Congressman Barney Frank - Representing the 4th District of Massachusetts

Congressman Barney Frank is backing a bipartisan bill that calls for more flexible timelines for restoration of depleted fisheries, in order to help prevent unnecessary financial harm to fishermen and fishing communities while still achieving rebuilding goals.

The legislation, to be introduced in the House of Representatives tomorrow by U.S. Rep. Frank Pallone (D-NJ), is cosponsored by Rep. Frank and Reps. Walter Jones (R-NC); Henry Brown, Jr. (R-SC); Patrick Kennedy (D-RI); Frank LoBiondo (R-NJ); and Robert Andrews (D-NJ). The bill would authorize an extension of the rebuilding timeframe beyond the current law’s general10-year period, in certain cases, utilizing a formula based on the biology of the affected fish, and without compromising the overall rebuilding goal. Rep. Jones introduced similar legislation last year, also cosponsored by Frank.

“I am glad to join with Congressman Pallone and our colleagues in pushing for these valuable reforms,” Frank said. “Current law imposes a 10-year strait jacket on the rebuilding process, insisting on the same amount of time in virtually every case, even though in some situations several extra years would accomplish the same rebuilding goal without endangering the economic viability of fishing communities. In my view we can promote healthy fisheries and healthy fishing communities at the same time, and this bill will help us move in that direction.”

“When Congress debated amendments to the Magnuson-Stevens Fishery Act in recent years,” Frank added, “I proposed several rebuilding flexibility expansions, including a provision to allow extra time when the rebuilding targets are increased during a previously implemented 10-year period, something that occurred in New England in 2001. Unfortunately, the flexibility provisions I sought were not included in the final version of the Magnuson bill passed in late 2006.”

“Now, we are seeing some positive signs on this issue,” Frank said. “After Congressman Jones’s bill was introduced last year, the House fisheries subcommittee, at the request of Congressman Pallone, held a hearing on this set of issues. I was pleased to have the opportunity to testify at that hearing, and I am encouraged that we now have a second bill, with its author – Mr. Pallone – a member of the subcommittee, something that will give it a better chance of moving forward. I will continue doing all I can to work with him and the other sponsors of the bill to push for passage of legislation that gives federal fishery managers the flexibility they need to protect fish and fishing communities.”

The 10-year rebuilding period required under existing law can be extended in three situations: if the biology of the fish species (usually because of a long reproductive cycle); environmental conditions; or an international agreement between the U.S. and other countries dictate a longer timetable. The new legislation would add the following additional exceptions:

* When a substantial change is made to rebuilding targets once the rebuilding period has begun.

* For one or more fish stocks in a multi-species fishery, provided there is evidence that the stocks are on a positive rebuilding trend.

* To provide for the sustained participation of fishing communities or to minimize the economic impacts on fishing communities, with evidence that the stock remains on a positive rebuilding trend.

* When the cause of the fishery decline is outside the jurisdiction of the Fishery Management Councils, or when the rebuilding program cannot be effective only by limiting fishing activities.

* When the rebuilding targets exceed the highest abundance of the stock of fish in the previous 25 years, and there is evidence of a positive rebuilding trend.

The bill requires the federal government, in evaluating progress on rebuilding depleted fisheries to take into account such non-fishing factors as commercial, residential and economic development, along with agricultural activity in the relevant coastal areas, as well as the extent to which rebuilding fish prey upon each other. In addition, the bill includes a formula for calculating rebuilding periods beyond 10 years, tied to the reproductive cycle of the fish and the condition of the fishery.

Frank and several of the bill’s sponsors will send the attached letter to their House colleagues tomorrow inviting them to cosponsor the bill. Frank’s December 5, 2007 testimony before the Subcommittee on Fisheries, Wildlife and Oceans is also attached.

