NOAA fishery management study

[From the U.S. Government Printing Office, www.gpo.gov]

DEPARTMENT OF COMMERCE
NOAA Fishery
UNITED STATES Of AMERICA Management Study

June 30, 1986

NOAA FISHERY MANAGEMENT STUDY

JUNE 30, 1986

LIBRARY
NOAA/CCEH
1990 HOBSON AVE.
CHAS.SC 29408-26203

NOAA FISHERY MANAGEMENT STUDY
EXECUTIVE SUMMARY

This Study was prepared at the request of Dr. Anthony J. Calio,
the Administrator of the National Oceanic and Atmospheric
Administration (NOAA). It is the product of 11 individuals
knowledgeable and experienced in all aspects of fishery
management, including environmental matters.

After identifying its tasks and basic convictions, the Study
reviews the purposes of fishery management and assesses the
system of management created by the Magnuson Fishery
Conservation and Management Act (MFCMA or the Act). In spite of
the accomplishments of the Act and be'cause of the significant
defects in the way the Act has operated, the Study finds that
some major conceptual and operational changes are necessary.

The Study concludes that fishery management will be markedly
improved by a clear separation between conservation and
allocation decisions. It notes that the goal of conservation is
to maintain resource productivity for future generations.
Allocation relates to the needs and expectations of fishery
users, and distributes the opportunity to participate in a
fishery.

The Study also notes that the conservation decision, made in the
form of an acceptable biological catch (ABC) determination,
should be made before it is decided who the users will be. When
the two processes are combined in one decision, the pressures
are always to add more effort to serve the interlests of more
users.

The Study considers an array of institutional arrangements for
conserving and allocating U.S. fishery resources ranging from a
modification of the existing Council system to the use of
entirely private, entirely Federal or entirely State systems.
It endorses management by a partnership of State, Federal,
Council and private entities.

Specifically, the Study recommends that NOAA set ABCs for
regional fisheries at the national level, on the basis of the
best scientific information currently available. NOAA would
make full use of local and regional expertise and standard
Federal rule making procedures in setting ABCs. Its final
determination would become the ceiling up to which a Council
could allocate in regional fisheries. Council allocations could
not exceed an ABC, would be based on a redefined optimum yield,
and would be the cornerstone of fishery management plans
(FMPs). Council allocations in FMPs would be subject to a
revised Secretarial review process.

Secretarial review would take into account only the data,
views and comments which have been made a part of the official
record and would be confined to the issue of consistency with
the national standards and other applicable law. The
Secretary's review of an FMP or amendment would have to be
completed within 60 days of its official receipt by NOAA.

The Study also recommends replacing the process of
gubernatorial nominations for Council membership with open
nominations by any interested group or individual located
within a Council's geographic area. A nine-member review
board would have the authority and responsibility to consider
all nominees and determine who is qualified. For each
position to be filled, the review board would certify to the
Secretary of Commerce the three best qualified nominees.

The Study recommends changes designed to improve
interjurisdictional -fishery management. These include
recommendations that the Western Pacific and Caribbean
Councils be eliminated and that non-tuna fisheries in those
regions be managed by State, Commonwealth, and territorial
governments. Further, the Federal Government should take
immediate administrative action to clearly define relative
Federal, State, Tribal, and local governmental authorities and
responsibilities for management -of interjurisdictional
fisheries. Legislation is proposed to provide a basis for
Federal support of research and data collection, and to
establish Federal standards for coordinated management of
interjurisdictional fisheries not subject to the Act.

Finally, the Study recommends that:

1. Government budgets give highest priority to the
long-term,, adequate funding of: research, catch and
effort data collection,.and enforcement.

2. Federal, State, Tribal, and university research
capabilities and commitments to basic scientific
studies be strengthened and focused on the long-term
needs and problems of fishery management.

3. The MFCMA Section 103 exclusion for "highly migratory
species" be repealed.

4. A fishing license and tonnage or other fees-for all
users (commercial, recreational and others) be
established. The funds derived from fees would be
used to improve fisheries throughout their range,
including research, data collection, enforcement and
habitat improvement.

5. Any impediments to limited entry in the Act be
removed. Limited entry should be considered by the
Councils as a management tool for both commercial and
recreational fisheries, where necessary and useful.

6. Institutional barriers to full domestic utilization
be eliminated. The Study defines full domestic
utilization as the phasing out of foreign fishing and
processing in the FCZ and the simultaneous
development of the U.S. fishing industry capacity to
catchr process and market FCZ resources. The Study
emphasizes the U.S. primary processing industry in
its analysis.

7. Councils receive and use expert advice on the
enforcement of management measures they consider and
that enforcement'presence be improved based on a
realistic accounting for cost. Furtherr the legal
process for violations needs to be streamlined and
use made of permit sanctions.

8. NOAA and the Councils develop and improve mechanisms
to monitor activities that affect the habitat of
fishery resources.

9. Other Government agencies cooperate with NOAA on the
effects of their activities and policies on fishery
management.

Certain legislative changes to enable these recommendations
are included in the body of the Study and in the section on
Legislative Proposals.

ACKNOWLEDGEMENT

This Study is the sole responsibility of the individual
contributors. However, it would not have its present form, or
be available at all in the time allowed, without a diligent
staff. If the various parts speak with individual voices
rather than as the work of a single author, this is due to
staff's faithfulness to the contributors' words. Rough edges
are a virtue when the subject matter covers such diverse
interests and the purpose is to gain the most experienced and
knowledgeable advice for restructuring public resource
management.

For their long hours and undoubted frustrations, the
contributdrs wish to thank Daphne White, Robin Tuttle, Ann
Smith and Bruce Norman, the staff director. Special thanks
are owed to Jan Charity who sacrificed several weekends to
transfer our mutable prose to less mutable disks.

CONTRIBUTORS

The following individuals were asked by the NOAA Administrator
to participate in this Study and submit this synthesis of
their views:

William J. Hargis, Jr.
Virginia Institute of Marine Science
Study Leader

Richard J. Baker (Retired) Henry Lyman
Mrs. Paul's Kitchens, Inc. Salt Water Sportsmant Inc.

PitzGerald Bemiss John A.Mehos
FitzGerald & Company Liberty Marine Products

James C. Cato John G. Peterson (Reti@ed)
University of Florida Ocean Beauty Seafoods

John P. Harville (Retired) Courtland L. Smith
Pacific Marine Fisheries Oregon State University
Commission

Allen W. Haynie (Retired) William E. Towell (Retired)
Zapata-Haynie Corp. American Forestry Association

FISHERY MANAGEMENT STUDY
TABLE OF CONTENTS

I. Preface ........

A. Tasks ............

B. Basic Convictions ....... ..............................I

II. Review Qf Fishery Management..................................3

A. Purposes of Fishery Management .......................3

B. Assessing the Present System .........................3

III. Findings and Conclusions .....

A. Conceptual Framework ...... .......................... 6

B. Alternative Institutional Arrangements ............... 7

IV.

A. Separating Conservation and Allocation .............. 10

1. Legislation ...........................................10

2. Organization .................................... 10

B. The Fishery Management Plan Process ................. 11

1. Secretarial Review of Allocation Decisions ...... 11

2. Documentation of Disapproval .................... 11

C. Council System ...................................... 12

D. Number of Councils .................................. 13

E. Interjurisdictional Management ...................... 13

1. Why Interjurisdictional Coordination ............ 13

2. Continuing Problems -- Post MFCMA ............... 14

F. Fishery Management Priorities ...........................15

1. Scientific Research and Long-Term Catch and
Effort Data ..................................... 16

2. Enforcement ..................................... 18

G. Highly Migratory Species ............................. 19

H. Fees and Licenses for Marine Fishing ................ 20

I. Limited Entry ....................................... 21

J. Full Domestic Utilization ....................... * ... 22

1. The Problem ..................................... 22

2. Recommendations ................................. 23

K. Habitat ............................................. 24

1. The Problem ..................................... 24

2. Recommendations ............................. * ... 26

V. Legislative Proposals ................................... 28

VI. Concluding Statement .................................... 32

Appendices

Appendix A Alternative Institutional Arrangements .... 33

Appendix B Conservation vs Allocation ................ 40

Appendix C Options for the Secretarial Review ........ 43
Process

Appendix D Interjurisdictional Relations ............. 44

Appendix E Methods of Limiting Entry ................. 47

Appendix F Factors Impeding Full Domestic ............ 49
Utilization

Appendix G Data Needs for Fishery Management ......... 52

Appendix H Sections of the Magnuson Act Affected ..... 60

Appendix I Overfished and overcapitalized Fisheries..62

NOAA FISHERY MANAGEMENT STUDY
JUNE 30, 1986

Preface

A. The tasks of the Fishery Management Study are:

1. Define the goals of marine fishery management.

2. Describe and evaluate institutional arrangements and
management strategies to achieve these goals. Present
and weigh reasonable alternatives.

3. Identify and indicate priority of various activities to
implement management strategies.

4. Indicate areas of Federal, State, regional, and private
responsibility and accountability.

The panel understands that it is not to be limited by
existing patterns and methods, but should seek better ways
through alterations to present systems or developing
entirely new ones. The effort is to achieve management
which is as responsible, effective, efficient, and
economical as possible.

B. Basic Convictions. Development of the specific conclusions
and recomme-n-Ua'tions which follow involved extensive
exchange of knowledge and experience among Study
contributors. In the course of these exchanges certain
shared, basic convictions emerged. They underlie what
follows so they should be stated:

1. our marine fishery resource (including habttat) is of
immense value to the social and economic health of our
society.

2. The resource is under great and growing pressure from
population, economics, and technology. Management
strategies and institutions should be designed
accordingly. The common pioperty/free access approach
to fisheries encourages overfishing when measured
against both biological and economic standards.

3. The U.S. Government has declared an Exclusive Economic
Zone (EEZ) and established a Fishery Conservation Zone
(FCZ) under law. Within the FCZ, the Federal
Government has responsibility to see that the resource
and the habitat are wisely managed. Responsibility
throughout the range of a fishery should be shared with
State and regional bodies and with the private sector.

4. 'Management" means the system used to conserve and
allocate resources.

- The prime aspect of management is conservation
of the fish and their habitatr so that living
resources can be healthy and abundant in
perpetuity.

- The second aspect of management is a fair
allocation of a scientifically determined
quantity of the resource among all categories
of users.

5. The basic ingredient for intelligent management is
reliable scientific assessments, with forecasts of
stock and fishery condition. The provision of
national standards to ensure a fair allocation
process and a base of physicall biological and
social scientific knowledge and understanding should
be the Federal Government's highest priorities.

In order to focus concisely on basic concepts and
recommendationst the body of the Study identifies and
reviews major issues and recommendations without fully
developing the extensive rationales contributing to each
decision area. Appendices are referenced. These should
be consulted for greater understanding of the reasoning.

Ii. Review of Fishery Management

A. Purposes of Fishery Management

Broadly speakingy the purposes of managing (conserving
and allocating) fisheries are the following:

1. To use the resource wisely so that it remains
productive in perpetuity.

2. To establish a fair system to allocate in the public
interest.

3. To achieve full domestic utilization for the benefit
of the consumerr those participating in the fishing
industry# and the national economy.

4. To provide and maintain opportunities for
recreational fishing.

5. To protect fishery habitat in the marine
environments especially estuaries and coastal
wetlands.

6. To protect threatened and endangered species.

B. Assessing the Present System.

The Magnuson Fishery Conservation and Management Act
(MFCMA or the Act) seeks to accomplish these purposes by
establishing fishery management authority of the United
Statest by controlling foreign fishing within the FCZr
and by establishing a national fishery management
programp including national standardst Regional Fishery
Management Councils (Councils), fishery management plans
(FMPs) j and regulations.

A part of our task is to examine and evaluate these
provisions, and to make suggestions for their
improvement. A useful beginning of this process is to
list the accomplishments and deficiencies in fishery
management in the first decade of the Actr hoping that
this will help us build on the former and correct the
latter.

1. Accomplishments of the Act

a. National standards for fishery management,
considering use as well as conservation, have been
set.

b. Overfishing by foreign fishermen has been controlled
and the trend toward full domestic utilization
initiated.

c. The importance of orderly fishery management
planning has been established.

d. A management structure has been provided for:

- Regionalizing the making of fishery management
plans.

- Bringing Federal/regional/State/private
interests together in the process.

- involving public participation, increasing
general awareness, and encouraging agreements
among competing users for allocations.

e. State/Federal cooperation in regional management
is rationalized, and State consistency with Federal
regulations is promoted, by the principle of
management throughout the range.

f. Greater economic and recreational opportunities have
been provided for domestic fishermen.

g. The importance of research and scientific knowledge
focused on fishery management problems, and the need
for decisionmaking on the basis of the best
scientific information available, have been
recognized.

2. Deficiencies of operations under the Act

a. Overfishing remains a problem in some fisheries and
a threat in others.

b. The various interpretations of optimum yield have in
some cases permitted allocation considerations to
override conservation responsibilities.

c. Fishery information essential for effective
management often has been inadequate due to:

- lack of long-term research commitments as a
result of preoccupation with doing short-term
analyses of regulations;

- inadequate correlation between Federal research
agendas and Council management information
needs;

- insufficient attention to habitat and other
ecosystem relationships;

- reluctance to provide or use current
information for necessary management decisions
pending hoped-for improvements in reliability.

d. The procedures for developing FMPsr amendments and
regulations are often cumbersome, time-consuming and
vulnerable to political manipulation.
- The system is costly and overly complex.

- The Department of Commerce (DOC) and the Office
of Management and Budget (OMB) are often
inflexible and use technicalities to override
Council management decisions and to delay or
reject FMPs.

