Testimony of Penelope "Penny" Dalton, Assistant Administrator for Fisheries, NOAA, before the U.S. Senate Fisheries and Oceans Subcommittee, on the Magnuson-Stevens Fishery Conservation and Management Act, Anchorage, AK, January 18, 2000

TESTIMONY OF
PENELOPE DALTON
ASSISTANT ADMINISTRATOR
NATIONAL MARINE FISHERIES SERVICE
U.S. DEPARTMENT OF COMMERCE
ON
THE MAGNUSON-STEVENS
FISHERY CONSERVATION AND MANAGEMENT ACT

SENATE SUBCOMMITTEE ON OCEANS AND FISHERIES
ANCHORAGE, ALASKA FIELD HEARING
JANUARY 18, 2000

Madame Chair and members of the Subcommittee, thank you for inviting me to Anchorage to testify on the implementation and reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and to speak on issues of concern to fishermen in the North Pacific Ocean and Bering Sea off Alaska. I am Penny Dalton, Assistant Administrator for Fisheries for the National Oceanic and Atmospheric Administration.

Building a Foundation for Sustainable Fisheries – Alaska Fisheries

With 34,000 miles of tidal marine coastline and about 70 percent of the total U.S. continental shelf area, Alaska is a state where fishing is a dominant aspect of life. In 1998, for example, commercial groundfish landings in Alaska totaled about 5 billion pounds with a wholesale value of about $1.2 billion. These landings accounted for 52 percent of the total commercial landings in the United States. The commercial fishing industry is the largest private-sector employer in the State of Alaska, providing 47 percent of basic employment, ahead of oil and gas production, mining, forest products and tourism.

While the commercial fishing industry dominates the overall use of living marine resources off Alaska, recreational fisheries also are important to State residents and visitors alike. In 1997, recreational fishermen spent about 2.6 million angler days to catch over 2.3 million salmon and 673,000 halibut.

The North Pacific Fishery Management Council (Council) is primarily responsible for the development of fishery management plans (FMPs) and amendments under the jurisdiction of the Magnuson-Stevens Act. Currently, NOAA Fisheries has five FMPs implemented, one each for groundfish fisheries in the Bering Sea and Aleutian Islands (BSAI) area and Gulf of Alaska (GOA), respectively, for the BSAI crab fisheries, the scallop fisheries and salmon fisheries in the EEZ. The Council focuses much of its attention on the two groundfish fishery FMPs because routine management under the other three FMPs has been undertaken for the most part by the State of Alaska.

None of the 36 groundfish species or species groups covered by the two groundfish FMPs is at or below a level of abundance that is considered to be overfished. Three species of crab in the BSAI, Tanner crab, snow crab, and St. Matthew blue king crab, however, are overfished. The Council has developed in conjunction with the State a rebuilding plan for the first species and is developing plans for the other two species that will facilitate the long-term potential yield of these highly cyclical species.

Ensuring that our fisheries do not negatively affect species protected under the Marine Mammal Protection Act and the Endangered Species Act (ESA) is a high priority for NOAA Fisheries. Here in Alaska, two species of particular concern are the Steller sea lion and the short-tailed albatross. The Steller sea lion was listed as threatened in 1990. The listing followed severe declines of the species throughout the Gulf of Alaska and Aleutian Islands region, which was the center of its range in the North Pacific. During the 1990s, the species continued to decline and, since the late 1970s, counts of Steller sea lions in this region have dropped by more than 80 percent. In 1997, NOAA Fisheries recognized that the Steller sea lion consisted of two distinct populations, and reclassified the population west of 144 W. longitude as endangered.

A number of factors are either known to have contributed to the decline, or are suspected of having done so. The leading hypothesis has been that sea lions have declined due to factors causing nutritional stress, which adversely affects the growth and condition of animals, and their probabilities of reproduction and survival. In December 1998, NOAA Fisheries issued a Biological Opinion that concluded that the pollock fisheries in the GOA and BSAI were likely to jeopardize the continued existence of the western population of Steller sea lions and modify adversely their critical habitat. To reduce competition between the pollock fisheries and Steller sea lions, NOAA Fisheries has worked closely with the Council to develop management measures that disperse the fisheries in time and space and preclude fishing from critical rookery and haulout areas.

We have made similar advances in protecting the short-tailed albatross from direct interactions with fisheries. This species, believed to be extinct in 1949, has been slowly increasing in abundance to approximately 1,200 birds in the world today. In 1997 we issued rules requiring the GOA and BSAI hook-and-line groundfish fisheries to use seabird avoidance measures, and in 1998 similar measures were implemented for the halibut fisheries off Alaska. The Washington Sea Grant Program and the fishing industry currently are conducting a Federally funded study to test the efficacy of these new rules. We are implementing a new rule regarding the use of
blue-dyed bait in the Hawaiian longline pelagic fishery, and perhaps other such innovations could be employed in Alaska to lessen the attractiveness of bait to seabirds.

