 Welcome back. Now we're going to start having some fun. And we're going to kick things off with a really esteemed group of panelists this morning. I'm going to introduce them both all just very briefly. Their full bios are in your program. Two-minute warning because we do want to allow plenty of time for Q&A at the end, which has been budgeted into our agenda. So first up on this panel, we have our moderator, Chair Goldstein to my left. He's a professor here at Roger Williams School of Law. He's worked in the past as an associate at Sherman and Sterling in Washington, D.C. He's done a lot of work on behalf of Guantanamo detainees. Also served as an attorney for the Department of Justice in the appellate section of the Environmental Natural Resources Division. He teaches constitutional law and environmental law and most importantly marine law topics here at the law school. And even more important, he's a valuable member of my advisory board. Next to his left we have Elden Greenberg, senior counsel at Garvey-Schubert-Barre, former general counsel at NOAA and has an extensive practice on behalf of natural resource clients specializing in fisheries matters. Next to him, Peter Shelley, the vice president and director of the Conservation Law Foundation's Massachusetts Advocacy Center. Before his time there, he served for five years as assistant attorney general for the Pennsylvania Department of Environmental Resources. He has his bachelors from Hobart College and his J.D. from Suffolk University School of Law. Next to him, Gene Martin from the office of NOAA's general counsel. He's been an attorney there for over 23 years and legal counsel to the New England Fishery Management Council and the sustainable fisheries division of NIMS in the Northeast region regarding fisheries issues that come up under the Magnuson-Stevens Act. I usually see Gene at Fisheries Management Council sitting up there going, oh no, no. So it's nice to be able to offer him an opportunity. Actually all of us who follow fisheries in any way an opportunity to be in a setting like this rather than a council meeting. It's a little different here. Gene has his jurist doctor from Brigham Young University Law School and his master's in marine policy from the University of Delaware. Next to him, Josh Eagle, Associate Professor of Law at the University of South Carolina School of Law where he teaches property, environmental and natural resources law, including fishery management and endangered species. Currently he's focusing on, guess what, ocean zoning, re-protected areas and improving public participation and resource decision making, all very important issues. Prior to joining the faculty at South Carolina in 2004, he was the director of the Stanford Fisheries Policy Project. He also has experience as a trial attorney for the United States Department of Justice in D.C., also in the policy office of the National Audemars Society. He graduated from John Hopkins University with his bachelor's degree, Colorado State University with a master's in Forest Sciences and Georgetown University Law Center. And over to his left, batting cleanup, Mike Conathon, who's a staffer for the U.S. Senate Committee on Commerce Science and Transportation Subcommittee on Oceans, Atmosphere, Fisheries and Coast Guards. Your titles are just way too long in Congress. Can you work on that this next session? As you heard, Mike has done a lot of work with Senator Olympia Snow, the subcommittees ranking member, and the full committees ranking member, Kay Bailey Hutchison. He's been there for nearly five years serving first as a Canouse Fellow. Yes, it says Sea Grant Fellow in our program, but Canouse Fellow and a lot of our students and alumni that means in 2006 and has been with him full time since February 2007. Canouse Fellowships turn into really cool jobs, current students, so keep that in mind. Before that, Mike got his master's in Marine Affairs from, guess where? The University of Rhode Island. So we're happy to bring Mike back up here. He has his bachelor's in English Literature from Georgetown University. He's also an alum of the Williams College of Mystic Seaport Maritime Studies program, and grew up in Cape Cod. So I'm going to turn it over to Elden Greenberg first and away we go. Thank you very much, Susan. It's a pleasure to be here today to talk about the evolution of the Magnus and Stevens Act. It was a little daunting as I was preparing for my presentation this morning to realize that I was actually around when the Magnus and Stevens Act was enacted in 1976 and it had lived through all the amendments since. But I'll try not to tell too many boring war stories about the history of the act and instead focus on substance. Over the past 35 years the Magnus and Stevens Act has been amended on numerous occasions. I like to say that it demonstrates that members of Congress are optimists. It's the triumph of hope over experience that you can actually get things better each time you try to fiddle with the Magnus and Stevens Act and it's apparent from all the amendments that we've never achieved a true optimum setting for this act despite the fact that National Standard Number One calls for the achievement of optimum yield. The evolution of the act has comprised five stages that I'm going to talk about this morning. The first period 1974 to 1976 that's the heroic era, I'll talk about that. Then in 1978 and 1980 there was a focus on Americanizing U.S. Fisheries and promoting the development of the fisheries particularly in Alaska and New England. The decade of the 80s was a decade of consolidation and what I call tinkering at the edges. In 1990 there were a comprehensive set of amendments which really related back to what was going on in 1974 and 1976 a reconsideration of American fisheries management in the context of global fisheries management. And then finally the recent era, the amendments in 1996 and 2007 which I roughly characterize as representing the rise of environmentalism in fishery management. The trajectory of the act has been from relative simplicity. If you take the act as enacted in 1976 it was about 30 pages long. It was relatively manageable, you could get through it in a relatively short read. As I counted up the pages in my Magnus and Stevens Act book from 2007 the act is now 170 pages long. It's gotten enormously complex and that of course is daunting for all of us who practice in the area. And the most important element of the trajectory that I see is really an evolution from a focus particularly on promotion of the US fisheries in the early years of the act to an increasing attention to the need to conserve the fishery resource. And that's marked particularly by the amendments in 1996 and 2007. So let me turn first to the heroic era. Many of us regard the Magnus and Stevens Act today as an environmental statute about protecting and conserving the fishery resources under US jurisdiction. But I think it's fair to say that that was not the focus of the act in 1976. In 1976 what concerned Congress primarily was the jurisdictional issue. Whether a 200 mile fishery conservation zone which we now call the exclusive economic zone was justified under international law. And if you pull out the history of the act and I see that we've got that thick orange volume sitting in front of Jean Martin, that's the 1976 