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February 12, 2008

REBUILD FISHERIES AND PROTECT FISHERMEN

CO-SPONSOR the Flexibility in Rebuilding American Fisheries Act of 2008

Current cosponsors: Rep. Barney Frank (D-MA), Walter Jones (R-NC), Henry Brown, Jr. (R-SC) Rep. Patrick Kennedy (D-RI), Frank LoBiondo (R-NJ), Robert Andrews (D-NJ)

Dear Colleague:

We believe fishery laws should be designed to promote both healthy fisheries and healthy fishing communities. Unfortunately, current law can sometimes impose unduly strict timelines for rebuilding depleted fisheries. We have introduced legislation to provide a measure of flexibility in the rebuilding periods in order to help keep fishing communities economically viable, without compromising the ultimate rebuilding goal, and we invite you to join our effort as a cosponsor.

Under the new Magnuson-Stevens Fishery Management Act – passed by Congress in 2006 -- when a fishery is identified as overfished, a Regional Fishery Management Council has two years to implement a plan to end overfishing, and, with limited exceptions, to rebuild the stock within 10 years. The 10-year rebuilding requirement has three exceptions, based on the biology of the fish, environmental conditions, or an agreement between the U.S. and other nations. Other than those three situations, all overfished fisheries must achieve rebuilt status within 10 years.

The problem is the 10-year deadline is arbitrary, may have no basis in science, may require stocks to be rebuilt to unprecedented levels, and must be met without regard to the impact it will have on recreational and commercial fishermen, related industries, and the communities whose economic future depends on harvesting the fish.

We need flexibility so rebuilding can be completed on a responsible timeline that allows stocks to recover without making fishermen extinct. Specifically, with all overfishing now required to end in two years, adding a few years to a 10-year period in order to allow a more gradual glidepath to rebuilding will help communities without hurting fish.

That is why we have introduced the Flexibility in Rebuilding American Fisheries Act of 2008. The bill would do nothing to change the existing mandate that overfishing be ended within two years. However, it would allow fisheries managers to extend the 10-year rebuilding period for a species if certain common-sense conditions apply. Importantly, this extension authority would not be open ended – it would generally be limited according to a formula that takes into account the reproductive cycle of the fish, and the condition of the fishery.

The exceptions include:

I. If the biology of the stock of fish, other environmental conditions, or management measures under an international agreement in which the United States participates dictate otherwise (these three are in existing law).

II. If the Secretary of Commerce determines that such 10-year period should be extended because the cause of the fishery decline is outside the jurisdiction of the Council or the rebuilding program cannot be effective only by limiting fishing activities.

III. If the Secretary of Commerce determines that such 10-year period should be extended to provide for the sustained participation of fishing communities or to minimize the economic impacts on such communities, provided that there is evidence that the stock of fish is on a positive rebuilding trend.

IV. If the Secretary of Commerce determines that such 10-year period should be extended for one or more stocks of fish of a multi-species fishery, provided that there is evidence that those stocks are on a positive rebuilding trend.

V. If the Secretary of Commerce determines that such 10-year period should be extended because of a substantial change to the biomass rebuilding target for the stock of fish concerned after the rebuilding plan has taken effect.

VI. If the Secretary of Commerce determines that such 10-year period should be extended because the biomass rebuilding target exceeds the highest abundance of the stock of fish in the 25 year period preceding and there is evidence that the stock is on a positive rebuilding trend.

The bill would also strengthen the biomass stock assessments mandated in the Magnuson-Stevens Act. Specifically, the National Oceanic and Atmospheric Administration (NOAA) would have to review factors that may contribute to the overfished status of a stock, such as commercial, residential, and industrial development of, or agricultural activity in, coastal areas and their impact on the marine environment, predator/prey relationships of target and related species, and other environmental and ecological changes to the marine conditions.

DECEMBER 5, 2007

TESTIMONY OF CONGRESSMAN BARNEY FRANK

SUBCOMMITTEE ON FISHERIES, WILDLIFE AND OCEANS

"REBUILDING OVERFISHED FISHERIES UNDER

THE MAGNUSON-STEVENS FISHERY MANAGEMENT ACT"

Thank you, Chairwoman Bordallo, for giving me the opportunity to testify today.

As the Representative of New Bedford, Massachusetts, the most productive U.S. fishing port for the last 7 years, I do what I can to support a wide range of hard working people involved in the fishing industry. The general opinion expressed by almost all of them – which I share -- is that we can promote healthy fisheries and healthy fishing communities at the same time, but that in some areas federal law makes it unnecessarily difficult to achieve both goals simultaneously. The current law relating to fishery rebuilding timeframes is a prime example.

