both you and Mr. Pallone, is the highest-
ranked council of the five East Coast councils by the Ocean 
Conservancy, related to preventing over-fishing and rebuilding 
stocks. That is just a preamble to my comments that are to 
    In your invitation letter, you asked for my views on the 
relationship between the Magnuson Act and the National 
Environmental Policy Act; particularly, any conflict between 
the two acts. In my opinion, there are no technical conflicts 
between the two acts. However, I believe there are significant 
and genuine problems between the two acts regarding the 
duplication of embedded process requirements.
    In the Federal budget world, there are two overarching 
precepts, or perspectives: budget-driven programs, and program-
driven budgets. The juxtaposition of these two words tells you 
which one is the driving force. I think the same can be said 
with regards to the Magnuson Act and with regards to the 
National Environmental Policy Act.
    The Magnuson Act has a process that is designed to achieve 
the conservation and management of our fishery resources; 
whereas the NEPA process is one that is an environmental 
process, but is really a self-fulfilling process that yields 
the documentation of the process itself--a very different 
    Better than NEPA, the Magnuson Act, in conjunction with the 
Administrative Procedures Act, provides the public timely 
notice of its proposed actions, so as to allow for review and 
comment by the public, and provides a transparent and open 
public process through the council system that allows for 
public involvement through the formulation and development of 
all fishery management measures.
    That is why, I believe, that in the 108th Congress Senator 
Collins of Maine and Congressman Young of Alaska introduced 
legislation that included the following language: ``that any 
fishery management plan, any amendment to such plan, or any 
regulation implementing such plan, that is prepared in 
accordance with the applicable provisions of Sections 303 and 
304 of the Magnuson Act are deemed to have been prepared in 
compliance with Section 102, Paragraph 2(c) of the National 
Environmental Policy Act.''
    Now, there are those who think that that language would be 
an exemption from NEPA, much like the exemption that the 
councils enjoy under FACA. But to me, nothing could be further 
from reality. The proposed language by Senator Collins and 
Congressman Young recognized that Sections 303 and 304 of the 
Magnuson Act are indeed the functional equivalent of NEPA's 
Section 102(c)(2). Their language does not, in effect, create a 
FACA-like exemption. Rather, the language unifies and clarifies 
the relationship between the two acts, and also meets the 
Magnuson Act's National Standard Seven requirement that 
conservation and management measures shall minimize costs and 
avoid unnecessary duplication. These two acts duplicate each 
    For the record, I totally support such legislation.
    I will skip my commentary about EPA's double-standard and 
CEQ's concept of major Federal action. But I would propose and 
request that my full written testimony be incorporated as part 
of the record.
    I would like to offer some examples of how costly the 
nature of NEPA is in terms of redundancy to that which is 
required by the Magnuson Act. The North Pacific Fishery 
Management Council completed action last year on a 7,000-page 
programmatic EIS. And Ms. Bear earlier said 150 pages. That is 
47 times 150, 7,000 pages.
    It covers all of its groundfish fisheries. Because of one 
finding related to an unknown effect on the overall habitat 
from allowing these fisheries to commence, the council is now 
being told that it may have to do an EIS every year to support 
its specification process. What we are talking about here is 
setting up the total allowable catch.
    Now, understand that for the groundfish fisheries in Alaska 
the council has a two-million-metric-ton cap on its fisheries, 
but it has an allowable biological catch of nearly four million 
metric tons. So there is really a lot of play here, but you 
would have to develop an EIS every year.
    In the Caribbean, to give you another example, it prepared 
a Sustainable Fisheries Act comprehensive amendment in 1999 
which the National Marine Fisheries Service said they could 
easily review and approve in a few months. In the meantime, a 
new emphasis on NEPA came into force, owing to a lawsuit 
brought by the American Oceans Campaign against the National 
Marine Fisheries Service and the councils.
    As a consequence, the Caribbean council had to rewrite its 
document; include alternatives that did not make any sense, but 
were required by NEPA; spend lots of money for additional 
meetings, rewriting of various sections; and finally, end up 
with a document three times the size of the original one. 
Consequently--surprise--now five years later, the council has 
reached the same conclusions that it did in 1999 regarding the 
management measure that will be submitted for secretarial 
    During this process, the Caribbean council created a 1,000-
page document. Now, they are pikers compared to the North 
Pacific, because that is only six times as big as what Ms. Bear 
said it should be. Moreover, the fishermen and general public 
are totally confused by the volume of information, and have 
accused the council of trying to bury its intentions and agenda 
under hundreds of pages of bureaucratic gobbledegook.
    I have other examples from the remaining six councils. And 
I would point out that at the recent conference on ``Managing 
Our Nation's Fisheries'' the following motion was passed and 
approved by seven of the eight councils voting: ``Following the 
addition of critical NEPA provisions to the Magnuson-Stevens 
Act, thereby making Magnuson fully compliant with NEPA's 
intent, the panel finds that legislation should be developed 
specifying the Magnuson Act as the functional equivalent of 
    Seven out of eight should send a clear message to this 
Committee that, indeed, there are problems regarding the 
integration and obsequious application of NEPA into the 
Magnuson Act process.
    I thank you for having invited me to this hearing, and I 
sincerely appreciate the honor and opportunity to appear before 
the Subcommittee.
    [The prepared statement of Mr. Furlong follows:]

          Statement of Daniel T. Furlong, Executive Director, 
                Mid-Atlantic Fishery Management Council

