Fishery Management: Problems Remain With National Marine Fisheries
Service's Implementation of the Magnuson-Stevens Act (Letter Report,
04/06/2000, GAO/RCED-00-69).

Pursuant to a legislative requirement, GAO provided information on the
National Marine Fisheries Service's (NMFS) compliance with three
provisions of the Magnuson-Stevens Fishery Conservation and Management
Act, focusing on the requirements for NMFS to: (1) use the best
available scientific information for fishery management; (2) take into
account the economic importance of fishery resources to fishing
communities as it adopts measures to manage fishery resources; and (3)
identify essential fish habitat, the adverse impacts on that habitat,
and the actions needed to conserve and enhance that habitat and also
develop a consultation process designed to protect that habitat from
adverse impacts.

GAO noted that: (1) NMFS appears to be using the best available
scientific information to determine the condition and abundance of fish
and other marine species, but improvements to include more current and
complete data could be made; (2) according to the National Research
Council, NMFS' current process provides a valid scientific context for
evaluating the status of fish populations and other marine species; (3)
at the same time, the Council and others have pointed out that some of
this information is not current or complete; (4) the need to rely on
such information has led to criticism by fisherman and others who have
been adversely affected by fishery management decisions; (5) until NMFS
can overcome the weaknesses associated with the information it uses,
more consistently involve others in its research activities, and improve
communications with fishing communities and the industry, the criticism
is likely to continue; (6) NMFS considers the economic impacts of
conservation and management measures on fishing communities; (7)
however, this consideration concentrates on identifying how communities
will be affected by these measures and not necessarily on how to
minimize their effects to sustain the communities' participation in a
fishery; (8) in addition, the data necessary to identify adverse effects
are often unavailable and the usefulness of the analyses is limited by
how they are used in the decisionmaking process; (9) the failure to use
economic analyses to develop alternatives that minimize adverse impacts
to fishing communities will result in continuing questions about why the
information is even collected to satisfy this requirement; (10) NMFS has
technically met the act's requirements by identifying essential fish
habitat and developing a consultation process for addressing potential
adverse impacts to that habitat; (11) however, lack of information and
tight time frames have caused NMFS to make essential fish habitat
designations that, when aggregated for each species, include virtually
the entire portion of the Atlantic and Pacific oceans that the United
States controls; (12) individuals with commercial interests expressed
concern that such broad designations could result in consultations that
adversely affect their planned construction or development projects;
(13) so far, however, there is little evidence to indicate that the new
consultation process has resulted in delayed or cancelled projects; and
(14) since completing the habitat designations, NMFS has increased its
efforts to identify the adverse impacts to habitat and the actions
needed to conserve and enhance it.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  RCED-00-69
     TITLE:  Fishery Management: Problems Remain With National Marine
	     Fisheries Service's Implementation of the Magnuson-
	     Stevens Act
      DATE:  04/06/2000
   SUBJECT:  Fishing industry
	     Fishery legislation
	     Marine policies
	     Marine resources conservation
	     Economic analysis
	     Oceanographic research
	     Reporting requirements
IDENTIFIER:  Pacific Ocean
	     Atlantic Ocean

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GAO/RCED-00-69

Appendix I: Scope and Methodology

34

Appendix II: Comments From the U.S. Department of Commerce

37

Table 1: Disposition of Selected Permits Submitted for
Consultation to NMFS' Southeast Regional Office 27

Table 2: People Interviewed 35

EPA Environmental Protection Agency

NMFS National Marine Fisheries Service

NOAA National Oceanic and Atmospheric Administration

Resources, Community, and Economic
Development Division

B-284382

April 6, 2000

Congressional Committees and Requesters

Ensuring a healthy supply of fish and other marine species in the coastal
waters beyond each state's jurisdiction is a federal responsibility carried
out principally by the Department of Commerce's National Marine Fisheries
Service (NMFS) and eight regional fishery management councils under the
Magnuson-Stevens Fishery Conservation and Management Act.1 Among other
things, NMFS and the councils track the condition of these species,
determine the level of catch that would provide the greatest benefit to the
nation, and measure the economic impacts of fishery regulations and
policies. Measures to manage fish and marine species are usually developed
by the councils, reviewed by NMFS, and approved by the Secretary of
Commerce. Because these measures influence how many fish may be caught, they
can be controversial as fish quotas effect both the survival of a species
and the economic health of the fishing industry and many communities.
Therefore, you directed us to assess NMFS' compliance with three provisions
of the Magnuson-Stevens Act, which require it to

ï¿½ use the best available scientific information for fishery management;

ï¿½ take into account the economic importance of fishery resources to fishing
communities as it adopts measures to manage fishery resources; and

ï¿½ identify essential fish habitat, the adverse impacts on that habitat, and
the actions needed to conserve and enhance that habitat and also develop a
consultation process designed to protect that habitat from adverse impacts.

NMFS appears to be using the best available scientific information to
determine the condition and abundance of fish and other marine species, but
improvements to include more current and complete data could be made.
According to the National Research Council, a scientific research agency of
the National Academy of Sciences, NMFS' current process provides a valid
scientific context for evaluating the status of fish populations and other
marine species. At the same time, the Council and others have pointed out
that some of this information is not current or complete. The need to rely
on such information has led to criticism by fishermen and others who have
been adversely affected by fishery management decisions. Until NMFS can
overcome the weaknesses associated with the information it uses, more
consistently involve others in its research activities, and improve
communications with fishing communities and the industry, the criticism is
likely to continue.

NMFS considers the economic impacts of conservation and management measures
on fishing communities. However, this consideration concentrates on
identifying how communities will be affected by these measures and not
necessarily on how to minimize their effects in order to sustain the
communities' participation in a fishery. In addition, the data necessary to
identify adverse effects are often unavailable and the usefulness of the
analyses is limited by how they are used in the decision-making process. The
failure to use economic analyses to develop alternatives that minimize
adverse impacts to fishing communities will result in continuing questions
about why the information is even collected to satisfy this requirement.

NMFS has technically met the act's requirements by identifying essential
fish habitat and developing a consultation process for addressing potential
adverse impacts to that habitat. However, lack of information and tight time
frames have caused NMFS to make essential fish habitat designations that,
when aggregated for each species, include virtually the entire portion of
the Atlantic and the Pacific oceans that the United States controls.
Individuals with commercial interests expressed concern that such broad
designations could result in consultations that adversely affect their
planned construction or development projects. So far, however, there is
little evidence to indicate that the new consultation process has resulted
in delayed or cancelled projects. Since completing the habitat designations,
NMFS has increased its efforts to identify the adverse impacts to habitat
and the actions needed to conserve and enhance it, but NMFS officials
acknowledged that much remains to be done.

This report makes recommendations to the Secretary of Commerce that could
improve NMFS' data collection efforts, communications with the fishing
industry, economic analyses, and estimates of the costs associated with
fulfilling the act's provisions to conserve and enhance essential fish
habitat.

The 1976 passage of the Fishery Conservation and Management Act ushered in a
new era of federal marine fishery management.2 Until 1966, when exclusive
U.S. fishery jurisdiction was expanded to 12 miles, foreign fishing vessels
had been able to fish to within 3 miles of the U.S. coastline. In response
to the allegations of U.S. fishermen that foreign fishing resulted in
overfishing and depleted fish stocks, the 1976 act further extended federal
jurisdiction for marine resources from each state's jurisdictional boundary
out to 200 miles from the coastline. Foreign fishing vessels were no longer
allowed to fish inside this new area of jurisdiction without specific
authorization.

Under the act, responsibility for managing marine resources rests with the
Secretary of Commerce. The Secretary has delegated this responsibility to
NMFS, which is part of the National Oceanic and Atmospheric Administration.
NMFS evaluates the condition of fish stocks and other marine species by
using a variety of data sources, including information obtained from at-sea
research and from the fishing industry itself.3 The agency is also
responsible for enforcing fishery laws and regulations. To carry out its
responsibilities, NMFS employs a staff of approximately 2,400, including
oceanographers, biologists, social scientists, economists, mathematicians,
and law enforcement officers.

