Good morning, Mr. Chairman and members of the Subcommittee. I am Dr. William Hogarth, Acting Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration. Thank you for the opportunity to testify today on H.R. 1367, the Atlantic Highly Migratory Species (HMS) Conservation Act.

This bill, introduced by Rep. Saxton, would: (1) establish seasonal closures to pelagic longline fishing for HMS in the Gulf of Mexico, the Northern Mid-Atlantic Bight, and the Southern Mid-Atlantic Bight; (2) limit the number of pelagic longline sets in the Mid-Atlantic Bight during the summer months; (3) establish two capacity reduction programs to compensate eligible vessel owners for voluntarily giving up their pelagic longline permits; (4) establish a Pelagic Longline HMS Bycatch and Mortality Reduction Research Program to identify and test a variety of pelagic longline fishing gear configurations and determine which of those configurations are most effective at reducing bycatch mortality; (5) reallocate a portion of the total allowable catch of swordfish from the pelagic longline fleet to the commercial handgear fleet; and (6) require pelagic longline vessels to be equipped with vessel monitoring systems. We note that several of these programs require appropriated funds that are not consistent with the President's budget request and, in view of current overall funding constraints, we do not intend to make a request for such funds for FY 2002.

As you know, Atlantic HMS, such as swordfish, tunas, billfish, and sharks, range throughout tropical and temperate oceans and include some of the world's largest and most valuable fish. They are sought after by commercial fishermen and prized by many sport anglers. Since the early 1990s, Atlantic HMS have been managed directly by the Secretary of Commerce, primarily because the range of these species extends over five regional fishery management council areas. Secretarial management also facilitates U.S. participation in international HMS conservation programs and the establishment and negotiation of U.S. positions at meetings of the International Commission for the Conservation of Atlantic Tunas (ICCAT), the 31-member organization charged with coordinating the science and management of tunas and tuna-like species.

Atlantic swordfish, billfish, and some tuna species are harvested by a large number of nations and currently are considered by ICCAT to be overexploited. Consequently, we must work with other nations to eliminate overfishing and rebuild these fish stocks. Both the United Nations Agreement on Straddling and Highly Migratory Fish Stocks and the United Nations Convention on the Law of the Sea stress the need for cooperation among nations to ensure effective conservation and management of HMS throughout their range. Therefore, the United States has worked through ICCAT to foster international cooperation for the management of HMS. In recent years, the United States has played a key role in establishing international rebuilding programs for bluefin tuna (1998), swordfish (1999), and blue and white marlin (2000). Our progress on the international front would not have been possible without the strong support of U.S. commercial and recreational fishermen, environmental groups and others. While U.S. fishermen have a consistent record of compliance with these ICCAT programs, improvements in monitoring and enforcement by other contracting parties and non-members are greatly needed to ensure success.

Consistent with our ICCAT responsibilities, the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that NOAA Fisheries take action to manage HMS fisheries within U.S. waters. With the assistance of the HMS and Billfish Advisory panels, in April 1999 NOAA Fisheries completed a fishery management plan for Atlantic tunas, swordfish, and sharks (HMS Plan) and amended an existing fishery management plan for billfish. These new plans were among the first to be implemented under the new requirements of the Magnuson-Stevens Act and included management measures to identify and rebuild overfished HMS stocks, minimize bycatch, limit access to the pelagic longline fishery for HMS, and address socioeconomic impacts on fishermen and their communities.

Pelagic longlines are the primary commercial gear type, besides handgear, in the HMS fisheries of the Atlantic ocean, including the Gulf of Mexico and Caribbean. The longline fishery thus provides an important source of seafood for the American consumer. However, like most types of fishing gear, it unintentionally catches species and sizes of fish that, for reason of regulation or economic choice, are thrown back into the sea. While some bycatch is released alive, some is also discarded dead. These dead discards in the pelagic longline fishery have declined over the past decade; however, concerns remain about bycatch levels, particularly of juvenile swordfish, billfish, bluefin tuna, and sharks. In addition, NOAA Fisheries must address the incidental catch of threatened and endangered species such as sea turtles. To minimize bycatch to the extent practicable, as required under the Magnuson-Stevens Act, NOAA Fisheries implemented a number of regulations in the HMS Plan such as a time-area closure for pelagic longline fishing in the Mid-Atlantic Bight to reduce discards of western Atlantic bluefin tuna and a requirement for pelagic longline fishermen to move 1 nautical mile after an interaction with a marine mammal or a sea turtle.

Additionally, on August 1, 2000, NOAA Fisheries published a final rule that established three additional time-area closures for pelagic longline fishing and prohibited the use of live bait in the Gulf of Mexico. Together, the three time-area closures implemented in this regulation are expected, if effort is redistributed, to reduce swordfish, sailfish, and large coastal shark discards by 31, 14, and 33 percent, respectively. While the time-area closures themselves are not expected to reduce blue and white marlin if effort is redistributed, NMFS expects the ban on live bait to reduce discards of these species by approximately three percent. These regulations were also chosen, after large amounts of public input and scientific analyses, because they minimize economic and social impacts, to the extent practicable, compared to the other options considered. It should be noted that these regulations are the subject of a pending lawsuit and the outcome cannot be predicted with any certainty. Additionally, NOAA Fisheries continues to monitor the impact of the regulatory closures to evaluate their effectiveness in reducing bycatch. If the bycatch reduction objectives are not being met, we may modify those closures through rulemaking.