    Good morning Chairman Gilchrest and members of the Subcommittee. I 
am Dan Furlong, Executive Director of the Mid-Atlantic Fishery 
Management Council. I am also the former Deputy Regional Administrator 
of National Marine Fisheries Service's Southeast Regional Office, a 
position I held for over 10 years.
    In your March 31 invitation letter, you asked for my views on the 
relationship between the Magnuson-Stevens Act (MSA) and the National 
Environmental Policy Act (NEPA), particularly any conflict between the 
two Acts. In my opinion there are no technical conflicts between the 
two Acts. However, I believe there is a genuine problem between the two 
Acts regarding duplication of embedded process requirements.
    In the federal budget world there are two overarching perspectives 
- budget driven programs, and program driven budgets. The juxtaposition 
of these two words tells you which one is the driving force. The same 
can be said of the MSA and NEPA. Both statutes are process driven, but 
their outcomes are very, very different. MSA's process is designed to 
achieve conservation and management of our Nation's fishery resources, 
whereas NEPA's process is a self-fulfilling one of documenting the 
process itself. Better than NEPA, MSA in conjunction with the 
Administrative Procedures Act (APA), provides the public timely notice 
of its proposed actions so as to allow for review and comment, and 
provides a transparent, open public process through the Council system 
that allows for pubic involvement throughout the formulation and 
development of fishery management actions.
    I believe that is why in the 108th Congress Senator Susan Collins 
of Maine introduced the ``Fisheries Science and Management Improvement 
Act of 2003'' (S 482). And, that is why, in the House, Congressman 
Donald Young of Alaska introduced a Bill ``to amend the Magnuson-
Stevens Conservation and Management Act'' (HR 3645). Each piece of 
legislation included the following language: ``that any fishery 
management plan, any amendment to such plan, or any regulation 
implementing such plan, that is prepared in accordance with applicable 
provisions of Section 303 and 304 of this Act are deemed to have been 
prepared in compliance with the requirement of Section 102 paragraph 2 
(c) of the National Environmental Policy Act of 1969''.
    Some have interpreted this language to be a Magnuson-Stevens Act 
exemption from the National Environmental Policy Act, much like the 
exemption that Councils, their Committees, and Advisory Panels enjoy 
from the Federal Advisory Committee Act (FACA). To me, nothing could be 
further from reality. The language proposed by Senator Collins and 
Congressman Young recognizes that Section 303 and 304 of the Magnuson-
Stevens Act are the functional equivalent of Section 102 (c) 2 of the 
National Environmental Policy Act. Under MSA, every Fishery Management 
Plan must address and contain 14 statutorily required plan provisions. 
And, every Fishery Management Plan should consider 12 additional 
discretionary plan provisions. Moreover, as provided by Section 301 in 
the Act, all Fishery Management Plans must be consistent with the Act's 
10 National Standards. Their language does not create a FACA-like 
exemption, rather such language unifies and clarifies the relationship 
between the two Acts, and also meets National Standard 7's requirement 
under MSA that ``conservation and management measures shall minimize 
costs and avoid unnecessary duplication''.
    For the record, I totally support such legislation.
    In preparing for this hearing, I was amazed to find that the 
Environmental Protection Agency, an agency I believe to be highly 
associated and identified with NEPA, has benefited from legislation 
that substantially limits EPA's own impact statement preparation. The 
Federal Water Pollution Control Act Amendments of 1972 (P.L. 92-500) 
specified that statements would be required only for wastewater 
facilities and new source permits. Yet, as the States assumed 
responsibilities for water pollution control programs, even these two 
actions that were subject to EIS requirements are no longer considered 
Federal decisions, and therefore NEPA is no longer applicable. These 
1972 amendments also sanctioned the use of EPA's water quality 
standards for purposes of compliance with NEPA. Further, the Energy 
Supply and Environmental Coordination Act of 1974 (P.L. 93-319) 
provided that no impact statements would be required for any actions 
taken by the EPA under the Clean Air Act. Courts have also held that 
waste clean-up procedures constituted a ``functional equivalent'' of 
NEPA compliance. What a deal! It appears that EPA is the poster child 
for the expression, ``Do as I say, not as I do''.
    Speaking of EPA, I would like to address its guidance regarding the 
concept of ``major Federal action''. The term ``major'' applies to the 
significance of the impact of the proposed action on the environment. 
Impacts to be addressed include impacts on the physical, biological and 
human environment. As I believe most things in our capitalistic society 
can be reduced to dollar terms, I would like to try to put what the 
Councils and NMFS do in that context. Our Nation's Gross Domestic 
Production (GDP) is approximately $12 trillion. The value of U.S. 
commercial fishing landings is about $3.5 billion. The expenditures by 
marine anglers is estimated to be about $30.0 billion. Taken together, 
the contribution to our economy by those who are governed by MSA 
represents less than 1/2 of 1% of the GDP. Likewise, of the $2.4 
trillion Federal budget ear-marked for discretionary programs, NMFS 
receives approximately $825 million. Even after reducing Federal 
discretionary funding to $818 billion by removing Defense and Homeland 
Security, NMFS' share is less than 1/10 of 1% of domestic discretionary 
spending. With fewer than 3,000 full time equivalent employees out of a 
workforce of 1.9 million Federal civilian employees, NMFS share of 
Federal employment is less than 2/10ths of 1%. Given the regulated 
sector's place in our economy, and the National Marine Fisheries 
Service's place in the Federal Government, what is it that they do that 
could rise to NEPA's concept of major Federal action? Think about it.
    I would also like to offer some examples of the costly nature of 
NEPA in terms of its redundancy to that which is required by the 
Magnuson-Stevens Act. The North Pacific Fishery Management Council 
completed action last year on a 7,000-page programmatic EIS covering 
all of its groundfish fisheries. Because one of the findings contained 
in that EIS was that there was an ``unknown'' (and undeterminable) 
effect on overall habitat from allowing the fisheries to commence, the 
Council is now being told that it may have to do an EIS every year to 
support its groundfish specifications process; i.e., setting the total 
allowable catch (TAC). Even though the North Pacific Council just did 
the overall Essential Fish Habitat (EFH) action, and even though it has 
placed a 2 million metric ton cap on its groundfish fisheries which 
have an Allowable Biological Catch (ABC) of nearly 4 million metric 
tons, the Council - because of the time required to do the EIS - will 
now have to set quotas using the previous year's survey information, 
rather than using the most recent annual stock assessment survey data. 
This NEPA created circumstance requires analyses that are clear 
violations of the Magnuson-Stevens Act National Standard 2.
    The Caribbean Council prepared a Sustainable Fisheries Act (SFA) 
comprehensive amendment in 1999 which the National Marine Fisheries 
Service thought could be reviewed and approved in a few months. In the 
meantime, a new emphasis on NEPA came into effect owing to the outcome 
of a lawsuit brought by American Oceans Campaign against NMFS and the 
Councils. As a consequence, the Caribbean Council had to rewrite the 
document; include alternatives that did not make any sense, but were 
required by NEPA; spend lots more money for additional meetings, 
rewriting of sections, etc.; and, finally end up with a document three 
times the size of the original one. Consequently - surprise - now 5 
years later, the Council has reached the same conclusions as it did in 
1999 regarding the management measures that will be submitted for 
Secretarial review. During this process, the Caribbean Council created 
a document of nearly 1000 pages that is very cumbersome and difficult 
to read. Fishermen and the general public are confused by the volume of 
information, and have accused the Council of trying to bury its real 
intentions under hundreds of pages of bureaucratic gobbledegook.
    I have other examples from the Mid-Atlantic, South Atlantic, New 
England, Pacific, West Pacific, and Gulf of Mexico Councils that 
reinforce the damage NEPA has caused in the conservation and management 
of our Nation's marine fishery resources. At the recent ``Managing Our 
Nations Fisheries II Conference'', the following motion was passed by 
seven of the eight Councils:
        ``Following the addition of critical NEPA provisions to MSA, 
        thereby making MSA fully compliant with NEPA's intent, the 
        panel finds that legislation should be developed specifying MSA 
        as the functional equivalent of NEPA.''
    Seven out of eight - that sends a clear message that something is 
indeed problematic regarding the integration and obsequious application 
of NEPA into MSA actions.
    I thank you for having invited me to provide my views regarding MSA 
and NEPA. I sincerely appreciate the honor and opportunity to appear 
before the Subcommittee.
    Mr. Gilchrest. Thank you very much. I know that Dr. Hogarth 
has to leave in about ten or 12 minutes. So if we are not done 
with the round of questions for this panel, I want to thank Dr. 
Hogarth for coming up from Florida. And whenever you feel like 
you have to leave, Dr. Hogarth, please feel free to do so.
    Dr. Hogarth. Thank you, Mr. Chairman.
    Mr. Gilchrest. I am just curious, Ms. Bear. You mention in 
your testimony--and I want to make sure that I fully understand 
it and what the reasons are for it--EPA. Is EPA exempt from 
NEPA? Why? And what does that mean for that agency?
    Ms. Bear. Congress in some instances for some statutes, and 
the courts for other statutes, in EPA's pollution control 
statutes, have found EPA to be exempt from NEPA. The rationale 
when you look at a lot of the explanation, both legislative and 
judicial decisions, is that EPA's primary mission is 
environmental protection.
    The arguments that have been made and that were made by EPA 
to attain that status have been made by other agencies 
occasionally throughout the years, including agencies that 
manage public resources. NOAA has never made that argument, but 
I believe it was Sea World that once made it for them in court. 
And the courts have not agreed with that analysis, because all 
of the other agencies they have viewed as having--
    Mr. Gilchrest. So--
    Ms. Bear. What?
    Mr. Gilchrest. So the courts have agreed that EPA is 
    Ms. Bear. Yes.
    Mr. Gilchrest.--from NEPA, partly on the grounds of the 
Clean Water Act and the Clean Air Act, that they follow those 
statutes and acts?
    Ms. Bear. That their primary mission is environmental 
protection, as opposed to a mixed mission where you are both 
permitting the use of the resources as well as conserving over 
protecting them. The courts, frankly, have not done a 
particularly specific analysis in terms of a sidebar between 
the statutes, as to whether or not the process and EPA's 
pollution statutes have precisely the same elements as NEPA. 
They seem to have enjoyed that primarily because of the sense 
that they are an environmental protection agency, as opposed to 
a mixed mission agency.
    Mr. Gilchrest. So is there any agency in the Federal 
Government that is a mixed-mission agency that is exempt from 
    Ms. Bear. No.
    Mr. Gilchrest. Dr. Hogarth, you have the Sustainable 
Fisheries Act in 1996, with all its standards and provisions 
for conservation, and you have the SSC. I am sort of going to 
generalize now, but you have the SSC creating a stock 
assessment. You have the councils that produce the allocation 
for a fisheries plan. And then you have NEPA in, I guess, a 
parallel way, following that process. And those two processes, 
I guess, have to come together in the end before a fisheries 
management plan is complete. Is that a generally accurate 
    Dr. Hogarth. Yes, sir. Basically, you go through the 
scoping with the councils and look and work there in the 
councils. Once they determine the alternative or what they are 
going to put in place, then the NEPA document has to be 
produced. Even though the council has gone through a plan 
process with their scoping and their analysis and public 
hearings, when it comes to us, we have to go through another 
public hearing process and to make sure the NEPA documents are 
    Mr. Gilchrest. How do you see that those two parallel 
processes, since we are talking about NEPA here, could be 
modified so that there is no unnecessary duplication?
    Dr. Hogarth. Well, I think we need to discuss this. This is 
my personal opinion; not speaking for the Administration or 
anything, my personal opinion from five years of dealing with 
it. It is that I think if it was clear that the Magnuson had to 
look at a series of alternatives. Sometimes, there is not a 
good discussion of a series of alternatives; the council 
chooses the main indirectly. But to have a series of 
alternatives that are fully discussed and rejected, I think, is 
the main difference that I see now between the NEPA and the 
Magnuson process.
    Mr. Gilchrest. So right now, the fisheries part of this 
process, whether it is with the SSC or whether it is with the 
councils themselves, as a general rule--and Dan, you can jump 
in here--they don't come up with an alternative, or 
alternatives, as NEPA fundamentally requires?
    Dr. Hogarth. The series of alternatives that are being 
looked at under the NEPA document, the councils don't have to 
do it under Magnuson.
    Mr. Gilchrest. Dan, do you want to speak to the specifics? 
Ms. Bear said the heart of NEPA is alternatives. Where do you 
see that? And I will just finish with this, and I will yield to 
the gentleman from New Jersey.
    Mr. Furlong. Yes, I believe, in fact, that is where the 
problem really lies. I can give you some other examples. In the 
South Atlantic Council, snapper-grouper amendment 13, it has 
been delayed because there is a debate between the agency and 
the council, in terms of what is a reasonable suite of 
    Mr. Gilchrest. Now, the agency is asking that. Do you 
represent the agency?
    Dr. Hogarth. That is us.
    Mr. Gilchrest. And maybe I will come back to Bill. The 
agency is asking for those alternatives in anticipation of what 
NEPA requires. Is that why you are asking for the alternatives?
    Dr. Hogarth. Yes. Yes, sir. We feel like there is not a 
sufficient number of alternatives being discussed by the 
council to fulfill the NEPA requirements.
    Mr. Gilchrest. Let's say there wasn't any NEPA. And don't 
anybody think we want to do away with NEPA in here. But 
hypothetically, if there wasn't a NEPA process, would the 
agency see the need to ask for those alternatives?
    Dr. Hogarth. First of all, let me make it clear that we do 
not want to get rid of NEPA, either. We as an agency feel like 
the National Environmental Policy Act has served the public 
will. I am concerned that we have over-reacted, but we work 
with that.
    But I think there would be probably less demand on the 
council, particularly right now, in that plan, if we did not 
have NEPA. We could do what the council is trying to do easier 
under Magnuson.
    Mr. Gilchrest. Yes. Is there some sense that NEPA is being 
strictly complied with by NMFS because of litigation prospects?
    Dr. Hogarth. I don't think that is the complete reason. I 
think it has driven us to a point, litigation has driven us to 
a point, where we are spending a lot more time writing much 
longer, detailed documents, and I think we have lost our 
constituency. But, yes, I think to try to be litigation-proof 
or win the litigation, I think we have taken much longer, 
sometimes a period of years I think, to get a NEPA document 
    And I think part of that is that we want to win. We don't 
want to keep losing. We are winning about 80 percent of the 