To conserve and manage fishery resources, the act calls for developing
fishery management plans. Along with other information, these plans include
basic biological background on managed species, show population trends, and
indicate the abundance levels needed for future sustainability. The act
established eight regional fishery management councils, each covering a
separate geographical coastal area, and assigned them the responsibility to
make recommendations to the Secretary of Commerce about the fishery
management plans. Using scientific information and advice from NMFS and
others, the regional councils are responsible for recommending a fishery's
optimum yield and preparing analyses on the economic effects of fishing
regulations and practices.4 Regional council members include the local NMFS
Regional Administrator, private citizens nominated by the governors of each
state in a council's geographic area and then appointed by the Secretary,
and state fishery officials. The purpose of these regional councils is to
enable states, the fishing industry, consumer organizations, environmental
groups, and other interested parties to participate in developing the
fishery management plans.

Currently, there are 40 fishery management plans covering about 900 fish and
marine species. NMFS supplies most of the information the councils use to
prepare and update these plans. To obtain this information, NMFS conducts
at-sea stock surveys and runs models to estimate the abundance and the
conditions of fish stocks. During stock surveys, data are gathered on the
abundance, the distribution, the age, and the size of each species. This
information is combined with data obtained from the fishing industry on such
factors as the number, the type, and the location of fish caught and then
used in an assessment model to estimate the population size and the
condition. Each regional council has a committee that independently reviews
the information NMFS provides as well as any pertinent scientific data
supplied by others. After reviewing all the submitted information, the
committee recommends a course of action to its regional council, which
reviews it and decides what information will be used to update or amend the
fishery management plans and their related conservation and management
measures. Changes and amendments are then sent to NMFS for approval. The
review process used to assess the adverse economic affects to fishing
communities of any changes to the fishery management plans and their related
conservation and management measures is less defined and varies by regional
council.

In this report, we address three provisions of the act. The first provision
has been in the act since its passage in 1976, while the remaining two were
added in the 1996 amendments. The provisions are as follows:

ï¿½ The best available scientific information is to be used for fishery
management and determining the condition and the abundance of fish and other
marine species. The act does not contain any guidance as to what constitutes
the best available scientific information.

ï¿½ Management measures are to take into account the economic importance of
fishery resources to fishing communities. The provision specifies two
reasons for doing so: to provide for the sustained participation of such
communities in fishing activities and, to the extent practicable, to
minimize the adverse economic impacts to those communities. The act does not
define or provide guidance on what is meant by the phrase "to take into
account."

ï¿½ Each fishery management plan is to identify and describe the essential
fish habitat for the fishery, along with 1) the actions that will minimize,
to the extent practicable, the adverse impacts of fishing and other factors
and 2) the actions that should be considered to conserve and enhance
habitat. Other federal agencies are required to consult with NMFS to help
minimize the adverse impacts to essential fish habitat that could result
from any action under their jurisdiction.

Complete

Although NMFS is using the best available scientific information, sometimes
that information can still be problematic. Independent reviews by the
National Research Council found that the stock assessment process provided a
valid scientific context for evaluating fish stocks but that improvements
could be made to make the data used in the process more current and
complete. Although fishermen and others accept many of NMFS' stock surveys
and assessments without controversy, we also found instances in which the
use of such data was perceived as having adverse economic consequences to
the fishing industry and associated fishing communities. Our review of these
instances showed that the concerns often did not center on whether NMFS had
access to better scientific data and failed to use it, but rather on the
currency and the amount of the scientific data available. The resulting
decisions were controversial, and the controversy was sometimes exacerbated
by miscommunication among NMFS, the councils, and those affected by the
decisions. At times, the groups apparently did not understand what the
others were saying or did not listen closely enough to what was being said.

Scientific Information

Little controversy surrounds the scientific information used by NMFS in many
fisheries. One reason for the lack of controversy is the reputation of NMFS
as a leading authority in marine research--a reputation supported by the
recent National Research Council evaluations.5 Another reason is found in
the fisheries themselves. The Alaska pollock fishery in the Bering Sea,
which is the world's largest single-species groundfish fishery,6 is an
example of a fishery about which there is little disagreement that the best
available scientific information is of high quality.7 The wide acceptance
of, and limited controversy about, this information derives from such
favorable factors as the following:

ï¿½ The status of the fish stock is classified as healthy and abundant.

ï¿½ NMFS conducts extensive at-sea surveys of the pollock population every
year.

ï¿½ The conclusions reached by NMFS are similar to those reached by fishermen
according to their experiences at sea.

ï¿½ Fishing vessels in this fishery are generally large, and most are required
to have independent observers on board to provide reliable information about
the amount of pollock and other species that are caught. This allows
fishermen to observe and understand the data collection process.

ï¿½ There are a small number of participants in the fishery, and they use
tracking and reporting equipment that results in up-to-the-minute reporting.
This means that quotas are generally not exceeded.

These same favorable factors are seldom present in fisheries where there is
controversy.8 In the following sections, we present and discuss cases that
illustrate what might happen when these favorable conditions are not
present.

or Is Limited

Sometimes, even the best available data may not be current or may have
limitations. Because of limited resources, NMFS has not been able to manage
all fisheries as it does the Bering Sea pollock fishery, either in its
ability to conduct routine surveys or to monitor the harvest. As a result,
much remains unknown about the status of the nation's marine resources. This
past year, NMFS reported that it does not know the status of 75 percent of
the species (30 percent of the stocks) it manages.9 NMFS also noted that its
assessments on the known species are often based on limited data.

Our conversations with representatives of the fishing industry raised a
number of concerns about the use of scientific information that is not
current and limited. Two common areas of concern involved the adequacy of
NMFS' at-sea stock surveys and the inconsistencies in the way NMFS uses
other data gathered from commercial and recreational fishermen.

Concerns About Information From Stock Surveys

Although NMFS uses the best available scientific data, many at-sea stock
surveys are not conducted as frequently or designed as specifically as
either NMFS or others would like. Surveys are usually done on a scheduled
basis with commercially harvested species being more frequently surveyed
than others. The number and the design of surveys is limited by such factors
as the total number of species involved (about 900), the area that must be
covered (over 3.4 million square miles), the ocean conditions the surveyors
encounter, and the constraints on funding, staff, and equipment. These
limitations lead to complaints about the data's adequacy when those
adversely affected by a resulting decision become aware of the basis for
that decision. The following examples illustrate what industry and other
officials told us:

ï¿½ Fishermen and council members believe that more frequent surveys would
detect the downward trends earlier, which would result in less sudden and
dramatic reductions in the harvest. Although many stocks are surveyed
annually, others are surveyed with far less frequency. For example, the 83
species classified as Pacific groundfish, including many species of
rockfish, are surveyed every 3 years. Using the 1995 survey's data, the
assessment indicated that the populations of some rockfish were up and some
were down while the data for some others were inconclusive. Harvest
restrictions were imposed for several species. However, the latest
assessment performed, which used data from a 1998 survey, revealed that
these species, along with several others, had continued to decline. As a
result, the council has implemented harvest restrictions for at least one
species that reduces fishing by over 80 percent, even though substantial
economic impacts to the fishing industry and communities are expected. NMFS
officials stated that more frequent surveys could have identified trends
earlier but that limited resources kept them from doing the surveys more
often. They also noted that a portion of the proposed harvest restrictions
was the result of other factors, such as the change in regulations resulting
from the act's amendment in 1996.

ï¿½ Fishing industry officials complained that, from their perspective, basing
a stock assessment on what can be just a few fish caught during a general
groundfish survey is not an appropriate way to establish population
estimates for species that may occur elsewhere in greater numbers. For
surveys with multiple species, they thought that the locations used for the
surveys might not be representative of the abundance for all the species
being surveyed. For example, there are over 50 species of Pacific rockfish,
and their habitat requirements are varied. NMFS officials did not disagree
that the scope of some of their surveys needs to be expanded but noted that,
in many cases, they are more interested in the trend than in the absolute
number of fish caught during the surveys because trend data provide a very
good indicator of whether population counts are up or down over time.