legislative history which I recognized. You'll see that the debate was about whether or not it was proper under international law for the United States to assert jurisdiction over resources within 200 miles of our coast. And the primary goal of the legislation in that era was what I referred to as kicking the foreigners out. And that came especially from the fishing industry here in New England and from the fishing industry in Alaska. It was fierce in addition to the legislation from the defense and state departments and from many elements of the US fishing industry such as the tuna fisherman who were exempted originally from jurisdiction of the act in 1976 and the shrimp fisherman who ultimately lost their productive fishing grounds in the Caribbean as a result of the extension of 200 mile fishery jurisdiction zones throughout the western hemisphere. Domestic management during that debate was something of an afterthought. I talked to my brother-in-law, Bob Walsh, who worked for the Senate Commerce Committee at the time, and I asked him about this and he said, well, you know, we just had to put in something on domestic management because the non-coastal senators and representatives felt there had to be some quid pro quo for asserting jurisdiction over the fishery resources. Jacob Deistra who hailed from Point Judith Rhode Island, not far from here, who was one of the major proponents of the act, was shocked when Bob Walsh said, well, we're going to have to have some management measures put in place to govern US fisheries. Jake didn't think that the Magnuson-Steamins Act, or it was then called the Fishery Conservation and Management Act, should have much to do with management. It was basically about just allowing the US to exploit the resource without having to deal with those pesky eastern Europeans and Russians who were vacuuming the fisheries off our shores. Still, it's fair to say that the council system that was set up in 1976 and which is still the system that we have is a major regulatory innovation. And the system of national standards regionally applied, which is the system that we still have today, was devised at that time. I talked to Bud a little bit about the national standards. Bud told me that he wrote the national standards on the back of an envelope over the weekend during the debate. We then had seven national standards. They've actually held up pretty well, but it's also probably fair to say that because they were written quickly and because they were meant to appeal to a number of different constituencies, they represent something of a hodgepodge and they certainly are not internally consistent. And sometimes it's hard to tell what the priority should be for management under the Magnus and Stevens Act, more about that later. The environmental community played almost no role in 1976, except for seeking an extension to 200 miles of the Marine Mammal Protection Act. And I think most people saw the act in 1976 as an act that was about promotion of domestic fisheries in the United States. In fact, if you read one of the very first cases decided under the Magnus and Stevens Act, a case called Maine versus Kreps decided by the First Circuit in 1977, what the court says is well, the first priority of this act is food production. That's what it's about. At that time, I was in the private sector representing environmental organizations. I hate to admit that to my fishery clients today. I wrote a letter to Elliot Richardson who was then Secretary of Commerce. It was by one action under the Magnus and Stevens Act at the time and I said to Secretary Richardson, you really ought to consider appointing representatives of environmental organizations to fishery management councils and get this new system underway. I never got a response to that letter and I suspect it generated a lot of giggles in the Department of Commerce at the time because I don't think anybody thought that environmental organizations had much of a role to play in fishery management. Well, the next era, as I call it, was the era of achieving Americanization. These were amendments to the act in 1978 and 1980. And there was a recognition during this period that the mere assertion of jurisdiction was not enough to Americanize the fisheries. More needed to be done. So the First Amendment in 1978, which was called the Processor of Preference Amendment, responded to the emerging phenomenon of joint ventures. These were ventures under which American fishermen would go out and fish, but there were no onshore processors to process the fish. So they would enter into agreements with foreign floating fish processing operations from Japan or the Soviet Union or from Poland. And the fish would be processed at sea by these foreign operations. In 1978 the effort of Congress was to establish a priority for U.S. fish processors over foreign fish processors to help Americanize not only the harvesting sector of the fisheries, but also the processing sector. And then the second significant amendment was in 1980. This was called the American Fisheries Promotion Act. I think the title says it all. That's what Congress was concerned with in 1980, promoting U.S. fisheries. And in that set of amendments to the act, we institutionalized what was called the Fish and Chips Policy. That was a policy under which allocations to foreign countries of the right to harvest in the U.S. FCZ were dependent upon those foreign countries opening up their markets to U.S. fish products. The countries didn't open up their markets, reduce tariff and non-tariff barriers. They got lower allocations. When you look at that statute, you also see a lot of measures that are really dead letters today focused on development of the fisheries. A great deal of attention paid to research and development grants under what was called the Salt and Stall Kennedy Act to promote U.S. fisheries revisions to our Fishing Vessel Obligation Guarantee Program, which financed the building of fishing vessels. If you say today, what were we doing back then? Well, we were trying to get the fishery going, particularly in New York and then also in Alaska, and get it going in ways that it had not been able to when it had been suffering under the yoke of substantial foreign fishing operations in the U.S. E.E.Z. The next set of changes really took up what I would call the whole decade of the 1980s. There were major amendments in 1983 and 1986, and both of those sets of amendments grew out of a comprehensive oversight report prepared by the House Merchant Marine and Fisheries Committee, a committee which no longer exists, by the way. These were the first set of amendments that were really focused on the structure of regulation. We now had five, six, seven years of experience in managing the fisheries. The goal of Congress in 1983 and 1986 was to take a look at the management institutions that we had and see how they were working. Were they effective? Were they achieving the goals which Congress had? Did they need to be improved in some ways? So there was an overhaul of management institutions, modification of the process for developing and implementing management measures, great deal of attention to strengthening the enforcement powers of the federal government, which were relatively limited under the statute as it was enacted in 1976. None of these amendments had what I would