- Special interests work outside the system to
subvert Council decisions.

e. Council member appointments frequently reflect
politics rather than solid qualifications.

f. Responsibility and authority of the Federal
Government and the Councils are ambiguous and,
therefore, accountability is not clear.

g. Domestic users do not contribute specifically to the
cost of services provided them; statutory
restrictions on fees prevent such contributions even
if the Councils desired to consider them.

h. Conflicts among users are growing. Although
conflict cannot be eliminatedt the present system
does not deal with it satisfactorily.

i. Management throughout the range remains difficult
because of differing objectives and regulatory
procedures among Stater Federall and other
management entities.

j. Domestic catch through over-the-side sales to
foreign processors has increased dramaticallyr
but domestic processing has not increased
proportionately. The total U.S. fishing industry
and the U.S. economy have not realized the full
value of fishery resources.

k. Insufficient long-range fishery management planning
discourages investment choices by making them more
uncertain.

1. Recreational fishingg which takes place mostly in
State waterst is managed with varying degrees of
thoroughness and, in some cases not at all.

Findings and Conclusions

A. Conceptual Framework

In spite of the accomplishments and because of the
deficiencies noted above, the Study finds that some
rethinking of the marine fishery program would be
useful. Rethinking can best start with basic concepts
in the hope that new opportunities for positive change
will follow.

Fishery management encompasses the dual processes of
conservation and allocation. The goal of conservation
is to maintain resource productivity for future
generations. Allocation distributes the opportunity to
participate in a fishery.

Conservation is concerned with how much of a fish
population is available for use. The maintenance of.
fish populations for present and future generations is a
broadly held social goal. Because of broad public
support for conservation and because a holistic view
makes conservation easier to achieve, organizations that
have the most encompassing authority are most
successful. A holistic view is necessary because fish
resources are dependent on such habitat characteristics
as water quality and supplyr water course modifications
and obstructionsy and competing water uses. The social
priorities of these activities extend beyond narrower
concerns of fishing.

Allocation involves w1a gets the opportunity to
participate in the fishery. Allocation can be an active
process of choosing who will participate in a fishery,
or it can occurp de factof by inaction. Allocati-on
distributes the opportunity to catch fish among groups
of users.

As the diversity of resource users increases, so does
the complexity of interests. With many different users#
diverse and sometimes conflicting goals have to be
accommodated. Allocation requires making judgments
among many objectivest while conservation is more
concerned with the single objective of maintaining the
resource for present and future generations.

Another characteristic distinguishing between
conservation and allocationr is that how much can be
used has to be determined before it is decided who gets
what. If the resource is to be maintainedy conservation
decisions must precede and be unchanged by allocation
decisions. When thetwo processes are combined in one
decisionp the pressures are always to add more effort to
serve the interests of more users.

The effort increase may occur at the expense of
long-term conservation. Thus, a tragedy of the commons
occurs when individual incentives to take more fish work
to the detriment of the whole.

The argument will be made that conservation and
allocation are too intertwined to be separated. This is
a truism of all systems. Human systems are integrated
wholes. Each component influences and is influenced by
each other component. Separating conservation and
a-llocation is done for the purpose of giving priority to
maiii@tainLing_the resource for future generations. The
central element in other models of resource maintenance
programs in forestry, wildlife, water resources, and
rangeland management is the fact that the conservation
decision is based on resource availability. The
separation also makes possible new opportunities for
management organizations, particularly for the
allocation aspect.

A tendency will be to bring other social and legal
responsibilities into the conservation decision. For
example, the allowable annual catch for a fishery that
is being rebuilt can vary according to the rate of
rebuilding. How fast to rebuild adds a social dimension
to this conservation decision. Rapid rebuilding may
require a particular user group to significantly reduce
its catch. In this sense, conservation becomes
allocation. The objective should be to decide on a
rebuilding rate in terms of what is most practicable for
the resource. Conservation will be easiest to achieve
where there is broad agreement on what is best for the
resource. This means: avoiding the tendency to let
allocations dictate conservation, keeping the
determination process focused on maintaining the
resource, and developing the broadest consensus favoring
conservation.

With these characteristics, conservation and allocation
are two interrelated, but discretely different
processes. Conservation is a how much question, while
allocation is a who question. Conservation is more
holistic, systemic and single valued. It requires a
broad organization that represents the fullest range of
societal interests. Allocation is concerned with the
people who benefit from use of the resource and requires
integrating more particular interests.

B. Alternative Institutional Arrangements

The separation of conservation from allocation can be
accomplished in a number of ways -- some within MFCMA
structure and some by new arrangements. Some new
organizations have the potential for reorienting
conservation and allocation incentives so that as groups
of users make decisions they can see the consequences of
their actions on the resource as a whole. These are
discussed in Appendix B.
7

The Study considered a variety of arrangements ranging
from modification of the existing Council system to
reliance on entirely privater entirely Federal or
entirely State systems. More detail on the alternatives
is contained in Appendix A. The alternatives are very
briefly described in the section which follows. The
single entity institutions were categorized as *no
Federal"l or "all Federal."

1. &11-Eederal

a. Conservation and Allocation by a Federal Fishery
Management Authority

b. Conservation and Allocation by Regionalt
Federally-Appointedi Regulatory Bodies

c. Conservation and Allocation by the Federal
Government with Strictly Advisory Regional Councils

2. no-Federal

a. Conservation and Allocation by Coastal States

b. Conservation and Allocation by Private Sector
Self-Regulation

3. Shared 1janagement

a. Conservation and Allocation by the Existing Regional
Fishery Management Councils

b. Conservation by NOAA; Allocation by the Existing
Councils

c. Conservation by the Councils; Allocation by
Council-Approved Private Organizations

d. Conservation and Allocation by the Existing Councils
Operating as Independent Federal Agencies

e. Conservation by a wFederal Reserve Board for
Fisheries"; Allocation by Some Other Organization
Such as the Councils or Regional Sub-Boards

f. Conservation and Allocation by the States and the
Federal Government

g. Conservation and Allocation by a Combination among
State/Federal/Interstate Marine Fishery Commission
Structures

The Study finds each single entity arrangement deficient
for the same reason: a system which confines importanty
complex and multiparty conservation and allocation
decisions to a single level of management cannot serve

the many resource and constituent interests which it
must accommodate. An all-Federal arrangement fails to
recognize a State's management of its own waterse while
a no-Federal arrangement fails to recognize
international and interjurisdictional fisheries.

Accordinglyr the Study endorses management by a
partnership of State, Federal, regional and private
entities. See Appendix D for discussion of the
rationale for this recommendation.

IV. Recommendations

A. Separating Conservation and Allocation

The Study finds that its preferred alternative is
conservation by NOAA and allocation by the existing
Councils (alternative "3.b.1) with flexibility to allow
Councils to use other organizations for allocation (see
Appendix B). The recommendation is based on the
continued use of existing institutions with better
defined roles and with allowance for innovation.
Implementing this recommendation requires legislative,
organizational and procedural changes from current
practices.

1. Legislation

To establish the separation of conservation and
allocation within the MFCMA:

- Modify the national standards (Section 301) to
specify the conservation and allocation aspects of
management.

- Develop operational concepts to specify conservation
(allowable biological catch -- ABC) and allocation
(optimum yield -- OY) requirements.

- Separate the conservation decision from the
allocation decision and make it as conceptually,
structurally, temporally, and spatially distinct
from allocation as possible.

See Section V. for the amendments to the MFCMA proposed
to-effect these changes.

2. Organization

The intention of the Study is a clear separation between
the conservation decision and the allocation decision.
The Study does not believe that these two decisions can
be made by the same body and still assure the integrity
of the ABC determination. It intends the latter to be
scientifically determined and inviolable for the period
for which it is established. Accordingly, the Study
recommends that NOAA determine the ABC for each fishery
at the national level and the Councils be responsible
for making allocations.

In reaching the conservation determination, NOAA would
make full use of local and regional expertise and normal
Federal rulemaking procedures. The final rule,
published in the Federal Register, would provide the
ceiling within which the Councils would make allocations
under FMPs. Councils would draft detailed management

measures to achieve these allocations. Allocations may
not exceed the ABCs and would be subject to review by
the Secretary. Licensing, reporting requirements and
State/Federal enforcement would support the
implementation of the FMP and safeguard the conservation
decision.

B. The Fishery Management Plan Process

1. Secretarial Review of Allocation Decisions

The Secretarial review of the allocations in FMPs or
amendments must be confined to the record and the
documents developed by the Council in preparation of the
FMP or amendment. The only public comments admissible
beyond that record should be written, and be confined to
the issue of consistency with the national standards and
other applicable law. The problem with the current
review under Section 304(a)(1)(A) is the perception that
the Secretary also reviews the policy judgments of the
Councils.

Review of an FMP or amendment to a plan should be
completed within 60 days of the official receipt by
NOAA. Failure to disapprove a plan or amendment within
that 60-day review period would constitute de facto
approval of that plan or amendment. The Study believes
that recommendations such as restricted Secretarial
review, the separation of conservation from allocation,
and the revised nominations process recommended below,
make any further revision to the review process itself
premature. However , should these recommendat-ions not be
acted upon, the Study offers three options to the
present review process to be used in steps if necessary:

- In-house review by designated senior officials.

- A Secretarially-appointed, external review board.

- A Presidentially-appointed review board independent
of the Secretary.

These options are discussed in Appendix C.

2. Documentation of Disapproval

In accordance with the intent of Section 304(b)(2) of
the Act, "The Secretary shall notify the Council in
writing of his disapproval or partial disapproval....
Such notice shall specify--

the applicable law with which the plan or amendment
is inconsistent;
the nature of such inconsistencies; and
recommendations concerning [appropriate remedial]
actions....n

It is essential that the above advices to the Council be
detailed and fully documentedi not merely statements of
opinion.

C. Council System

The Study has chosen not to propose changes to the MFC14A
that would make the Councils legally accountable for the
fishery management decisions or their resource or user
consequences. Howeverr the Study believes that the
separation of conservation and allocation decisions and
renewed emphasis on the limitations on Secretarial
review and FMP disapproval will clarify accountability
between the Councils and NOAA.

The Study finds that there is a need to improve the
process of nominating Council members to assure the
selection of people who are capable of making
knowledgeable, equitable and representative fishery
management decisions. Unfortunatelyr nominees have not
always had the qualifications to guarantee the highest
Council performance. Furthere individuals do not
receive adequate orientation to the task of fishery
management. These factors impede Council
effectiveness. The Study finds that:

- Qualifications for membership as stated in the Act
are sufficient.

- Nominations for membership to a Council should be
made by any interested group or individual located
within the geographical area of the Council. The
Governors would also be able to make nominations.
Detailed biographical information would be
required. A nine-member national review board with
broad geographic and user representation should be
named. The board would have the authority and
responsibility to consider all nominees and
determine who is qualified. For each position to be
filled, the review board would certify to the
Secretary of Commerce the three candidates who, in
the judgment of the board, are the best qualified
among the nominees submitted.

- Council members should take an oath of office and
receive a detailed and substantive orientation to
the operation of the Council and the accountability
of its members before beginning their work.

The "obligatory" seat concept should be abandoned,
specifying instead that there be at least one voting
member from each State in addition to the designated
State official.

No appointed member, other than the State official
and the Regional Director of the National Marine
Fisheries Service, should serve more than two
consecutive, three-year terms.

Each Council should include a mandatory
representative of consumer interests in an advisory
capacity.

D. Number of Councils

The Study finds that, with the exception of tuna, most
fisheries in the Western Pacific and Caribbean are
conducted within the boundaries of U.S. island States,
commonwealths and territories. As a result, there are
very few interjurisdictional fisheries for the Councils
in these regions to manage. The Study therefore
recommends that the existing Western Pacific and
Caribbean Councils be eliminated and that the islands
State, Commonwealth, and territorial governments manage
non-tuna fisheries within jurisdictions to be
determined.

The Study recommends elsewhere that the United States
extend jurisdiction to highly migratory species.
Because of the great abundance of tuna in the Western
and Central Pacific, the Pacific islands should be
included in the international, regional or other
management of tuna.

E. Interjurisdictional Management

1. Why Interjurisdictional Coordination?

Under U.S. law and in accordance with Constitutional
separation of powers, the sovereign States retain
management control over fisheries of their inland waters
and seaward boundaries, while the Federal Government
controls fisheries in'the EEZ. However, populations of
fishes and other marine organisms range through these
waters in accordance with ecological limiting factors
which coincide usually not at all with man-made
jurisdictional boundaries. Anadromous fishes such as
salmon and striyed bass may traverse waters of the EEZ,
plus the coasta waters, estuaries, and river systems of
a series of sovereign States in their extended
migrations. Most important non-migratory marine species
also are distributed through more than one political
jurisdiction. In all these cases, fishermen desire to
harvest their catch across jurisdictional boundaries of
established political and legal importance, but of no
significance to the fish.

2. Continuing Problems -- Post-KFCKA

Despite the clear Congressional intent that fish stocks
be managed as units throughout their range (national
standard 3), continuing problems impede achieving that
goal.

- Implementation of FKPs in some cases has been
inconsistent over the full range of the fishery due
to lack of effective Federal-State coordination of
necessary regulations and enforcement.

- Certain fisheries concentrated within State
jurisdiction require coordinated management, but are
not subject to KFCKA jurisdictionr thus lack a firm
legal basis for coordinated interjurisdictional
management (principally Atlantic Coast species such
as striped bass# bluefish, and menhaden).