To make stock surveys more frequent and more specific, several fishing
industry officials indicated a willingness to participate in research, and
NMFS officials stated that recently there has been an increase in the
agency's willingness to use private vessels for research. NMFS officials
noted that the contribution of such vessels represented 41 percent of the
agency's total research days at sea in 1998. However, they also stressed
that this research must conform to the same standards the agency uses
internally. Some NMFS officials initially expressed reluctance to increase
the use of private research vessels for surveys because of problems in
obtaining consistency. They stated that a vessel's size, speed, equipment,
and even the captain and the crew can affect a survey's results. As a
result, changes in private research vessels from year to year could alter
the results of surveys. NMFS officials stated that although recent
electronic advances have improved the calibration techniques necessary to
achieve consistency, private vessels generally must still be calibrated
against a standard (NMFS research vessel) to maintain long-term data
continuity. They added that it would also be beneficial to get fishermen
more involved in survey design to improve their understanding of research
methods.

Concerns About Information on Commercial and Recreational Fishing

To develop its estimates of population levels for each species, NMFS
combines the data it obtains from its stock surveys with data from other
sources. Two frequent sources of this additional information are the
commercial fishing industry and recreational fishermen. From these groups,
NMFS obtains such information as the number and the type of fish caught, the
amount of time spent fishing, and the location of the fishing activity.
However, fishermen identified several problems in NMFS' use of this
information:

ï¿½ Inconsistency in credibility given to such data. NMFS requires commercial
fishermen to collect and report about the type, the weight, and the length
of species kept or discarded.10 However, because much of this information
cannot be independently verified, NMFS is reluctant to use some of it.
Instead, some NMFS offices rely on reports from fish processors to estimate
the number of fish caught, and, for information about discards, they may
rely on independent observers who, depending on the fishery, will be aboard
fewer than 1 percent of fishing trips. NMFS, however, does use similar
self-reported data from recreational fishermen. NMFS obtains information
about recreational catches, in part, by calling a random sample of people
who live in coastal areas and asking those that say they fish for recreation
in salt water about where they fished, and how they fished (e.g., private or
charter boat). These unverified responses are then combined with catch data
obtained from a sample of recreational fishermen returning from fishing
trips to estimate the total recreational catch.

ï¿½ Limited accuracy for some key information. Reliance on self-reported data,
or limited but verifiable alternatives, raises a number of questions about
the accuracy of the information obtained. For example, with regard to the
self-reported information on the recreational fishery, the Oregon State
Department of Fish and Wildlife compared NMFS' recreational catch estimates
to its own sampling of recreational fishermen for a 4-year period and found
that, depending on the species or group analyzed, NMFS' catch estimates were
greater than that state's by 69 to 200 percent. It is unknown which data are
more accurate, and NMFS is currently studying why this difference occurred.
In 2000, however, the regional council has elected to use Oregon's data to
apportion the total annual allowable catch of Pacific groundfish between the
commercial and recreational fishery sectors because they believe the state's
estimates are a more accurate estimate of actual catch. In commercial
fishing, because NMFS can reject self-reported data on discards in some
fisheries in favor of data obtained from a very small sample of independent
observers, the errors that could result from an unrepresentative sample
could be significant. Commercial fishermen noted that NMFS' reluctance to
use self-reported data on discards could result in a sizeable understatement
of existing populations. For example, several fishermen reported discarding
thousands of pounds of Gulf of Maine cod for every 30 pounds they were
allowed to keep and were concerned that this discard information was not
included during the stock assessment process. NMFS officials stated that
they do use information from the industry on the discards of some species in
some fisheries, but this is supplemented with other data in determining the
level of discards.

ï¿½ Difficult to close depleted recreational fisheries. Because of problems
with the data collection and reporting methods used in the recreational
sector, NMFS officials stated that currently they seldom use this data to
close recreational fisheries, even if they indicate that an excess harvest
is occurring.11 Reasons given for this reluctance included a 4-month time
lag in summarizing the recreational data and the wide allowance for errors
associated with survey methods that are not designed to be species specific.
In contrast, the closures of commercial fisheries can and do result from
weekly updates of commercial fishery data, on-board observers, and
independent verifications from fish processors. The inability to use
self-reported data to close those recreational fisheries for which
recreational fishermen account for a large percentage of the catch, is a
source of frustration to commercial fishermen who find their own access to
the fishery cut off.

Can Be Controversial

Uncertainties surrounding scientific data can create disagreements about how
they should be interpreted. These disagreements can become particularly
controversial if they are seen as adversely affecting the health of the
fishery or the economic viability of those that depend upon it. To increase
the confidence in its data, NMFS requires that all published research be
peer reviewed by a group of independent scientists before it is released.
One part of the peer review process looks at the reasonableness of the
conclusions that were reached by using the best available scientific data.
However, peer reviews do not necessarily eliminate scientific uncertainties
or controversies. In many instances, the correctness of inferences based on
the best available scientific data cannot be proved or disproved except by
additional research or the passage of time. As a result, even research that
passes peer review might not be readily accepted by those who have concerns
about its quality.

For example, the management plan for monkfish in the New England area
concluded that the species was declining and called for a significant
reduction in the annual fishing harvest. This decision was based on a 1997
stock assessment conducted by NMFS. Although NMFS' conclusions were peer
reviewed and found to be acceptable, monkfish fishermen hired another
scientist to review them. This scientist questioned several assumptions,
such as the estimated mortality rates and the reasons why the catch rates
were increasing even though surveys indicated a decline in stock abundance.
To respond to these concerns, the New England Fishery Management Council
requested that its Scientific and Statistical Committee examine the
assumptions. The committee concluded that there were some problems with the
assessment but that "reasonable minds might reasonably disagree about the
conclusions of the assessment." The committee ultimately concluded that
there was no reason to overturn the collective judgment of the original peer
review panel. When we talked to the other scientist, he stated that, in the
end, they "agreed to disagree." The existing data were insufficient to
conclusively find one position more valid than another one. Thus, the
inexactness of the data, even when they are the best scientific information
available, may make it as difficult for NMFS to prove its assumptions and
conclusions are right as it is for someone else to prove they are wrong.

Controversy most often develops in those fisheries where conservation
measures have resulted in adverse economic consequences to the fishing
industry and fishing communities. We found that some complaints questioning
whether the best available scientific information was being used were the
result of miscommunications among NMFS, the councils, and those involved in
the fishing industry or these groups' not listening to each other. These
misunderstandings have frustrated all those involved.

The Atlantic scallop fishery is an example of how miscommunications between
NMFS and the fishermen raised anxiety levels, especially when the economic
consequences to the fishing industry and communities were adverse. While
NMFS cited the scallop fishery as an example of the agency's efforts to
cooperate with industry, some industry representatives cited it as an
example of NMFS' failure to work with them. In 1994, NMFS, with the support
of the regional council, closed two areas of the Georges Bank, along with
another area in southern New England to protect depleted groundfish stocks.
In 1999, portions of these areas were reopened, with restrictions, to limit
fishing and scallop dredging. During the 5-year closure, NMFS continued to
conduct its groundfish and scallop surveys as well as other studies. These
surveys and studies indicated that, although groundfish stocks were
improving, they had not yet reached the level that would convince the
regional council to reopen the area. Meanwhile, the scallop industry had
information that indicated the scallop population was expanding rapidly. The
industry requested that more research be done and that the area be reopened.

The history of this research request is confusing, with both sides having
different recollections of what occurred. Fishermen said that they had
requested permission to have major universities conduct research in all
three closed areas as early as 1996 but that NMFS delayed the research
permit until 1998 and only allowed them access to one area. The fishermen
said they later requested that they be given access to the other areas but
were denied. NMFS officials remembered conducting discussions in 1996 and
informing industry officials that a formal proposal would be needed because
the research would be done in a closed area. They stated that they had
helped industry officials prepare the proposal but that it was not submitted
until 1998 and that it requested access to only one area. NMFS officials
also said that a second research proposal was approved, not denied.