characterize as an overarching theme to them. They really were literally tinkering at the edges deciding whether the Federal Advisory Committee Act should or should not apply to regional fishery management councils, looking to see whether there should be subpoena power in NOAA administrative enforcement hearings and the like. The one significant change I would mention, and this wasn't a change to the Magnuson-Stevens Act itself, was in 1976, in 1986, excuse me, where the amendments also included the Interjury Fisheries Act. And that was a recognition by Congress ten years after enactment of the statute that we needed to focus as well upon the management of coastal migratory species, which were within the jurisdiction of the states, and particularly within the jurisdiction of the three interstate fishery commissions, which had been established many years earlier by interstate compact. The 1986 amendments were intended to strengthen the management mechanisms that we had in place for these interjurisdictional fisheries, so that we could manage fishery resources such as striped bass, which were not generally found within the EEZ, and were found within the jurisdictions of several coastal states. Okay. The fourth phase, I would call rediscovering internationalism. These were 1990 amendments. And this was a return to the international focus that dominated the mid-1970s debate. It was a growing recognition that even with the Americanization of EEZ fisheries, effective management and conservation inevitably has an international component. So there was a focus on management of Pollock in the area outside of national jurisdiction in the Bering Sea, on the dangers of high seas drift gillnet fisheries, and on the need for the United States to assert jurisdiction over Tuna, but to do so in the context of international management measures. And finally, I come to the stage of amendments in 1996 and 2007, which I would characterize as the discovery by the environmental community of fishery management. The Sustainable Fisheries Act of 1996 grew out of several phenomena, one of which was the publication by NIMS of a report called Our Living Oceans in the early 1990s documenting overutilization of the resources. One was the crisis in New England fishery management. And one, which was either related or the result of these crises, was the formation of something called the Marine Fish Conservation Network, a coalition of environmental organizations whose objective was to reform the Magnus and Stevens Act to ensure a greater conservation focus. And if you look at the 1996 and 2007 amendments, what you see is that that focus becoming increasingly dominant. Focus of the 1996 amendments eliminating overfishing, rebuilding depleted fish stocks, adopting a precautionary approach to management, minimizing by-catch, protecting marine habitats through the establishment of what's called essential fish habitat. And I think basically that the 2007 amendments continued many of the same themes, ending overfishing, establishing firm deadlines for rebuilding, reducing by-catch, enhancing the role of science in fishery management decisions. And we're struggling with those issues now in the context of litigation over management of the New England ground fish fishery. We're also struggling with the other major development in 2007, which was the institution of a regime for cat shares in U.S. fisheries. So for the first time in 19-2007, the Magnus and Stevens Act incorporated a complex series of provisions providing mechanisms for establishing and implementing cat share programs. And I think in the amendment 16 litigation that is pending in District Court in Boston, we're going to see the first judicial interpretation of just how that cat share regime should or should not operate. I'll conclude simply by saying that I don't think a major overhaul is on the horizon at this point. I think there may be a reaction to what I characterize as the regime's tilt against efficiency in 1996 and 2007. And some are questioning whether the system of management that we have in place is becoming too rigid. We need to go back to a more flexible system. And we see this again in the controversy over amendment 16 here in New England with many arguing that amendment 16, which is the cat shares program in New England, results and the dissatisfaction with the operation of that management measure results from a system which is not flexible enough and is unable to take into account in an adequate way the needs of the fishermen and the needs of their community. So once again if we see changes in the immediate future I think you'll see New England playing a critical force in driving amendments to the Magnus and Stevens Act. Thank you. Good morning. Peter Shelley from Conservation Law Foundation and thank you Susan Jared for inviting me to participate in the steering committee and this conference. Let me get this clicker going here. Actually I think that Eldon's history was pretty good and pretty accurate. CLF may have been the first conservation group to use the Fishery Conservation and Management Act, which we did in 1978, but we used it to block oil and gas drilling in a NEPA case. We didn't get to Fishery Conservation as a prime focus of our litigation until 1989 and I'll get into that a little bit. I'm going to talk about the history of fishery management through the lens of one very big, very important and very complex fishery, the New England ground fish fishery. And again for those of you who don't know the phrase ground fish, it applies to the complex of cod, haddock, flounders, other bottom-dwelling fish that has been the mainstay of the New England fishery for over 400 years. And I think this will give you some sense of the law as applied and its evolution. I also have made the mistake of including slides with way too many words so I'm not going to read these. Hopefully the speed readers will be able to keep up with me as I go through this. This is where we work. This slide has significance I think for a couple of reasons. One, it shows the interconnection between the marine world and the land. We're talking about fishery management, but the health of the world in which fish live and thrive is increasingly affected by sources from land. Senator Whitehouse talked about airborne pollutants. They're also clearly waterborne pollutants that affect the health of fisheries inshore. We're not talking about that part of the equation of a healthy fishery, but it's very much important to take into account. The second thing is that the land, and this has to do with some of the climate change impacts, has always been important to fishing. In the old days in Gloucester where the captain's log books they used to record rainfall in the spring because the rainfall coming out of the rivers into the Gulf of Maine had a big impact on where fish would aggregate. So the good boat captains knew that after a wet or a dry spring you went to one bank at a particular time and that's where the fish would be coming up. The interconnections between land and water are very important. The second thing about this slide that's important is New England has two natural resources bases. One is the forests and one is the oceans. The forests are privately owned predominantly and the oceans are publicly owned. So those two resources and the economies that develop