Most recently, NOAA Fisheries published an emergency rule, effective until January 9, 2002, to reduce sea turtle interactions and mortality. This emergency rule closes the Northeast Distant statistical area, also known as the Grand Banks, to pelagic longline fishing and requires pelagic longline gear modifications. This regulation and the biological opinion it is based on is also the subject of a pending lawsuit.

Overall, NOAA Fisheries supports the objectives of H.R. 1367 which, similar to the requirements of the Magnuson-Stevens Act, is to reduce bycatch in the Atlantic pelagic longline fishery while minimizing any social or economic impacts. We would like to work with you to clarify and amend certain provisions of the legislation that are unclear or appear to conflict with current regulations. I will briefly review our concerns at this hearing.

Regarding the seasonal closures in section 5, NOAA Fisheries has conducted analyses for the new closed areas proposed by H.R. 1367. Using the same analytical framework developed to evaluate the regulatory closures previously implemented, the new area closures described in H.R. 1367 may have little, if any, effect on the number of fish kept or discarded. Specifically, under a scenario which assumes no redistribution of fishing effort due to the targeted buyback provisions of the bill, the area closures in H.R. 1367 are estimated to decrease the number of swordfish discards by 1.2 percent, blue marlin discards by 1.5 percent, sailfish discards by 3.2 percent, and white marlin discards by 3.5 percent (see Attachment). If any of the fishing effort is redistributed because vessels fish in other areas rather than participate in the capacity reduction program, the area closures in H.R. 1367 could either have no impact on discard rates or could increase discards to a small extent. Thus, while the area closures would not have a large impact in terms of the number of fish landed by commercial fishermen, the results of the closures proposed appear to be contrary to H.R. 1367's stated purpose to reduce bycatch.

NOAA Fisheries is uncertain how the pelagic longline capacity reduction program in section 5(c) and the pelagic longline fishing vessel permit holder compensation program in section 6 relate to one another and whether two separate programs are needed. We recommend that only one program be developed to address capacity reduction and vessel compensation.

Additionally, H.R. 1367 requires completing the section 6 vessel compensation program in 225 days (7.5 months). However, without a specific implementation process in the legislation, this program would require an implementing rule with an opportunity for public comment and an environmental impact analysis under the National Environmental Policy Act (NEPA). Consequently, completing the section 6 program could require from 14 to 20 months.

While the bill does authorize the appropriation of funds for the costs of both permit buyback programs under section 5(c) and section 6, it does not appropriate funds for either program. Given current funding constraints, we prefer not to commence either program before the appropriation of adequate funds, and we do not intend to make a request for such funds for FY 2002. Additionally, the section 5(c) program requires us to notify Congress of sources of additional funds in case the appropriated funds are inadequate to cover the costs of the program. We are unaware of any other sources.

H.R. 1367 requires appropriated funds for research and we note that such funds are not consistent with the President's budget request. The bill also requires the Secretary of Commerce to collect fees on vessel landings to fund observers. If Congress intends to implement such a cost-sharing mechanism, NOAA Fisheries is concerned that a one percent fee may not fully fund this mandatory program. We are also concerned that the scientific workshop referenced under Program Design presents a potential conflict with the Federal Advisory Committee Act (FACA). An alternative would be to exempt the scientific workshop from FACA or legislatively require a FACA charter.

The section 5 vessel buyout program is stipulated to be a reverse auction open to all permitted vessels, but the bids would have to be evaluated against the priority for vessels with a fishing history in the mid-Atlantic region. NOAA Fisheries would have to determine which records would be accepted to demonstrate a landings history and would have to develop a ranking scheme to establish the priority vessels. Such a scheme will take time to implement and will increase costs over what would normally be associated with a reverse auction.

Section 6(a) of H.R. 1367 refers to "initial limited access permits" that were issued by NOAA Fisheries to qualifying vessels in July 1999 on a temporary basis. Because most of these initial permits have since expired and have been renewed, the text should simply reference "limited access permits." NOAA Fisheries also recommends that the legislation clarify that pelagic longline fishing for HMS is authorized only for vessels with all three permits (swordfish/shark/tuna) and that the permits be surrendered as a package.

Similarly, NOAA Fisheries believes the intent of section 6(b), "ineligibility due to transfer," needs clarification. The current text includes transfer of non-HMS federal permits and this, together with the reference date, may result in the exclusion of more vessels from the compensation program than is intended. Also, the reduction in compensation for the "fair market value" of permits not held by the vessel is perhaps not applicable, as a pelagic longline vessel must have all three permits. Finally, the intent of the rules regarding transfer of permits not surrendered after compensation is unclear. For example, could a vessel owner be compensated by the government for not using the permits in the pelagic longline fishery and then sell the permits separately to individuals in the handgear fisheries for tunas, sharks or swordfish?