Our review of the available documentation indicates that a formal proposal
was submitted by the Center for Marine Science and Technology of the
University of Massachusetts at Dartmouth in 1998. Supporting documentation
indicates that the Center originally discussed requesting access to all
three closed areas, but the formal proposal requested that the experiment be
limited to one area, citing the limited availability of independent
observers as the reason for the modification. NMFS' records indicate that a
research proposal submitted by the Virginia Institute of Marine Science to
study a second closed area was approved on June 11, 1999, and that on June
15, 1999, NMFS approved a proposal for the agency's Northeast Fisheries
Science Center to study all three closed areas. In the case of the scallop
fishery, the new research resulted in the partial opening of the closed
areas and an increase in the number of days fishermen would be allowed to
fish. The regional council estimated that these actions would increase the
value of the scallop harvest by $47 million.

The misunderstandings between NMFS and the scallop industry are similar to
those we heard elsewhere. From the fishing industry, we heard general
complaints questioning NMFS' conclusion that a species is in trouble when
fishermen could not keep from catching it, even if they were not
specifically fishing for it. Some fishermen also believe the assumptions
made in stock assessment models are not adequately explained in terms of how
they affect the accuracy of the final estimates of stock abundance and
condition. When NMFS officials discussed the same complaints with us, they
expressed frustration about not being asked for clarification. They
acknowledged that the process is complex but said they try to adequately
explain it in both the assessment meetings and in their reports.

Minimize Effects Is Needed

Although NMFS does consider the economic importance of fishing to fishing
communities, this consideration concentrates on identifying how adversely a
community would be affected by the measures and not necessarily on how to
minimize that impact to provide for the sustained participation of those
communities in the fishery. In addition, the quality of the economic
analyses is dependent on the availability of economic information and the
usefulness of these analyses is then dependent on how they are incorporated
into the decision-making process. NMFS officials stated that, even though
the economic impacts to fishing communities are considered, more could be
done to address these other concerns.

Implemented, and a Review Process Established

NMFS has issued guidelines for considering the impacts on fishing
communities, worked with councils to collect and develop data to assess
those impacts, considered and implemented alternatives to reduce adverse
economic impacts, and established a process to review compliance with the
act's requirements. Although much time and effort has been devoted to these
activities, substantial work remains.

On May 1, 1998, NMFS issued guidelines for considering the social and
economic impacts of conservation and management actions on fishing
communities. Among other things, the guidelines

ï¿½ defined a fishing community as a location that was substantially dependent
on or engaged in the harvesting or processing of fishery resources and
included fishing vessel owners, operators, crews, and fish processors based
in those communities along with people employed in such places as boatyards,
ice suppliers, or tackle shops that were directly related to fishing;

ï¿½ limited deliberations on the importance of fishery resources to those that
do not compromise conservation requirements;

ï¿½ recommended data collection efforts if the needed data were severely
limited;

ï¿½ permitted both qualitative and quantitative data; and

ï¿½ required that fishery management plans include social and economic
considerations.

Although the guidelines suggest that fishermen, dealers, processors, and
fishery organizations could be a source of qualitative and quantitative
data, the guidelines are silent as to the role that these people might play
in identifying or assessing economic alternatives to help minimize adverse
impacts to their communities.

The guidelines have been used to prepare many fishery management plans. For
example, the April 1999 Fishery Management Plan for Atlantic Tuna,
Swordfish, and Sharks lists 44 different conservation and management actions
for the three fisheries and estimates the economic and social impacts of
each action. Although none of the impacts is quantified in the plan, there
are qualitative statements associated with each action, such as the minimal
impact, the substantial impact, the positive impact, or some negative
impacts, which describe what is expected to occur as a result of that
action. Although the plan does delineate the economic and social severity of
the various actions, it is not clear on how the analysis was used to decide
among alternatives or if affected communities were involved in identifying
alternatives that could minimize adverse economic impacts.

We did find instances where NMFS and council analyses were used to assess
the economic effects of various conservation and management alternatives. In
these instances, the analyses provided a basis to select an alternative that
would less adversely affect a fishing community. For example, although
certain Pacific groundfish quotas were significantly reduced recently, the
need to shorten the fishing season was minimized through the use of varying
trip limits. These varying trip limits were designed to keep the fishing
season open for most of the year, which would help stabilize the product's
availability and prices and thereby minimize the adverse impact on the
fishing community caused by the reduced quota.

NMFS has developed a process to review compliance with the requirement to
consider the economic impacts on fishing communities. This process applies
to all fishery management plans, their amendments, and any other regulatory
amendments that require approval of the Secretary of Commerce. After a team
of NMFS officials has reviewed each document for compliance with the act,
the document is approved, partially approved or disapproved, or totally
disapproved. Of the 35 documents submitted for review since the act's 1996
amendment, 6 have been partially disapproved on the basis of deficiencies
associated with the requirement to consider communities. In these instances,
the documents were returned to the councils for additional action.

The guidelines used to review compliance with this requirement of the act
recognize the need to identify the fishing communities that would be
adversely affected and the degree to which each of them depends on the
fishery. However, the guidelines are silent about the role these communities
might play in identifying or assessing economic alternatives to minimize
adverse impacts.

Council members, council staff, and committee members, fishermen, fish
processors, academics, and community leaders all complained about the
general lack of economic data on fishing communities. While this information
is often available on fishermen, they are not the only ones adversely
impacted when fishing is restricted. People who are a part of the industry
infrastructure that supplies the gear, the port facilities, the ice, and the
fuel to the fishermen as well as other local businesses that provide general
services may also experience reduced revenues or face unemployment when
fishing is curtailed. Information on these types of economic impacts is
often not available at the community level. NMFS must either develop this
economic information or focus its community impact analysis on the
individual fishermen. However, NMFS officials noted that their ability to
develop some of this information is restricted by the act itself. For
example, under the act, fish processors cannot be required to submit
economic data.

A report prepared by Oregon State University, entitled Oregon's Changing
Coastal Fishing Communities, highlights some additional difficulties in
developing data on fishing communities. For example, it points out that a
fishing community may consist of many smaller communities based on the types
of fishing equipment used, the fisheries involved, and the geography of the
area. In addition, business economic information is usually collected on
incorporated areas or by county, and fishing communities are often in
unincorporated areas. Because of the relatively small number of people
involved in fishing nationwide, the federal labor statistics on fishing at
the local level are usually combined with those of forestry and farming.

Members of the regional council's economic advisory committees also provided
specific examples of the types of information that are most often
unavailable. They noted that most readily available economic information
focuses on such data as the prices fishermen receive for the fish caught but
that there is a general lack of data on 1) the crew, such as how many are
employed, how many days they work, and how much they are paid; 2) the
economic relationships between those that buy the catch and those that catch
it; 3) the production costs for such items as fuel, ice, equipment, and
other supplies as well as the costs for repairs; 4) the levels of debt and
equity in the industry (which is important to assess vulnerability to
changes); and 5) the operating characteristics of import, export and
domestic markets.

NMFS officials recognize the shortage of community-based economic data. They
stated that one constraint on the agency's efforts to improve its data
collection and analysis is financial. Nationwide, NMFS employs 33
economists, who are responsible not only for the economic analyses required
by the Magnuson-Stevens Act but also for analyses required by the Regulatory
Flexibility Act and other mandates. When asked about the funding to
implement the new economic requirement of the Magnuson-Stevens Act, NMFS
officials reported that specifying the funding for this effort is difficult
because the agency's individual economists are not specifically assigned to
fulfill the requirements of that act; they all work on a variety of
projects. However, in fiscal years 1998 and 1999, they identified about
$400,000 from the headquarters statistics program that was sent to the
regions for general economic analyses and $500,000 from the Recreational
Fisheries Information Network that was used to assess the economic impacts
on recreational fishing. For fiscal year 2000, NMFS is again allocating
about $900,000 to assess the economic impacts of its conservation and
management measures. NMFS officials noted, however, that additional funding
from grants and independent research also contributes to developing economic
information.