- Lack of clear definition of Federal and State
responsibilities for shared management of shared
fishery resources has materially weakened Federal
and State commitments to fund and carry forward the
planning, data collectiony relevant researchr and
enforcement that are essential for coordinated
management of interjurisdictional fisheries.

A Congressional Research Service (CRS) 1985 report:
Interiurisdigtional Fisheries Kanaggmente I sues and
Options cited three major problems deriving from
inadequate coordination of State and Federal fishery
management:

- Uncoordinated regulations: differing size limitst
gear restrictionst seasons, and area closures among
adjacent jurisdictions; unsynchronized closures
transferring effort from a closed area to adjacent
open jurisdictions; and differing allocations to
users.

- Conflicting economic goals: varying economic or
social goals among jurisdictions -- e.g., commercial
harvest in oner recreational in another, and
subsistence only in another.

- Competing harveat goals and methods: harvesting
spawning stocks in one jurisdiction may negate
recruitment goals in another; over-harvest in one
may force compensatory closures in another.

The Study recommends that the Federal Government take
immediate administrative action to:

a. clearly.define relative Federalg, Stateg, Tribal#, and
local governmental authorities and responsibilities
for management of interjurisdictional fisheries
consistent with recommendations made throughout this
Study;
14

b. establish policies delineating responsibilities and
defining the mechanisms for implementation of
coordinated management among the jurisdictions
concerned, including procedures and mechanisms for
assuring compliance in carrying out agreed-upon
management measures, and mechanisms for resolving
disagreements;

c. secure commitments for long term, sustained funding
and other support for scientific research, long-term
catch and effort data, and enforcement;

d. legislate the basis for Federal support of the
research and data collection required to carry out
interjurisdictional fishery management, perhaps
after the pattern of H.R. 1028, which was approved
by the House of Representatives in 1985, but failed
for procedural reasons to win Senate approval; and

e. establish Federal standards for coordinated
management of interjurisdictional fisheries not
presently subject to management under the MFCMA
(i.e., fisheries requiring such coordinated
management within the boundaries of the States).
Legislation could take the form of an
Interjurisdictional Fisheries Act as proposed in the
1985 CRS study . This legislation would somewhat
parallel the Migratory Bird Treaty Act in providing
Federal standards and guidelines for development of
regional management plans for interjurisdictional
fisheries. Within those national guidelines, the
States could continue to regulate fisheries within
State waters. Also per the CRS study# the
legislation should include provisions for Federal
preemption if the States fail to regulate their
fisheries within the established standards and
guidelines and an established regional management
plan.

Appendix D contains a discussion of interjurisdictional
relations.

F. Fishery Management Priorities

Changing management needs and decreasing government
budgets require that fishery managers carefully set
program priorities. The Study has reviewed the major
functions of fishery management and finds that
scientific research, long-term catch and effort data,
and enforcement are the highest priorities.

There are other programs of lower priority which can be
reduced or eliminated to make talent and money
available. There appears to be opportunity for savings

which could be used for higher priority programs. Lower
priorities are in the area of industry assistance. All
promotional costs concerning sale of seafood and other
marine resource productst and capital costs and risks
should be shouldered by the private sector of the
industries concerned. Funding for high priorities is
also possible through license and user fees recommended
elsewhere in this Study.

1. Scientific Information and Long-Term Catch and
Effort Data

Research relating to fishery management is an investment
which returns to the Nation annual dividends in
sustained fishery yields and in improved management of
publicly owned natural resources. Researchr data
gathering and processing capabilities cannot be turned
on and off; they must be sustained through time.
Appendix G describes fishery research and data needs.

Scientific information on U.S. fisheries is constantly
expanding. Councils have sometimes ignored, and
researchers have hesitated to provides such information
despite the fact that the Act states clearly that
management must be based on the "best scientific
information available.' The excuse in many cases is
that a research project is not yet complete. Action has
been postponed awaiting "final" results. Trends and
population changest however, are often evident before
studies are complete. The Study finds:

a. Scientific understanding should continue to be
improved he following areas:

- forecasting capabilities for recruitments
catch, effort, and capacity;

- increased research on species complexes and
their ecosystem relationships;

- augmented attention to physical and biological
limiting factors on key species assemblages;

- applications to fisheries of other relevant
disciplines (e.ger oceanographyr genetics,
physiologys the social sciences);

- development of more selective gear, technology
and strategies to reduce fishing-related
mortalities from gear and culling damage and
discards which waste resources; and

- a defined career path for scientific personnel
which rewards them for good science and does
not require them to become administrators.

b. Whatever scientific information is urrently
available should be the fundamental basis for
setting ABC and, through FMPsr instituting any other
management measures. Action should not be deferred
in the hope that better information may be available
at a later date. By then# the stocks may have been
decimated.

Fishery data are often inadequate for effective
management decisions due to their biological orientation
and geographic and political boundary limitations. Many
agencies play a role in data acquisitiont which means
data by fishery cannot be summed because it is limited
by the fragmentation of its gathering. Organizing data
only according to biological species limits knowing the
patterns of fishing. Data bases need to be organized in
both ways: by species and by fishery. Most fishing
includes several species, and data need to be summed
according to all the species fished by a particular
fisherman so that the interactions between fisheries and
impacts of management can be determined.

Although the Act under Section 303(d) permits gathering
of catch statistics with confidentiality guaranteede
many fishermen and buyers are reluctant to give such
information and often xefuse to do so. Without
statistics of the sort the commercial and recreational
fisheries can provide, assessment of stocks is
difficult. The Study finds:

c. Submission of data relevant for management is an
obligation of ALL those participating in U.S.
fisheries. Confidentiality provisions of,the law
should not be used to limit availability of data to
qualified data analysts.

d. NOAAr the Councilst Statest Tribest local
jurisdictionst and authorized agencies need to
coordinate data gathering to create compatible data
base systems that:

- integrate data across geographic and political
boundaries so that the amount of catch and
effort in a fishery can be summed for each
fishing unit across all the areas fished;

- integrate data across fishing activities so
that the relations between catch and effort in
different fisheries can be determined.

e. In securing data, authorized agencies should be
mindful of minimizing costs and disruption to the
industry by making use of sampling techniques& punch
cards, censusesp landing tickets and other
techniques that increase the efficiency and quality
of data acquisition.

f. NOAAl the Councilsr Statesr Tribalf local
jurisdictions, and authorized agencies should
strengthen data collectiony reporting, and analysis
capabilities to assure long-term sustained
production of fishery datar including (but not
limited to):

- catch and effort information;
- social and economic information for determining
optimum utilization;
- non-consumptive uses and values.

2. Enforcement

In certain fisheries there is said to be widespread
cheating on regulations. This is, to put it plainlyr
stealing valuable U.S. property from law abiding
fisherment the public ownersf and from the taxpayer by
increasing enforcement cost and diminishing revenues
from unreported income. These unlawful practices
seriously undermine the fundamental objectives of
conservation and fair allocation. There are a number of
contributing factors# including economic pressure,
perception that risk of getting caught and punished is
less than the rewards of violationr the respect of peers
for large catchesr inadequate fundinge and a lack of
understanding of the value of the management regime.
Whatever factors contribute to these practices, it is
plain that more aggressive and effective steps must be
taken to discourage them.

Enforcement measures are inadequate in the following
ways:

a. Fishery management plans include regulations that
are difficult and expensive to enforce.

- Councils must-recognize enforcement costs of
their regulations and consider more economical
alternatives. For exampler dockside
enforcement is less expensive than at-sea
enforcement, but is not practical in all cases.

- Coast Guard and NOAA enforcement experts should
provide timely advice on economical and
effective enforcement measures. Councils
should give greater weight to such advice.

b. Funding does not allow effective enforcement
presence.

- NOAA1 Coast Guard, and the Councils should
accelerate their cooperative effort to devise
cost-effective enforcement methods, including
the use of available technology.

- Accounting procedures for enforcement need to
be consistent between Coast Guard and NOAA, and
realistic so that fishery management costs are
not inflated.

c. The lack of permits and permit sanctions on domestic
fishermen.

- Federal permits should be required in every
fishery and realistic permit sanctions should
be applied to repeat violators and their boats.

d. Incomplete preparation of casest inadequate
penalties for violators, and cases remaining in
process for too long.

- NOAA and the Coast Guard have already initiated
discussions to improve the legal processes.
These efforts should be accelerated and
encouraged.

e. Mitigation of fines and penalties.

Needless to say# the system cannot work if the
one who has been properly tried, convicted, and
fined is able through political influence, to
have his penalty reduced or canceled.

G. Highly Migratory Species

The U.S. policy on the management of highly migratory
species -- as reflected in the management exclusion of
the MFCMA -- has had unintended and severe resource
management and political repercussions. Only Japan and
the United Statest for exampler continue to maintain
that highly migratory species cannot be managed within
individual extended jurisdictions. Consistent with this
positiont the State Department has disapproved several
versions of the Atlantic billfish FMP because those
plans restricted the opportunity of the Japanese to
catch tunas in the U.S. FCZ. The Study recommends that
the MFCMA be amended to address these problems:

All fishing activities within the FCZ should be
subject to the jurisdiction of the Councils.

Section 103 and elsewhere in the Act where "highly
migratory species" are excluded from U.S. management
controls should be repealed. Nothing in this
recommendation implies that the U.S. should withdraw
from international bodies such as the International
Commission for the Conservation of Atlantic Tunas,
or should reduce pressure for effective
international arrangements for management of these
fisheries.

- Federal agencies not directly concerned with fishery
management should cooperate fully with Council
actions when implementing their own regulations and
agreements.

Fees and Licensing for Marine Fishing

As revenues collected from foreign fleets fishing in
U.S. jurisdiction declines other sources of financing or
transferring of responsibility for fishery research and
management must be developed. Costs of administering
the Act and of fishery management programs in general
should not be confined to the Federal Government alone.
The Study feels that serious attention should be given
to the setting of fees which provide for all classes of
users to pay a reasonable part of the cost of
management. These revenues should not be used to defray
the general costs of government, but be shared fairly
among the Federal Government and coastal State fishery
management programs.

Further, licenses create a defined population from which
to sample for research purposes and can assist routine
data gathering. These benefits lower data collection
costs. The Study recommends:

- A fishing license and tonnage or other fees for all
users (commercial and recreational fishermen, and
others) should be imposed, and funds derived from
such fees used to improve the fisheries throughout
their ranges including research, data collectiont
enforcement, and habitat improvement. Section
304(d) of the Act should be amended to eliminate
restrictions on the collection of fees.

- Factors such as the applicant's knowledge of
pertinent harvesting rules and regulationss safetyr
seamanshipt sanitation, environmental protectiont
and the proper care of fish to ensure high quality
may be considered in issuing a license.

- A fishery-related permit or license should not be
issued to anyone who has not submitted data about
fishing activities as required by Federal law.

- Licenses should be issued by each coastal State to
permit fishing in State and FCZ watersp with fees
derived from sales of such licenses shared equitably
with the Federal Government. If a coastal State
fails to implement a licensing program within a
reasonable period of timer the Secretary should draw
up such a program to be used until the State is in
compliance.

Limited Entry

The key to management in many fisheries is effort
control. Too many fishermen -- commercial and
recreational -- are trying to catch too few fish. In
addition, technological improvements increase catching
efficiency. Limited entryl rights to the opportunity to
fish through individual share quotas, bidding on
availability of such quotas, lotteries or some other
means must be implemented# whether or not this is
accomplished through modification of the Act itself.

The results of open access/entry are excessive pressures
on limited stockst chronic economic instabilityl and
severe allocation problems. Ordinary management systems
and elaborate regulations (restricting gear, kind of
catch, areas and seasons) have served to protect some
fish stocks, but have not stopped overfishing or reduced
economic inefficiency. (See Appendix I for a list of
overfished and overcapitalized fisheries.)

The root of the problem is thatr unlike other natural
resources which belong to the United States (mineralst
timber, inland game and fish) in which the user has to
pay for the privilege of use, marine fish are treated as
freer belonging to anyone who can catch them. This is
an anachronism, because the United States has claimed an
EEZ and applied very effective limited fishing
privileges to foreigners. This special attitude toward
fish of the sea is based on the sea's history of
inexhaus'tibility and the historical insignificance of
the fisherman's harvest. Today we have a sharply
different situation. Capital and technology have, under
the pressure for short term economic efficiency,
combined to end the age of inexhaustibility of many
stocks, and to put them at the mercy of the,fishermen,
both commercial and recreational. This means that the
practice of free access to the living marine resources
of the EEZ is obsolete for the same reason that it has
been declared obsolete for the hunting of migratory
waterfowl, or grazing on public landst ory indeedr for
most of the world's commercial fishing.

There is a clear need in certain fisheries to limit the
access privileges of fishermen and/or vessels. There
are various means of accomplishing thist includingr but
not limited top the following which are elaborated in
Appendix E:

- direct control of the numbers of fishermen# boats
and units of gearp

- individual fishermen or boat quotas,

- economic means such as fees and taxes,

- lotteries for allocating access.

The important points are that the Councils should be
encouraged to judge the need for restricting access and
to choose the most practical device to suit local
fisheries and their circumstances. The result should
be:

- reduction of conflicts over quota and allocation
and therefore reduction of regulations and
enforcement and associated public costs;

- reduction of pressure on overfished stocks;

- an equitable means of providing for the user to
contribute to the cost of conservation and
management;

- greater economic stability in the fishing industry
and improved competitive position for the U.S.; and

- incentive for fishermen to report important catch
data which is not now being reported.