Fishing industry requests for allocations of the total allowable catch (TAC) among industry sectors and for limiting access to the fishery resources have grown over the past decade.
Allocations of pollock in the BSAI and pollock and Pacific cod in the GOA began in 1992, along with the unique Community Development Quota (CDQ) program. In 1995, we implemented the Individual Fishing Quota (IFQ) Program recommended by the Council for the Pacific halibut and sablefish longline fisheries. Both of these programs are making significant progress toward their respective goals for Alaskan fisheries. They provide a useful model for attaining some of the benefits of a market-based allocation scheme while protecting the interests of small-scale fishermen and fishing communities, and integrating regional sensitivities about consolidation, transferability and equity into program design.

Some of the most challenging TAC allocation issues we have had to deal with recently are those raised by the American Fisheries Act (AFA) passed in October 1998. Implementing the AFA has had a profound effect on the groundfish fisheries in the BSAI and, to a lesser extent, the groundfish and crab fisheries in the GOA. Basically, the AFA established a new inshore-offshore allocation scheme for the BSAI pollock fisheries; reduced fishing capacity through a buyout of nine pollock catcher/processor vessels; established a fee on the inshore harvests of pollock to repay a $75 million loan used for the buyout; and listed vessels or specified criteria for the participation of fishing vessels and processors in the BSAI pollock fisheries. The Act also provided for the creation of, and TAC allocation to, fishery co-operatives; increased observer coverage and scale requirements for pollock catcher/processors; required harvest restrictions (commonly known as "sideboards") on fishermen and processors who receive exclusive harvesting and processing privileges under the AFA; and directed the Council to develop excessive share harvesting limits for BSAI pollock processing and the harvesting and processing of other groundfish. The Council and NOAA Fisheries made implementation of the AFA a top priority and have worked hard to develop interim AFA rules that we plan to make effective this week. The next task will be to complete final implementing rules. We look forward to the fishery management opportunities that this statute has made available.

The sophisticated management regime in effect for the BSAI and GOA groundfish fisheries would not be possible without the North Pacific Groundfish Observer Program, which is administered by the Alaska Fisheries Science Center in cooperation with industry. The program has responsibility for training, debriefing, data management, data analysis, and observer provider oversight. Observers are procured through private companies that contract directly with the fishing industry. NOAA Fisheries pays for program administration while the industry pays for the direct costs of hiring and deploying observers. The program annually deploys approximately 350 fisheries observers on over 400 vessels and processing plants. A variety of fisheries are observed and data are collected to meet multiple agency needs. The data are provided to end users in real time through an extensive electronic reporting system. The result is a system which annually provides over 30,000 observer days of readily available quality data to NOAA Fisheries, the Council, and industry.

Implementation of the Sustainable Fisheries Act (SFA)

As we enter the 21st Century, we are at a crucial point in fisheries management, with considerable work ahead of us. In the 23 years since the enactment of the Magnuson-Stevens Act, we have seen the complete Americanization of fisheries in federal waters (most dramatically in the case of Alaska), the expansion of the domestic fishing industry, declines in many fishery resources, and the rise of public interest in fisheries issues. We have seen some successes from our management actions, including rebuilding of Spanish mackerel, the initial rebound of a few depleted stocks like Gulf of Mexico red snapper and Georges Bank haddock, and the continued strong production of fish stocks off Alaska. However, as of 1999, 11 percent of U.S. living marine resources are overfished or are approaching overfished, 14 percent are not overfished, and there is another 75 percent whose status is unknown. In Alaska, about 1 percent of living marine resources are overfished or are approaching the overfished status, 12 percent are not overfished, and there is another 87 percent whose status is unknown. We at NOAA Fisheries are working to rebuild fish stocks to levels that could sustain fisheries of greater economic value. From a national perspective, scientists estimate that we could increase U.S. fishery landings up to 6.8 billion pounds by rebuilding all fisheries and maintaining harvests at optimal yields.