Economic impacts should be considered early in the decision-making process
if they are to maximize their influence on the decisions. Because there are
often a variety of ways to manage a fishery to achieve the desired
conservation goals, an economic analysis is essential to choose the best
alternative to protect a marine fishery while minimizing the adverse
economic impacts to the fishing industry and community. Although the act
gives priority to the conservation of overfished species, it also requires
that economic impacts to communities be considered in developing
conservation alternatives. However, we found that potential economic impacts
are sometimes assessed after management alternatives have already been
developed; as one social sciences advisory committee member stated, they do
not help formulate alternatives in the first place. As a result,
alternatives that have no adverse impact on conservation but are very
important for economic reasons might be overlooked. In some instances, the
decision-making process had progressed so far that there was little time to
consider economic impacts. For example, the "West Coast Fisheries Economic
Data Plan" stated that "When the need for an economic analysis to support a
particular fishery management decision becomes apparent, it is generally too
late to initiate a data collection effort." 12 Council members, committee
members, council staff, and NMFS economists all agreed that much more could
be done to help ensure that economic impacts were part of the
decision-making process from the start.

Fishermen agreed with the comments made by members of the regional councils
and their advisory boards and provided the following as an example of an
alternative that they believe would probably have been included by NMFS and
the regional councils if economics had been considered when the alternatives
were being developed. Fishermen that seek highly migratory species, such as
tuna and swordfish, may fish anywhere from a few miles offshore to several
days offshore. If NMFS were to shut this fishery down and provide only a
short time period for all fishing boats to unload their catch, two adverse
economic hardships could result. First, some boats could be too far offshore
to return in time to meet the closure deadline and must either throw their
catch overboard or face penalties. Second, if all the fishing boats were
forced to sell their catch within a few days time, the market supply would
greatly increase and the prices the fishermen could obtain would temporarily
decrease. As an alternative, the fishermen emphasized that providing a wider
window to unload their catch would not adversely affect conservation goals
because the fish would have already been caught. Moreover, because this
alternative would provide them with a longer time to sell their catch, they
would probably receive better prices, which could mitigate some of the
economic hardships caused by closing the fishery.

In a recent closure, NMFS provided a wider window to unload catch through a
voluntary program involving the use of vessel monitoring systems. At that
time, however, only one vessel was equipped to qualify for this exemption.
NMFS officials stated that they were reluctant to permit offloading
flexibility without onboard vessel monitoring systems because there was no
guarantee that fishing would stop as the vessels returned to port. They also
added that, after June 1, 2000, vessels fishing for highly migratory fish
would be required to carry tracking devices to permit constant monitoring of
their fishing activity. As a result, if this fishery needs to be closed in
the future, offloading flexibility will be permitted.

Two recent court rulings have also pointed out that NMFS has not always
complied with the act's requirement to minimize the adverse affects of
conservation and management measures on fishing communities.

ï¿½ In the first case, NMFS had determined that participants in the North
Carolina summer flounder fishery would not experience significant adverse
economic impacts if their 1997 annual quota were reduced by approximately 58
percent. In the summer flounder fishery, the annual quota is divided among
several states. If the commercial sector exceeds its quota in any given
year, the excess is subtracted from next year's quota.13 Due to two
successive reductions for excess catches (as well as other factors), North
Carolina's 1997 commercial quota was 58 percent less than it had been in
1996. NMFS argued that because the annual quota before subtractions for
excess catch was the same in both years, the 58 percent reduction was not
significant. The court decided that the reduction was significant and
ordered NMFS to do an economic analysis and, to the extent practicable,
minimize the adverse impacts on fishing communities.

ï¿½ In the second case, involving the Atlantic large coastal shark fishery,
the court took no exception to NMFS' reduction in the annual shark quota by
50 percent but did fault the agency's conclusion that this reduction would
not cause substantial economic hardship. NMFS reasoned that few fishermen
are solely or primarily dependent upon sharks for their livelihood and that
the reduction would merely redirect their efforts to other fisheries. The
court found that there was a small but significant group that was largely
dependent on shark and ordered NMFS to do an economic analysis, take into
account the economic impacts of this reduction on the affected fishing
communities, and take steps to minimize any adverse effects.

NMFS officials pointed out that these cases were "wake-up calls" for the
need to expand how they view economic impacts. They stated that they have
learned from these cases and do not expect to make these mistakes again.
They also noted that there are cases where NMFS' economic analyses have been
upheld by the courts.

Expanded

When information is available, NMFS considers the economic impacts of
conservation measures on fishing communities. However, certain secondary and
cumulative impacts are sometimes not included in its analyses. As a result,
economic impacts could be underestimated, and the decisionmakers would not
have a clear picture of the adverse affects of their decisions on fishing
communities. For example,

ï¿½ Several fishermen stated that they once specialized in one or two
fisheries but, as quotas were reduced, they now fish for anything they can.
They noted, however, that current economic analyses do not account for the
ripple effects of such changes. For example, if the quota for cod is
reduced, fishermen may switch to flounder, and that, in turn, economically
hurts fishermen and communities that historically had depended on flounder.

ï¿½ Fishermen pointed out that new management and conservation measures are
often implemented without assessing the cumulative economic impacts of
previous measures. For example, with NMFS' approval, a regional council
might increase the size of the fish that could be caught, increase the size
of the mesh in the net the following year, and then establish a quota in the
third year. When considered independently, the economic impacts of these
measures could be relatively small, but their impact would probably be more
significant when considered cumulatively. Fishermen call this aggregate
effect "death by a thousand cuts."

Others agree that the cumulative impact and the effects on other fisheries
should be an integral part of an economic analysis. For example, the Social
Science Advisory Committee for the New England Fishery Management Council
said in a November 1999 report that they "strongly encouraged the
consideration of the cumulative impacts of various management actions on
other fisheries…"

Additional Work and Concerns Continue

NMFS and the eight regional councils have described and identified essential
fish habitat for all fishery management plans except one, and NMFS has
developed a consultation process for actions that may adversely impact that
habitat.14 NMFS has also placed a high priority on the research needed to
identify the adverse impacts to habitat and to identify the actions needed
to conserve and enhance habitat, but much more remains to be done.
Additional work is also needed to more specifically define essential fish
habitat. NMFS' current habitat designations are broad and require
consultations on a wide variety of activities. As a result, the designations
have raised concerns among conservationists and those with business
interests about their ultimate impact on habitat protection efforts and
onshore activities. To date, there is little evidence that the consultation
process has adversely affected planned projects or that the broad
designations have resulted in the most valuable habitats being overlooked.

to 200-Mile Limit

Because of tight time frames and the lack of information about the habitat
needs of most managed species, NMFS and the councils have designated
essential fish habitat so broadly that, when the habitat needs of all
managed species are combined, virtually the entire U.S.-controlled portion
of the Atlantic and the Pacific oceans is considered essential by one
species or another. Those with business interests expressed concern that the
broad designations would adversely affect their ability to develop onshore
projects whereas some conservationists expressed concern that because the
area designated was so vast the importance of the most valuable areas in a
habitat would be overlooked.

The Magnuson-Stevens Act gave the Secretary of Commerce 6 months to develop
guidelines to help identify essential fish habitat and gave the regional
councils 24 months to submit their amended fishery management plans to the
Secretary. However, important information about habitat was not known for
the majority of federally managed fish stocks. NMFS officials stated that
they did not have the tools necessary to quantify the different types of
ocean habitat and that the amount of scientific information that was lacking
on the role of habitat at each life stage of a managed species could take
over 20 years to obtain.

To meet the deadline for designating essential fish habitat, NMFS officials
took what they called a precautionary approach that resulted in designating
very extensive habitat areas. In some instances, all that was known about a
stock was its range. In such situations, NMFS and the councils designated
essential fish habitat broadly−anywhere the species was commonly
found. In most instances, however, essential fish habitat was designated as
that portion of the total range that included the highest density of the
species. As a result, after NMFS and the regional councils had identified
the essential habitat for each managed species, most rivers that include
managed species of anadromous fish as well as virtually the entire ocean
from the coastline to the 200-mile limit were included as essential fish
habitat for at least one species.15 NMFS officials stated that it should not
be surprising that virtually the entire U.S.-controlled portion of the
Atlantic and the Pacific oceans would be important to one or more life
stages of one species or another.