The Study recommends limited entry as a management tool
for both commercial and recreational fisheriesp where
necessary and useful. The impediments to its use in the
Act should be removed and new ones should not be
enacted. Section V. contains specific legislative
proposals.

J. Full Domestic Utilization

1. The Problem

Full domestic utilization is the phasing out of foreign
fishing and foreign processing in the FCZ and the
simultaneous development of the U.S. fishing industry
capacity to catchl process and market FCZ resources.
This will provide maximum overall benefit to the United
States. The economic benefits will be substantially
greater than at present by creating new jobst improving
the balance of trade deficit, developing a broad tax
base and achieving genuine control of the resources.
Operations by U.S. processors in the FCZ
will assure compliance with established national social
goals including human rights, safety, minimum wage,
sanitation, pure food, habitat and environmental
conservation. These are compelling reasons for
achieving full domestic utilization.

The fish and chips policy and industry-to-industry
negotiations have been very effective in the substantial
development of over-the-side sales of fish, but have
been ineffective in developing particular segments of
the U.S. primary processing industry. Joint ventures
have pitted fishermen against one another and caused
divisions that inhibit full domestic utilization.

Further, a number of institutional barriers inhibitr if
not prevent, development of the U.S. primary processing
sector. In order to achieve full domestic utilizationr
those barriers must be eliminated or so altered that a
true market system exists. The creation of an
environment that is attractive to the business community
is essential and must be achieved rapidly. Failure to do
so ensures a continuation of the status quo which leaves
the U.S. primary processing industry in a disadvantaged
position with little opportunity to achieve the goal of
full domestic utilization. The major institutional
barriers that inhibit or prevent growth of the U.S.
primary processing industry are:

- lack of free market access to major international
markets due to unfair duties, uncertain or
discriminatory product quality standards,
restrictive quotas and other trade barriers;

- preferential quotas and duties for fish products
caught in U.S. watersy but not processed by U.S.
firms;

- unequalized social costs;

- unfair price competition in international markets;

- lack of true priority access to the resources;

- user fees are not being fairly applied to all
operations; joint ventures are an example;

- restrictions imposed by certain Federal laws (Jonest
Nicholson Acts);

- absence of incentives that create a favorable
business environment.

2. Recommendations

To reduce or eliminate the negative impact of these
barriers and to create an attractive business
environment the Study recommends the following action:

a. Pursue all administrative and legislative remedies
to eliminate unfair duties# restrictive quotas and
trade barriers.

b. Require those foreign countries fishing or
processing in the FCZ to provide free market access
in their home markets for any fish products of the
United States.

c. Require foreign processors operating in the U.S.
economic zone to comply with all Federal and State
laws and regulations relating to human rightsr

safety, minimum wage, sanitation, pure foodr habitat
and environment. In lieu of compliance, assess the
foreign processor with fees that equalize the cost
of such compliance to U.S. processors.

d. Provide fishermen fishing for domestic processors
preferred access to fishing grounds by time and area
when establishing quota priorities.

e. Assess user fees on all operations to cover the cost
of resource management.

f. Amend the Jones and Nicholson Acts and any other
Federal legislation that hampers development of the
fishing industry.

g. Place all joint venture operationst including those
in internal watersf under the jurisdiction of the
Councils.

h. Stop negotiating governing international fishing
agreements with additional nations and restrict
application of the basket clause (Section
201(e)(1)(E)(viii)) of the Act.

i. Induce investment in processing facilities by
developing some system of allocation that provides
assured supplies of raw material throughout the
year.

As the inequities and deficiencies identified above are
corrected, a true market system will emerge and market
forces will determine the rate at which full domestic
utilization will be achieved under the priorities
established by MFCMA. This will provide for,an orderly
evolution of the domestication process and is not
expected to have a negative impact on the affected
sectors of the industry. These remedies are long
overdue and must be applied forthwith. Further comments
on these several impediments and remedies are contained
in Appendix F.

K. Habitat

1. The Problem

Habitats (EEZ, estuariner wetland, riparian, and
coastal) of suitable quality are vital to continuation
of productive recreational, commercial and subsistence
fishery resources and are indicators of the suitability
of the environment for humans. Environmental
degradation weakens fishery resources. If damage is
significant, fishing may be forced to cease altogether
due to stock depletion. Habitat alterations may favor
some species while adversely affecting others. Not all
of these changes are necessarily harmful. However, when

stocks decline, for whatever reason, fishing pressure
must be reduced: such reduction is the only timely
management tool available.

Protection of habitats is a shared responsibility of
government agencies and the general public. In most
governmental organizational arrangementst control over
water and air quality and coastal highlands (and often
even adjacent low- or submerged lands) is not in the
hands of the fishery management agencies. Other
agencies, often several of them, control elements of
water quality.

Environmental management responsibilities are fragmented
in most States and in the Federal Government, where the
Environmental Protection Agency (EPA)p the Fish and
Wildlife Service (FWS)f the Corps of Engineers (the
Corps)r the Coast Guardr and NOAAr among others, are
involved in the use, protection and clean-up of the
aquatic environment and the air above it.
Unfortunately, sister units of some of these same
executive departments exploit or permit exploitation of
these same waters for non-fishery and sometimes
incompatible purposes. In recent years, upland land use
and coastal zone development pressures make it far more
difficult to protect the quality of fishery habitat.
Unchecked, these activities can seriously undermine
State and Federal fishery management efforts.

The Study strongly endorses the thrust and intent of the
recently adopted National Marine Fisheries Service
(NMFS) Habitat Conservation Policy, which emphasizes the
critical need to maintain the environmental quality of
habitats essential to fish at all stages in their life
cycles. To implement that policy# memoranda of
understanding have been negotiated successfully with
four Executive departments which have significant
control over the environment, i.e. EPA, the Corps, FWS
and the Coast Guard. After NMFS adopted its Habitat
Conservation Policy, NOAA decided to develop a NOAA
Habitat Policy, now under review. Given the clear
policy on the need for maintenance of habitat quality,
the Study's comments and recommendations are focused on
special issues.

Strategy 3 of the NMFS Habitat Conservation Policy
requires incorporating habitat requirements in FMPs and
involves the Councils more fully in habitat issues. The
Study supports this strategy. Some Councils have
mechanisms for approaching habitat issues. For exampler
the North Pacific'Council has incorporated major habitat
analysis sections into two of its plans for managing
groundfish resources, and the Gulf Council has developed
special mechanisms for addressing important habitat
issues. (See guidance to the Habitat and Environmental
Protection Advisory Panel available from the Gulf of
Mexico Fishery Management Council.)

The Study recommends this kind of policy and activity to
all Councils. This Study finds that each Council should
coordinate habitat protection activities of fishery
managers in its region so as to insure that no
significant project that is potentially detrimental to
fish habitats will escape the effective influence of the
Council.

2. Recommendations

Therefore, the Study recommends that:

a. NOAA and the Councils should develop and improve
mechanisms to monitor activities that critically
affect the habitats of fish stocks. These
mechanisms should include assignment of
responsibility for habitat issues within each
Council and means for coordination with the Regional
NMFS offices. Councils should pay particular
attention to the cumulative effects of alteration of
fish habitats and be aware of the synergistic
effects on fish stocks of activities not directly
related to fishing. The habitat section of each FMP
provides the basis for Council habitat activities
which could include holding hearingst issuing
reportst identifying research needs, and
communicating habitat issues identified in preparing
FMPs or which come to their attention by other
means. Habitat concerns should be ranked and
appropriate actions identified.

b. Working groups within the Councils should maintain
liaison with relevant Federalt Stater Tribal# and
local agencies and citizens groups to keep abreast
of habitat changes. Habitat alterations of concern
are oxygen depletion, over-enrichmentr chemical
pollutiont heavy metal contamination,
non-biodegradable wastesp point and non-point
sources of water-borne and air-borne pollutionr
erosion, damming, dredging and fillingr timber
harvest practicest and public works projects. These
agencies should include# but not be limited to:

- Federal: the Corps, EPA, and FWS;

- State environment 'all coastal zone managementp
and natural resources agencies; also land use
.planning and economic development agencies;

- public environmentally-oriented citizens
groups.

C. In development of FMPs and associated regulationst
Councils should take into particular account the
habitat impacts of fishing operations. Every effort
should be taken to minimize negative habitat impacts

of fishing techniques and gears; also the habitat
degradation of wastes discarded at sea, including
oil discharges, plastic products, and fishing gear,
which can induce significant fish mortalities
through "ghost fishing.0

d. The recommendations of agencies responsible for
management of the fishery resource should be given
greater weight in the decisionmaking. Habitat
damaging actions of other agencies should be
restrictedt subject to over-riding authority in
national emergencies or by official action from the
Office of the President or from the whole Congress.
Establishing greater fishery habitat priority
requires action by Congress.

e. Comparable authority should be extended to State or
interstate fishery management bodies by State
legislatures.

f. Water quality criteria and standards for tidal fresh
waters and estuaries should be strengthened to
preserve the quality of environment necessary for
fishery populations and species upon which they
depend. Fishery-relevant water quality criteria and
standards should be promulgated by EPA and
appropriate State agencies for coastal waters and
the EEZ.

V. Legislative Proposals

The following changes in the MFCMA are required in order
to implement certain recommendations in Section IV.
(Underlining indicates addition of wording,
strike-through indicates deletion.)

A. National Standards (Section 301(a))

(1) Conservation measures shall prevent
overfishing and may not exceed
acceptable
biological catch from each fishery for the Unite
States fishing industry. (Revised wording of
standard It 16 U.S.C 1851).

(2) Allocation measures
shall, promote efficiency in the
optimum utilization of fishery resources

(Revised wording and placement
of standard 5 16 U.S.C 1851).

(3) Conservation and allocation measures
shall be based upon the best scientific information
currently available. (Revised wording and placement
of standard 2, 16 U.S.C 1851)

(4) To the extent practicable an individual stock of
fish shall be managed as a unit throughout its
range, and interrelated stocks of fish shall be
managed as a unit or in close coordination. (Revised
placement of standard 31 16 U.S.C 1851).

(5) Conservation and allocation measures
shall not discriminate between residents of
different States. If it becomes necessary to
allocate or assign fishing privileges among various
United States fishermen such allocation shall be
(A) fair and equitable to all such fishermen;
(B) reasonably calculated to promote conservation;
and (C) carried out in such manner that no
particular individual# corporation# or other entity
acquires an excessive share of such privileges
(Revised wording and placement of standard 4, 16
U.S.C 1851).

(6) Conservation and allocation measures
shall take into account and allow for variations
among and contingencies in, fisheries, fishery
resources and catches. (Revised wording of
standard 7 16 U.S.C 1851).

(7) Conservation and allocation measures
shall where practicable minimize costs and avoid
unnecessary duplication. (Revised wording of
standard 7 16 U.S.C 1851).

B. Optimum Yield (Section 3(18))

The concept of OY, as currently defined, is flawed.
Although maximum sustainable yield may serve as a
scientific base in some fisheries, OY has been, and
still is, a widely fluctuating guideline varied to suit
the eyes of the beholder or the needs of special
interests. As defined in Section 3(18)B of the Act, the
wording "on the basis of the maximum sustainable yield
from such fishery, as modified by any relevant economic,
social or ecological factor" has recently been
interpreted largely in economic terms. The modifier has
become the rule.

The definition of OY has to be modified to clearly
separate conservation and allocation components. The
allocation plan details the procedures for allocating
catch so that the goals of the conservation
determination are met. Conservation is based on the
ABC. The OY is how the ABC is allocated for the
greatest overall benefit.

1. Add to Section 3 the following definition:

The term "acceptable biological catch" (ABC) means a
seasonally determined catch level which will maintain
fishery resource productivity for future generations
based upon the best scientific knowledge currently
available, and which may vary in some years for species
with fluctuating recruitment or based on a stock
recovery schedule. "Catch level" should be construed to
include all human removals of fish.

2. Change Section 3(18) to read:

The term "optimum," with respect to the yield from a
fishery, means the amount of fish

(A) which will provide the greatest overall benefit to
the Nation, with particular reference to food
production and recreational opportunities, while
maintaining or enhancing the natural supply of fish;

(B)
may not
exceed, but may be less than, acceptable biological
catch; and

C. Conservation Determination (Section 303)

Under the Contents of Fishery Management Plans, the
development of a conservation determination by the
Secretary is added. This is not a new function. It is
29

currently accomplished in the section of the FMP dealing
with the status of the stocks. The ABC and any special
considerations in taking this quantity of fish should be
specified in the conservation determination. The
conservation determination has to be made before the
allocation decisions of the FMP.

1. To add the concept of a conservation determination,
and the notion that Councils may use other
organizations in producing FMPsr a new paragraph (1)
needs to be added to Section 303(a):

SEC. 303. CONTENTS OF THE CONSERVATION DETERMINATION
= FISHERY MANAGEMENT PLANS

(a) REQUIRED PROVISIONS. -- Any fishery management plan
which is prepared or approved by any Council, or by
the Secretaryt with respect to any fishery shall

(1) contain (A) a conservation determination by the
Secretary that shall assess and specify the present and
probable future condition of# the maximum sustainable
yield and the acceRtable biological catch from, each
such fisheryl and shall include summary information
utilized in making such spee4"eatien determination, and--
(B) from timg to time, such amgndments to each suclL_
determination as-are necessary;

This consolidates paragraph (3) from the contents of an
FMP and makes it the basis of the conservation
determination. The existing paragraph (3) is
eliminated.