from them give us a really interesting opportunity to look at private resource management versus public resource management. And you can't talk about public resource management without the tragedy of the commons. The one thing I wanted to point out in the definition is to really how important it is to grasp the tragedy associated with these commons. Most conservation groups think about the tragedy in terms of the impacts on the resource, the ruin that Professor Hardin talked about here. But I think the most critical piece of it and the one that makes it such a political context is that the element that people in this commons paradigm we're not talking about people pursuing evil. We're talking about people who are acting rationally, who are pursuing their best interest and still the world crashes down on them. So it is, it's very much a tragedy and I encourage people to study the common property literature in order to help. The second thing is the prescription that Hardin dished out basically amounts to the fishery management plot process, which is mutual coercion. Coercion was a critical element about that. The other part was mutually agreed upon. The council process I think is still an experiment in shared resource management that we'll hear about some more from other speakers. And then again, this is just some of the histories of common property management. These are halibut that are being offloaded at the Boston Pier probably around the turn of the century. Those big fellows are all gone now. The fishery is still in the tanks from over-harvesting that occurred many, many decades ago. I've structured this based on two prior law review articles I participated and hopefully I'll read a third if we get around to it. I'm memorializing this but some of these observations I'm about to make come from those law review articles. So they were more or less contemporary observations and it's sort of interesting to think back on it. And again I'm not going to read everything so you should scan down this but our first litigation was in 1991. We got involved in fishery conservation actually as the basis of calls from fishermen. Ironically, Gloucester fishermen who were calling us saying that the management system was broken this was in 1990 and that they were worried about the direction of the fishery and that CLF should get involved. They probably would they could back up the tape. They may have revised some of those calls and never made them but in the first litigation what we really focused on was the damage associated with the flexibility that was in the law right then at that point in time and the importance of having objective measurable definitions of what overfishing was to have mandatory rebuilding requirements with particularly quantified biomass goals and time limits for achieving those goals. I think the other thing that really came out to us at that point in time and it's been alluded to was the impossibility of actually making rational management decisions given the national standards as they were at that time where everything was attempted to be optimized at the same time including the most troublesome goal which was national standard one which required you to both drive economic development as hard as possible. That's the optimum yield side of it and at the same time prevent overfishing which is the conservation side of it and there were seven other national standards that at least in terms of the text of the legislation all seemed to have equal weight and as a result councils inevitably got distracted into looking at so many things they couldn't do any one of them right at least as far as we were concerned. The other point, the other observation that we made at that time was this phenomenon that fisheries tend to overcapitalize. By the time management occurs a fisheries fully built out investments have already been made and all the incentives at that point are to protect the investments and but management on the other hand tends to be undercapitalized and I think that's still a situation we're dealing with. We were next back in court with amendment 9 of the ground fish fishery management plan as Eldon mentioned the sustainable fisheries act was passed in part to respond to some of the structural issues that emerged in the New England litigation that happened in the early 90s and again in that case the judge agreed with the plaintiffs on all counts although the liability ruling happened in 2001 the order didn't come out until 2002 and by that time amendment 13 was already well underway by the council. Amendment 13 was the next significant amendment and it did finally take New England in some new directions. Pretty important science based biomass recommendations were adopted despite a fair amount of skepticism and hesitation on the part of the council. Because of the amendments the measures that were adopted to prevent overfishing although they used a mechanism called phased rebuilding for some fisheries which actually sanctioned overfishing in the early days and then magically was hoping for either some reduction bonanza or some other phenomenon to allow the fishery to catch up and get back up to this rebuild biomass. It also saw the first piloting of sector management which we'll talk about a lot in this conference. Very weak protection of habitat habitat started to come into the statutory framework in the 96 amendments and then by catch which is the catch of untargeted species was still weak in amendment 13. A couple of lessons we learned during this amendment process. There's the first discussion that fishery management really needed to be done mindful of other ocean ecosystem issues. There was a clear sense that the science had to be further insulated from the political process and sausage making that the councils are charged with doing and that there had to be some accountability. We still had overfishing going on with a number of stocks even eight years after the 96 amendments. I think that's what these are a little bit hard to see but this is where we were in 2007 I can't even see them. The dotted line is the biomass target so a lot of the fisheries even as of 2007 were well below the targets for biomass that were set by the science and as of 2007 this is the fishing rate which is the rate at which fish are being removed from the ocean and the fishing rates as of 2007 were still much higher than the dotted line here which represents the goal of fishery management to get the fishing rates down to that level. 