NMFS' future plans call for defining essential fish habitat more
specifically when sufficient information is available to do so. The three
more specific definitions, in increasing order of specificity, are as
follows;

ï¿½ the habitat supporting those portions of the range where the stock has
been found in high relative abundance;

ï¿½ the habitat supporting those portions of the range where the stock has had
high growth, reproduction, or survival rates; and

ï¿½ the specific habitat needed to achieve the population goal in NMFS' fish
management plan for that species of fish.

NMFS officials believe their goal is to define essential fish habitat as the
type and the quantity of habitat needed to achieve the population goal in
the fishery management plan. Nearly all of the current designations fall far
short of that standard because scientific information is lacking to link the
production rates of managed species to specific types of habitat.

Because essential habitat includes rivers supporting anadromous fish and so
much of the ocean, effectively implementing other essential habitat
provisions, such as assessing factors that adversely impact the habitat, the
extent of the impact, and what can be done to conserve and improve the
habitat, may be very expensive. NMFS officials said they appreciate the
importance of these activities, and they have identified research efforts in
these areas since completing the initial designations for essential
habitats. They noted that effectively evaluating threats to essential fish
habitat and developing appropriate conservation measures would be difficult
with the agency's available resources.

Impact on Planned Projects Remain

NMFS has developed a consultation process for actions that may adversely
affect essential fish habitat, but the broad designation of essential fish
habitat has many with onshore business interests concerned because NMFS must
be consulted on any action authorized, funded, or undertaken by a federal
agency that could adversely affect that habitat. There are thousands of such
actions initiated each year.

NMFS has implemented a three-tiered consultation process to help ensure that
the level of review is commensurate with the potential for harm. NMFS has
encouraged federal agencies to incorporate the following provisions into
existing environmental reviews to streamline consultations.

ï¿½ Activities by federal agencies that will cause only minimal adverse
impacts may be addressed in a statement of general concurrence.

ï¿½ Activities that cannot be addressed using a general concurrence but which
will not cause substantial adverse impacts are handled by an abbreviated
consultation process. The other federal agency must provide NMFS with a
written assessment of the impacts of their proposal on essential fish
habitat. After receiving this assessment, NMFS will provide conservation
recommendations to the other agency, which must respond in writing to them.

ï¿½ Proposed actions with the potential for substantial harm to essential fish
habitat must be evaluated through an expanded consultation process, which is
similar to that of the abbreviated process but provides a greater
opportunity for NMFS and the other federal agency to work together to
develop protective measures.

NMFS officials pointed out that, unless an action requires that a federal
permit be obtained or involves federal funds, the consultation process will
not affect private landowners at all. If federal action is required, NMFS
officials stated that, in most instances, other agencies could evaluate
potential harm to essential fish habitat during their normal environmental
reviews under other laws. However, the Magnuson-Stevens Act does require
that they respond to NMFS' essential fish habitat recommendations in
writing. Otherwise, the law does not require federal agencies to change
their decision-making process during a consultation and does not
automatically impose any additional restrictions on nonfishing interests
because NMFS' recommendations are not binding. It is the action agency that
decides whether to accept NMFS' recommendations. NMFS officials stated that,
as of November 1999, they had completed 18 agreements with other agencies to
establish specific procedures for using existing environmental review
processes to handle essential fish habitat consultations and were working on
32 others. NMFS officials stated that they are committed to using the
existing environmental review processes and the three-tiered consultation
process to ensure that consultations are limited to actions where adverse
impacts may occur.

Those with business interests, however, were generally skeptical about
whether the process would pose a burden. Some were concerned that, given the
huge areas designated as essential fish habitat, the consultation process
would result in additional restrictions on nonfishing industries occurring
inland. For example, an interviewee said a consultation related to essential
fish habitat in the Gulf of Mexico was required before the U. S. Army Corps
of Engineers (Corps) would grant a permit for a crane barge and a levee
crossing almost 185 miles upstream on the Mississippi River. Others
expressed concern about the potential for the process to cause project
delays. For example, interviewees said the consultation process had
lengthened the time needed to obtain permits for certain types of oil and
gas activities in coastal Louisiana by 3 weeks.

When interviewees provided specifics, we followed up on their concerns about
delays. In the case of the barge and a levee crossing, we found that NMFS'
Southeast Regional Office had no objection to the project and approved it
within 7 days of receiving the public notice. Of the nine other consultation
requests to that office that we reviewed, we found that, as of March 1,
2000, one was withdrawn, six had been issued, and two were still waiting
approval. Of the two still awaiting approvals, one was being held because of
objections by the Corps and the other because of the concerns of a neighbor
and the U.S. Environmental Protection Agency (EPA). As the following table
shows, in the cases we reviewed, there is little evidence that NMFS'
consultation process has imposed substantial delays to affected projects.
However, because this process is new and its full ramifications are unknown,
it is too early to fully identify the adverse impacts of NMFS' actions.

Table 1: Disposition of Selected Permits Submitted for Consultation to NMFS'
Southeast Regional Office

                     Date of

 Project     Date of NMFS'      NMFS'          Action on
 description notice             recommendation application    Comments
                     response
                                                              Louisiana
 Stabilize a                                   Application    requested
 bank        5/14/99 6/10/99    Do not issue                  additional
                                               withdrawn
                                                              data 6/23/99

 Fill                                          Permit
 wetlands for6/25/99 7/2/99     No objection   issued
 a homesite
                                               9/7/99
                                               Permit
 Build a deck8/18/99 8/27/99    No objection   issued
                                               10/25/99
                                                              Meeting
                                               Permit         between
 Stabilize a                                   issued         applicant,
 bank        11/2/98 11/13/98   Modify project                NMFS, and the
                                               4/5/99         Corps resolved
                                                              problems

 Dredge a                                                     The Corps
 canal and                                                    wants a
 stabilize a 5/14/99 6/7/99     Modify project Open           different type
 bank                                                         and location
                                                              for project
                                                              Meeting
                                               Permit         between
 Dredge a                                      issued         applicant,
 channel     2/9/99  3/5/99     Modify project                NMFS, and the
                                               3/29/99        Corps resolved
                                                              problems
                                                              Project
                                               Permit         revised to the
 Dredge a                       Change the typeissued         Corps'
 channel     4/28/99 5/25/99    of permit                     satisfaction
                                               6/25/99        and permit
                                                              approved

 Fill                                                         Project
 wetlands for8/27/99 9/10/99    No objection   Open           objected to by
 a homesite                                                   EPA and a
                                                              neighbor

 Build a                                       Permit         Project held
 crane barge                                   issued         up by the
 and a levee 9/3/99  9/10/99    No objection                  Coast Guard's
 crossing                                      1/25/00        objection
                                                              10/25/99
                                                              Had to wait
                                               Permit         for Louisiana
 Build a boat                                  issued         water
 slip        9/3/99  9/10/99    No objection
                                               1/9/00         quality
                                                              certification

Source: The Corps' permit files.

Many environmental groups said NMFS' actions did not go far enough. They
expressed concern that the consultation process did not require other
agencies to take any action and that NMFS does not plan to follow up to
determine if its recommendations are adopted. NMFS' officials stated that
they do intend to follow up on their essential fish habitat conservation
recommendations to the extent possible with existing staff and resources.

As of the end of December 1999, NMFS had conducted between 2,500 and 3,000
consultations with federal agencies whose actions could adversely affect
essential fish habitat. NMFS officials stated that a database is being set
up to track each consultation. The database will include information on the
planned action, its location, the consulting agency, and the filing dates.

By its nature, assessing the condition and the abundance of fish and other
marine species is likely to be controversial, especially to those fishermen
who might be adversely impacted by changes in a species' condition or level
of abundance. NMFS is using the best available science in its assessments.
However, inherent weaknesses in data collection and communications need to
be resolved by NMFS.