cases now. We were winning about 40 percent. And it is just we 
have got to find a way to get out of litigation and to win 
    Mr. Gilchrest. I have a number of other questions, but I am 
going to close with this last one which is highly 
controversial, but I will ask it anyway. If the Ocean 
Commission report recommended that the stock allocation by SSC 
be strictly adhered to by the council, and that the council 
would just allocate that stock assessment, if that were the 
case, would this clear up a number of NEPA problems? Anybody 
can answer that.
    Dr. Hogarth. In my opinion, no, sir. In my opinion, I don't 
think that would clear up any of the NEPA problems. Because you 
have still got a group of people who are going to meet and 
determine a number.
    Mr. Gilchrest. Bill, I don't think your mike is on.
    Dr. Hogarth. I said in my opinion, that does not change 
that. You just change it to another group of people who will 
make a decision. Those people have to be chosen by someone, and 
it is just a different process.
    And my personal opinion is that the science separation has 
really gotten somewhat blown out of proportion. Because we go 
through a very thorough, thorough peer review process now on 
the stock assessments; and then we go through the SSC; and then 
the councils have ten standards that they have to judge their 
work by, which requires them to look at things other than just 
over-fished. They have to look at communities, economics; even 
though courts have ruled that the number one standard is over-
fishing. And then we review it carefully when it comes to the 
    So I think part of the problem is probably reaction to the 
fact that we have not been diligent about making sure when the 
councils send something that, if it is not in compliance with 
all ten standards, we send it back or reject portions of it.
    I think we all do our job. And I think the councils 
definitely have a right to look at things other than just a 
number. I think they have probabilities they need to look at on 
rebuilding, and things like that.
    Mr. Gilchrest. I see. Thank you very much. Mr. Pallone.
    Mr. Pallone. Thank you, Mr. Chairman. I just wanted to say 
that, based on the panel's testimony and my reading of the 
second panel's testimony which is to follow, some of the 
witnesses here today are arguing that Congress needs to change 
either Magnuson or NEPA so that the statutes are more 
consistent or cohesive. And others are arguing that Magnuson 
and NEPA are complementary laws; that NEPA is not always 
implemented in a manner that aids the councils in meeting their 
requirements under Magnuson.
    So I basically wanted to ask a series of questions. And in 
my mind, the question is: Do we have conflicting laws for 
governing fisheries, or do we simply need to encourage and 
support councils and the agency as they continue to improve 
their implementation process? That is sort of two questions.
    But some of the questions I wanted to ask have certainly 
been touched upon, but I was trying to get answers in a more 
precise way. So I just was going to ask each member of the 
panel to quickly answer some of these questions.
    First, NEPA requires the full analysis of the environmental 
impacts of a proposed action on all facets of the environment, 
including non-commercially managed species. So does Magnuson 
require this? That NEPA requirement, does Magnuson require that 
that be done? If each of you would quickly answer, starting 
with Ms. Bear, I guess.
    Ms. Bear. Not to my knowledge. But I would, frankly, defer 
to my colleague, the General Counsel of NOAA, for that 
question, because we don't interpret Magnuson. But not to my 
    Mr. Pallone. OK.
    Mr. Walpole. I listened carefully to the question, and I 
couldn't quite get the grasp of it.
    Mr. Pallone. Well, NEPA requires a full analysis of the 
environmental impacts of a proposed action on all facets of the 
environment, including non-commercially managed species. So 
does Magnuson require that? Does it include that NEPA 
requirement when you proceed?
    Mr. Walpole. That specific one?
    Mr. Pallone. Yes.
    Mr. Walpole. In terms of the alternatives, I guess I am not 
focusing on what provision of NEPA you are talking about.
    Mr. Pallone. Just in general. In other words, NEPA requires 
it in general. I guess what I am trying to say is to what 
extent Magnuson is carrying out these NEPA requirements. You 
know, you guys are sort of suggesting that maybe we need some 
changes in both laws, or maybe we don't, maybe it is just a 
question of implementation.
    He wants to answer it, so I will go to you. Go ahead.
    Mr. Furlong. Yes, I can answer that question. I believe 
that a full analysis of environmental impacts isn't 
specifically statutorily addressed in the Magnuson Act.
    Ms. Bear. Right.
    Mr. Furlong. However, there is a national standard, 
National Standard Nine that relates to bycatch, that is part of 
the environment; is very critical. And in terms of the SFA, 
when it introduced essential fish habitat, it was very specific 
about minimizing the adverse effect of fishing. But the agency, 
in its final rule that focused on that aspect of EFH, goes well 
beyond the statutory language. And in fact, the final rule that 
implements that encompasses a full suite of environmental 
considerations. So the agency's rule really addresses this 
question. The statute does not.
    Mr. Pallone. OK. Now, NEPA requires the consideration of a 
broad range of alternatives. Some of you talked about that, 
alternatives to the proposed action; including environmentally 
preferred alternatives that minimize significant environment 
impact. Does Magnuson require that? Or how does Magnuson go 
about dealing with that?
    Ms. Bear. No. I think several of us have already said that 
Magnuson doesn't require alternatives analysis.
    Mr. Pallone. OK. Anybody else? I have got a few more.
    [No response.]
    Mr. Pallone. If not for NEPA, would the councils be 
required to present a range of alternatives for public 
consideration and comment? In other words, does Magnuson 
require that separate from NEPA? Does this not provide 
significant opportunities for the development and consideration 
of alternatives that may be viewed more favorably by the 
fishing industry?
    So, without NEPA, would the councils be required to present 
a range of alternatives for public consideration, under 
    Ms. Bear. No.
    Dr. Hogarth. No. No, sir.
    Mr. Pallone. OK.
    Mr. Furlong. Well, I would disagree with my colleagues in 
the context that when we set specifications specifically--when 
we are dealing with summer flounder and you are looking at a 
size season bag limit--we present a range of alternatives, as 
it relates to the very specific charge under National Standard 
One to come up with preventing over-fishing.
    So we have a range of them. The perverse thing about it is 
that, if the council chooses some combo that we didn't put on 
the table, under NEPA we would actually have to go back out on 
the street because the public didn't have adequate notice on 
that decision, because that wasn't one of the options that we 
had put forward at the time of setting specifications.
    In terms of the management plan itself, and any amendment 
to it, I don't think there are alternatives, per se. It is just 
an evolutionary process that gets you to a point where you say, 
``Well, this is the best measure.''
    Mr. Pallone. OK. Now, NEPA also requires an agency to 
respond in writing to public comments regarding various 
alternatives, and adjust EIS accordingly. Are the councils 
required to do this under Magnuson, or is that just a NEPA 
requirement? To respond in writing to public comments regarding 
various alternatives and adjust the EIS accordingly, are the 
councils required to do that under Magnuson?
    Dr. Hogarth. The councils are not required to respond. We 
do, under the NEPA process; but the councils are not required 
to respond to each comment. No, sir.
    Mr. Pallone. OK. And NEPA requires consideration of any 
cumulative environmental impact. Is that true under Magnuson, 
would you say?
    Dr. Hogarth. No. No, sir.
    Mr. Pallone. OK.
    Dr. Hogarth. Particularly when it is not a fishery 
    Mr. Pallone. OK. And then the last one, Mr. Chairman, an 
important policy aim of NEPA is to, and this is a quote, 
``attain the widest range of beneficial uses of the 
environment, without degradation, risk to health or safety, or 
other undesirable and unintended consequences.'' Now, does that 
appear consistent? I mean, I think it appears consistent with 
the Magnuson Act. Do you agree that that is consistent with 
Magnuson? Do you want me to go over that again?
    NEPA says an important policy aim is to ``attain the widest 
range of beneficial uses of the environment, without 
degradation, risk to health or safety, or other undesirable and 
unintended consequences.'' I think that is consistent with 
Magnuson, but I am just asking you if you agree. You say 
``Yes,'' Ms. Bear?
    Ms. Bear. Yes, I do.
    Mr. Pallone. OK. All right, thank you. Thank you, Mr. 
    Mr. Gilchrest. Thank you, Mr. Pallone.
    As a follow-up to the questions from Mr. Pallone, having 
gone through Magnuson now for a number of years and all of the 
requirements and statutes and standards with the Sustainable 
Fisheries Act, if we looked at the ten national standards and 
we looked at 14 required provisions in the Act, the ten 
national standards, the 14 required provisions, in my mind, 
present a fairly strict, but reasonable, environmental 
conservation requirement on the Magnuson-Stevens process, both 
on the agency, the councils, public input, on all of the 
fisheries management plans; which to some extent parallel the 
NEPA process.
    Now, I understand that the heart of this NEPA is 
alternatives. But when you are dealing with a multi-species, 
multi-gear fisheries management plan, which is pretty 
extraordinary in and of itself, it seems that Magnuson to a 
large extent, in the process laid out especially under the 
Sustainable Fisheries Act, parallels NEPA in a wide range of 
    Dr. Hogarth. Mr. Chairman, I agree. I think that it does. 
And I think that the heart of the discussion and the debate 
right now is how much does it, and are there just some things 
that could be put into Magnuson that would require you not to 
be doing somewhat duplicate efforts, and that would be more 
timely in the fact that you would finish Magnuson and you 
wouldn't then have to do additional NEPA work.
    You know, like I say, no one wants to get out of the public 
having a good process to go through. What we are trying to do 
is make sure that process is timely, such that what the 
fisherman sees on the water today is not taking us two years to 
implement. And so I think that is the debate: Can Magnuson? And 
in my opinion, it can, with the alternatives, in particular, 
being added to it. And I think that is what we should work 
together on, to see how we can get it done.
    Mr. Gilchrest. I don't think any of us up here--myself, or 
Mr. Pallone--want to reduce the environmental protection in a 
broad way; especially since we are moving now into an ecosystem 
process. Thank you, Dr. Hogarth.
    Dr. Hogarth. Thank you very much. And I look forward to 
working with you on this issue. Anything we can do, we will. 
And I think CEQ and our attorneys just need to sit down, and 
maybe with your staff, and really take a good look at this.
    Mr. Gilchrest. Thank you. We don't want to reduce the 
science; we don't want to reduce the public input; we don't 
want to reduce alternatives; we don't want to reduce 
environmental protection in the big picture. But we don't want 
to make this system so cumbersome that the science we use is 
outdated by the time the fisheries management plan is 
implemented, and that has been the case in a number of 
situations. So that is our goal.
    Mr. Pallone, do you have any other questions?
    Mr. Pallone. I just wanted to ask a budget question, if I 
could, of the panel. Because since 2003, the President's 
budgets for NMFS have requested on the order of $8 billion for 
NEPA compliance--million, I should say. However, in each of the 
past two years, Congress has only appropriated $3 million of 
the agency's budget for NEPA activities. So obviously, $5 
million less.
    If any of you, or each of you, could address the issue, to 
what degree do you think that inadequate funding is impacting 
the ability of NMFS to implement NEPA in the fishery management 
    Mr. Walpole. Well, I can't speak for the program, since I 
am in the general counsel's office, but my sense is that the 
President's request was such that it was to assure full funding 
for the program, including the NEPA work. When those funds 
weren't made available, it probably has had an effect on that.
    Mr. Pallone. So it has definitely had an effect, in your 
    Mr. Walpole. I would say that without the full funding 
there is an effect there, yes.
    Mr. Pallone. OK. I don't know if anybody else wants to 
speak. Go ahead.
    Mr. Furlong. Can you see that, Mr. Pallone?
    Mr. Pallone. I just see a white piece of paper.
    Mr. Furlong. Right. Blank piece of paper, exactly right.
    Mr. Pallone. Right.
    Mr. Furlong. That is where the councils start on an EIS. 
When the agency gets it, they get some sort of text. The 
agency, together with the councils, developed this document. 
The councils have never seen any significant funding from 
Congress, in terms of NEPA requirements.
    Bill Hogarth, just departed, has provided, if you will, 
some supplemental monies to the councils, at about $150,000 per 
council, for a couple of years. That has been the extent of it. 
And when you talk about pulling together huge documents, that I 
think are crazy, you know, their value is really dubious, in my 
opinion. You know, it is a problem.
    Now, continue with the program, yes or no? It is like a 
toggle switch. If you support it, then it should get funded. 
Realize that NEPA was Public Law 91, and the Magnuson Act was 
Public Law 94. It is almost the same Congress that had the 
sensitivity six years later when it made the Magnuson Act to 
appreciate what was in NEPA.
    To me, the Magnuson Act is a very strong environmental act. 
And if we honor what is required in that act, I think the 
environment is not disserved by us.
    Mr. Pallone. Well, thank you. Ms. Bear?
    Ms. Bear. Yes. Just a word going back to your original 
question about the budget. I certainly would think that the 
money that was requested by the President's budget is needed 
and would be well spent, in the context of NMFS' compliance 
with NEPA. NMFS should be commended, certainly, for responding 
to the various judicial decisions that found that its 
compliance was inadequate.
    It is very typical, though, for agencies who have gone 
through that situation where for a while they were found to be 
out of compliance and then start to comply with vigor, at times 
to focus on the legal requirements and not on the management of 
the process.
    I couldn't agree more with Mr. Furlong that a 7,000-page 
EIS is crazy. But I do take issue with his characterization of 
that as obsequious compliance with NEPA. That, in my view, is 
not compliance with NEPA. NEPA is supposed to serve the public 
and decisionmakers, and I know of no member of the public or a 
decisionmaker that wants to plow through a 7,000-page EIS.
    Often, when we dig into the details of these situations--
which I would certainly hope to do in the very near future--we 
find that the problems lie not with legal requirements. That is 
what lawyers, obviously, usually pay attention to, are the 
legal requirements. And courts are looking really at assuring 
that citizens have their rights fulfilled in terms of public 
involvement, and that the analysis covers the requirements; but 
courts aren't looking at how the process is actually managed.
    And a lot of times, we find that the kind of horror stories 
that you do hear occasionally about the NEPA process--whether 
it is length of time, or the 7,000-page EIS--are attributable 
to management issues; which in turn often find their root in 
lack of resources.
    So the answer to your question, I think, would be, yes; 
that it would be important for Congress to fulfill the 
President's budget request.
    Mr. Pallone. OK. Thank you. Thank you, Mr. Chairman.
    Mr. Gilchrest. Thank you, Mr. Pallone.
    Mrs. Drake?