If Congress intends to compensate vessel operators based on catch history, we recommend the landing payment documentation provision in section 6(e)(3) be deleted and that landing payments be based exclusively on the default landing payment determination provided for in section 6(e)(4). This would simplify and accelerate the program process, as well as reduce both the government's and program applicants' administrative and paperwork burdens.

Section 11(d) refers to the "expiration of the closure of the Gulf of Mexico Conservation zone," the date of which does not appear to be specified in the legislation.

NOAA Fisheries would need more clarification on the intent of section 12, the reallocation of total allowable catch, in order to undertake the rulemaking that would be necessary to implement this requirement. Under the ICCAT rebuilding program for swordfish, the U.S. has been allocated a 29 percent share of the total allowable catch. Depending on participation in the pelagic longline buyout program and the impact of all the closed areas, it may not be possible to harvest the total amount of reallocated catch of swordfish using handgear, which will lead to an accumulated carryover of unharvested U.S. quota. If the U.S. fishing fleet is continually unable to harvest its share of the Atlantic swordfish quota as allocated by ICCAT, it is possible that the quota would be reallocated to other fishing nations. If this happens, it is also possible that the United States would lose negotiating power at ICCAT, leading to reductions in future allocations. It should be noted that, currently, the United States has more regulations to prevent bycatch and more areas closed to fishing with pelagic longline gear than any other nation. This record of compliance is not matched by all other fishing nations. If the U.S. negotiating position is eroded and the U.S. share of swordfish is reallocated, the result may be more bycatch Atlantic-wide, rather than less.

Additionally, section 12 indicates some potential for the commercial swordfish handgear fishing fleet to benefit from the fishing capacity reduction associated with the vessels involved in the section 5(c) and/or section 6 programs. If this is a quantifiable potential, we recommend that the beneficiaries repay, though post-reduction landing fees, an appropriate portion of the programs' cost. We believe that those who benefit from capacity reduction's effect should repay a reasonable portion of the reduction's cost.

Regarding section 14, vessel monitoring systems, I should note that NOAA Fisheries is currently under a court order to further consider the costs and benefits of vessel monitoring systems in the pelagic longline fishery. The outcome of this litigation cannot be predicted with any certainty. Certainly, new legislative requirements will determine how NOAA Fisheries implements a vessel monitoring program.

Once again, I would like to state that NOAA Fisheries supports the stated goals of H.R. 1367. We recognize the significance of the many issues raised and the efforts of Congress to meet conservation requirements and minimize adverse impacts on displaced fishermen. I look forward to working with Congress to address our concerns with the proposed legislation.

Thank you for the opportunity to provide this testimony. I would be happy to respond to questions.

Attachment

SECTION 5 CLOSURES
The effectiveness of the proposed closures was evaluated based on logbook data from 1995 through 1998. Positive values indicate a likely increase in fish kept or discarded; negative values indicate a likely decrease. Values are expressed in percent change. The models assume that the Gulf of Mexico conservation zone is closed from May through August, the Northern mid-Atlantic Bight conservation zone is closed from July 21 through August 31, and the Southern mid-Atlantic Bight conservation zone is closed for the month of September.

Model Gulf of Mexico Northern MAB Southern MAB Total
Swordfish kept No effort redistribution -0.47 -0.18 -0.07 -0.72
Effort redistribution -0.28 0.70 0.29 0.71
Swordfish discarded No effort redistribution -0.63 -0.37 -0.20 -1.20
Effort redistribution -0.27 0.38 0.12 0.23
Bluefin tuna discarded No effort redistribution -0.02 -0.04 -0.0 -0.06
Effort redistribution 0.09 0.08 0.0 0.17
BAYS tunas kept No effort redistribution -1.20 -1.61 -0.65 -3.46
Effort redistribution 0.51 -0.66 -0.28 -0.43
Blue marlin discarded No effort redistribution -1.16 -0.27 -0.07 -1.50
Effort redistribution 0.77 0.57 0.12 1.46
Sailfish discarded No effort redistribution -3.15 -0.0 -0.02 -3.17
Effort redistribution 0.25 0.96 0.15 1.36
White Marlin discarded No effort redistribution -0.52 -2.50 -0.50 -3.52
Effort redistribution 1.77 -1.50 -0.28 -0.01
Pelagic sharks kept No effort redistribution -0.30 -0.65 -0.18 -1.13
Effort redistribution -0.25 0.28 0.03 0.06
Pelagic sharks discarded No effort redistribution -0.02 -0.58 -0.26 -0.86
Effort redistribution 0.02 0.42 0.25 0.69
Large coastal sharks kept No effort redistribution -2.68 -0.25 -0.08 -3.01
Effort redistribution -3.92 0.14 0.03 -3.75
Large coastal sharks discarded No effort redistribution -2.20 -0.33 -0.22 -2.75
Effort redistribution -3.19 0.12 -0.06 -3.13
Sea turtles No effort redistribution -0.07 -0.07 -0.04 -0.18
Effort redistribution 0.07 1.73 0.60 2.40