The act's requirement to consider the economic impacts to communities is new
and causes some expected discomfort to both NMFS as it struggles with
implementing the requirement and to those that expect a quick fix. Economic
information on fishing communities is scarce and the act's requirement "to
take into account" these impacts is not very specific or directive.
Ultimately, questions about how far to go with data collection efforts will
involve resource questions in which hard choices will have to be made.
However, NMFS' emphasis on missing or inadequate data fails to recognize
that this provision is intended to sustain participation and minimize the
adverse economic impacts to fishing communities, not to accumulate data
about them. What is needed is more timely economic analysis to suggest which
alternatives would minimize the adverse economic impacts while satisfying
NMFS' requirements for fishery conservation and management.

NMFS acknowledges that to improve the value of essential fish habitat as a
useful management tool, that habitat must be more specifically defined for
managed species. However, describing essential fish habitat in more precise
terms is likely to be an expensive activity requiring a substantial amount
of time and effort. More work and data are also needed to assess what is
adversely impacting habitat and what can be done to protect it; this will
also require substantial resources. We think it is important for NMFS and
the Congress to understand what will be needed to more specifically define
essential fish habitat to be more useful and to fulfill the related
requirements to protect it.

To improve the data upon which fishery conservation and management decisions
are based and to improve the communications between the regulators and those
who are regulated, we recommend that the Secretary of Commerce direct the
Director of NMFS to do the following:

ï¿½ Increase the involvement of the fishing industry, its expertise, and its
vessels in fishery research activities in order to expand the frequency and
scope of NMFS' data collection efforts.

ï¿½ Review data collection requirements placed on fishermen to limit requested
information to what is needed for conservation and management, regulatory,
and scientific purposes.

ï¿½ Review data collection procedures for fisheries where the recreational
sector constitutes a major portion of the fish caught to minimize the
inconsistent treatment of commercial and recreational fishermen.

To improve the acceptance of conservation and management decisions and to
minimize the adverse economic impacts of those decisions to fishing
communities, we recommend that the Secretary of Commerce direct the Director
of NMFS to do the following:

ï¿½ Determine what resources NMFS might redirect to help ensure that the full
range of economic alternatives are considered early enough in the
decision-making process to be useful in minimizing the adverse economic
impacts of fishery conservation and management decisions.

To more accurately assess the impacts of essential fish habitat provisions
on the nation's fisheries and NMFS' budget, we recommend that the Secretary
of Commerce direct the Director of NMFS do the following:

ï¿½ Provide the Congress with information on the costs of 1) identifying
habitats that contribute most directly to fishery production, 2) identifying
priority threats to essential fish habitat and, 3) identifying techniques
and methods needed to protect and enhance essential fish habitat from
priority fishing and nonfishing threats. The above cost estimates should be
compared with estimates of the cost for all species without first
establishing priorities.

We provided the Department of Commerce with a draft of this report for
review and comment. The Department agreed with some of our findings and
disagreed with others. In particular, the Department was concerned that our
discussion of possible improvements to the fishery assessment process would
overshadow our conclusion that NMFS is using the best available scientific
information. We appreciate the Department's concern but believe the report's
message is balanced and clearly acknowledges NMFS' use of the best available
scientific information.

The Department also made several comments on our recommendations. On our
recommendation to increase fishing industry participation in research
activities, the Department expressed concern that we had not recognized that
NMFS has made greater use of domestic charters to perform its research and
expects to do more of this in the future. While we recognize that NMFS has
increased its use of these vessels, there is an opportunity to do more.
Currently, there is substantial vessel over capacity in some fisheries that
could be available for research use. For example, in October 1999, we
reported that there were proposals for using between $150 million and $220
million in federal funds to buy back vessels to reduce excess capacity.16 It
appears that NMFS could use this excess vessel capacity and proposed funding
to both fulfill its research needs and help fishermen at the same time.

The Department was concerned that our recommendation on the data collection
requirements placed on fishermen did not recognize that NMFS does review its
data collection initiatives and that its data collection programs are
continually revised to meet changing needs. The Department is correct, and
we do not wish to minimize NMFS' activities. However, we believe that this
"continuous" review should include an assurance that NMFS is still using all
of the data supplied by fishermen. If NMFS does not use certain data
fishermen are required to collect, such as cod discard data, we do not
understand the basis for requiring them to continue collecting it.

In commenting on our recommendation about minimizing the differences in
recreational and commercial data collection procedures, the Department
stated that because the commercial and recreational fisheries differ
significantly, "it would be inappropriate to have consistent data collection
procedures for each sector." In our view, inconsistent data collection
procedures lead to differing management actions and result in unequal
treatment of the two fishing sectors. Closures of commercial fishing sectors
can, and do, result from weekly updates of commercial fishing data, on-board
observers, and independent verifications from fish processors. In contrast,
because of the 4-month delay in summarizing recreational catch data and the
wide allowance for error associated with the recreational survey's method,
excess recreational harvest is seldom currently used to close recreational
fisheries. Thus, in fisheries where the recreational sector is significant,
we believe the Secretary should minimize the differences in how catch data
are collected and used to manage fisheries.

The Department agreed with the basis of the economic alternative
recommendation and with the essential fish habitat recommendation.

The Department also made a number of technical comments and suggestions that
we incorporated into our report as appropriate. The Department's complete
comments and our responses are presented in appendix II.

A copy of this report is being sent to the Honorable William M. Daley,
Secretary of Commerce; Dr. James Bake, Director of the National Oceanic and
Atmospheric Administration; Penelope Dalton, Director of the National Marine
Fisheries Service; and other interested parties. We will also make copies
available to others upon request.

If you have any questions about this report, please contact me at (206)
287-4810. Other key contributors to this report were Jill Berman, Jerry
Aiken and Bill Wolter.
James K. Meissner
Associate Director, Energy,
Resources and Science Issues

List of Committees and Requesters

The Honorable Ted Stevens
Chairman
The Honorable Robert Byrd
Ranking Minority Member
Committee on Appropriations
United States Senate

The Honorable Judd Gregg
Chairman
The Honorable Ernest F. Hollings
Ranking Minority Member
Subcommittee on Commerce, Justice,
State, and Judiciary
Committee on Appropriations
United States Senate

The Honorable Olympia J. Snowe
The Honorable John B. Breaux
The Honorable Frank R. Lautenberg
United States Senate

The Honorable Walter B. Jones
The Honorable Frank A. LoBiondo
The Honorable Jim Saxton
House of Representatives

Scope and Methodology

To assess the compliance of the National Marine Fisheries Service (NMFS)
with the requirements to use the best available scientific information; to
take into account the economic importance of fishery resources to fishing
communities; and to define, identify, and implement essential fish habitat
provisions, we interviewed various NMFS officials. We discussed appropriate
processes, regulations, and procedures with NMFS officials in the
headquarters office; the Northeast, Southeast, and Pacific Regional Offices
and Science Centers; and the Alaska Science Center.

To understand the role of fishery management councils in developing and
implementing NMFS' requirements, we met with representatives of six of the
eight regional councils−New England, Mid-Atlantic, South Atlantic,
Gulf of Mexico, Pacific, and Northern Pacific. In addition to current
council members, we also talked to past members, council staff, and members
of the advisory panels and science and statistical committees.

To obtain the opinions of those affected by the implementation of the act's
requirements, we interviewed over 300 individuals, who represented six
regional fishery management councils; commercial and recreational segments
of the fishing industry; the states' and other marine commissions, and
fishing associations. We also interviewed consultants, lawyers,
conservationists, suppliers, and members of the academic community.
Interviews were conducted individually, in small groups, or in "town hall"
settings. Table 2 summarizes who was interviewed. These interviewees
provided us with examples of their concerns that we then evaluated,
researched, and discussed with NMFS' officials. For our review, we assessed
whether their examples corroborated or refuted NMFS' use of the best
available scientific information in making conservation and management
decisions or if some other factors had led to dissatisfaction with the
science.