2007 the objective for the council for the managers here is to get in that lower right box. That's the I guess you could call it some sort of a sweet spot for fisheries management where the stocks are neither overfished that is they're above the biomass objective and overfishing isn't occurring that is the rate of harvesting is below the level that the scientists say is sustainable. So by 2007 although if we looked at this comparing it to ten years before the fisheries are getting closer to inching toward that bottom right sector still most of the fisheries in New England in the ground fish fishery were in the overfished overfishing category. Again 2007 this is showing the what's happening with the stocks what's happening to the fish as of 2007. The curve is heading in the right direction but without looking at you can't see the specific species but a large amount of the biomass that actually did rebuild is attributable to two species or two stocks one the haddock stock and the other a redfish stock. So in terms of the complex there was not equivalent rebuilding across all the stocks and that has ended up becoming quite a management challenge in later years. Two minutes okay ground fish revenues over this period of time the landings went down but because of prices actually the ground fish landings revenues were fairly stable. Another thing I wanted to point out was as of 2007 these charts show how the different ports or the areas within the region were faring and you can see there's some up and down in New Bedford and Gloucester went up toward the end of the time series other places like Portland main went down a lot of the other ports stayed relatively stable. Another thing to look at at least in 2007 you hear a lot of questions about are the big boats winning out or the small boats winning out who's winning this fishery lottery and you know it stayed surprisingly even across the boat lengths over this period of time at least as far as it surprised me. And then 2007 who's catching the fish and this is what is I call the 80-20 rule and it holds fast pretty well in a lot of fisheries. But what you see here is that a few boat 10% of the active boats which I think is about 82 vessels in 2007 were catching almost 60% of the fish. So when you talk about the New England fishery you're talking about a very economically heterogeneous group of fishing operations. One's from very small part time operations to very large scale concentrated operations. Amendment 16 the one that's in litigation right now over 50,000 pages in the record. Gene may be the only person who's read. Gene and David Gaethel who's a council member may be the only people who have read the whole record. It was the first fishery management plan developed after the Reauthorization Act in 2006. It made a few more bright lines present. It now implements the congressional intent to stop overfishing period. You don't get a phased rebuilding. It actually created in New England although other places like the North Pacific had had science committees for some time created a new science and statistical committee the purpose of which was to further depoliticize the science advice and take away some of the elements from the council debate. It also required strict new accountability measures so if the fishery went over its target they'd have to pay it back the following year so there wasn't a free ride for overfishing. Accountability measures, new sector programs is another big issue. We'll talk about that in their panels. Importantly risk tolerance was still left to the councils. So if they wanted to have a high risk management strategy they were allowed to adopt that. The sectors were successful in attracting most of the active fishermen into their ranks. The amendment triggered lawsuits. I think I'll go on. So how are we doing? The following slides are very controversial. One of the problems in fisheries management in New England is the data is terrible. The social economic data is terrible. All we as an outside group have access to is the macro data but it is encouraging in some sense. This is the first four months of the current fishing year and you will see that amendment 16 has had a differential effect on different ports and different states. Some states like Massachusetts in terms of the aggregate numbers are doing much better than they were last year. Same with Maine. Other states like New Hampshire are doing worse. Now again remember this is just the first four months so it doesn't factor in the different fishing strategies that fishermen in these different ports have. New Hampshire has a lot of fishery closures in the front end of their season and they do a lot of fishing later on so it's very preliminary but there are more revenues coming in under amendment 16. This also doesn't talk about the distributional effects and whether they're fair. Whether a select group of people are getting all the benefits and the majority are getting a very few of the benefits. The other thing that I think is really fascinating this shows the mix of stocks in the ground fish fishery. The blue bars are what the legal catch limit is for this fishing year which goes from May until April of 2011. The red lines show what fraction of the available fish the sectors have caught as of August 31st. You hear a lot about choke species and the inability to stay away from fish that have very low harvest levels set. In fact, if this information is accurate the sectors are doing a very good job of avoiding the fish that they need to avoid. A third into the year you know the Gulf of Maine Haddock is the only one that's really over a third of the catch being caught. So there are a lot of interpretations of this but I think one of them is that the sectors are learning how to fish adaptively to target the fish that are abundant and avoid the fish that are less abundant and hopefully that will produce more revenues by the end of the fishing year. And one last thing, this is just a comment from David Pierce which is maybe important to remember that if we don't get stewardship from this catch share management program we'll have failed. Thank you. Introduce you to Mr. Madison and Mr. Stevens I have a lot of stuff to write. As is usually a problem when you're appearing later on a panel most of my material has been covered but nevertheless I'm going to sort of double fast forward through this with my remote clicker here. If you've got a DVR, a Tivo you know a double click goes faster than a single click. So I'm going to go through this stuff pretty quick and give you sort of a nuts and bolts view from a person in the trenches with all of these measures. I think as you listen to the panels here you're going to see how incredibly complex and almost impossible it is to develop effective and acceptable fishery management plans in the federal fishing zone here. So I'm going to focus primarily on the more recent milestones in the Madison Stevens Act as Peter indicated. I'm not going to read all of the bullets here. Try to read them now or in the version that I think will be published with the proceedings of this panel. But first look at 1976 then what happened in 1996 and I'm throwing in another milestone 1990 which is when I came up to New England to deal with fishery management in Madison Stevens Act issues as a legal advisor. And then finally 2006 and I'm going to give you some sort of visual, visceral kinds of facts and figures to see how changes have occurred over the years. As was alluded to earlier the initial version was about 34 pages. There were 25 definitions contained in the Madison Stevens Act. There were seven national standards. The first one is the primary conservation national standard that it existed. It basically only said that and it's still the same that there's an obligation to end overfishing and achieve optimum yield. The original required provisions which is another portion of the Madison Act that sort of echoes the national standards consisted of five national standards and actually I should correct the first one there. That's the current version of the required provisions. The original one only said that fishery management plans had to be done, had to be consistent with national