The Magnuson-Stevens Act provides the national framework for conserving and managing the wealth of fishery resources found within the 197-mile-wide zone of Federal waters contiguous to the United States (except for the coastal waters for Texas and the Gulf of Mexico coast of Florida where state waters extend out to 9 nautical miles). In 1996, Congress ushered in a new era in fisheries management, making significant revisions to the Magnuson-Stevens Act in the Sustainable Fisheries Act (SFA). The SFA addresses a number of conservation issues. First, to prevent overfishing and rebuild depleted fisheries, the SFA caps fishery harvests at the maximum sustainable level and requires fishery management plans to rebuild any overfished fishery. NOAA Fisheries now reports annually on the health of marine fisheries and identifies fisheries that are overfished or approaching an overfished condition. Second, the SFA refocused fisheries management by emphasizing the need to protect fisheries habitat. To enhance this goal, the SFA requires that management plans identify habitat that is necessary to fish for spawning, breeding, feeding, or growth to maturity. The new law also clarifies our existing authority to comment on Federal actions that affect essential fish habitat. Third, to reduce bycatch and waste, the SFA adds a new national standard requiring that conservation and management measures minimize bycatch and the mortality of bycatch that cannot be avoided. It also calls for management plans to assess bycatch and to take steps to reduce it.

The most immediate and direct effect of any commercial or recreational fishery management regulation is on fishermen, their families and communities. To address this concern, the SFA establishes a new national standard 8 that requires, consistent with conservation objectives, that fishery management plans provide for the sustained participation of fishing communities and minimize adverse impacts to the extent practicable. In addition, a national standard has been added to promote the safety of human life at sea. Finally, the SFA provides a number of new tools for addressing problems relating to the transition to sustainable fisheries, including amendments to provide for fisheries disaster relief, fishing capacity reduction programs, vessel financing, and grants and other financial assistance.

NOAA Fisheries takes seriously its mandates under the SFA. We are working to ensure that SFA requirements are implemented, and that conservation and management measures fully protect the resource and provide for the needs of fishing communities and the Nation. A great deal of work remains to be done. We are laying a solid foundation for future fisheries management. The benefits of the changes made by Congress in 1996, however, will take years, perhaps decades, to realize. In addition, the management decisions that we face are becoming ever more complex and contentious, and good solutions are hard to come by. We need to direct resources and effort to the scientific and technical aspects of our work. We also must build consensus with the public and among various stakeholders to facilitate progress in developing management programs that will move us toward the goal of healthy and sustainable marine resources.

The SFA imposed a deadline of October 11, 1998, for amendments to each of the 39 existing fishery management plans to implement its changes. Despite the Councils' best efforts, there were some proposed amendments that did not satisfy the requirements, for which the analyses were inadequate, or that did not minimize socioeconomic or environmental impacts to the extent possible and achieve management objectives. NOAA Fisheries disapproved or partially approved those amendments and is working closely with the Councils to improve them, particularly in the areas of improving our social and economic analyses, rebuilding overfished stocks, minimizing bycatch, identifying and protecting fish habitat, and improving the scientific basis for management. I will outline some of the work we are doing in each of these areas:

Social and Economic Analyses: One of NOAA Fisheries' highest priorities is to improve our social and economic analyses. These analyses are required by a number of laws in addition to the Magnuson-Stevens Act, including the Regulatory Flexibility Act, the National Environmental Policy Act (NEPA), and Executive Order 12866. The requirement of the Magnuson-Stevens Act to include a fishery impact statement, and the new standard on fishing communities, also make clear our mandate to consider the social and economic impacts of any management program. This consistently has been an important part of the decision-making process and has affected our choice of fisheries conservation and management actions. For instance, when we implemented a full retention requirement for pollock and Pacific cod in 1998, we delayed the effectiveness of a similar requirement for flatfish until 2003 to allow development of new markets and gear technology that could minimize the costs of this requirement.

To strengthen our social and economic analysis capabilities, we are issuing revised Regulatory Flexibility Act guidelines to our employees, hiring more economists, sociologists, and anthropologists, and working with other Federal agencies and states to improve our data collection. As a result, economic, social, and biological considerations will be better integrated to assist fisheries managers in making the best possible decisions to balance conservation, the fishing industry, and community needs.

Rebuilding Overfished Stocks: I would like to point out the remarkable success that has been achieved in preventing overfishing of most of the important commercial stocks in the North Pacific. The conservative and scientifically based TACs that have been used in recent years have contributed significantly to the continued production of groundfish stocks. With the exception of the crab species I previously mentioned, fisheries management by the State of Alaska under the crab, scallop, and salmon FMPs also has prevented these species from becoming overfished. Rebuilding plans are being developed for the three species of crab in the BSAI that have been found to be overfished. Relative to fishery stocks in other regions: however, those in the BSAI and the GOA have enjoyed sustained yields due to the scientifically based stock assessments by the Alaska Fisheries Science Center and the conservation and management measures recommended by the Council. On the subject of buybacks, regulations have been prepared and are under Department of Commerce and Office of Management and Budget (OMB) review. We expect that an interim final rule will be published shortly, and that public comment on an additional referendum will be solicited. We can operate under the interim final rule once OMB has cleared the regulation.