Table 2: People Interviewed

 Sector                                                 Number interviewed
 NMFS officials                                         37
 Other government officials (federal, state, and local) 16
 Fishery management council members and staff           35
 Commercial fishery representatives                     75
 Recreational fishery representatives                   9
 Fish processors                                        26
 Conservationists                                       27
 Members of the academic community                      13
 Members of fishing associations                        33
 Suppliers for commercial and recreational fisheries    10
 Other representatives of the fishery infrastructure    9
 Other                                                  29
 Total                                                  319

To reach as many people as possible, we scheduled our meeting dates and
locations to correspond with regularly scheduled meetings of the regional
councils. We attended at least one meeting of each of the six councils whose
representatives we met with. These included meetings in Portland, Maine;
Fairhaven, Massachusetts; Norfolk, Virginia; Anchorage, Alaska; Portland,
Oregon; Austin, Texas; and Key West, Florida. In addition, we met with
representatives of the Bluewater Fisherman's Association at their annual
meeting in Atlantic City, New Jersey. This association represents fishermen
who fish for highly migratory species that are managed by NMFS and not a
council. We also met separately with members of the North Carolina
Fishermen's Association in New Bern, North Carolina, and with scallop
fishermen and other interested parties in Seaford, Virginia, and New
Bedford, Massachusetts.

In addition to the interviews, we also reviewed numerous documents that were
provided to us by those we interviewed. We reviewed the law, its history,
and the implementing regulations along with reports prepared by the
Congressional Research Service, the National Research Council, and others to
obtain additional information. We also reviewed fishery management plans,
economic analyses, court cases, and other pertinent agency and council
documents.

We conducted our review from April 1999 through March 2000 in accordance
with generally accepted auditing standards.

Comments From the U.S. Department of Commerce

1. We believe we appropriately looked at NMFS' compliance with the act's
requirement to consider the economic impacts to fishing communities
(National Standard 8) in the context of other statutory requirements. In
fact, NMFS refers to these other requirements in its implementation
regulations for National Standard 8. For example, the regulations state that
"an appropriate vehicle for the analyses under this standard is the fishery
impact statement required by section 303(a)(9) of the Magnuson-Stevens Act."

2. We agree that follow-up action on the comments is needed to help ensure
that appropriate corrective action is taken. When the fishermen provided us
with examples of problems, we followed up on their suggestions and analyzed
the basis for their examples. If the examples warranted attention, we have
included them or similar cases in this report.

3. We believe NMFS is using the best available science. We found little in
our analysis of what experts said about NMFS' science, the council's process
to assess the science of others, or the problems identified through our
interviews, to contradict this conclusion. However, in some instances, we
believe it is important to recognize that the best available scientific
information might not be good enough for what it is being used to do. NMFS
officials have pointed out to us that conditions in fisheries can change
rapidly due to many factors. Given this fact, we believe that 3- to 5-year
gaps in data collection efforts may not provide the information necessary
for informed decision-making. We recognize the magnitude of NMFS' efforts to
manage the nation's marine resources but believe it is also important to
acknowledge the problems encountered in carrying out its responsibilities.
The Department of Commerce also maintains that fishermen will complain that
NMFS is not using the best available scientific information as long as the
conservation and management measures based on that science adversely affect
them or constrain their activities. Although this may be so, we do not
believe that this is enough reason to discount the concerns we heard from
fishermen. In addition, our report points out that concerns about the data
not being current and complete were not limited to fishermen but were also
voiced by members of the regional councils and were pointed out in reports
by the National Research Council. For example, the Gulf of Mexico Fishery
Management Council rejected NMFS' analysis of the red drum and red grouper
fisheries in 1999 because the agency's information was insufficient to
assess catch limits. Even NMFS officials stated that they wished certain
surveys could be done more frequently and more specifically.

4. We agree. The final report was revised to reflect the Department's
comment, as appropriate.

5. We believe the scallop example provides many details that illustrate
where and how miscommunications occur. Our intent is to show that
miscommunications occur for many reasons and frustrate all the affected
parties.

6. We believe that the Department's request goes beyond the scope of the
mandate.

7. The wording has been clarified to reflect that NMFS will use
self-reported discard data from fishermen if it is supplemented with data
from other sources.

8. We believe the example is appropriate and have clarified the wording to
make the connection clearer.

9. We disagree. The red snapper, bluefin tuna, and some Pacific salmon
fisheries were the only current examples the Department could provide of
recreational fisheries closed using the survey to collect data on
recreational fisheries. We agree that quite often, recreational fisheries
are managed through the use of such regulations as individual bag limits,
size limits, or seasons instead of by a total fishery quota, and we agree
that these methods are appropriate for most recreational fisheries. However,
we encountered instances of recreational fisheries exceeding their allotted
portion of a fishery's total annual allowable catch. This overage could then
be factored into future stock assessments and result in reduced catch
allowances for everyone. Understandably, reduced allocations to the
commercial sector caused by recreational overfishing upsets commercial
fishermen whose access to the same fishery may be closed as soon as their
portion is caught. Using quotas to close one fishing sector but not the
other raises a fairness issue that is especially controversial in those
fisheries where the recreational sector constitutes a large percentage of
the total allowable catch.

10. We disagree. The National Oceanic and Atmospheric Administration's
(NOAA) Office of General Counsel provided both court cases as examples of
compliance issues with National Standard 8. In both cases, the court found
that NMFS had failed to comply with this standard. For example, in the case
involving the summer flounder, the court held that "the Secretary acted
arbitrarily and capriciously in failing to comply with National Standard 8."
The court ordered the Secretary to perform a level of economic analysis
sufficient to comply with National Standard 8 and "to the extent
practicable, minimize the adverse economic impacts on communities." We
intended to provide some case examples of National Standard 8 compliance
issues, not an exhaustive list of cases. Thus, we are not adding the
additional cases suggested by the Department.

(141269)

Table 1: Disposition of Selected Permits Submitted for
Consultation to NMFS' Southeast Regional Office 27

Table 2: People Interviewed 35
  

1. P.L. 94-265, as amended (16 U.S.C. 1801 et seq.).

2. The act was renamed in 1980 to honor the late Senator Warren G. Magnuson
(P.L. 96-561, section 238) and in 1996 to include Senator Ted Stevens (P.L.
104-208, section 208). It is now known as the Magnuson-Stevens Fishery
Conservation and Management Act.

3. A stock is a group of fish that is usually based on genetic
relationships, geographic distribution, and movement patterns. A single
species can consist of several stocks, and a stock can consist of several
species.

4. The amount of fish that will provide the greatest overall benefit to the
nation, particularly with respect to food production and recreational
opportunities, and take into account the protection of marine ecosystems.

5. The National Research Council reports were published in 1998 and are
entitled Improving Fish Stock Assessments and Review of Northeast Fishery
Stock Assessments.

6. Groundfish are various species of fish that live on or near the seafloor.

7. We recently examined this fishery in another assignment. See Fishery
Management: Market Impacts of the American Fisheries Act on the Production
of Pollock Fillets (GAO/RCED-99-196 , June 30, 1999).

8. Although there are few disagreements about the quality of the scientific
data in this fishery, there are disagreements about the impact of this
fishery on the endangered Steller Sea Lion that are being addressed by the
courts.

9. Although NMFS only knows the status of 25 percent of the species, this
percentage represents about 90 percent of the total weight or volume of all
species in U.S.-controlled waters.

10. Discards are those fish caught but not kept because they are the wrong
species or size or because a fisherman already has the allowed limit of a
particular fish.

11. NMFS officials stated that recreational data are used to close the red
snapper, the bluefin tuna, and some Pacific salmon fisheries.

12. This November 1998 report was prepared by the Pacific Fishery Management
Council and the Pacific States Marine Fisheries Commission.

13. No subtraction is made from the annual recreational quota if it is
exceeded.

14. The one exception is the Pacific salmon plan, which includes three
species and has yet to be submitted by the Pacific Council.

15. Anadromous fish migrate from saltwater to fresh water to spawn.

16. Commercial Fisheries: Information on Federally Funded Buyback Programs
(GAO/RCED-00-8R , Oct. 1999).
*** End of document. ***