standards and shown to be necessary and appropriate for the conservation and management of the fishery. There was no other details included. And here's the discretionary provisions which basically sets out the types of measures that the council and the agency has legal authority to implement. And you'll notice the seventh one there is pretty much a catch-all which allows the councils and agencies to do anything they want as long as they can relate it to conservation and management. In 1990 when I came up here the Madison Act as described earlier by Eldon had doubled in size, 64 pages. There are now 32 definitions. Still had national standards. The required provisions had increased by four. They're highlighted in red there. And the discretionary provisions had added three more there. You can see the different focuses that were occurring in Congress on what should be addressed. In 1996 was when the Sustainable Fisheries Act passed which I consider and I think Eldon alluded to this to be the most conservation oriented change to the Magnus and Stevens Act. By this time there had been two names added to the Fishery Conservation Management Act recognizing the two senators that were champions of fisheries. The act doubled again in size. There were now 45 definitions and ten national standards, eight through ten were added. I've highlighted a change. Eldon alluded to this as well in National Standard 5. Originally that standard said that council should promote efficiency and utilization. That was changed in 1996 to consider efficiency and utilization. Required provisions increased significantly. In 1996 there were 14 required provisions that had to be satisfied or considered in any fishery management plan or amendment to that plan. The discretionary provisions also increased. I think the most significant thing of the 1996 Sustainable Fisheries Act was the addition of section 304E which is a section that does basically three things. First it puts an affirmative obligation on the part of the agency to identify fisheries that are overfished or are overfished or that are approaching an overfished condition. Before 1996 there was no explicit requirement for the agency to identify such fisheries and to adopt management plans to address the overfished condition. But as of 1996 there's now a requirement for the agency and the councils to develop plans for fisheries that are identified as overfished. The second thing it did was once those fisheries have been identified there's a specific time frame in which those fisheries have to be addressed. They had to be addressed within two years after the identification. And the third thing done in the Sustainable Fisheries Act was to set up a fairly rigid time frame for rebuilding fisheries that were so identified. And 304E says that all these fisheries identified as being overfished must be rebuilt in ten years with certain exceptions. But the overall requirement is a ten year rebuilding time frame. Now in 2006 the act was most recently amended in a comprehensive way. We now have 170 pages of provisions, 50 definitions, no more additional national standards. We have one additional required provision number 15 in purple there at the bottom. This is the one that actually requires fishery management plans to quantify the catch limits that are necessary to rebuild overfishing stocks, to address overfishing or to maintain long term sustainability of fish stocks. And that's one of the primary focuses of amendment 16 to the ground fish plan that Peter briefly summarized. There was essentially one other discretionary provision added number 12. It's actually misnumbered in the law. They skipped 13. I don't know if that was intentional or not. But you see the introduction of ecology in this discretionary provision, which is becoming more and more a focus of fishery management worldwide. Now the regulatory response to all of these requirements in 1990 when I first came up here there was a relatively slim volume of all U.S. fishery regs that comprised 472 pages. The Northeast multi-species or the ground fish fishery management plan was 15 pages, which included all the prohibitions and permit requirements and so forth, which have now been separated out of the current version of the multi-species fishery management plan. And you can see by 2008 all fishery regulations are found in now almost 1500 pages of regulations. And the Northeast multi-species plan before amendment 16 was approved and implemented had expanded to 85 pages. That's one single fishery management plan as represented in the Code of Federal Regulations. Now what does all this mean in terms of trying to comply with these expanding requirements in the statute? I've titled the main dilemma that the councils and the agency faces in implementing these requirements as tensions that exist. Senator Whitehouse referred to this. There's a major tension that exists in the Madison Stevens Act between conserving fish, rebuilding fish stocks, ending overfishing, maintaining continuing sustainability versus all of the other national standards and required provisions that address things like economic impacts, fairness and equity, essential fish habitat, bycatch, so on and so forth. And I think the best way to sort of visualize this is to think of it as a continuum in terms of how the council and the agency has to approach fish management. On one end of the continuum you have the conservation requirements and on the other end of the continuum in terms of conservation requirements you have those requirements that have at least a 50% probability of achieving the specified objectives of the Madison Stevens Fishery Conservation Act. And the reason I picked 50% is courts have held that in order for a fishery management plan to at least pass a threshold of achieving conservation objectives there has to be at least a 50% probability that the management measures will achieve the conservation objectives that are part of that plan. So this spectrum of likelihood of achieving the conservation objectives becomes the playing field for determining where on that continuum you have to identify the optimum yield for every fishery that we're dealing with. And there is no legal standard that tells you where in between that continuum you have to establish optimum yield for each fishery. The agency and courts look at where to place the point on the continuum in terms of whether the council has adequately considered all of the provisions that I've put up here and whether there's a rational basis for choosing the point on this continuum where they want to manage fisheries. Now there are tensions within tensions here. For instance the optimum yield requirement can be looked at from a national perspective in terms of sort of general economics. What's the best economically efficient way to produce fish for the benefit of the nation or can be looked at or has to be contrasted with the local optimum yield. What's best for local communities and local fishermen. You have fairness and equity concerns that have to be addressed under national standard four. Most fisheries in the United States now operate under what is known as the limited access fisheries where you cap the number of fishermen that can fish in a fishery and you have to come the councils have to come up with criteria for determining which fishermen are in the fishery which