While I want to focus primarily on that issue, I am also pleased to note that I recently received a letter from out-going NMFS Administrator Hogarth, in which he makes two particularly important points that are relevant to today’s hearing. First he states that it is NMFS’s interpretation that under the new law’s Allowable Catch Limit provisions (ACL), it is not necessary to deduct “overages” from the following year’s fishing allocations. And, while the Science and Statistical Committees will have a key role in setting the ACLs, he states that the Regional Fishery Management Councils will still retain the authority – subject to NMFS approval – of determining the best approach for ensuring that a given fishery stays within the ACL targets. I look forward to working with NMFS, including Dr. Hogarth’s as yet unnamed successor, along with members of this subcommittee, in seeing that the relevant guidelines and regulations reflect these interpretations. I am attaching as part of my testimony, a copy of the letter from Dr. Hogarth, and the letter, signed by myself and our colleague Rep. John Tierney, to which Dr. Hogarth was responding.

The Magnuson-Stevens Act sets the basic rebuilding timeframe at 10 years, and includes several exceptions to this standard rebuilding period: when the biology of the relevant stock of fish; other environmental conditions; or an international agreement in which the U.S. participates dictate otherwise. This notion of a standard rebuilding timeline, with exceptions for circumstances that fall outside the norm, makes sense, but only if other exceptions beyond the 3 already in the law are also included. If rebuilding weakened stocks can be achieved in, for example, 13 years instead of 10, the positive impact on fish stocks will ultimately be the same. But, because the rebuilding targets will be reached on a more gradual glide path, with less severe reductions in fishing, the negative economic burden on affected fishing communities will also be less severe. Magnuson-Stevens requires the economic conditions of fishing communities to be taken into account as fishery management plans are developed, but if rebuilding plans have unnecessarily strict timelines, this economic component of the law can be compromised.

Providing more flexibility can help keep jobs in fishing communities (for fishermen, but also for those who support the industry in other ways), while rebuilding takes place. Once rebuilding is complete, the experienced fishermen and the economic infrastructure needed to keep the industry healthy will still be there. Contrast that idea with a "tough love" approach of deep cuts in order to meet a shorter deadline which doesn't take into account the individual conditions in a fishery or fishing community. If this path is followed, more people are likely to leave the industry entirely, leaving a much smaller group with the financial resources to survive the restrictions and remain in business. In the New Bedford area, where many groundfish jobs have been lost in recent years, more restrictions on fishing may be imposed in the coming years, and without added flexibility in the rebuilding requirements, further economic harm to the area is likely.

This is why I have supported legislation in recent years to add some additional rebuilding flexibility exceptions to the current law. In the current 110th Congress, I am cosponsoring H.R. 4087, introduced by my colleague Rep. Walter Jones of North Carolina (who I am pleased to join today in testifying). The bill would allow rebuilding periods in excess of 10 years in the following additional circumstances: 1) when a rebuilding program cannot be effective only by limiting fishing activity; 2) in order to minimize the economic impact on fishing communities; 3) for one or more fish stocks in a multi-species fishery; or 4) when there has been a substantial change to a biomass rebuilding target after the rebuilding target has begun. Of particular importance, the bill also specifically requires that for exceptions 2 – 4, the number of years beyond the standard 10-year period would be limited, according to a formula taking into account the biology of the species. In addition, exceptions 2 and 3 could only be applied if there is evidence that the relevant fish stock is already on a positive rebuilding trajectory.

These exceptions fall outside the norm, as addressed by the standard 10-year rebuilding period, but they make sense. If a few extra years would impose a less harsh economic burden on affected communities while still achieving the relevant targets, that is a reasonable way of helping to preserve local economies. If it is impractical for all stocks in a given multi-species fishery (because of natural biological fluctuations, predation, etc.) to reach their targets at the same time, an extension of the timeline for a few of the fish would be rational. In New England, the multi-species nature of the groundfish fishery has created situations in which species that have not rebuilt as rapidly as expected – like yellowtail flounder – have prevented other, more fully rebuilt fish from being caught at higher levels. And, if higher targets would make rebuilding impossible without economically harsh restrictions on fishing, why not avoid the 10-year straitjacket and offer some added flexibility?