    Mrs. Drake. Thank you, Mr. Chairman. I am just going to 
make a comment, since I did not hear the testimony of panel 
one. And I apologize for that. But I would just like to say, 
Mr. Chairman, I agree with your summary you just made. But I 
think it is our mission to make sure that we aren't requiring 
things to be duplicative; that we aren't requiring things to be 
so lengthy that we lose our best science in making decisions; 
and that we use our staff time and our resources wisely.
    And I am hoping our NEPA task force will dig deeply into 
this issue and make the recommendations that have a program in 
place that manages this resource, makes the best decisions, and 
makes the best use of your time.
    So thank you. And I would like to yield my time back to 
you, in case you have more questions.
    Mr. Gilchrest. Thank you, Mrs. Drake.
    I do have a follow-up question. Ms. Bear, in your comments 
about EIS and supplemental EIS's when there are proposed 
changes, in a number of areas in the fisheries there are 
adaptive management procedures that generally are only useful 
if they are done in a timely fashion. Where does an EIS fit 
into adaptive management?
    Ms. Bear. That is a very important issue. And in fact, it 
is one of the issues that was highlighted by our NEPA task 
force as worthy of some additional guidance from CEQ.
    But in general, first of all, let me clarify. The 
requirement to supplement EIS's only arises if the new 
information rises to the level of significance that triggered 
the original EIS. In other words, it is not every piece of new 
information that requires you to supplement the EIS. It is only 
really big, important, dramatically new, significant 
information that was not considered in the original EIS.
    In terms of adaptive management, this is one of the issues 
I do want to talk to NMFS about in more detail. But generally 
speaking, we would be looking for an EIS that covered a range 
of alternatives and affects analysis in a way that allowed for 
variation in the future, and a variation that was articulated 
ultimately in a record of decision with monitoring and 
provisions for bringing that monitoring back to the councils 
and to the agencies in a way that they would be able to adjust 
the management decisions, either without doing any further NEPA 
analysis at all or, in unusual cases, perhaps some additional 
    Another way to look at it is one of the agencies we work 
with that works in an environment with a lot of changing 
circumstances has prepared programmatic EIS, multiple, of 
course, alternatives and analysis, and then issued a record of 
decision one year on what they are going to do; but then 
followed that with subsequent records of decision on the same 
EIS, but adjusting their decision as time goes by based on the 
information they are getting. And that has been upheld by the 
courts. There are several ways to approach it.
    Mr. Gilchrest. But do you know how what you just described 
to us is working, or would work? In the Gulf of Maine, they had 
three rotating closed areas for scallops. And maybe Mr. Walpole 
can comment on that. How would what you just described to us, 
as far as NEPA is concerned, with an EIS with adaptive 
fisheries management, work in that one particular area? We 
would like to follow up on that, to see how that process works 
in New England.
    Ms. Bear. OK.
    Mr. Gilchrest. Mr. Walpole?
    Mr. Walpole. Thank you. And I certainly agree with the 
comments that Ms. Bear made, in terms that you don't do a new 
EIS, or a supplemental EIS, unless you get new, significant 
information. That is the situation that we deal with pretty 
frequently, in terms of getting big, important information that 
affects what is going to be allowed in the fisheries each year. 
And so this is something that comes up frequently to us.
    And she makes a good point, that this is something that 
needs to be managed properly. But in terms of the timeframes in 
there, it is a challenge for us each year to go through it. I 
say ``for us''; I am speaking from what I know about the 
program, since I am not in the program. But it is a challenge 
to get it done.
    Ms. Bear. Mr. Chairman, if I could just add, supplemental 
EIS's are an area where CEQ has the authority to develop 
alternative arrangements. And the six circumstances I mentioned 
earlier where we have approved alternative arrangements for 
NMFS, including either on an ad hoc or a permanent basis for a 
particular fishery, are in the context of supplemental EIS's.
    We will certainly follow up and discuss with NMFS the 
situation that you mentioned in the Gulf of Maine, and I will 
get back to you with our ideas on that.
    Mr. Gilchrest. Thank you. The fishery in Alaska, the 
groundfish fishery with the 7,000-page EIS, now, I am not 
saying that wasn't necessary, necessarily, because I haven't 
read it--I'll have Dave read it here, over the weekend, and 
write me a memo.
    Mr. Gilchrest. Now, CEQ is going through a NEPA analysis 
right now? Or who is doing that?
    Ms. Bear. The task force that I mentioned?
    Mr. Gilchrest. The task force.
    Ms. Bear. We had an interagency NEPA task force; not to be 
confused with this Committee's NEPA Task Force, although many 
people will be confused, no doubt.
    Mr. Gilchrest. Members of Congress, most particularly.
    Ms. Bear. It was composed of interagency representatives 
from a number of agencies that have a lot of experience in 
NEPA, and were essentially recommendations to us.
    Mr. Gilchrest. Is your task force completed?
    Ms. Bear. Yes, it is. And there is a report out, publicly 
available, on those recommendations.
    Mr. Gilchrest. OK, thank you.
    Ms. Bear. And one of those recommendations is for us to 
issue guidance across the board on how to better use adaptive 
management with the NEPA process.
    Mr. Gilchrest. We have it.
    Ms. Bear. There you go.
    Mr. Gilchrest. Do any of your recommendations take into 
consideration the groundfish fishery in Alaska that required a 
7,000-page EIS?
    Ms. Bear. No. That looks at NEPA compliance across the 
board. Again, I want to say that, in my view, NEPA does not 
require 7,000-page EIS's. I have not had the pleasure of 
reading it, and I hope I don't join Dave this weekend in having 
to read it.
    Mr. Gilchrest. Mr. Walpole.
    Ms. Bear. But in my mind, that is actually quite contrary 
to the requirements in our regulations. I am well aware that 
agencies at times, because of the information, have to go over 
the 150-page page limit. And indeed, our regs provide that for 
proposals of extraordinary complexity, usually national 
proposals, they can be up to 300 pages.
    There are also appendices. We really encourage agencies to 
put technical information in appendices, or to incorporate 
other documents by reference, as long as they are available to 
the public.
    But the whole thrust of the process set out in our regs is 
to cut down and really eliminate those kinds of EIS's, and make 
the process something that the public and decisionmakers can 
engage in in a very proactive and easy way.
    Mr. Gilchrest. Thank you. Mr. Walpole?
    Mr. Walpole. And I can't agree more with her comments. No 
one likes to have a huge document, and 7,000 pages is certainly 
pretty extraordinary.
    I would mention that the basis for this was a programmatic 
program so that we wouldn't have to do EIS's every year for the 
fishery up there. The earlier environmental impact statement 
had been stricken down by the court, and so we had gone back to 
make changes that were necessary, and we ended up with this 
extraordinary EIS. But as with any agency, that is something 
that we try to avoid like the plague.
    Mr. Gilchrest. Will you then, as a result, not have to do 
an EIS on an annual basis, or a regular basis, with the 
groundfish fishery?
    Mr. Walpole. We are evaluating that now.
    Mr. Gilchrest. I see. Well, any other comments? Dan?
    Mr. Furlong. Yes, Mr. Chairman, a couple of things. Don't 
forget New England. They had a 1,700-page EIS, plus another 300 
pages of appendices. So they had a 2,000-page EIS for New 
England groundfish, court ordered.
    But let me ask you a question for the Committee. Given that 
the councils have been exempted under FACA rules, are you aware 
of any abuses, or any, if you will, down side, in terms of 
adverse impacts on the public or adverse impacts on the 
resource, because we enjoy that exemption?
    I don't think you will find that. That is the question: 
What is the down-side risk, you know, if NEPA, if you will, 
disappears and the Magnuson Act prevails? I think you will find 
that there is not a great risk. It is a very environmentally 
sensitive act. And I really would suggest that you recognize, 
as you have already said, there are ten national standards, 
there are 14 mandatory requirements.
    It is resource-focused. I know we are a mixed bag. EPA, you 
know: Focused on one thing. We have got a conservation duty; we 
have got an environmental duty; and here is this process that 
overlays it. But if you look at, if you will, the organic act 
of Magnuson, you know, it is a good Act, and it gets the job 
    Mr. Gilchrest. And we want to make it better, Dan.
    Mr. Furlong. We all do.
    Mr. Gilchrest. Thank you all very much.
    Our second panel is with Mr. David Frulla, attorney, 
Collier Shannon Scott; and Mr. Eldon Greenberg, attorney with 
Garvey Schubert Barer; and Ms. Suzanne Iudicello.
    Now, I understand that we are going to have a vote in about 
five minutes on the House floor. So what I think we will do, I 
think we can get started with your opening statements, then we 
will take a break while we vote, and come back and ask 
    And I don't know what the standing-room-only situation is 
going to be like, but if you are standing in the back of the 
hearing room, there are more seats. I don't think we will have 
that problem right now. I should have done this before. But if 
there aren't enough seats out there, the lower dais is empty, 
and you can sit in the lower dais. If you see somebody standing 
near you, just tell them to find a seat. Much more comfortable.
    We will start with Ms. Iudicello.