fishermen are out of the fishery based on standards that the national that the Madison Stevens Act sets forth. By definition when you draw a line as to which fishermen are in the fishery and which fishermen are out of the fishery you create problems or at least perceive problems of fairness and equity. Who are the haves? Who are the have nots? The councils have to wrestle with the idea do you allow only a few fishermen into a fishery so that they have a good chance of making a living at the fishery or do you try to spread out the fishery amongst many fishermen so that you maximize employment and provide more people an opportunity to fish. These are very subjective, controversial philosophical kinds of calls that the fishery management councils are dealing with every time they deal with a fishery management plan or amendment to a fishery management plan. Efficiency which is a national standard five concept is one for example that we're dealing with in the scallop fishery. There are certain components of the scallop fishery that want to consolidate and allow allocations to be stacked on to more than one vessel to reduce cost and there are other fishermen that think that that will lead to vertical integration and corporatization of the fishery. There's no right or wrong answer to that. It's a subjective call the agency can't dictate it necessarily. We can only look at whether the councils have established a rational basis for making a choice on this continuum as to where they're going to put the particular measures that might deal with efficiency. Now here's a whole bunch of other tensions that I've come up with that exist every time a fishery management plan is developed or an amendment to a plan is developed I'm not going to go through all of them because of time but you can see every one of them is a difficult dilemma facing a council and it's a daunting task to go through all of these as a council member and as an agency that has to approve or disapprove these things. Now in addition to management tensions we have procedural tensions what kind of regulatory or federal action are we going to pick to implement these measures. The Act describes an amendment process which has prescribed time limits etc. but most councils have developed a sort of way to get around that through what are called framework adjustments that don't require as much procedure or time to implement these, to implement new measures. So there's a constant tension between the type of procedural action that's chosen to either temporarily or permanently put into place council recommendations. Just real quickly about the approval versus disapproval tension when that council submits a fishery management plan to the agency, the agency is limited to only approving or disapproving the plan or partially approving it. We cannot substantially change it even if we would have picked a different way of approaching conservation problems as long as the council can show that it had a rational basis for picking the measures that it did that meet the requirements of the Madison Stevens Act, we're pretty much obligated to approve those measures. Sometimes we find part of the plan is approvable, another part is disapprovable. That becomes a dilemma for the agency in deciding whether it's segregated, whether there's a dispute, whether the action that's disapprovable or the recommendation that's disapprovable is discreet enough that if you disapprove it you're not going to undermine the entire purpose and benefit of the rest of the measures. Finally we have two more tensions, I'm almost done. These are all the other laws that we have to be consistent with and then we have council make-up tensions. Every person on the council has a different philosophy and view of what they're doing and you have to get them to reach at least a majority approval of dealing with all of these other tensions that exist. Thank you. This is why I always see Jean at the council meetings going. Okay. I think it's a little bit narrower in scope than the prior talks in that I'm going to talk about one specific part of the Magnuson-Stevens Act and a little bit about how it has evolved or how it hasn't evolved over time and make an argument for why maybe it ought to. For those of you who are not very familiar with the Magnuson-Stevens Act the most important and unique aspect of the act is compared to other natural resources laws are the councils the eight regional fishery management councils. For those of you not familiar with the councils they're unique because they directly involve members of the public not government officials members of the public in making important resource allocation and conservation decisions about a publicly owned resource that does not exist in any other statute whether it be forests, water any other kind of resource and in fact there are well there are only a few examples I've been able to find elsewhere in the world that are close to that. So it's a very unique system and historically the other kind of fact to know the fact to know about the councils over time is that since 1976 because we can talk about that later if we have time of the way the process and the works of nominating and appointing members of the public to the councils and because of the politics of it we've ended up with about 80% plus of council members these appointed members which make up only about half of each council. The appointed public members are representatives of either commercial, recreational fishing industry interests sometimes we'll have some processors. The other 20% tend to be the occasional academic I think there have been maybe four or five members of environmental groups in 35 years who have been appointed to serve on councils so they're historically dominated by industry. When I was asked to talk about something today I felt very liberated right there's a, Susan mentioned there's a rule that we can kind of think about things that aren't politically feasible the reason I asked Senator Whitehouse the question earlier for those who were here when Senator Stevens was alive and in the Senate the councils were the sacred cow despite the fact it's true Elden says if you look through that really orange book there's zero discussion of what the optimal management system ought to be for fisheries but Senator Stevens was very attached to him the councils were a sacred cow I mean if you think about it you have your constituents the ones who are likely to complain to you actually in charge of management right so it's the perfect political system from his perspective and at least according to Senator Stevens there was a place underground with extremely hot flames that was reserved for those who might venture to even tamper or mention changing the composition of the councils at least that's what he told me so now that Senator Stevens is no longer in the Senate and we have this sort of new approach I think it is I won't say it's likely but it's at least we can talk about it now so I might want to think about changing from that 80% plus industry composition model and I'm going to argue that it's a good idea for a couple reasons one of which surprisingly I think is that I think it might actually provide some benefits to industry even though I don't think they would agree with that okay so I'm going to run real quick through the argument number one why are