I first became involved in this aspect of fishery law in 2002 when federal scientists increased the biomass targets for rebuilding a number of New England groundfish stocks – some by more than double the original figure, perhaps to levels not previously seen – after a 10-year rebuilding plan had already commenced. At that time, it was evident to most observers that, in order to achieve the new targets within the same 10-year period, it would be necessary to reduce fishing levels to a degree that would have seriously eroded the economic base of fishing ports along the New England coastline, including the Greater New Bedford area. To reach the new targets even within a full 10-year period would have involved great economic sacrifice for the fishing industry, but to do so in a shorter period, despite the fact that the targets set in the original rebuilding plan were apparently being met, would have required truly draconian cuts in fishing.

At that point, several of my colleagues and I urged the National Marine Fisheries Service to add more time to the existing rebuilding period. When we were told that the law did not allow an extension beyond 10 years for cases in which the biomass targets were increased after rebuilding had begun, we began efforts to change the law. In 2002 we reached preliminary agreement with several members of the Resources Committee to include language in the Magnuson-Stevens Reauthorization bill that was then pending to allow more time for rebuilding in cases of substantially increased biomass targets. This language included two important caveats: any extension would be limited to no more than twice the original rebuilding period, and rebuilding would have to be projected to continue and be completed by the end of the longer period.

Though the Magnuson-Stevens reauthorization bill did not advance to the House floor in that Congress, NMFS ultimately did agree to allow additional time for rebuilding in the New England groundfish fishery. This was accomplished by means of "re-starting" the rebuilding clock. While this approach is not explicitly authorized in the law, the agency evidently possessed the legal authority to take this step, as it was not questioned by the Secretary of Commerce or challenged in court. Perhaps a restarting of the clock following a significant biomass target increase would fall within the current law's exception relating to "the biology of the stock of fish." However, I believe this point should be made explicit in Magnuson-Stevens regulations or guidelines, especially in light of the fact that the recently enacted reauthorization bill specifically states that nothing in its rebuilding flexibility provisions relating only to summer flounder should be construed to "limit or otherwise alter the authority of the Secretary…concerning other species." In other words, if NMFS already possesses rebuilding flexibility authority in the case of biomass increases, that should be made clear in regulations. On the other hand, because this situation is not directly addressed in the statute, it would also make sense to clarify this authority legislatively, which Mr. Jones's bill would do.

I would note that the approach in the 2002 agreement mentioned above became the model for other rebuilding flexibility proposals in subsequent years. In the 109th Congress I introduced legislation (H.R. 4940) that called for three additional exceptions to the standard 10-year rebuilding period, and there were several exceptions included in a separate bill I cosponsored (H.R. 5018 -- legislation reported by the Resources Committee, that helped form the basis for the eventual Magnuson-Stevens reauthorization bill passed last December). All of the exceptions in H.R. 4940 were time-limited and required continued rebuilding. Although this was not true initially in H.R. 5018, an amendment to strike the rebuilding flexibility provisions from the bill was defeated by a narrow margin during the Resources Committee markup. In any case, as negotiations on Magnuson-Stevens continued late into 2006, there was general agreement among those participating in the discussions that it would be necessary to include limitations on additional rebuilding period exceptions in the final legislation. Ultimately, as the negotiations were completed in the "lame duck" session following the elections, additional rebuilding flexibility language was removed from the bill, with the exception of the narrow provision applying only to summer flounder.

When the House passed the Magnuson reauthorization bill in December, I noted in my remarks on the House floor my objection to providing flexibility only for summer flounder, because I believed that it was wrong to single out one type of fish, when others also needed or would need rebuilding flexibility. Although we only passed the Magnuson reauthorization bill about a year ago, and most of the key regulations are not yet complete, I strongly believe we need to give serious consideration to modifying that bill’s rebuilding flexibility language, and I urge the members of the subcommittee to move forward on this issue.

Again, Madam Chair, I appreciate having the chance to appear today before the subcommittee, and I look forward to continuing to discuss these important matters with you and your colleagues.

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