                     INDEPENDENT CONSULTANT

    Ms. Iudicello. Thank you, Mr. Chairman, for the opportunity 
to be here to offer some views on issues related to the 
integration of requirements under the National Environmental 
Policy Act and the Magnuson-Stevens Fishery Conservation and 
Management Act. My observations are my own. I am not 
representing anyone or any organization. It is a pleasure once 
in a while to be an opinionated woman at large, and I guess 
that is what I am doing today.
    Mr. Gilchrest. I might have some questions about that later 
    Ms. Iudicello. My message today is that the requirements of 
the National Environmental Policy Act and of the Magnuson-
Stevens Act are not in conflict. NEPA is primarily a tool to 
help decisionmakers highlight possibilities, look at all the 
alternatives they might have before them; to look at the 
consequences of what those alternatives would be; to engage the 
public; and then to evaluate and make a record of their 
decision process, and make that decision process transparent to 
the public.
    The Magnuson Act, while I would agree with the previous 
witnesses that it has a conservation policy element to it, is 
principally enabling legislation to allow our managers to 
authorize fishing. One is a decision tool; the other is a 
resource management tool.
    NEPA can, and should, be something the councils use to lay 
the groundwork for better informed decisionmaking. And if the 
councils and the agency implement it properly in the course of 
planning, it can be not only an offensive mechanism, if you 
will, a sword, but it can also be a shield. Because you have a 
record of decision that lays out what you considered, why you 
considered it, how you came to decide what you decided. And as 
we have heard from Dr. Hogarth, improved implementation of NEPA 
has actually helped them with their won-loss record in court.
    In Fiscal Year 2003, Congress authorized additional money 
for the agency to hire NEPA coordinators and to work a little 
harder and better on producing its documents. And that has had 
a good effect, and will continue, I think, to improve their 
    This notion of regulatory streamlining has come up in some 
of the statements. And I think the idea here is that the NEPA 
process enables the agency to front-end-load information 
gathering and information consideration. Very often, what 
happens in the Magnuson Act is a proposal comes out and the 
council is considering it and debating it, but the only way you 
get alternatives is that somebody comes in at the back end of 
the process and disagrees with what has been proposed and is on 
the table. So you have post hoc rationalization about why you 
made a decision, or you get information that comes in at the 
back end of the process. And that is when things get very 
complicated, very confusing, and very costly.
    I think the concerns that you have heard about NEPA 
implementation, the timing, the length of the documents, the 
length of the amount of time that is taken, really lie in this 
area of managing the process; rather than the legal 
    Ms. Bear raised several possibilities for how the agency 
could speed things up. There is no reason, for example, to 
begin your NEPA process coincident with the triggers that start 
the Magnuson time lines ticking. I would agree with those who 
complain that they don't mesh very well, but that is because 
they try to start them at the same time. If you were doing 
programmatic EIS's, you could start that at any time before you 
actually were doing management plan amendment.
    It is true that when folks are talking about NEPA documents 
these days they make this gesture, as in chin-high, rather than 
even citing the number of pages. But as Ms. Bear said, the law 
doesn't require that voluminous amount of material.
    One thing I would like to mention that hasn't come up yet 
is the notion that NEPA somehow gets in the way of permitting, 
especially in cooperative research or experimental fisheries. I 
was surprised to see a column in the ``National Fisherman'' 
magazine by Dr. Hogarth, where he said that it was NEPA's fault 
that they weren't getting permits out in time for cooperative 
fisheries research in New England.
    I served on a panel of the National Research Council a 
couple of years ago, exploring for the National Marine 
Fisheries Service how better to do cooperative research, and 
NEPA wasn't one of the concerns that came up. A lot of the 
problem with the delays in the permitting had to do with 
standardization of agency procedures and how permits are 
granted from one region to another. So I would suggest that 
that again is another process management issue, rather than a 
legal requirements issue.
    I would be happy to answer questions. Thank you.
    [The prepared statement of Ms. Iudicello follows:]

     Statement of Suzanne Iudicello, Author/Independent Consultant 
                         on Marine Conservation

    Good Morning, Mr. Chairman and Members of the Subcommittee. Thank 
you for the opportunity to testify at this oversight hearing on the 
relationship between the Magnuson-Stevens Fishery Conservation and 
Management Act and the National Environmental Policy Act. 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 issues related to the integration of these two statutes. My 
observations on NEPA and the Magnuson-Stevens Act are drawn 
particularly from work in which I have participated. This includes:
      A project conducted for the National Marine Fisheries 
Service (NMFS) on requirements under multiple statutory authorities;
      Participation on the National Research Council Committee 
on Cooperative Research in the National Marine Fisheries Service;
      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.
    My main message today is that NEPA and the Magnuson-Stevens Act are 
not in conflict. The former is a tool to help decision-makers engage 
the public, consider alternatives, and understand the consequences of 
proposed actions. If used effectively by fishery managers, it could be 
both a sword and a shield: an offense in the effort to move toward 
ecosystem-based approaches to fishery management, and a defense against 
challenges to administrative actions.
    The latter has as its stated purposes managing fishery resources, 
supporting international fishery agreements, promoting fishing, calling 
for preparation of management plans, establishing councils, encouraging 
development of fisheries, and, as of 1996, protecting essential fish 
habitat. Although the Magnuson-Stevens Act has numerous administrative 
features, it is essentially a resource management statute. NMFS is no 
different than the U.S. Forest Service, National Park Service or the 
Federal Aviation Administration in having to follow both programmatic 
or enabling legislation as well as administrative laws such as NEPA.
    Despite complaints you may hear about so-called conflicts among 
statutes, it appears to me that in the past three years since the 
Congress last reviewed NMFS compliance with NEPA and other statutory 
and administrative requirements, the agency has tremendously improved 
its record. In FY 2003, Congress provided additional resources so that 
the agency has the capacity in its budget, organization, structure and 
management processes to meet requirements under multiple statutory 
authorities and national policies.
    What are the signs of improvement? Stakeholders may still be filing 
lawsuits, but the difference today is that the agency is winning. NMFS 
has used the additional resources to improve production of documents 
such as Environmental Assessments, Environmental Impact Statements and 
Records of Decision. The addition of NEPA coordinators in regions and 
councils has helped improved performance. Efforts to streamline the 
regulatory process by front-end loading information gathering within 
the agency will improve it even more.
    Is there room for further improvement? Certainly. It is my view 
that the system for effective stewardship and procedural compliance 
exists, but isn always implemented well. There are specific ways to 
correct problems about which you have heard testimony: the length of 
time NEPA compliance requires, the meshing of deadlines under NEPA and 
Magnuson-Stevens, the degree of environmental analysis required for 
actions such as experimental fishing permits, research, or minor 
regulatory change. I like to address each of these issues in turn, and 
finally, say a few words about the concern over lawsuits.