Minimizing Bycatch: Minimizing bycatch continues to be a very high priority for NOAA Fisheries in Alaska. Despite low bycatch rates in the groundfish fisheries, relative to similar fisheries around the world, the large volume of these fisheries produces a large poundage of bycatch. Existing prohibited species catch limits and closed areas in the groundfish fisheries, however, effectively move fisheries out of areas of high bycatch of non-groundfish species. Improvements in bycatch control can still be made. We have been working closely with the Council and industry to make steady progress on reducing bycatch and discards. In December, we published a proposed plan amendment that would establish a framework to reduce the annual trawl bycatch limit for chinook salmon. Also in December, we published another proposed plan amendment that would prohibit non-pelagic trawling in a directed pollock fishery. Other potential bycatch reduction actions we are working on with the Council include development of a halibut mortality avoidance program. In 1998, we approved and implemented a full retention requirement for pollock and Pacific cod, which will be extended to rock sole and yellowfin sole in the BSAI and shallow water flatfish in the GOA in 2003. Biodegradable panels are required for pot gear to minimize the unseen bycatch of lost or so-called ghost fishing gear.

Industry cooperation has been critical in reducing bycatch. We have issued a number of experimental fishing permits, and are working with various industry groups, including the Groundfish Forum, to study new bycatch reduction methods and gear. In addition, the IFQ and CDQ programs and fishing co-operatives are contributing to bycatch reduction. Although minimizing bycatch was not their primary purpose, by slowing the pace of fishing under these regimes, they have allowed for more selective fishing practices that reduce the capture of unwanted species, increase the recovery rate and product quality of the targeted species, and provide for significant reductions in the amount of fishing gear used and lost. Care in the deployment of fishing gear is particularly prevalent in the CDQ fisheries in which most all bycatch of non-target species is counted against a specified CDQ allocation. This induces CDQ fishermen to focus on maximizing the value of all species harvested instead of maximizing the volume harvested of any one species as in non-CDQ fisheries.

Essential Fish Habitat (EFH): The SFA substantially increased the emphasis in the Magnuson-Stevens Act of conserving and enhancing fisheries habitat. Off Alaska, we have a long history with the Council in protecting important areas of bottom habitat. The productivity of the sea floor habitat has long been recognized as an essential component of an ecosystem-based fishery management regime and regulations have been implemented to protect specific areas of important sea floor habitat. Large areas of the North Pacific have been closed to groundfish trawling and scallop dredging to reduce impacts of these fisheries on bottom habitat and protect juvenile crabs. In the BSAI, habitat area closures encompass about 30,000 square nautical miles, more than twice the area of Georges Bank off the East Coast of the United States. The GOA closures encompass an additional 47,000 square nautical miles, but most of this area is off the continental shelf. In addition, the Council has proposed, and we are reviewing, an additional closure of about three square miles around the Cape Edgecumbe pinnacles in the southeastern GOA off Sitka. If approved, this action would prohibit all fishing activities in this area that is recognized as habitat particularly important for the spawning, breeding and growth of a variety of commercially important fish species. An additional closure to trawling in Cook Inlet also is under consideration.

To address non-fishing activities, NOAA Fisheries has conducted close to 2,500 consultations to date with Federal agencies whose actions may adversely affect EFH, including about 500 in Alaska. These reviews have been accomplished largely by integrating EFH consultations into existing environmental review processes as a way to minimize regulatory impacts on Federal action agencies and the public. We expect the number of consultations to increase as outreach efforts with Federal agencies continue to build awareness of the EFH statutory requirements. However, it is important to remember that even prior to the designation of EFH, most Federal actions affecting the habitat of marine and anadromous species were subject to review by NOAA Fisheries under other legal authorities. EFH has provided more emphasis and structure to these reviews, and we are working closely with affected agencies and industries to ensure the EFH consultation process is efficiently implemented. For example, in Alaska, we have reached agreement with the Corps of Engineers to combine EFH consultations with the existing permitting process for dredge and fill activities, and we are beginning discussions with the U.S. Forest Service to build EFH consultations into their environmental analyses under the National Environmental Policy Act.