2. A conforming amendment may have to be added to
Section 304y ACTION BY THE SECRETARY.

D.. Functions of the Councils (Section 302(h))

To authorize the use of alternative allocating
organizations as described in Appendix At the first
function of a Council needs to be modified. This
proposed amendment also amplifies on the function of the
FMP itself:

(1) prepare, or have preRared, aMrgy& and submit to the
Secretary a fishery management plan with respect to
each fishery within its geographical area of
authority that requires conservation and managementi-
which allocates the acceRtable biological catch
among uAlLar and from time to timer such amendments
to each such plan as are necessary.

E4 Secretarial Review (Section 304(a))

A suggested legislative change to support the limitation
on Secretarial review of FMPs would be to amend
Section 304(a)(2) as follows:

(a)(2) In undertaking the review required under
paragraph the Secretary shall--(A) take into
account gmjy-

III the data, views, and comments received from
interested persons that hay " een made a part of the
official record submitted by a Council with the
fishery management Rlan or amendment to the plan
under paragraRh MWI and

(ii) any written data, vigws and comments received
pursuant to RaragraRh (1)(B), which must be on the
a of consistency with the national standards
containe in Section 301, other provisions of this
Act and other apRlicable law.

F. Fees (Section 304(d))

To allow the Secretary to set fees appropriate for each
fisheryl the last sentence of Section 304(d) should be
deleted.

VI. Concluding Statement

The contributors to the Study appreciate being given the
opportunity to suggest improvements in conserving and
allocating the great fishery resource of our coastal and
EEZ waters for the long-term public benefit.

While the experience and priorities of the individuals
were variousf contributors were united in their concern
for these fragile natural resources and in their
conviction that the steps they recommend are urgently
needed.

The pressures on fishery resources in many instances,
are severe and obviously damaging. These pressures,
caused by natural variability, demands of increasing
population and competing technologies for greater
fishing efficiency are bound to increase.

Federal, regional and State Governments and the private
sector all have a share of the task of care and wise use
of marine resources. But the Federal Government has an
unavoidable responsibility to lead and to see that
national standards of management are met.

NMFS should be and can be a top flight, professional
Service, but it must be given support for its top
priority functions. Federal funding for the
conservation function of the Federal fishery management
program and for the Councils for their allocation
function are investments in the care of a pricelessr
renewable resource; the job cannot be done in a
piece-meal way.

Management for migratory birdst timberlandst fresh water
resources and farm lands has been reasonably
successful. The American public, however, has not
recognized the perilous and inefficient situation in
their nearby seas.

Throughout history the seas have been regarded as
indestructable and its creatures as inexhaustible. It
just happens that our generation is the first to be able
to destroy a sea and to wipe out species of its
creatures. At least as important as these remarkable
abilities, is the discipline and determination to avoid
doing just thats, and to use our abilities for the
perpetual health of resources for which we are merely
passing trustees.

APPENDIX A
Alternative Institutional Arrangements

All-Federal Alternatives

a. Conservation and Allocation by a Single Federal Fishery
Manager

The Federal 'Government would have management authority
over all domestic and foreign fisheries in both the EEZ
and State jurisdiction except internal waters. This
might involve a single national fishery
manager/regulatory or a regional manager who would have
full decisionmaking authority to manage each fishery in
whatever manner determined. The right of the affected
public to present views would be preserved as would
Federal enforcement and supporting research.

Pros: - Improves accountability.
- Could provide more stable management measures.
- Reduces interjurisdictional conflicts.
- Efficient insofar as the process is less
articulated, more direct.
- Reduces costs associated with Councils.
- Connection between regulation and resource
variability could be more responsive.

Cons: - Diminishes likelihood of maintaining or
increasing State contributions to research and
enforcement; could shift these costs to Federal
Government.
- Retains obligation to finance system of public
input (primarily hearings).
- Preempts State authority in coastal waters.
- Does not disengage the political process through
the Congress.

b. Conservation and Allocation by Regionalt
Federally-Appointed, Regulatory Bodies

Regionalg Federally constituted, collegial bodies would
be empowered to perform all domestic conservation and
allocation planning and regulatory functions in both
State and Federal jurisdiction except internal waters.
Such bodies would consist of Federally-appointed
members. Decisions made by the regional bodies would
take public and user views into account. Research
functions would probably remain with NOAAF but the
responsibility for enforcing regulations could be placed
with the regional body. The Federal Government would
continue to have responsibility for regulating foreign
fishing. Variation: the members of the regulatory body
could be elected.

Pros: - The regional regulatory bodies would be
accountable at the local level for their
management decisions.
- Could provide more stabler long term management
measures.
- More protection from political interference from
outside regional sphere.
- Continued public participation.
- Reduces interjurisdictional conflicts.
- Connection between regulation and resource
variability more responsive.

Cons: - Diminishes likelihood of maintaining or
increasing State contributions to research and
enforcement.
- Users do not directly share in allocation
decisions.
- Federal costs would likely increase.
- Preempts State authority in coastal waters.
- Conservation and allocation decisions are not
structurally separated; they have the potential
for becoming highly politicized.

ce Conservation and Allocation by the Federal Government
with Strictly Advisory Regional Councils

The councils would serve in only an advisory function in
relation to NOAA and would recommend preferred
management approaches for each fishery. The councils
would continue to gather public and constituent views.
NOAA would prepare the FMPs based upon council
recommendations, submit the draft plans to the councils
for review and comment, and would implement the final
plan-by regulations. Where it is the opinion of NOAA
that a given fishery should be managed in a specific
mannerr it would seek the reactions and recommendations
of the appropriate advisory council regarding its
proposal.

Pros: - Essentially the same as alternative 1.

Cons: - Essentially the same as alternative ll except
councils would add monetary and efficiency
costs.

2. No-Federal Alternatives

a. Conservation and Management by Coastal States

Coastal States would manage domestic fisheries as they
did prior to the Act# with State regulations applicable
inside State waters as well as to State citizens within
the EEZ. Legislation would be needed to extend the
jurisdiction of each coastal State to citizens of other
States who operate in the EEZ off its shores. States

would have responsibility for all research and
enforcement. The Federal Government would be involved
only in management and control of foreign fisheries
operating in the EEZ. Variation: Empower the Interstate
Marine Fisheries Commissions to manage all interstate
domestic fisheries with the States providing all
research and enforcement.

Pros: - Federal role and costs would be minimized.
- Accountability would be at local level.
- Could motivate the States to work together.

Cons: - Maximizes potential for debilitating interstate
conflicts; maximizes likelihood of short term
management decisions.
- The States may not be able to mount the
management, research and enforcement efforts
necessary to control domestic fishing in the
EEZ.
- Could seriously undermine existing Federal
research capabilities.
- Would make stable, long term management measures
less likely.
- Would impede responsiveness to changing fishery
needs.
- Lacks a mechanism for coordinated management of
interstate stocks.

b. Conservation and Allocation by Private Sector
Self-Regulation

A statutory system conveying property rights in shares
of a fishery would be established. A Commission would
control the division into sharesl the transfer of rights
and the adjudication of disputes. Rights could be
leased# sold or assignedr according to the design.
Rights could be divided into individual and
corporate/cooperative categories to control
concentration. The resource would be monitored under
the Endangered Species and Marine Mammal Protection Acts
which would continue to condition the property right.
Enforcement would be through the police powers normally
available to protect property rights. Variation:
Preserve the open access system, but withdraw from
management except to en 'force the Endangered Species and
Marine Mammal Protection Acts.

Pros: - Substantially reduces the surveillance role of
government enforcement.
- Accountability issue essentially disappears.
- Political interference issue essentially
disappears.
- Stability issue essentially disappears.
- Allocation issues other than the initial
assignment of rights becomes a matter of the
market.

-Federal costs are substantially reduced.
-System is almost by definition efficient and
responsive (as long as rights are transferable).

Cons: - No guarantee that a resource would be conserved
short of the threat of extinction.
-International fisheries would pose a problem.
-Property owners would face costly process to
protect their rights with respect to coastal and
internal waters development# multiple use and
pollution issues.
-Recreational and commercial interests may still
conflict
-Threat oi monopoly needs to be controlled.

3. Shared-Management Alternatives

a. Conservation and Allocation by the Existing Regional
Fishery Management Councils

Separating conservation and allocation within the
current Council structure could be achieved by giving
the scientific and statistical committee (SSC) a greater
role in making the conservation determination. If the
SSC is given a greater role in developing the
conservation decision, the advisory panels could receive
a more substantive role in the allocation decision. The
advisory panels could formulate the allocation plan. The
Councils would make two separate decisions: on the
acceptable biological catch (ABC)r which would be
published in the Federal Register, and then on the
allocation. These decisions could be distinguished
within a single document or be in separate documents.
In either caser both decisions would be subject to
Secretarial review.

Pros: - Public participation would continue.
-Would give more status to scientific advice and
more focus to its consideration.
-Would be closest to the current system of
operation.

Cons: - Conservation decision would still be subject to
manipulation by the difficulties of allocation.
-Would not reduce Federal involvement and fiscal
burden.
-Would not improve regulatory responsiveness to
changing needs.
-Does not substantively improve accountability.

b. Conservation by NOAA: Allocatign by the Existing
Councils

This was the approach recommended by the Study (see
p.10). Councils should take the lead to develop
organizations to allocate the allowable.catch as
discussed in Appendix B.

c. Conservation by the Councils; Allocation by
Council-Approved Private Organizations

Councils would be authorized to set ABC and approve
allocation plans. Allocation plans would be prepared by
associations, corporations or special organizations. The
specifics of these organizations are discussed in
Appendix B.

Pros: - Responsibility is with the Councils.
- Federal role and cost are lessened.
- Potential for users to realize the benefits of
conservation is greater.
- Decisions are made closer to those affected.

Cons: - Experience with user allocation organizations is
limited.
- Politically difficult to implement because this
alternative shifts the cost from government to
users. With thisr howeverr comes greater local
control.
- Regional interests may not give conservation
high priority.

d. Conservation and Allocation by the Existing Councils
Operating as Independent Federal Agencies

Establish the Councils as independent Federal agencies
with a Washington staff and Director (appointed by the
President). The Councils would prepare conservation
and allocation plans for the EEZ under a vested
regulatory authority. The Director would review and
implement planst interfacing directly in the
implementation process with NOAA, OMBF the Environmental
Protection Agency# and the Small Business
Administration. Washington staff would provide
overview, correct deficiencies in Councils' plans,
environmental impact statements, etc. The States would
continue to manage fisheries in their jurisdictions.
MOAAl the Coast Guard and the States would continue
their respective research and enforcement efforts. The
Federal Government would continue to manage foreign
fishing in the EEZ.

Pros: - The Councils could issue fishery regulations
without OMB clearance.
- Accountability is clearly located with the
Councils.
- States continue to share in fishery management#
research and enforcement.
- Ability to make long-term conservation and
allocation decisions less subject to outside
political interference.
- Direct public participation would continue.

Cons: - Federal costs would likely increase.
- Regulatory burden may remain unchanged.
- No improvement in interjurisdictional conflict.
- Council/headquarters conflict could persist.

e. Conservation by a "Federal Reserve Board for Fisheries";
Allocation by Some Other Organization such as the
Councils or Regional Sub-Boards

Create a board appointed by the President for long terms
and with independent authority to specify the ABC in
each fishery. Its decisions would be based on research
and information provided by NOAAr but would not be
subject to review and could be arrived at in secret with
prior public input. The Reserve could have regional
components analgous to Federal Reserve banks. Allocation
could be done by the existing Councils or by the
alternative organizations discussed in Appendix B.
States would retain jurisdiction within their boundaries
and enforcement and research would be a shared
State/Federal responsibility. The Federal Government
would continue to manage foreign fishing in the EEZ.

Pros: - Conservation and allocation decisions are made
by separate bodies, best insulating and
preserving the integrity of ABC determinations.
- Accountability for both conservation and
allocation decisions is clearly specified.
- Federal costs could be reduced and
responsibility for regulation could be shifted
to the private sector.
- Federal Reserve could be independent of OMB
regulatory reviews.

Cons: - The system would be completely new and entail a
_ ;learning" period.
ublic participation in the conservation
decision would only be indirect and could entail
sequential legal challenge.
- No improvement in interjurisdictional conflict.

f. Conservation and Allocation by the States and the
Federal Government

Coastal States would manage their domestic fisheries
inside three miles and'the Federal Government would
manage both the domestic and foreign fisheries outside
three miles in the EEZ. Management would be similar to
that under the Act except without the Council
structure. NOAA would establish the ABC and, after
public and user consultation, allocate the resource in
the EEZ. The Statesp the Coast Guard and NOAA would
continue to provide researchr data collection and
enforcement. Variation: Federal authority within State
jurisdiction could only extend to approval of
State-developed plans according to national standards.

Pros: - Would reduce Federal costs associated with
Council structure.
- Would maintain historical State/Federal
jurisdictions.
- Improves accountability.

Cons: - Would not provide current level of public
participation.
- Would not mediate intraregional conflicts.
- Would meet resistance from vested interests.
- No mechanism for coordinated management of
stocks between the EEZ and State waters.

90 Conservation and Allocation by a Combination among
State/Federal/Interstate Marine Fisheries Commission
Structures

Coastal'States would manage their domestic fisheries
inside three miles and the Federal Government would
manage both the domestic and foreign fisheries in the
EEZ. The regional Interstate Marine Fishery Commissions
would replace the Councils in developing conservation
and allocation plans, providing a forum for open public
discussions and evaluations of management alternativesr
and providing a mechanism for State/Federal planning for
cooperative and consistent management over the entire
range of the stocks.

Pros: - Relies on an existing mechanism with shared
funding.
- Accountability is clearly specified.
- Reduces Federal costs associated with Councils.