NEPA timelines and Fishery Management Plan deadlines can be coordinated
    One of the complaints you have heard is that the Magnuson-Stevens 
Act contains deadlines and timetables that must be met in the course of 
fishery management plan development and amendment, and that NEPA's own 
timetable does not coincide with the council calendar.
    The difficulty most cited by council and agency staff is 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; Forty Questions 
    Both NEPA and M-S FCMA contain sufficient flexibility to be 
synchronized and integrated. Councils do not have to wait for the 
delivery of a stock assessment to begin a NEPA analysis if they are 
analyzing the important action, and putting it in context. Is it a 
whole new program or fishery? Then start scoping as soon as possible, 
rather than waiting for the stock assessment. If it is an annual or in-
season adjustment to a plan whose alternative measures have already 
been analyzed, they should consider whether the level of change really 
warrants an EIS or could be discussed in an EA? Could it be done as one 
of several tiered decisions that are subsequent to a prior major Record 
of Decision? Nowhere in the statute or the CEQ regulations does NEPA 
require that the agency go back and start the entire analytical process 
over unless the proposed federal action or the new information that 
changes alternatives and consequences is significant. Other options 
include doing a new Record of Decision or a short Environmental 
Assessment to elicit public comment on the new information. The 
President's Council on Environmental Quality is open to approaches on 
these and other ways to make NEPA compliance fit the timing 
requirements of the Magnuson-Stevens Act. Analysis for most of the 
annual, in-season and similar adjustments that councils make should 
only take a couple months, not years.

NEPA does not require voluminous documents that overwhelm the system 
        and the public
    Irate fishery stakeholders no longer refer to NEPA documents in 
words or even numbers of pages. They hold a hand at about chest level 
to indicate the size of recent analyses. Such daunting amounts of 
material are not required by NEPA. In fact, the law calls for plain 
language, and the CEQ regulations actually limit the number of pages of 
text in a final EIS to 150 to 300 for very complex proposals (40 C.F.R. 
    While it is understandable that documents prepared in the past 5 
years or so were overly inclusive as a defensive tactic, it is time for 
NMFS and the councils to re-examine the purposes, policies and 
potential of NEPA.
    The point is not to wall off the public from the decision-maker 
with battlements constructed of paper, but to engage the public, to 
make the thought process behind decision-making clear, to show a 
variety of alternatives and what their consequences might be. Not only 
does this process not require thousands of pages, the spirit and letter 
of NEPA caution against it. The courts are looking for quality 
analysis, not quantity of data. As an example, a recent award-winning 
EIS was in the form of a coffee-table book (See National Association of 
Environmental Professionals http://www.NAEP.org/COMMITTEES/
    How can we improve our environmental documents? In some cases, 
clearer, tighter, shorter writing is the answer. That comes with 
training and practice. Although one may jump to the conclusion that it 
might be better to farm out such tasks to consultants rather than in-
house scientists and fishery managers, the record shows that EIS's 
prepared by consultants are longer than those prepared in-house.
    Beyond better writing, the CEQ regulations offer numerous tactics 
for reducing the paper volume. Analysis is the key. A page of 
thoughtful analysis is worth 60 pages of statistical tables. Tiering is 
an approach that begins with a general, programmatic analysis. 
Subsequent actions are covered in ``tiers'' that incorporate the prior 
discussion by reference, and focus on the issues specific to the action 
under consideration. Incorporation by reference allows agencies to 
append materials without including them in the text of an EIS. All 
these methods of cutting down the paper burden have been approved by 
the courts, incorporated in the CEQ regulations, and are available to 
the National Marine Fisheries Service.

NEPA is not to blame for every delay in permitting
    It came as quite a surprise to read a recent column by Dr. William 
Hogarth in National Fisherman magazine wherein he blames NEPA for the 
slowness in issuance of experimental fishing permits and similar 
permitting required for cooperative research projects between the 
agency and the fishing industry.
    In 2003, the National Research Council convened a committee on 
cooperative research at the request of the National marine Fisheries 
Service. This panel reviewed all aspects of cooperative research, from 
its history to case studies, to legal and financial impediments. 
Nowhere in our entire report did we find that NEPA requirements stood 
in the way. The only mention of environmental analysis in the report is 
the following:
    For some EFP applications, an environmental assessment (EA) may 
also be required because the environmental impact of the proposed 
fishing activity is believed to be substantial. The preparation of an 
EA requires considerable effort and expertise, and the criteria for 
when an EA is required vary from region to region.
    The section concludes that the delays are caused by overall 
confusion about the NMFS application procedure, and the report 
recommended that the agency standardize its permitting procedures. No 
mention was made of NEPA.
    The Mid-Atlantic Fishery Management Council has found a way to 
streamline experimental fishing permits for cooperative research. Their 
solution was to set aside a portion of the total allowable catch of all 
managed species for cooperative research. That means that the 
environmental impact of that fishing mortality already has been 
analyzed in the course of developing or amending the FMP and annual 
catch specifications. There is no unaccounted mortality that might 
arise when an experimental project comes up, and that must then get its 
own separate analysis before a cooperative research project can be 
approved. Why can't all the regions take a similar approach? Why hasn't 
the agency demanded a standard, national policy for permitting 
cooperative research and expediting experimental fishing permits 
related to that activity?

Litigation is part of the system, not an indication that the system is 
    Finally, a word about lawsuits over NEPA.
    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 a 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.
    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 resources that are desperately needed to conduct basic business, let 
alone plan ahead or think creatively to find ways to integrate 
disciplines and mandates.
    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 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 compilation of information and analysis of alternatives that 
take place in an EIS can serve the fishery management process rather 
than thwart it. Issues surfaced through NEPA at the end of the planning 
process make for inefficient, costly and frustrating outcomes. As first 
level decision-makers, councils could benefit from having the full 
disclosure of alternatives and consequences before them early, rather 
than at the end of their decision process.
    It is time they took advantage of the exploratory tools NEPA 
provides, so they can use them to make better decisions, document and 
defend them.
    Thank you for the opportunity to share these views. I will be 
pleased to answer any questions.
    Mr. Gilchrest. Thank you very much.
    Mr. Greenberg.

                     GARVEY SCHUBERT BARER

    Mr. Greenberg. Thank you, Mr. Chairman. My name is Eldon 
Greenberg. I am a partner in the Washington law firm of Garvey 
Schubert Barer. I want to thank you, Mr. Chairman, and the 
Committee for inviting me to testify this morning concerning 
the relationship between the Magnuson-Stevens Act and NEPA.
    I have long experience with both these statutes. I acted as 
general counsel to the National Oceanic and Atmospheric 
Administration in the Carter Administration, when we were just 
getting started with implementation of the Magnuson-Stevens 
Act. And since leaving government some 23 years ago, I have 
spent a lot of time representing private parties, both in the 
administrative process and in litigation, under the Magnuson-
Stevens Act and NEPA. I thus hope that my perspective will be 
useful to the Committee this morning.
    I would emphasize that I am not testifying today on behalf 
of any company or organization. The views I express are my own, 
alone, and I take full responsibility for them. I would ask 
that my full statement be submitted for the record.
    As many witnesses have said this morning, both these 
statutes, the Magnuson-Stevens Act and NEPA, share the laudable 
purpose of ensuring that there is a reasoned decisionmaking 
process with respect to the management and conservation of our 
fishery resources.
    The people have also talked about public participation and 
openness. And I would underscore that NEPA, on the one hand, 
may be a full-disclosure statute, as the courts have sometimes 
said; but there is no process that is more open and more 
transparent, in my experience, than the fishery management and 
conservation process under the Magnuson-Stevens Act.
    Whether NEPA is truly necessary is a question that has been 
much debated. You have heard that debate this morning; whether 
the FMP is a functional equivalent of an environmental impact 
statement or not. I think there is a lot of merit to the 
argument that it is. But leaving that broader question to one 
side, it seems to me to be undeniable that there are some 
practical problems in implementing the two statutory mandates. 
And that is what I want to focus on this morning, with 
reference to three specific problems.
    First, there is the problem of who is in charge under NEPA. 
Senator Magnuson was fond of saying that the Magnuson-Stevens 
Act created a unique system of government where you had to 
balance the councils on one hand, and the role of the National 
Marine Fisheries Service and the Secretary of Commerce on the 
    I think there is considerable uncertainty and confusion as 
to just who the decisionmaker is under NEPA. In my view, 
because it is the council that is responsible for making 
fishery management decisions, it must be the council which is 
the ultimate policymaker under NEPA. I don't think that the law 
is clear with regard to that issue at this point, and I think 
it needs to be clarified.
    A second problem, which has already been addressed this 
morning, relates to the massive and incomprehensible nature of 
some of the NEPA documentation that has been produced by the 
agency. I think the problem here is particularly the result of 
what I call ``unmoored programmatic reviews''; broad 
programmatic statements that have been required by the courts 
that are, frankly, unrelated to any specific decisionmaking 
issues before the councils. And you end up with this process 
that just takes years and years to complete.
    The 7,000-page EIS for the Bering Sea, Aleutian Islands, 
and Gulf of Alaska groundfish fisheries was ordered by the 
court in July of 1999. It wasn't completed until June of 2004. 
It took five years to do that document, an enormous amount of 
resources. And at the end of the day, it was hard to know how 
relevant it was to the real decisions that had to be made by 
the North Pacific Council.
    The third problem, which has also been addressed by other 
witnesses, relates to the dynamic nature of fishery management. 
There is an overriding imperative in the fishery management 
process to use the most current data available. Councils have 
to rely on the most recent survey data in making annual 
management decisions such as setting tax, establishing bycatch 
rates, adjusting allocations among user groups.
    If you have to prepare a full EIS on your annual management 
decisions, you find yourself in a quandary as a council. You 
simply can't accommodate the need to use the most recent data 
available, and go through the full process that is required for 
an environmental impact statement.
    I want to conclude by mentioning the Federal Advisory 
Committee Act example, which Dan and Furlong and others have 
mentioned. Congress faced a situation in 1982 where the 
councils were suffering under the applications of the Federal 
Advisory Committee Act. It wasn't that those requirements were 
bad. It was that they didn't mesh fully with the management 
needs of the councils.
    And the solution that Congress hit upon was to take a hard 
look at FACA, determine what requirements in FACA made most 
sense in the council process and what didn't, and then tailor 
those requirements to the specifics of the fishery management 
    I think it was a very successful effort. And as Mr. Furlong 
said, if you look at the 23-plus years of history since the 
FACA amendments of 1982, you will see that there just have not 
been complaints about the openness and transparency of the 
councils and their subsidiary bodies, and their ability at the 
same time to meet all of the full requirements for public 
    That concludes my statement, Mr. Chairman. I would be happy 
to answer any questions you might have.
    [The prepared statement of Mr. Greenberg follows:]