Improving Scientific Information: NOAA Fisheries is committed to using the best possible science in the decision-making process, and to incorporating biological, social, and economic research findings into fisheries conservation and management measures. Meeting our responsibilities under the Magnuson-Stevens Act and other applicable laws requires collecting a considerable amount of data. In the Alaska Region, NOAA Fisheries is continuing to augment a wide range of data collection activities. The frequency of groundfish surveys in the BSAI and GOA is being increased to improve monitoring and prediction of commercial stock status and distribution. The first new Fisheries Research Vessel is planned for deployment to Alaska. Coordination and cooperation with industry, academia and State agencies in a wide range of fishery-marine mammal interaction research is being expanded and pilot research on the impacts of fishing is underway in the BSAI and GOA. The North Pacific Groundfish Observer Program is continuing to work with industry and the Council to improve the quality and timeliness of the data it collects. Notwithstanding these exciting developments, we will continue to support a precautionary approach in the face of scientific uncertainty.

Magnuson-Stevens Act Reauthorization Issues

We are still working to understand and effectively implement the changes to fishery management policies and procedures made by the SFA. Consequently, we would not propose major changes to the Magnuson-Stevens Act at this time. However, we have identified some revisions of existing provisions that may be useful to make the management process more efficient and to resolve some relatively minor problems. We currently are reviewing various issues raised by the task force, the Councils, and some of our stakeholders. Among the issues identified are the following:

Review process for fishery management plans, amendments and regulations: The SFA attempted to simplify and tighten the approval process for management plans and regulations. However, one result of that effort has been two distinct review and implementation processes -- one for plans and amendments and another for implementing regulations. This essentially uncouples the review of plans and amendments from the process for regulations, and as a result, the decision to approve or disapprove a plan or amendment may be necessary before the end of the public comment period on the implementing regulations. We are considering amendments that would modify the process to address this issue.

In addition, the Committee may wish to consider reinstating the initial review of fishery management plans and amendments by the Secretary. Considerable energy and staff resources are expended on plans or amendments that are ultimately disapproved because of serious omissions and other problems. At present, two to three months must elapse before the Secretary makes his determination, and if the amendment is then disapproved, it can be months or longer before the Council can modify and resubmit the plan or amendment. While the initial review was eliminated by the SFA to shorten the review process, reinstating Secretarial review may actually provide a mechanism to shorten the time it takes to get a plan or amendment approved and implemented.

Restrictions on data collection and confidentiality: The Magnuson-Stevens Act currently restricts the collection of economic data from processors. Removal of this restriction could improve the quantity and quality of information available to meet the requirements of the laws requiring social and economic analysis. In addition, the SFA changed the term "statistics" to "information" in the provisions dealing with data confidentiality. The change has raised questions about the intended application of those provisions, particularly with respect to observer information, and Congressional clarification would be useful.

Coral reef protection: Special management areas, including those designated to protect coral reefs, hard bottoms, and precious corals, are important commercial resources and valuable habitats for many species. Currently, the federal government has the authority to regulate anchoring and other activities of fishing vessels that affect fish habitat. However, we remain concerned with threats to those resources from non-fishing vessels. We intend to work with other federal agencies to suggest amendments to the Act to clarify, consolidate, and strengthen the federal government's authority to regulate the actions of any recreational or commercial vessel that is directly impacting resources being managed under the Magnuson-Stevens Act.

Caribbean Council jurisdiction: The current description of the Caribbean Council limits its jurisdiction to Federal waters off Puerto Rico and the U.S. Virgin Islands. As a result, the Council cannot develop fishery management plans governing fishing in Federal waters around Navassa Island or any other U.S. possession in the Caribbean. Jurisdiction of the Caribbean
Council could be expanded to cover Navassa Island, by including "commonwealths, territories, and possessions of the United States" within the description of that Council's authority.

Council meeting notification: To meet the notification requirements of the Magnuson-Stevens Act, Councils spend tens of thousands of dollars a year to publish meeting notices in local newspapers in major and/or affected fishing ports in the region. By contrast, fax networks, mailings, public service announcements, and notices included with marine weather forecasts are much less expensive and could be more effective in reaching fishery participants and stakeholders. The Committee may wish to consider modifying notification requirements to allow Council use of any means that will result in wide publicity.

We look forward to working with Congressional members on high-priority policy issues such as observer programs, individual fishing quotas, and funding and fee authorities, although, at this time, we have no specific recommendations for changes in the Magnuson-Stevens Act to address these issues. We will continue to work closely with the Alaska delegation, the Council and our various stakeholders to resolve problems affecting Alaska fisheries.

Madame Chair, this concludes my testimony. Thank you for the opportunity to discuss the implementation and reauthorization of the Magnuson-Stevens Act. I am prepared to respond to any questions you and members of the audience may have.