Cons: - Implementation of management recommendations
dependent on the political proces'ses of the
individual States and Federal Government.
- System may be super7stabler i.e. very
unresponsive; efficiency is essentially
unchanged.
- Less direct participation by the affected
public.
- Conservation decision is still subject to
manipulation for difficulties of allocation.

Appendix B
Organizational Alternatives for Allocation

Government involvement in fishery management can be reduced if
users are organized to accept responsibilities formerly
assumed by government. User organizations could determine
rules for allocating the allowable catch# approaches for
gathering datar methods of policing membersy and ways for
financing these activities.

The precise characteristics of organizations that can make
allocation decisions are not known. However, several possible
models are suggested. Separating the conservation decision
from the allocation decision provides safeguards to protect
the resource and provides the opportunity to experiment with
different types of organizations.

A system giving conservation preeminence in decisionmaking
does not by itself increase individual commitment to resource
conservation. For resource users to become committed, they
must collectively understand how their individual actions
affect the resource as a whole. Including users in the
allocations process has considerable potential for building
user understanding and acceptance of management rules.
Without some stake in management of the whole, users will
continue to contribute to the tragedy of the commons.
Organizations that take over allocation can also become more
involved in solving the rules they create, thus lowering
management costs.

Associationst profit-making and not-for-profit corporations,
and specially created organizations have the capability for
organizing users to work out allocation decisions and to
prepare an allocation plan. Depending on the nature of the
group of userst each organization has advantages and
disadvantages. Flexibility with respect to organizational
type has to be permitted.

Where user interests are diverse, the critism is made that
resource users cannot also be resource managers -- users do
not have the time# they will make decisions.in their own
self-interest# and there will be too much conflict. The
attitude that people cannot manage their own affairs
contributes to management conflicts and to excessive costs of
management. People will act cooperatively in their own
self-interest when the advantages are greater than
circumventing the process.

Those managed feel alienated from the system because
management is imposed upon them by an outside authority.
Furtherr the management system promotes controversy by
allowing many points in which special interest political power
can be used to reverse decisions that are out of favor.

Separating conservation from allocation offers a check against
these criticisms. No matter how the allocation process goest
conservation safeguards will be in place.

a. Associations

Associations establish membership on an equal participation
basis. Association decisionmaking is based on voting. This
decisionmaking approach works best when members are relatively
homogeneous. An association will work in a fishery that has
similar gear# fishing patternar and user populations. Voting
does not workr for examplet where recreational and commercial
interests have to be represented. The greater number of the
recreational users would give them greater decisionmaking
impact. The same would be true for a commercial fishery
composed of trap and trawl gears.

Associations of users have successfully managed natural
resources, particularly with respect to the allocation of fish
resources. This occurred for a brief period in the Bay of
Fundy herring fishery. Among Alaskan nativest the Alaskan
Eskimo Whaling Commissione Hooper Bay Waterfowl Plan, Eskimo
Walrus Commissiont and International Porcupine Caribou
Commissiont to varying degrees# allocate resources, supplement
data collectiont and police members. In addition, many of
these organizations participate effectively in furthering
conservation goals.

Associations of users have also worked out compromises between
groups and contributed to the management process on specific
issues. Northwest salmon trollers and anglers negotiated a
compromise on the length of the recreational salmon season and
the distribution of catch. Trawl fishermen recommended timing
of catch quotas to maintain their market presence.

Alaskan regional aquacultural associations integrate
commercialr recreational# and subsistence fishing interests
with processors and representatives of local committees. The
method for integrating diverse interests is funding
association activities by a landing tax in which each
association member contributes according to catch. Some
Alaskan regional aquaculture associations have successfully
gathered datar allocated added salmon produced, and policed
members.

If the association form of organization is used, it should
encompass all fishing interests. The Bay of Fundy herring
cooperative management system broke down because a competing
group of fishermen was later formed. The members of this
group were not committed to the effort control agreements of
the Bay of Fundy Purse Seiners' Association.

b. Corporate Organizations

In profit-making corporations, participation is based on
having an interest in shares of the organization. In this
situation, quotas in numbers of fish could be purchased. For
diverse populations of userst the shares could be consolidated
for commercial fishermen or at the level of one or a few fish
for recreational fishermen. The share could represent an
opportunity to catch a particular quantity of fish or it could
be an actual catch quota. Participation in the corporation
would be on the basis of the share or shares owned.

Three issues are of concern with a corporate organization for
allocation and conservation. Profit-maximizing decisions
discriminate against user interests that are difficult to
value monetarily. A second problem is that if the corporation
is structured to profit from catching the resource, situations
could develop where the current value of the resource is so
high that the fish stock would be overfished. Finally,
concentration of economic power can be a problem. Market
substitutes for the fish product would provide a check on
concentrationt but this cannot always be assured.

Not-for-profit corporate organizations meld a diversity of
user interests and create incentives to conserve the fish
resource. A difficulty with not-for-profit corporations is
that the user mix will not respond to market conditions as
rapidly.

A not-for-profit corporate structure is preferred for making
allocation decisions. This is because the not-for-profit
corporate structure has as its primary goal, organizational
survival. If the corporation does not satisfy the-needs of
its members, it will cease to exist.

Care needs to be taken to be sure the not-for-profit
corporation has membership incentives that protect the
resource as well as continuance of the organization. For
exampler if the corporation gains strength by increasing the
number of members, this will be detrimental to the resource.
Participation in the corporation should come from the number
of fish members catch, rather than from the number of members.

C. Variation

State fishery agencies might contract for the allocation role
on behalf of licensed recreational and/or commercial fisheries
of the State. For exampler the States of Washington, Oregon,
Idahor and California could each develop a salmon allocation
plan to divide the ABC in their area among salmon anglers and
commercial fishermen.

APPENDIX C
Options for the Secretarial Review Process

"In-House" Option

The Secretary would designate an office within NOAA to
carry out the Secretarial review process. That office
would include:

Three senior staff members charged as a team with
responsibility for the Secretarial review would be
chosen for their knowledge of the provisions of the
MFCMA and other applicable law, and for their
ability to make constructive judgments supportive of
Council actions except in those instances of clear
inconsistency with applicable law.

A small number (perhaps three or four, designated
regionally) of support staff members whose principal
role is liaison with the Councils of their
designated Regions during the plan preparation
process, and facilitation of the subsequent
Secretarial review.

To the extent necessary to facilitate timely and
efficient Secretarial reviews, the Plan Review office
could hire consultants on an as-needed basis.
Alternatively, the review could be conducted by an
Administrative Law Judge or Judges.

External Review Panel Options (recommended if the
"in-house" alternative-7-a-11-sto perform as
intended).

The Secretary or the President would appoint a
three-to-five member "blue-ribbon" National Review Board
of stature with appointments:

for long terms (e.g. 5-8 years); and
on the basis of demonstrated knowledge of the intent
and content of the MFCMA and other applicable law,
and the principles and goals of fishery management.

The National Review Board should receive compensation at
the daily rate of GS-18 when engaged in actual duties of
the Board, and reimbursement for actual expenses.

The National Review Board could be supported by a senior
NOAA staff member serving as its Executive Secretary,
and by other support staff as outlined for the
"in-house" review process. If the Board were
Presidentially appointed, it could have its own staff.

APPENDIX D
Interjurisdictional Relations

National standard 3 of the MFCMA specifies that:

To the extent practicabler an individual stock of
fish shall be managed as a unit throughout its
range, and interrelated stocks of fish shall be
managed as a unit or in close coordination.

This Congressional mandate mirrored the Council of State
Governments' 1975 publication, To Stem the Tide, which
recognized Federal responsibility for management of the
fisheries beyond the limits of State jurisdictionj
called for active participation in preparation of
regional plans for interjurisdictional fisheries, and
for conformance by the States of internal management
measures with those regional plans.

The Study considered compelling the views of State
fishery directors. Those Directors have met three times
since 1980 in national conferences to address issues of
mutual concern (1980, 1982 and 1985). State fishery
agency representatives generally concur on the
following:

a. Present management arrangements need improving;
however, creation of a single supreme management
entity is not required.

b. The Federal Government has a special unifying role
in management of interjurisdictional fisheries.
c. Regional differences must be accommodated iin any
management system.

d. Management involves more than regulation -- highest
priority for Federal-State interactions must be
accorded planning; fishery data collection,
analysisr and dissemination; relevant researchr and
enforcement.

e. A clear mandate is essential to establish Federal
and State authority and responsibility for shared
managementy as defined abover of interjurisdictional
fishery resources; that mandate should assure the
long term stable funding essential for program
maintenance.

Congressional leaders have expressed continuing concern
over management unconformities. The lack of a clear
national mandate for Federal-State coordination of
management of shared fisheries has been recognized; also
the importance to the national economy of fish harvests
from State waterst which comprise some 65% of the
commercial catchr and 90% of the recreational catch.

Federal responsibilities for management in the FCZ
(EEZ), and State responsibilities within territorial
waters has been reaffirmed repeatedly; also the
importance of the Federal role in assuring coordinated
management throughout the range of the fisheries for the
benefit of the Nation as a whole. Effective Federal-
State cooperation clearly is the preferred approach to
this multijurisdictional management need in preference
to either total Federal preemptiont or Federal
abdication of national responsibilities.

If this preferred Federal-State coordination cannot be
achieved, the 1985 CRS Study offered three alternatives
for restructuring institutional responsibilities for
conservation and management of interjurisdictional
fisheries:

- Enhanced State regUlatgry anthodjtZ@j presumably in
exchange for greater State cooperation and
coordination in interjurisdictional fishery
affairs. This could extend to management of
fisheries beyond State jurisdiction in the absence
of a Federal regulatory regime.

- Enhanced interstate fishery commigsion regulatory
authority through delegation of management authority
by the States.

- Enhanced Federal allthoritv through:

increased preemptive authority (to the beach)
under Sec. 306(b) of the MFCMA;

enactment of a "Migratory Fish Act" analogous to
the Migratory Bird Treaty Act, providing for
Federal preemption -if States fail to act;

conformance of management of highly migratory
and domestic species.

The Councils have been recognized as effective
institutions for Federal-State coordinated planning for
management of fisheries subject to MFCMA. State and
Federal managers have agreed that implementation of
plans could be improvedr both by reducing bureaucratic
impediments to their approval at Federal levels, and by
more effective implementation of regulations by all
concerned jurisdictions. Where needed to implement
national standard 3, working committees comprised of
State fisheries directors have been proposed for
coordination of State regulations with those promulgated
by NOAA for the FCZ.

However, no institutional management parallel to the
Councils has received national sanction for fisheries
= subject to MFCMA (those harvested principally in the
territorial seas of adjacent States). Measures
considered for these fisheries include:

- approval of management principles equivalent to the
national standards under MFCMA;

- advance commitments by all concerned jurisdictions
to implementation of agreed-upon management
measures;

- provisions for dispute resolution;

- Federal participation as appropriate to catalyze
action and share in its financial support,
consistent with the national interest in wise use of
these resources.

As indicated by the CRS 1985 study, Federal legislative
action may be required to bring about these or other
actions necessary to achieve coordinated management of
interjurisdictional fisheries not presently subject to
MFCMA. The clear consensus of these national
conferences was, however, that whatever actions may be
required must not infringe unduly upon Constitutionally
established State and Federal jurisdictional
prerogatives. Coordination and cooperationt not
coercion or preemptiont should be the objectives.

APPENDIX E
Methods of Limiting Entry

Direct Control -- Limiting the number of fishermen, vessels,
size of vesselst units of gear, etc. This system sets and
allocates fishing effort based on law or regulation and not by
the market system. Some problems are:

limiting participants but not effort; no incentive
to conserve the resourcer

deciding who goest who stays and who gets in later
(and how),

provides windfall gains (possibly) to those now int

may.even result in more overcapitalization due to
the ingenuity of those still fishing.

Fishermen or Boat Quotas -- Quotas are allocated to individual
fishermen based on past catch or some other criterion.

Quotas may (or may not) be transferable through
sale. Ability to transfer allows rapid adjustment
to market conditions.

Fishermen adopt innnovations at an orderly rate,
rather than in severe steps as when gear
restrictions and other inputs are controlled by
management.

Economic Means -- Uses criteria for economic performance --
optimal output, efficiency (no excess capacity),
progressiveness (allows technological change)t proper
distribution of income (includes citizens as resodrce owners);
stability of incomer employment and prices. These are
generally associated with the efficient working of the private
market system. Some methods include:

Charging a license fee on gear used to keep the
level of fishing effort constant despite increases
in price of product. Must be carefully tailored to
gear type and requires considerable data about
fishermen's costs and earnings. In a trap fisheryt
fees should be per trap, not per vessel. Fees per
vessel might not control trap numbersr i.e.r effort
changes won't really get at utilization rate. For
exampler each trap might be fished more
intensively. The goal would be to make the fee
regulate effort to the correct number of traps to
catch the biologically desired levels in an
economically efficient manner.

Charging a fee to reduce the level of effort to
where marginal cost equals price to obtain "net
economic benefit." Normally in a developed fishery

this would require a drastic reduction in effort
creating all kinds of social welfare and allocation
problems. Would probably require a "dislocation" or
buy-back program.

Selling or leasing the right to fish based on the
highest bidder. Might be similar to a forest or oil
lease auction. Rights would be transferable. Could
also involve dislocation of fishermen.

Lotteries or other similar non-economic means for allocating
limited access to a commercial or recreational fishery.

APPENDIX F
.Factors Impeding Full Domestic Utilization

Lack of free market access to major intgrnational
markets due to duties, restrictive quotas and other
trade harrierp imposed on U.S. products.