      Statement of Eldon Greenberg, Attorney, Garvey Shubert Barer

    Good morning. My name is Eldon Greenberg, and I am a partner in the 
Washington, D.C. office of the law firm of Garvey Schubert Barer. 
1 I am pleased to be here today to address the relationship 
between the Magnuson-Stevens Fishery Conservation and Management Act 
(the ``Magnuson-Stevens Act'') and the National Environmental Policy 
Act (``NEPA''). I have extensive experience with the application of 
both statutes, having worked on their implementation when I was General 
Counsel of the National Oceanic and Atmospheric Administration 
(``NOAA'') in the Carter Administration, and having represented 
numerous private parties in Magnuson-Stevens Act/NEPA administrative 
proceedings and litigation. I thus hope that my perspective will be of 
use to the Committee. I am not testifying today on behalf of any 
company or organization, and the views I express are entirely my own.
    \1\ My firm's address and telephone number are: 1000 Potomac 
Street, N.W., Suite 500, Washington, D.C. 20007; (202) 965-7880. I am 
reachable at: [email protected]
    Both NEPA and the Magnuson-Stevens Act share the laudable purpose 
that Federal agencies should engage in a reasoned decision-making 
process when taking actions that may affect public resources. The 
Magnuson-Stevens Act contains National Standards, elaborated now over 
the course of almost three decades, to ensure the wise conservation and 
management of fishery resources. Its procedures for participation by 
interested parties and transparency of agency deliberations help 
guarantee that the environmental implications of resources decisions 
are fully understood by agency decision-makers and private 
stakeholders. NEPA, for its part, establishes its own procedural 
mechanisms for environmental review that, in the words of the Supreme 
Court, ``prohibit[] uninformed...agency action.'' 2
    \2\ See Robertson v. Methow Valley Citizens Association, 490 U.S. 
332, 351 (1989).
    Whether NEPA is truly necessary to inform Magnuson-Stevens Act 
decision-making, rather than merely redundant, is a question that has 
been much debated, especially in recent years. It has been suggested, 
for example, that, since fishery management plans might be regarded as 
providing the ``functional equivalent'' of an environmental assessment 
or environmental impact statement, NEPA's requirements can be dispensed 
with altogether, just as such documents are not required for various 
regulatory actions of the Environmental Protection Agency under the 
Clean Air and Clean Water Acts. In my judgment, there is much merit to 
the argument that NEPA adds little to the analytical requirements of 
the Magnuson-Stevens Act. Leaving that broader question to one side, 
however, it seems to me to be undeniable that there are practical 
problems in integrating the two statutory mandates. In such 
circumstances, there is an incentive to avoid inconsistencies and 
conflicts, eliminate redundancies and overlap and reduce needless 
complexity. In my testimony this morning, I would like to focus on 
three specific problems and then suggest one possible way of going 
about solving those problems.
    (1) Deciding Who Is In Charge. The late Senator Magnuson was fond 
of remarking that the Magnuson-Stevens Act creates a ``unique system of 
government.'' There is no other statute of which I am aware which 
utilizes a mechanism quite like the regional fishery management council 
or establishes a relationship quite like that between the councils and 
the Secretary of Commerce. In this system, the councils are the basic 
policy-makers, while the Secretary's responsibility is to ensure that 
conservation and management measures conform with the law. 3 
To date, however, NEPA has been implemented in a way that doesn't quite 
fit this model. In fact, as documented in a 2002 report for the North 
Pacific Fishery Management Council, the applicable NOAA Administrative 
Order governing NEPA compliance (NAO 216-6) ``provides little guidance 
on the role of the regional fishery management councils in implementing 
NEPA,'' and ``there is no explanation how the council becomes involved 
in the decision making process, or what happens if the council and NMFS 
disagree.'' 4 Thus, there is considerable uncertainty, for 
example, whether it is the council or the Secretary who should make the 
ultimate policy decisions embodied in a NEPA Record of Decision. To my 
mind, since the council sets fishery management policy, this should 
responsibility plainly lie within the province of the councils. 
Unfortunately, I am not sure that current law provides quite so 
definitive an answer.
    \3\ See, e.g., H. Rep. No. 97-438 at 8-9 (1982) (``The Councils, 
not the Secretary, are to manage fisheries within their respective 
areas''); H. Rep. No. 97-549 at 28 (1982), reprinted in 1982 U.S. Code, 
Cong. and Admin. News 4341 (``[T]he Secretary is not to substitute his 
judgment for that of the Councils regarding how to manage a fishery'').
    \4\ See Walsh, Rieser and Wilson, ``Legal Assessment of the 
Council's Role under the Magnuson-Stevens Act, the Endangered Species 
Act and the National Environmental Policy Act'' at 34 (Sept. 2002).
    (2) Unmoored Programmatic Reviews. One the most difficult problems 
under NEPA has been how to prepare ``programmatic reviews'' of fishery 
management plans. In the early years of the Magnuson-Stevens Act, where 
fishery management plans were just being approved, a corresponding 
programmatic NEPA review was sensible and could be readily integrated 
into decision-making about specific management measures. More recently, 
however, particularly as the result of orders in litigation, 
5 broad-scale programmatic reviews have been undertaken 
without reference to specific management proposals before the councils. 
The result has been massive documents that have taken years to complete 
and that virtually defy comprehension. Moreover, as the National 
Academy of Public Administration noted in 2002, such analyses, given 
the complexity of the task, often set out a bewildering array of 
combinations of alternatives and impacts. 6 Furthermore, the 
alternatives presented may bear little relation to real fishery 
management choices under the Magnuson-Stevens Act. The usefulness of 
this kind of costly and time-consuming review needs to be carefully 
    \5\ E.g., Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996); Greenpeace 
v. NMFS, 55 F. Supp. 2d 1248 (W.D. Wash. 1999).
    \6\ See National Academy of Public Administration, ``Congress, 
Courts and Constituencies: Managing Fisheries by Default'' at 49 (July 
    (3) Living With The Time Constraints Of The Fishery Management 
Process. Fishery management is a highly dynamic process. There is an 
overriding imperative to use the most current data available, because 
the status of stocks is so variable. In many fisheries, the councils 
need to rely on recent survey data in making annual management 
decisions, such as setting total allowable catch levels, establishing 
by-catch rates and adjusting allocations among user groups. While 
environmental assessments, with their more truncated procedures, may 
lend themselves to use in this kind of process, the preparation of 
environmental impact statements, with the extensive review that 
entails, creates a quandary for the councils, since the full-scale NEPA 
review often cannot readily be accommodated to the need of the councils 
to take timely management action. The councils should not be put in the 
untenable position where, to meet NEPA's procedural requirements, they 
are forced to abandon reliance on the most current data available and 
instead rely on inadequate and out-of-date data, contrary to National 
Standard No. 2 of the Magnuson-Stevens Act.
    (4) A Possible Solution: The ``FACA Amendments'' Model. Congress 
faced similar problems of meshing two statutes with compatible aims but 
sometimes conflicting procedures that unduly constrained the fishery 
management process when, in 1982, it amended the Magnuson-Stevens Act 
to adapt the requirements of the Federal Advisory Committee Act 
(``FACA'') to the realities of the Magnuson-Stevens Act decision-making 
process. 7 It did so, not by junking the valuable part of 
FACA's procedural protections but rather by taking the most meaningful 
elements of FACA, and integrating them into the Magnuson-Stevens Act 
management system. 8 A similar legislative exercise, 
reviewing the requirements of NEPA and their application in detail, and 
then, to the extent any such elements are not already effectively 
covered by existing provisions of the Magnuson-Stevens Act, adapting 
and adopting them as part of the Magnuson-Stevens Act, could well 
produce valuable results. Such an approach would, I believe, be 
consistent with the recent Main Conference Panel Findings on 
``Reconciling Statutes'' at the March 24-26, 2005 Managing Our Nation's 
Fisheries II Conference.
    \7\ See Pub. L. No. 97-453, sec. 5 (Jan. 12, 1983).
    \8\ See H. Rep. No. 97-549 at 14-17 (1982), reprinted in 1982 U.S. 
Code, Cong. and Admin. News 4327-4330.
    Thank you for your consideration. I would be happy to answer any 
questions the Committee might have.
    Mr. Gilchrest. Thank you very much, Mr. Greenberg.
    Mr. Frulla.

                     COLLIER SHANNON SCOTT

    Mr. Frulla. Thank you, Mr. Chairman. My name is David 
Frulla. I am a member of Collier Shannon Scott, here in 
Washington, D.C. I represent commercial fishing industry 
associations across the country. I would like to submit my full 
statement for the record.
    I have a couple of perspectives; one as a litigant, both 
against and for the fisheries service. We have supported their 
decisionmaking under NEPA processes, and we have been 
successful in the cases where we have intervened in that way. I 
have also been often an advocate for, and a counselor to, 
commercial fishing associations as they try to navigate the 
council processes. And I have sat in the council rooms and 
listened to the debate about how to comply with NEPA and how to 
get fisheries management measures through.
    What I would like to offer today, in addition to my 
testimony, are just some practical questions that come up that 
I hear. The first is: I get a phone call from a scientist we 
work with who wants to use a fishing vessel to go out and do 
some research. And he says, ``Dave, can you write me an 
environment assessment? They say I need one to go out and do 
this work, and we need to get it done this summer.''
    Another is: Should NMFS hire port samplers, or should they 
hire NEPA compliance officers when they get to a budget crunch?
    I do work with the scallop industry in the Atlantic. And 
Mr. Chairman, you raised a good question. How do you get out in 
those areas on George's Bank? How do you decide where to go 
fish, and when? Well, what is happening is they are using data 
that is sometimes a year or two old, rather than reacting to 
resource conditions that we see.
    We have a situation this year where with the Nantucket 
Light Ship area, which is an area off the cape that has some of 
the oldest scallops in the ocean, the management measure to go 
out there and fish these areas didn't get done in time. It 
wasn't implemented until November. There was only a three-month 
season. The quota didn't get caught. And now we can't get back 
out there, because of process issues. It is not all NEPA. Part 
of it is the council's workload. Part of it is the 
Administrative Procedures Act. But there is an issue there that 
needs to be considered.
    Another issue is, how do you get your new survey 
information used, if you do surveys in the summer and then you 
need to get that implemented into annual specifications by the 
beginning of the year or the springtime?
    Again, these are practical issues. How do you make this 
work? And do you limit the councils' flexibility through the 
alternatives consideration process? Again, no one is going to 
say you don't need to consider alternatives. It makes a lot of 
    We have been working with the herring fishery up in New 
England, and they are starting an amendment process. And with 
the most scrupulous observance of NEPA, if you were working on, 
say, seven or eight different sets of management measures 
within your amendment, and you have alternatives of each, the 
most scrupulous NEPA requirement would say every permutation of 
possible alternatives needs to be analyzed.
    It doesn't happen in practical reality, clearly, but what 
we are starting to see now as a result is the council saying, 
``Well, early on in the management process we need to package 
all of our alternatives together, just so we can do the 
analysis.'' If at some point down the road you want to mix and 
match, you want to learn a little more, we are running into a 
process where we could be hamstrung to try to get constructive 
management measures that address the full range of Magnuson-
Stevens Act requirements.
    And then, what I have spent my testimony discussing is the 
issue of: What do you gain for that? Magnuson, as you have 
heard, and the other laws do provide for a wide range of 
environmental considerations.
    Is NEPA working as an enforcement tool for the 
environmental community with the Magnuson-Stevens Act? We took 
a look at the case law, and in many instances you find that the 
NEPA problem is paired with a substantive problem under the 
Magnuson Act, probably more times than not. So NEPA standing 
alone isn't the bulwark. There is an issue with the 
decisionmaking more generally that needs to be resolved.
    And then, the second is, to the extent that that may be 
equivocal, are you actually getting a gain in the fisheries 
management process from having NEPA? And again, I would say the 
experience there, at least as NEPA is being implemented by the 
agency at this time, is equivocal.
    We think that this is an issue--and I am speaking again 
here for myself--that this is an issue that the Committee and 
the Subcommittee should consider very fully in the context of 
the Magnuson reauthorization. It is a worthy thing to consider. 
Thank you.
    [The prepared statement of Mr. Frulla follows:]

                Statement of David E. Frulla, Attorney, 
                      Collier Shannon Scott, PLLC