The panel has agreed that free market access is the most
desirable business climate. The U.S. Governmentr
however, has failed to secure reductions in the multiple
barriers that inhibit or prevent market penetration by
U.S. primary processors in major world markets. For
example:

a. EEC tariff rates on cod fillets imported from
Iceland is 0%, from Norway 3%r from Canada 4-6% and
from the U.S. 15%.

b. Japan controls the importation of surimi through
import quotas and a 6.5% duty. Issuance of import
quotas and import licenses are tightly controlled
and generally are available to the major fishing
companies, not to importers or trading companies.
Japan has established pollock import quotas to 98
designated countries (of which the U.S. is one) but
has a separate bilateral agreement with South Korea
which provides South Korea acess to the Japanese
market for surimi processed from fish harvested in
the U.S. FC2 -- a market that is denied U.S.
processors.

Preferential dutips Pxist for Joint venture product over
U.S.-Rrocessed product in the home market of the foreign
2rocessor.

a. Salt codfish processed aboard a Portuguese flag
processing vessel (using U.S. harvested fish) is
assessed duty at a much lower rate than U.S.
processed salt cod when entering Portugal.

b. Japanese processors using pollock delivered by U.S.
fishermen to produce surimi not only have import
licenses (and quotas) readily available# but the
duty is assessed only on the value of the raw fishr
not the added value of the finished product. This
is estimated to make a difference of 5-6 cents/lb.
higher cost of U.S. processed surimi.

Unagualizgd social costs,

American processors are required to comply with a
plethora of laws and regulations which substantially
increase their costs of doing business. Foreign
processors operating in the U.S. FCZ are not subject to
these laws and regulations, and even if they werer
enforcement would be nearly impossibler which makes the

option of compliance useless. These social costs
include human rightse safetyr minimum wage, sanitation,
pure foodl habitat# environment and others. While it is
a matter of U.S. policy to protect its citizenry and
environment by these laws and regulationst the
unintended result is to give considerable cost
advantages to foreign processors operating in the U.S.
economic zone.

Unfair Retition in international markets,

Foreign processors in several nations are subsidized by
their home governments. Eastern European and certain
Asian governments in pursuit of foreign currency, price
their fisheries products well below market values
Cumulatively these practices seriously restrict U:S.
access to foreign markets. Such practices must be
eliminated without forbidding the use of surplus fish as
a source of food when needed in the home country of the
processor*

Lack of true Rriorify access to the regources,

The current system of allocating fish has been designed
to give domestic processing first priorityr joint
ventures second and directed foreign fishing last. The
Councils wrestle with the problem of setting OY,,
reviewing permit applications and finally establishing
quotas for the three categories. Howeverr this practice
does not establish true priority. There is no priority
on the fishing grounds since all operations fish
simultaneously and in the same areas. True priority
should provide preference by time, area and quota#
thereby providing fishermen supplying domestic
processors the advantage of fishing while the catch per
unit effort is at its highest level and the cost of
production is lowest.

Absence of user fees on Joint venture gperations.

Foreigners engaged in directed fishing in the FCZ pay
for that privilege by permit and tonnage fees assessed
by and paid to the U.S. Government. Neither U.S. joint
venture fishermen, however# who sell the catch
over-the-side to foreign processor vesselst nor the
foreign processors themselves pay any user fees.
Foreign use of U.S. fishery resourcest whether directly
harvested.or acquired over-the-side, should be subject
to a user fee to support the cost of resource
management.

Restrictions imposed by certain Federal laws,

The U.S. fish industry would benefit substantially if
certain Federal laws were amended to exempt it from
prohibitions and restrictions that were not designed
with the fish industry in mind. It would be very
beneficial if catcher-processor vessels constructed
so

overseas could be imported and be allowed to enjoy all
the privileges and benefits of vessels constructed in
the U.S. The capital cost of vessels constructed
overseas is much less than those built in the U.S., and
this lower investment cost would assist the U.S.
industry in competing with foreign operations which
enjoy a lower capital base.

Joint venture operations in internal waters not under
the iurisdiction of the Councils

Control of the allocation process must rest with a
single authority. In some instances internal water
joint ventures have been granted even though the
capacity and intent of U.S. processors had been clearly
established as being capable of processing the entire
harvest. This mechanism unfairly enables states to
grant joint venture permits when domestic processing
capacity is available a short distance away, but in a
different state.

GIFAs with additional nations and the basket clause,

Additional participants are no longer needed; in fact,
foreign fishing in the FCZ is in the process of being
phased out. Connecting fish allocations and thereby
fish supplies to outside, non-related events causes
continuing uncertainty and serves no useful purpose to
the fish industry. The basket clause permits the
Secretary to make allocations of the total allowable
level of foreign fishing based upon such other matters
(not necessarily related to fisheries) as the Secretary
of State deems appropriate.

Assuring supRlies of raw material throughout the year.

.A properly constructed system of allocation to induce
investment in processing facilities would be attractive
to new investors as well as the existing processing
industry. It would also offer a fine opportunity for
fishermen and secondary processors to enter the primary
processing sector. For secondary processors such an
involvement would provide a guaranteed supply of single
frozen blocks; eliminate the nagging problem of often
adverse exchange rates as well as remove the risk of
loss of supply due to international incidents. The
opportunity to deal with the common property problem of
developing fisheries should be dealt with as early as
possible.

APPENDIX G
Data Needs for Fishery Management

As with any business venture involving commoditiest
effective fishery management requires accurate, ready
and reliable knowledge of the stocks being utilized and
the economic and related social factors involved.

Comprehensive, clear# detailed precise (and accurate)
knowledge of the biologicalr chemical# physical
(including climatological)r social and economic factors
affecting the resources and the fisheries are necessary
in order to:

1. Establish the need for active management of a
particular biological resource and its dependent
fisheries.

2. Establish suitable goals or objectives for resource
and fishery management.

3. Determine the types and levels of resource and
fishery management actions required to achieve those
goals# and

4. Monitor and evaluate the effects and effectiveness
of the various management activities undertaken.

As fishery science and management programs in U.S.
estuarine and coastal areas (and more specifically to
our purposer FCZ waters) have evolved, their
informational or data needs have been examined and
re-examined in the light of developing knowledge and
data--@handling and processing capabilities.

Most fishery science texts contain thoughtful
discussions of the types of data required to understand
the resources and their dependent fisheries (for example
see Royce 1984f Chapters 6 through 8). In addition to
the often generalized treatments included in textbooks a
number of authors have reviewed information
requirementst data availability and adequacy in relation
to specific fisheriesy or fishery areas
(regionally--generally in the spheres of influence of
specific management entities such as the Councils) or
management programs (Fishery Technigues by Larry A.
Nelson and David L. Johnsonr 1983). Such reviews have
been especially frequent since passage of MFCMA in 1976,
establishment of the FCZ and installation and evolution
of the NOAA/Council system for marine fishery management
(for exampler Centaur Associates# Inc., 1979;
Marchessault et al., 1980; the Scientific and
Statistical Committee of the Mid-Atlantic Fishery
Management Councill 1983; and, Hennemuth and Heyerdahlr
1984). These and other documents which involvedl
separately or together, considerations of the scientific
as well as the social and economic informational needs
have been employed in preparation of this brief report.
52

Though it would seem that by now (10 years after passage
of MFCMA, 100+ years after fishery management began in
the United States and 300+ for North Sea fisheries) all
parties involved in fishery economics, fishery
management, fishery science and in the various social
and economic activities comprising "the fishing
industry" (not a monolithic system as sometimes treated)
would be persuaded of the need for accurate# detailed
and precise fishery-related data: recurring debates and
actions indicate otherwise. Segments of industryt
especially the fishermen and latelyr first buyers often
seem unconvinced, as the continuing resistence to
supplying essential or important information on catchest
discardst effort appliedr areas fishedr and/or
maintaining logbooks attests. Those outside of industry
who would shield the fishing industry from "governmental
interference* seem unconvinced also. Persistent
reluctance by Councilsr States and NMFS alike to require
detailed and reliable accountings from industry and
misapplied confidentiality rules tie the hands of
scientists and managers alike and introduce more
uncertainties than necessary into fishery population
evaluation and management processes. Reason and sound
business practice support the necessity for detailede
reliabler accurate and precise information relating to
the complex biologicall environmental# social and
economic aspects of fisheries for effective management.
Failure to recognize and act upon these truths impairs
scientific understanding and management alike and
damages the interest of the people and posterity.
Elimination of ignorance and the barriers to securing
essential data (whatever needs to be done to achieve
these essential goals) are of paramount importance in
the struggle to improve U.S. fishery management.

CONSIDERATIONS AND FINDINGS

While details of resources and fisheries may differ from
region to region it seems likely that the data needs for
the New England Regional Fishery Management Council and
the neighboring Mid-Atlantic Council are reasonably
representative since most types of habitatsr resources
and fisheries are represented in the waters of those two
regions. For this reason the reports prepared by
Marchessault et al. (1980) and the MAFMC S&S Committee
(1983) -- especially the latterr are heavily utilized in
the following observationsand recommendations.

Fishery-Related Fundamental Research

Improved understandings of the interactions between
important fishery species and the governing natural
factors remain important targets of research. Many
vital relationships among finfish or shellfish and their
ecosystems are poorly understood. Inadequate knowledge

clouds our ability to determine the key environmental
factors acting to increase or reduce fishery stocks.
The basic population dynamics equation is Z = F +M
(Z total mortalityl F = fishing mortality and
M natural mortality; obviously knowledge of all
aspects of the mortality equation is important to
determinations of survival, availability of "biological
surplus' to the fisheries and evaluations of effects of
fishing). It remains impossible to identifyr isolate
and, especially to quantityr the several factors causing
natural mortality of most fishery organisms --
especially finfish (Hargisr 1985). Undoubtedly, natural
and man-affected environmental conditions affect fishery
stocks and their ability to sustain themselves and to
support varying levels of harvesting pressure from
commercialt recreational and subsistance fisheries.

Continued Federal funding of research related to
management of the fishery resources of the EEZ il
reguired since neither "the industry" (which is
fragmented and with diverse interests), nor the States,
nor academia (as heavily dependent upon governmental
research support as universities and colleges are) are
in a position to do the large-scaler long-term,
interdisciplinary studies required, or to fund them.
This type of "fishery-criticalf" basic research requires
long-term commitment since the natural cycles involved
span many years. Appropriate research capabilities of
academia, private research organizationst industry and
the States should be encouraged and integrated where
possible.

Fishery-independent Information Needs

Establishment of ABCp MSYF OY, or whatever overall
available catch or allowable quota system may be
employed, requires ready Availability of precise and
preferably accurate population or stock assessments.
Theser in turnr are dependent upon sufficient long-termt
qualitative and quantitative biological and
environmental survey data which allow a fishery-
independent critical evaluation of (1) status and trends
in important stocksr (2) some of the important factors
affecting those stockst and (3) the significance and
accuracy of estimates derived from fishery-independent
data acquired from the several fisheries. Such regular
surveys are also essential to the acquisition of much of
the basic species and ecosystem information required for
the "fishery-related fundamental' information referred
to above.

Fishery-Dependent Information Requirements

The mainstay of a continuing and developing
understanding of the resources and the fisheries
themselves, total mortalityr and natural mortality

is the information derived from observing *the
fisheries" -- fishery-daRandent datar especially fishing
mortality and other important biological parameters such
as age, growth and sex of components of the catch.
Until the "fundamental research" and the biological
survey activities described above provide otherwise this
limiting situation will persist. Fishing mortality will
always be an important factor in population dynamics.

Certain types of social and economic data must be
acquired by regular canvass of "the industry". Research
to answer special economic and sociological questionst
and to check the validity and significance of data
obtained from and supplied by industryy is important and
must be especially designed and prosecuted. Social and
economic research vital to effective management of the
people's fishery resources and to assuring maximum gain
to them should be coordinated by NOAA and the Councils.
Where Council-specific information is required the
Councils should specify needed socials economic and
biological studies.

Especially unfortunate are such deficiences as:
(1) continuing resistance to logbooks and to
accountability by some segments of harvesting industry,
(2) the fact that the critical catch per unit of effort
(CPUE) is not as precise or accurate as it should bet
(3) inadequacies of associated biological sampling from
catches and at sea (i.e. such sampling usually must be
done "on-the-run" by port and at sea samplers on a
not-to-interfere basis)r (4) discards and discard
characteristics are severely underreportedr and
(5) severe shortages in the prosecution of sea sampling
and monitoring of catches at sea made by domestic
ves*sels. (We have much better fishery statistics from
foreign vessels operating'in the FCZ than from domestic
ones even though domestic vessels take increasing
percentages of the total catches and many FCZ stocks
show signs of overfishing). It is realized that certain
sociological and economic factors affect
availability of certain fishery-dependent statisticst
but they must be dealt with and overcome. Information
from the domestic fisheries must be improved if the FCZ
and interjurisdictional resources and fisheries are to
be effectively managed.

Recreational Fishery Data

Persistent and significant weaknesses prevail in our
knowledge of the effects of the recreational fisheries
upon the resources. Though recent Federally and
State-sponsored polls of recreational fishermen and
women, surveys of various types and creel-census
programs have improved our understanding of the
recreational harvest and associated biological and

social and economic phenomenal knowledge remains
inadequate. Recreational harvests account for a large
and increasing percentage of available stocks from many
species. This lack of information is serious and must
be eliminated if management to the ever-closer
tolerances required to allow maximum harvests for both
commercial and recreational users is to enable involved
species to survive.

Phone and canvas surveys now underway should be
augmented and, more importantly verified by independent
means to develop indices and statistically-sound bases
for evaluating the results of such phone and canvas
suveys. Precise and accurate recreational catch data
should be acquired and made available from all estuarine
and marine areas with significant recreational fisheries
on an annual basis# not merely every 3r 5 or 10 years.
As the MAFMC S&S Committee (1983) concluded# knowledge
of "recreational fishing effort by species are
inadequate. A program is needed to obtain effort
indices tbrougb.specialized logbooks or modified survey
efforts." Further, the lack of knowledge on the age
composition of recreational catches should be acquired
on a regular basis and made available to stock
assessment personnely to S&S committee members and to
Council staffs.

Necessary fishery statistics would be more comprehensive
and easier to obtain were licenses or permits required
of all estuarine, coastal and FCZ commercial and
recreational fisbermeng fishing vessels and charter
vessels. Charging for licenses or permits would provide
monies to help pay for the "fundamental' researcbr
surveyst port and field sampling activities and other
research and management activities connected with
understanding, managing and monitoring important
recreational fisheries.

Social and Economig Data

The weakest of all fishery-relevant information is that
related to the economic and social aspects of the
several segments of the recreational and commercial
fishing industries associated (directly and indirectly)
with FCZ fisheries. Valid, accurate and precise
economic data are required to allow establishment of
allocations of resources between commercial and
recreational users (MAFMC,, S&S Comm.j, 1983).

After a careful review by its several biologistst
economists, sociologists and statisticians the MAFMC#,
S&S Committee report (1983) clearly stated the vital
nature of economic data to development and
implementation of FMPs and pointed out that "the most
basic economic data are lacking for a majority of
fisheries." More specificallyr it indicated that

mcommercial vessel cost datar processing capacity,
market and employment data are needed to meet KAFMC and
related statutory requirements and to measure social and
economic impacts of regulations." The data-gathering
system should be modified to secure such information on
a voluntary basis (verified# of course) if possible,
mandatory if necessary.

Data Availability and Compliance

Questions of willingness and cooperativeness of industry
in supplying critical catch effort, biological, and
social and economic data or sampling arise frequently.
Data are essential to soundr close-tolerance management
and to making allocations of "the peoples" natural
resourcesl They must be obtained regardless of contrary
pressuresl The same may be said for compliance to
fishery regulations. Management always works best if
those managed are fully-informed and act as willing
participants and all recreational and commercial fishery
management programs should be so oriented that
education, regular interactions, compliance and even
cooperation is secured. FCZ resources ultimately belong
to "the people" and their posterity and not merely to
the individuals who capture and take possession of
them. Access to FCZ fishery resources is a privilege
granted by the government on behalf of its people and so
it should be considered. In return for that privilege
it should be incumbent upon users to provide public
scientists and managers the data necessary to (1) assure
continuity of the resources, (2) make allocations in the
national best interest, and (3) assure compliance with
the management measures necessary to achieve these
goals. Consequently, compliance with official
data-gathering efforts should he reguired of all
participantsl Continuation of access and the right to
fish should be one reward of compliance. Penalties for
non-compliance should be certain, swift and uniform.
The privilege of continued fishing should be withheld
for non-compliancer among other possible measures.

Confidentiality

Historically it has been deemed necessary to promise
confidentiality of data relating to the commercial
fisheries to obtain they often reluctantr cooperation of
those holding such data. Reasons have been several#
including, (1) the laissez-faire or traditional approach
to ownership and rights to the common property fishery
resourcesr (2) the quite normal desire of business to
withhold information from competitors# (3) the desire of
businesses and individuals to withhold key information
from regulators, and (4) the desire of all to avoid
accountability for regulation or taxation. Consequent
arrangements for confidentiality of "proprietary" data

have been made in law and practice at Federal and State
levels. The advent of the MFCMA saw confidentiality
arrangements result in withholding of unaggregated data
from Councils. Privilege of confidentiality has also
been extended to foreign fishing efforts and joint
venture operations where the companies involved would be
recognized from the data.

Under some circumstancesy confidentiality has
effectively prevented objective evaluation of fishery
catch and effort, and social and economic data by NMFS
and the Councils, interfered with FMP developmentl
impaired regulationt and damaged abilities to evaluate
the effectiveness of management efforts. Coupled with
the withholding and/or Njiggering" of fishery statistics
(Pierce and Hughest 1979)r confidentiality, while
designed as a protection to proprietary informationt has
sometimes been an impediment to effective management.
The MAFMC S&S Committee has made recommendations in this
regard.

Confidentiality has also led to a debate by NMFS data
managers whether vessel identifiers already obtained
should be irretrievably erased from the data banks.
Notwithstanding that magnitudes of catches and identity
of catchers are frequently common fleet or waterfront
information such action clearly impairs "the publics"
representative's rights to know what is being taken from
the commons and by whom, and could hamper legitimate
research purposes. While everr the appearance of a
conflict of interest should be guarded against, fishery
management data bases must be maintained at the lowest
level of detail at which it is collected and be
available to qualified data analysts.

Contracting for Research. Survey and Statistical
Services

From time-to-time consideration has been given to
possibilities of purchasing these research and data
services by contracting with private industry, private
research organizationg State agencies or academia. Such
considerations involve more than the normal project or
programmatic woutside" research projects typical of
those contracted for by N14FS or the Councils at this
time but call for contracting out for all reagarch and
statistical services. It may be possible to do so, but
careful consideration must be given to the absolute
requirement for: (1) responsiveness to the continuing
need for precise and increasingly accurate
fishery-related "basic or fundamental" research;
(2) long-term commitment and continuity (natural
phenomena undergo long-term alterations and cyclic
changes which extend often over decades or longer);
(3) careful adherence to federally-controlled researchr
survey and statistical protocols and specifications;

(4) flexibility to respond to additionsy alterations or
changes in projects and programs; @5) responsiveness to
data needs of the central quota-setting and regulatory
control body(ies) and to those of the Councils;
(6) flexibility to accept al:,tyxlontrol examiners and
ti ; ?U
examinations at any me 7) fie bility to accommodate
extra projectsr scientists and technicians as the need
and opportunity for cooperation with academiar other
research institutions and industry arises; and (8) the
ability to avoid conflict with other businesses and to
eschew and avoid disclosure of competitively useful data
for financial advantage. Further, such contractural
arrangements must be responsive to the needs of the
population assessment, environmental# and ecosystem
research programs which NOAA must continue to carry out
and sufficiently flexible to mesh with programs of the
States and of academia and they must be equal or better
in timelinessp responsiveness quality and cost to those
obtained through use of Federal research institutions.
And the results must be available to all users on an
equal basis since other legitimate users are now served
by NMFS research centers.

Given these requirements we are highly skeptical that
any non-governmental profit-oriented group can provide
such services.

Whether this assessment is proven correct or not by
experiencer a sound system of fundamentall
fishery-related research; biological and fishery
surveys; andt industry-related fishery statistics and
biological sampling programs is essential to sound and
effective management of the commerically and
recreationally important fishery resources of the FCZ
and interjurisdictional waters and must be maintainedr
provided and/or supervised by Federal authorityr working
with other appropriate Federal agencies and with private
research institutionst State agenciesr industry
organizations and academia. continuous funding is vital
regardless of the source. Sources of funding have been
identified in the body of the Study.

APPENDIX H

Sections of Magnuson Act Affected

1. optimum yield
Sec. 3 (18) Definition
Sec. 201(d)(2)(A) Determination of TALFF
Sec. 303(a)(3) Required provision, FMP: assess and specify
Sec. 302(h)(f) Council function: review and revise

2. Highly migratory species
Sec. 3 (14) Definition
Sec. 103 Exclusion from management

3. Foreign fishing
Determination of TALFF: Sec. 201(d)(2)(A)
Criteria for determining allocation: Sec. 201(e)(1)(E)
Reciprocity: Sec. 201(g)
Fees: Sec. 204(b)(10)
Foreign fish processing in internal waters: Sec. 306(c)

4. National standards
Sec. 301(a)(1) Standard 1. 50 CFR 602.11
Sec. 301(a)(2) Standard 2. 50 CFR 602.12
Sec. 301(a)(3) Standard 3. 50 CFR 602.13
Sec. 301(a)(4) Standard 4. 50 CFR 602.14
Sec. 301(a)(5) Standard 5. 50 CFR 602.15
Sec. 301(a)(6) Standard 6. 50 CFR 602.16
Sec. 301(a)(7) Standard 7. 50 CFR 602.17

5. Councils
Number and size: Sec. 302(a)
Voting members: Sec. 302(b)(1)(A) and (B)
Qualifications: Sec. 302(b)(2)(A)
Nominating procedure: Sec. 302(b)(2)(B)
Non-voting members: Sec. 302(c)(1)
Compensation: Sec. 302(d)
Committees and panels: Sec. 302(g)
Functions: Sec. 302(h)

6. Contents of FMPs
Required provisions
- management measures consistent with national
standards, other provision of Act, and any other
applicable law: Sec.,303(a)(1)(C)
- assess/specify MSY, OY: Sec. 303(a)(3)
- assess/specify capacity & extent of U.S. harvest, &
capacity & extent U.S. processors will process U.S.
harvest: Sec. 303(a)(4)
specification of pertinent data: Sec. 303(a)(5)

6. Contents of FMPs (cont.)
Discretionary provisions
- permits and fees: Sec. 303(b)(1)
- state regulations: Sec. 303(b)(5)
-limited access: Sec. 303(b)(6)

7. Data collection and research
Confidentiality of statistics: Sec. 303(d)
Data collection programs: Sec. 303(e)
Fisheries research: Sec. 304(e)

8. Action by Secretary
Review: Sec. 304(a)
Fees; Sec. 304(d)
Research: Sec. 304(e)

9. Implementation
Promulgate regulations: Sec. 305(c) and (g)
Judicial review: Sec. 305(d)
Emergency actions: Sec. 305(e)
Effect of certain laws: Sec. 305(h)

10. State jurisdiction
Preemption: Sec. 306(b)
Foreign fish processing in internal waters: Sec. 306(c)

11. Enforcement
Prohibited acts: Sec. 307
Responsibility: Sec. 311(a)

12. Role of courts
Judicial review: Sec. 305(d)
Jurisdiction: Sec. 311(d)

APPENDIX I

REPRESENTATIVE LIST OF
STOCKS UNDER MANAGEMENT CURRENTLY ESTIMATED TO BE
DEPRESSED, OVERFISHED, AND/OR OVERCAPITALIZED
June 1986

Overfishing, as defined by NOAA under the Magnuson Act's
National Standard 1, is a level of fishing mortality that
jeopardizes the capacity of a stock(s) to recover to a level at
which it can produce maximum biological yield or economic value
on a long-term.basis under prevailing biological and ehviron-
mental conditions. It is a relative term; it cannot be defined
in isolation from its biological, economic, social, or ecological
consequences, nor from its relationship to given management
objectives. Significant adverse alterations in the environment
resulting in stock declines.increase the possibility of over-
fishing inadvertently. Decisions about the allowable level of
fishing mortality (ABC) will vary according to the conditions of
the fishery and the amount of risk associated with different
harvest rates.

Fishing can produce a variety of effects on local and
areawide abundance, availability, size, and composition of a
stock. Some of these effects have been called "overfishing"
(e.g., growth, localized, or pulse overfishing; these may be
prevented or permitted under the Magnuson Act.) It must be
understood that NOAA's Standard 1 definition of overfishing
(above) responds primarily to the Act's mandate to avoid
"irreversible damage" as indicated in its legislative history,
and that it does not necessarily apply to the list of
"overfished" species listed here. That is, this list includes
stocks that are currently considered depressedr but not
necessarily overfished under the strict Standard 1 definition.
It includes stocks that are subject, for the time being, to
fishing levels that prevent the stock from recovering to maximum
biological yield or economic value, but which could, with
appropriate management measures, be returned to that capability.
These categorizations are subject to change in response to all the
biological, economic, social, and ecological variables existing at
any given time within the fishery.

Overcapitalization is an overcapacity concept, i.e., more
vessel and processing capability is brought to bear in a fishery
than is required to take the allowable harvest. Like the
definition for overfishing, the definition for overcapitalization
is subject to certain real-time variables which must be considered
in making the determination. These include such elements as the
relative stock size of a species or group of species targeted, the
profitability or return on investment within a given cost/price
relationship (when available), and the array of gear actually
applied in the fishery under consideration.

This list is valid only for the time when the decision to
categorize was made. No long-range use should be made of it.

Appendix I (cont.)

Geographic Area Overfished overcapitalized

New England haddock, yellowtail flounder, Atlantic demersal finfish,
redfish, sea scallops, striped sea scallops, American lobster,
bass, American lobster, swordfish
swordfish

Mid Atlantic swordfish, scallops swordfish, scallops, surf clams

South Atlantic Spanish mackerel Atlantic shrimp, swordfish
swordfish

Gulf of Mexico Spanish mackerel, king mackerel, spiny lobster, shrimp, stone
Gulf of Mexico reeffish (notably crab, swordfish
red snapper), swordfish

Caribbean shallow water reeffish swordfisb-

Pacific chinook and coho salmon (selected chinook and coho salmon, Paci-
stocks), Pacific ocean perch fic halibut, groundfish (except
Pacific whiting)

North Pacific sablefish, Pacific halibut
high seas salmon, king and
Tanner crab

Western Pacific seamount groundfish bottomfish, lobster

* Includes stocks that are depressed, but not necessarily "overfished" as defined by NOAA
under National Standard 1 of the Magnuson Act.

Sources: National Marine Fisheries Service, Regional Fishery Management Councils, June 1986.

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