    Mr. Chairman, and Members of the Subcommittee, thank you for 
providing me this opportunity to present my views on the intersection 
between federal fisheries management laws and more general 
environmental laws, such as the National Environmental Policy Act 
    I am an attorney in private practice in Washington, D.C. with 
Collier Shannon Scott, PLLC. I have represented associations of 
commercial fishermen from across the country, including in New England 
and the Mid-Atlantic, Alaska, and the Gulf of Mexico and Caribbean, 
since the early 1990's. I have litigated cases involving the Magnuson-
Stevens Fishery Conservation and Management Act (``Magnuson-Stevens 
Act''), Regulatory Flexibility Act, Endangered Species Act (``ESA''), 
and NEPA. In certain of these cases, my clients have opposed NOAA 
Fisheries. However, in the NEPA context, we have generally supported 
agency decision-making. We have prevailed in the half-dozen-plus NEPA 
cases in which we have been involved on NOAA Fisheries' side. I have 
also been retained to provide testimony to the North Pacific Fishery 
Management Council on NEPA's intersection with the Magnuson-Stevens 
    I do not believe that anyone here today disagrees with the general 
premise that NOAA Fisheries should, as NEPA requires, take a ``hard 
look'' \1\ at the wide range of impacts on the human environment of the 
consequences of its fishery management programs. The Magnuson-Stevens 
Act itself mandates consideration, via its national standards and other 
required and optional provisions for fishery management plans, of a 
wide range of environmental factors. \2\ In response to a handful of 
court decisions, most occurring at or around 2000, NOAA Fisheries, 
guided by its Office of General Counsel, made NEPA compliance, or 
perhaps over-compliance, a priority.
    \1\ NRDC v. Hodel, 865 F.2d 288, 294 (D.C. Cir 1988).
    \2\ For instance, in a NEPA case, U.S. District Court Judge Gladys 
Kessler explained, ``[NOAA Fisheries has] numerous--and oftentimes 
competing--statutory objectives to contend with in managing the New 
England waters; preservation of essential fish habitat is only one of 
many.'' Conservation Law Foundation v. Mineta, 131 F. Supp. 2d 19, 27 
(D.D.C. 2001). These measures are also subject to the substantive and 
procedural requirements of the ESA, the Marine Mammal Protection Act, 
the Coastal Zone Management Act, the Regulatory Flexibility Act, the 
Paperwork Reduction Act, and various executive orders governing 
rulemaking, in addition to NEPA.
    Meticulous NEPA compliance is no small task. According to the 
Commerce Department's latest Semi-annual Regulatory Agenda, NOAA 
Fisheries had approximately seventy-five actions from the regional 
fishery management councils at the proposed rule stage alone, \3\ not 
to mention long-term on-going rulemaking proceedings. The question 
presented today, however, is whether NEPA, as NOAA Fisheries is 
currently implementing it, fosters or impedes timely, high quality 
federal fisheries management. The record is equivocal at best.
    \3\ 69 Fed. Reg. 72974, 72978-81 (Dec. 13, 2004).
    NEPA is a procedural statute. It imposes no substantive 
conservation obligations. \4\ That said, the environmental community 
has often used NEPA as a litigation device to attempt to force a 
substantive reconsideration of an agency action with which it did not 
agree. Accordingly, there are two elements of NEPA that should concern 
the Subcommittee: (1) whether it serves as an effective independent 
mechanism to ensure quality agency decision-making; and (2) whether it 
actually also serves to improve the quality of NOAA Fisheries decision-
making. Regarding the first point, the litigation record shows that 
NEPA is, quite simply, over-rated as an enforcement tool. As to the 
latter, I submit that a wide array of substantive statutes 
independently help to ensure environmentally-aware decision-making. In 
fact, NEPA obligations may actually inhibit timely, science-based 
    \4\ Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349-
51 (1989).
    I will address these two points in order. There is a more refined 
question than NOAA Fisheries' (improving) won-lost record in NEPA cases 
that the Subcommittee should consider in determining NEPA's independent 
value as an enforcement tool. It is whether these NEPA violations 
occurred in the context of agency actions that were flawed under the 
substantive environmental laws. If so, then NEPA, as an independent 
enforcement tool, is not necessarily adding much to the application of 
Administrative Procedure Act decision-making standards to the 
substantive fisheries management standards contained in the Magnuson-
Stevens Act.
    Environmental plaintiffs have prevailed in recent years on NEPA 
claims regarding federal fisheries management in approximately a half-
dozen contexts. \5\ However, our research has identified only one of 
these contexts in which an environmental plaintiff prevailed on a NEPA 
claim when it did not prevail on a Magnuson-Stevens Act based claim in 
the same case: American Oceans Campaign v. Daley (``AOC''). \6\ A 
similar perspective obtains in the Endangered Species Act context. \7\
    \5\ These include the Pacific groundfish fishery, the Alaska 
groundfish fishery, the Hawaii longline fishery, the Hawaii lobster 
fishery, the Magnuson-Stevens Act's essential fish habitat (``EFH'') 
requirements, and the Pacific salmon fishery.
    \6\ 183 F. Supp. 2d 1 (D.D.C. 2000).
    \7\ For instance in Greenpeace v. NMFS, 55 F. Supp. 2d 1248 (D. 
Wash. 1999), the court held that the agency had violated NEPA by not 
preparing a programmatic environmental impact statement for the Alaska 
groundfish fisheries, but that holding was made in conjunction with a 
substantive determination under the ESA that the agency had failed to 
consider adequately reasonable and prudent alternatives to protect 
Steller sea lions. Two times, a court did conclude the agency had not 
violated the Endangered Species Act, but failed to comply with NEPA 
because it had not recently prepared an environmental impact statement. 
Leatherback Sea Turtle v. NMFS, 1999 U.S. Dist. LEXIS 23317 (D. Haw. 
1999); Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996). These types of 
issues can be addressed by ensuring that the fishery management process 
includes some measure of reflection and does not simply react from year 
to year.
    The AOC case is worthy of review. It addressed NOAA Fisheries' 
efforts to comply with the essential fish habitat provisions of the 
1996 Sustainable Fisheries Act (``SFA''). \8\ An environmental 
plaintiff challenged essentially all the regional fishery management 
councils' EFH plans. Most if not all of the plans concluded that, 
within the two year time limit the SFA and NOAA Fisheries guidelines 
had set to develop a plan, there was not sufficient information to 
warrant adopting habitat-specific measures in order to protect EFH from 
the adverse impacts of fishing gear in addition to the fishery 
management regimes then in place. While the court found the councils' 
decisions in this regard were reasonable as a matter of substance (in 
the main, because there was little information at that time on which to 
act), the court then concluded the councils failed to consider a 
sufficient array of alternatives under NEPA because they only 
considered their current management measures, versus having done 
nothing at all. Since then, all the councils have developed more 
comprehensive EFH plans under a circa four-year time table set forth in 
a post-judgment settlement agreement entered in that case.
    \8\ See 16 U.S.C. Sec. Sec. 1853(a)(7) & 1855(b)(1)(A).
    As it embarks on the re-authorization process, however, the 
Subcommittee should consider whether the councils' and NOAA Fisheries' 
failure to comply with NEPA in the EFH context was actually the result 
of flawed decision-making that requires NEPA as an enforcement 
mechanism. Another explanation for the failure in this singular 
instance may be that the SFA and NOAA Fisheries in its EFH 
implementation guidelines simply did not provide the councils and the 
agency itself sufficient time and resources to develop the necessary 
range of practicable alternatives that would have complied with the 
SFA's EFH mandate. The Magnuson-Stevens Act's practicability 
requirement for EFH measures does require reasonable precision in 
decision-making. \9\ Congress needs to be careful about mandating any 
additional substantive and analytical requirements that it imposes on 
NOAA Fisheries in this re-authorization process. Care in legislating 
new requirements and their timelines may thus serve a more vital 
function in ensuring quality decision-making by NOAA Fisheries than 
    \9\ 16 U.S.C. Sec. 1853(a)(7)(practicability requirement). A 
federal court recently explained in upholding the New England Council's 
new EFH measures implemented in connection with its groundfish 
rebuilding plan amendment:
    Similarly, the range of alternatives that the Secretary should have 
considered here is not defined solely in terms of percentage of EFH 
areas that are closed, but rather must include a variety of forms of 
closures in combination with other EFH protection methodologies, as 
well. Of course, the range of alternatives warranting consideration is 
also defined in terms of the regulatory action's purpose...and 
therefore options that are inconsistent with the Magnuson-Stevens Act] 
need not be considered.
    Oceana v. Evans, Civ. No. 04-811-ESH, slip op. at 63 (D.D.C., Mar. 
9, 2005) (citation omitted).
    The second question is whether NEPA actually improves the quality 
of agency decision-making. A major issue here is one of timing. The 
Magnuson-Stevens Act imposes its own timelines which ostensibly require 
prompt council and agency decision-making. \10\ Often in my experience, 
fisheries management decisions are delayed as the councils and NOAA 
Fisheries struggle to finalize and implement their rule-making 
packages, that now often-times approach or exceed one thousand pages. 
The Atlantic scallop fishery in which I am involved represents an 
example. In that fishery, despite the resource being rebuilt ahead of 
schedule, annual management measures subject to rulemaking are very 
often not able to be implemented at the start of the fishing season. 
    \10\ 16 U.S.C. Sec. 1854 (a)-(b) (imposing detailed procedural 
requirements and timelines for development and promulgation of fishery 
management council plans, amendments, and implementing regulations).
    \11\ For instance, Scallop Framework Adjustment 14 governing the 
2001 and 2002 fishing years was not implemented until well into the 
fishing season because NFMS decided to undertake an environmental 
impact statement-level review for this bi-annual adjustment measure, in 
the wake of the NEPA litigation in 2000. 66 Fed. Reg. 24052 (May 11, 
2001). In addition, largely due to purported procedural requirements, 
NMFS was not able to provide timely access to a highly-abundant scallop 
area near Georges Bank, called the Nantucket Lightship Access Area, 
until the heavy weather months from November 2004 through January 2005. 
69 Fed. Reg. 63460 (Nov. 2, 2004). The truncated season presented a 
safety issue and contributed to the limited use of the access program.
    Moreover, the scallop fishery recently embarked on a new, adaptive 
area-based management system, in which the goal is to distribute 
scallop fishing across the resource in a way that directs the fleet to 
relatively large concentrations of mature scallops, while allowing new 
``sets'' of juvenile scallops to grow to maturity. However, scallops 
can be fast-growing, and new concentrations of juvenile scallops can 
appear unexpectedly in the middle of the fishing year. It is an open 
question whether the management process, burdened as it is with 
procedural requirements, can be sufficiently nimble to allow for the 
effective implementation of adaptive, area-based management. Scallops 
are not the only example of fast-growing species that require prompt 
management; certain-federally managed squid species found in the Mid-
Atlantic generally live for less than a year.
    All fisheries are facing these challenges to some degree. Most NOAA 
surveys occur in the temperate months, and it is a challenge--and an 
increasingly unmet one, at that--to ensure that the rulemaking process 
can happen swiftly enough to allow this new information to govern the 
fishery for the next fishing season. More often, fisheries have to be 
managed on older survey data. It is an open question whether this 
represents the best we can do to ensure that federal fisheries are 
managed according to the ``best scientific information available,'' as 
Magnuson-Stevens Act National Standard Two provides. \12\
    \12\ 16 U.S.C. Sec. 1851(a)(2).
    Finally, it will be worth considering whether NEPA's requirement to 
ensure the development and consideration of a wide range of 
alternatives promotes flexible fishery management council decision-
making. On the East Coast, many proposed fishery management programs 
(whether amendments or framework adjustments) address a wide range of 
subjects. If alternatives need to be developed and then analyzed for 
each permutation of possible outcomes, the analytical task becomes 
insuperable. For its part, the New England Council is seeking to cope 
with the analytical burden by artificially limiting its ability to 
``mix and match'' the final suite of recommended alternatives. While 
that approach may simplify procedural compliance in analyzing 
alternatives, it may limit a council's ability to strike the needed 
``delicate and nuanced balance--between its duties to maximize OY 
[optimum yield] among all managed species while rebuilding overfished 
stocks and to concurrently minimize harm to fishing communities.'' \13\ 
Procedural obstacles should not constrain constructive management 
efforts in this way.
    \13\ Oceana v. Evans, supra, slip op. at 32 (upholding nearly all 
elements of New England Fishery Management Council's rebuilding plan 
for Northeast multispecies).
    We look forward to assisting the Subcommittee in addressing these 
important issues as the Magnuson-Stevens Act re-authorization process 
    Mr. Gilchrest. Thank you very much, Mr. Frulla. They 
haven't called a vote yet, so I guess we will proceed.
    On that last comment, Mr. Frulla, the last comment you made 
I interpreted as saying: Is fishery conservation improved 
because of the NEPA process? Could I ask each of you to just 
give me a very short response to that question? Mr. Frulla?
    Mr. Frulla. Fishery conservation is improved through a 
robust consideration of the range of environmental and human 
considerations. Whether that has to be done through NEPA is 
another question. Whether NEPA in practice is thwarting that is 
yet a second question, if that is a fair answer.
    Mr. Gilchrest. Right on the mark, I guess. That was black 
and white. Perfectly clear. Unequivocal. Mr. Greenberg?
    Mr. Greenberg. You will be surprised that I agree with Mr. 
    Mr. Gilchrest. OK.
    Mr. Greenberg. And I also agree with Mr. Furlong, that when 
you look at the ten national standards and the 14 mandatory 
elements of fishery management plans, you really cover just 
about the full range of issues that are covered in a NEPA 
review. So that I don't think NEPA adds very much to that.
    Mr. Gilchrest. Thank you.
    Ms. Iudicello. And Mr. Chairman, you will probably not be 
surprised that I disagree with the previous two statements. You 
mentioned earlier that the councils and the agency are trying 
to move more toward ecosystem-based management of fisheries. 
You are not going to get the kind of consideration of the full 
potential of a mix of management tools, that includes closed 
areas and consideration of protected resources and a whole 
variety of topics, under the Magnuson Act. It is going to keep 
you constrained in a single-species management, one stock or, 
at best, mixed-stock approach.
    Furthermore, you are not going to consider non-fishing 
alternatives. A lot of people have made some remarks about the 
7,000-page environmental impact statement that had come out of 
the North Pacific. And granted, that is a ridiculous size 
document. It was in response to litigation. But there were some 
substantive issues in that litigation that did not arise simply 
from not dotting the ``i's'' and crossing the ``t's'' of NEPA 
    The point in issue was that the council, even though it is 
a transparent and public process, did not have any 
participation in its decisionmaking function by many 
stakeholders and interest groups who were concerned about 
components in the ecosystem that were not part of the target 
fishery. And it was not until the document was forced by the 
courts and by litigation to consider the ecosystem in its 
largest functioning way that those issues got on the table.
    So I do not think that you get the full consideration of 
everything from the seven national standards. I think you need 
    Mr. Gilchrest. You raised, to some extent, one of the legs 
that hold up the table, the crux of the issue. We want to 
continue to move and actually begin in a few years to start 
implementing an ecosystem fisheries management plan regime. We 
want to do that when we reauthorize Magnuson. And when we do 
that, like you say, there is an enormous number of variables in 
there: seasonal closures, looking at essential fish habitat, 
ocean currents, prey-predator relationships, water quality, 
human activity, you name it. There is an enormous amount. And I 
think the next natural step in conservation is ecosystem 
fisheries management plans.
    You did talk about up-front discussions, rather than back-
stage discussions to deal with some of the NEPA problems. I 
think that absolutely has to be done. One of the reasons we are 
holding this hearing is to try to understand the dynamic 
between Magnuson, how we are going to improve Magnuson, improve 
the standards and improve the processes, improve the 
relationship between the science and the councils, get research 
vessels out there in a very timely manner, have cooperative 
research, all those things. We just don't want NEPA to slow the 
conservation process down. We want it to be complementary to 
the process. So hence this hearing.
    But I want you to be assured that our sense here is that 
the more we get exchanges of information, the more open the 
public participation process is, the better the ecosystem 
approach will be. But we can't have a scientific vessel that 
needs to go out to check on the scallops in the Gulf of Maine, 
or the Gulf of Alaska for the groundfish, slowed down in that 
process unnecessarily. So that is the kind of fine-tuning that 
we are taking a look at.
    My time has expired, and I will yield to Mr. Pallone.
    Mr. Pallone. Thank you, Mr. Chairman. In her testimony in 
the previous panel, Dinah Bear noted CEQ's track record of 
openness to new approaches to helping NMFS better implement 
NEPA. And similarly, in this panel, Ms. Iudicello in her 
testimony noted flexibilities inherent to NEPA itself that 
allow councils and the agency room to be creative in 
synchronizing and integrating their responsibilities to both 
    But the remaining members on the second panel, both 
litigators, appear to disagree, and they state that the NEPA 
process is not nimble enough to respond to Magnuson's demands 
for annual and seasonal rulemaking. So given this conflict of 
opinion, I was going to ask each of the panelists if you would 
address the following.
    First of all, to what degree can the apparent conflict 
between NEPA and Magnuson time lines be addressed by better 
training in preparing NEPA documents and more funding for 
personnel to do the work?
    And then, second, given NMFS' improved track record for 
addressing NEPA compliance issues over the past three years, 
why would we amend the law now, rather than continue to support 
the agency as it improves its process for producing concise and 
timely NEPA documents?
    I know you have kind of gotten into this to some extent, 
but I just wanted to hear each of you directly on those 
questions. It doesn't matter the order, but whoever wants to 
    Ms. Iudicello. On the training and funding issue, I think 
perhaps I should disclose that I have worked with the National 
Marine Fisheries Service several years ago on an internal 
process to improve NEPA compliance; not just NEPA, but the 
Endangered Species Act, and the Administrative Procedures Act, 
and others.
    And the agency came up with quite an innovative and 
aggressive action plan for how they were going to do it. And a 
lot of it was supported by the NAPA report and an internal 
report by Ray Kammer, all of which were delivered to Congress. 
And Congress saw fit to respond to that action plan with 
increased funding; which the agency has employed, in my view, 
very successfully.
    And so, in response to your question: Why would you change 
things when they see to be moving along? I would say: Well, you 
wouldn't. You would continue to support their improved work and 
performance. And I think a lot of it need not be as expensive 
as $8 million a year. Certainly, now that the litigation burden 
has backed off a little bit, some of that might not be as 
    But I think there are some simpler things that we can do. 
It is harder to write short than it is to write long. I am a 
professional writer. I know this. That is what good editors are 
for. A NEPA expert mentioned to me in passing over the course 
of years that he or she could take a pencil to these 7,000-page 
documents--or maybe not the 7,000-page ones, but the multiple 
hundreds of pages--and really reduce it down. So I think 
training is a key issue.
    But I think what Mr. Greenberg brought up about who is in 
charge here is another really important issue. And that is 
where you might have to look at some clarification in the 
Magnuson Act. The councils kind of have the burden and pay the 
consequences of NEPA compliance, but it is the agency which is 
at least legally, as the courts construe it now, the 
decisionmaker. So some councils prepare the documents 
themselves. For other councils, the agency provides the 
preparation. It is all mixed up. There is no standardization. 
And I think that increases the problem. So clarifying who is 
the decisionmaker--I mean, certainly the councils are a first-
phase decisionmaker--that would help.
    Mr. Pallone. Thank you. Mr. Greenberg?
    Mr. Greenberg. Well, I think the problem in trying to 
reconcile the conflicts with the Magnuson-Stevens Act does 
relate in part to the need for the councils to move very 
quickly when they are acting on an annual basis. Fisheries 
management is a highly dynamic business.
    And I think it is very difficult to accommodate the 
requirements for a full environmental impact statement, if the 
courts or the agency should determine that that is what is 
required, with the need to act on an annual basis to set total 
allowable catch levels, for example, to allocate the resources 
among the user groups, to set bycatch limits. I frankly don't 
think that that is able to be accomplished consistent with the 
level of review that is required for a full EIS.
    Mr. Pallone. Mr. Greenberg, why is it necessary to do a 
full EIS? Why can't they just do the simpler environmental 
    Mr. Greenberg. Well, that used to be the way, Congressman 
Pallone. For many, many years, for example, in the North 
Pacific, when the annual catch levels were set, what the North 
Pacific Council did was prepare an environmental assessment, 
and that was deemed to be adequate. My understanding is that 
more recently, as a result of concerns that have been raised, 
there is now an issue before the council of whether really they 
have to prepare a full environmental impact statement, rather 
than the EIS.
    Mr. Pallone. In your opinion, they don't, right?
    Mr. Greenberg. I don't think they do. But that doesn't mean 
that the agency is not going to conclude that a full EIS is 
necessary. And that really gets to your second question, 
Congressman Pallone; which is, you talk about the record in 
litigation. And as Dr. Hogarth said, the record has improved 
since 2003. I think one reason the record has improved is that 
the agency is throwing paper at NEPA in order to bulletproof 
decisions, because there is a risk of litigation and there are 
lots of very clever litigators in the world who are very 
familiar with NEPA and all the ways to challenge NEPA 
    And my advice to the agency when I was general counsel was: 
We can always beat a NEPA claim if we just throw enough paper 
at it. And unfortunately, that is the path of least resistance. 
And I think one reason that the agency has a better track 
record is it is doing a better job with the paperwork. But that 
doesn't necessarily translate into a better decisionmaking job.
    Mr. Pallone. Mr. Frulla?
    Mr. Frulla. Thank you, Mr. Pallone. I think I would first 
like to say I am in the process of litigating as a defendant in 
the second NEPA case this year. So the litigation burden is 
still there for the agency. Again, as Mr. Greenberg said, what 
they are doing is throwing voluminous analyses and the lack of 
flexibility in terms of deciding how in depth to comply with 
NEPA at the litigation problem.
    On the funding issue, I think we do need to be clear that 
at some point in these days of tight budgets you could either 
have NEPA compliance officers or people trying to figure out 
how to develop ecosystem management. So you can't just say, 
``Fund more for NEPA.'' You may want to use those funds for 
another thing.
    And then finally, on the point of the time lines, just let 
me give you an example of how it works in the New England 
Council. You have a council with a limited budget. And you have 
a handful of staff persons, each who specialize in a species, 
and they can get some help. And that one staff person needs to 
essentially chair the scientific plan development team, 
coordinate with the advisors, provide assistance to the 
species-specific committee, develop the documents, and write 
all the analyses.
    Mr. Gilchrest. If I could just interrupt, because we have a 
vote. Thank you. Mrs. Drake has a question just before we 
    Mrs. Drake. Well, and this really may be an over-
simplification of everything I have heard this morning, but I 
think we are greatly concerned about these conflicts we are 
talking about, about the timeframe and having the most up-to-
date information which we think is required under the Act. And 
of course, NEPA is adding the additional timeframe to it, or 
even issues of judicial review and time framing in the two 
competing acts.
    Isn't there a way, Mr. Chairman, for people who have dealt 
with this and the agencies to look at: Should there be one more 
comprehensive act that addresses the points that you are 
talking about that are important, and giving the guidance to 
the agencies, to the industry, that this is exactly what we are 
working with, and not having a conflict of two? I mean, that is 
my question.
    Mr. Greenberg. Well, to some extent, that was my 
suggestion. What you need to do--and I think this is something 
that the Committee is already doing with its task force on 
NEPA--is to look at the two statutes and identify those areas 
where there are conflicts; identify those areas where NEPA may 
provide a useful supplement to the current process that exists 
under the Magnuson-Stevens Act; and then integrate those 
processes through the reauthorization process for the Magnuson-
Stevens Act.
    Mr. Gilchrest. Thank you very much. Thank you, Mrs. Drake. 
The gentlelady from Guam.
    Ms. Bordallo. Thank you, Mr. Chairman. I know we are in a 
real rush here. Misters Frulla and Greenberg, I don't know 
which one wants to answer it, but you indicated that the NEPA 
provisions that are not currently included in the Magnuson 
could easily be added to the law to make it the functional 
equivalent of NEPA. Would you please tell us exactly which 
provisions of NEPA would need to be incorporated into Magnuson 
to do this?
    Mr. Frulla. The places in NEPA where you may not get the 
holistic treatment that you want in Magnuson would involve 
ensuring that a range of alternatives are considered. Although 
you do see already in the NMFS guidelines implementing National 
Standard Eight a discussion that when you look at alternatives, 
if there are equivalent conservation benefits from different 
alternatives, you ought to gravitate toward the one that has 
the least economic impact on shoreside communities. So that is 
in the guidance. It is not necessarily in the law, but it is 
something that the agency is essentially doing.
    And then I would say--again, speaking for myself here--that 
you want to make sure that the Magnuson Act is reflective, as 
opposed to just reactive. I don't think a 7,000-page 
programmatic EIS fits with ``reasonably reflective.'' But I do 
think that you want to make sure that you do that. And I think 
that very often the amendment process itself provides for that 
level of reflection, whether or not there is NEPA.
    Ms. Bordallo. Thank you. Thank you very much, Mr. Chairman.
    Mr. Gilchrest. Thank you, Ms. Bordallo. Did someone get a 
PhD from that dissertation, 7,000 pages?
    Mr. Greenberg. I think there were a lot of individuals with 
PhD's who were involved. I am not sure anyone was actually 
awarded the degree, Mr. Chairman.
    Mr. Gilchrest. Well, we want to protect the fisheries.
    Thank you very much. Your testimony has been very helpful 
to us as we move through this process. The hearing is 
    Oh, the hearing has come to order, just for a comment.
    Mr. Gilchrest. I want to thank Daisy Minter, Water and 
Power's clerk, for assisting us with this hearing today. Daisy, 
thank you very much.
    The hearing is now officially adjourned. The record will 
remain open, for a little while anyway. Thank you.
    [Whereupon at 11:47 a.m., the Subcommittee was adjourned.]