the councils so important and why is composition so important why the councils are important they're at the heart of every single every single even with the 2007 amendments that gave SSC power over tax they're at the heart of every single important conservation allocation decision under the statute I don't think there's any question about that Nymphs' role is very limited by the terms of the statute and in practice to reviewing council decisions but Nymphs does not have significant power and has not historically acted independently in overturning council decisions or things like that it does happen on occasion so the councils are at the heart of the act composition matters for something that was brought up by several of the speakers which is every one of those important conservation allocation decisions is characterized by incredible uncertainty in the scientific and social data that's available so making a decision requires the application of individual human values and preferences to the facts at hand okay people matter in this system and the orientation of people and that might mean people who tend to be optimistic or willing to take, Peter mentioned risk preferences willing to treat take more risks with respect to overfishing than other people are going to reach a different conclusion so people matter it's not a machine okay in addition to the uncertainty in the scientific information people matter because as Professor Reeser has written about in the past the language is chock full like many statutes of very vague and ambiguous language so for example to the maximum extent practicable we see that in all kinds of both with respect to bycatch and habitat we see it language like that throughout the act and of course again that requires resolving making that decision about how much say bycatch to allow requires application of personal values okay so their councils in composition are important second the historical rationales and there really weren't any that were laid out ahead of time but rationales have been developed over time for why the councils are a good productive part of the statute none of them really make sense especially now given as Elton pointed out the rise of environmentalism okay the idea that we should have the environmentalists on the outside of the statute probably doesn't make so much sense anymore and I don't I'll talk about other groups besides marine conservation in a second the original rationale actually Senator Stevens only wanted councils to be involved in conservation he was if you read through there and talk to the staffers you will find that he did not want councils involved in allocation and you can understand why that is right essentially it's a strange business model to have 10 people or 15 people from a business sector allocating profits to the other thousand people in that business that's a very unusual system and he felt that all fisheries should be essentially races derby fisheries we know they have bad consequences of course now but that the fishermen should really be involved only in setting limits he felt that Senator Stevens rationale for having industry heavily involved was that because they depended economically on fisheries they would make conservation decisions consistent with the long term health of the fishery right makes sense the only problem is that really only that argument only works when the decision makers actually own the fishery and that's not true with councils council members don't even stay on councils for long periods of time or some do but not permanently and so it turned out that in fact councils didn't make those council members didn't vote for those kind of measures that had long term sustainability mind consistently one of the reasons was there were many forces lined up against doing that namely what Peter pointed out making allocation decisions in overcapitalized fishery the best route the easiest route if you're a council member is make more fish to give out and the way you make more fish is you use that uncertainty in the science to increase tax so it takes you away from the long term sustainable view second historical rationale well actually this is coming to vogue in the 90s they shouldn't do conservation because they don't know anything about science but they should do allocation because they're very familiar with the business of fishing I'm not really I never understood that argument why councils or members should allocate again to their peers and their competitors profits and my guess is Peter mentioned that they had originally started their conservation litigation based on calls from fishermen well the fishermen might have been calling because they're concerned about conservation but more likely they were calling to use conservation as a tool to attack an allocation that they were unhappy with that's how we often see these things come up so I'm not sure at all why maybe someone can tell me why the councils would be good at allocation I think it's actually out they're even worse or would be even should be even worse at allocation when long term right space management systems are being put into place because at least under an annual allocation system if you're a council member you might have fear of future retribution if you don't treat people fairly in these long term systems of course when they're not going to come up again for a while that fear goes away third rationale industry members understand industry can dismiss this one quickly that's true in every case in the United States of a regulated industry but we don't use councils in any other context because the dangers or perceived dangers of having industry its own regulations are seen to outweigh the benefits or rationale here this one a lot recently industry members you're treating them as if they're homogenous they actually are quite capable of representing other interests including the general public a lot of them are conservation oriented we see that right in New England we've got some members who are conservation oriented I think there's truth to that they're not homogenous first of all one argument against this view would be that surveys of council members show that that's not actually what they do they actually see themselves as representing their sectors they don't put themselves into the position of the sort of what's best for the public at least that's not their first priority but my biggest argument would be sort of a hypothetical I throw out there to you if you don't think that if you don't think that council members how should I put this imagine a council where 90% of or 80% of the members were from marine conservation groups and ask yourselves whether they would make the same decisions as your conservation minded council members and if you're a council if you're a New England council and you would agree to that then maybe I would believe you that you represent conservation in the general public the final rationale which is kind of a clandestine one okay is that conservation groups have no legitimate interest being involved in fishery management wasn't so clandestine when I used to go to council meetings and people would essentially tell you that but that's a pretty prominent view out there I'll give you just some examples of one of my favorite surveys of all time this is a Coast Guard survey of council members and actually NIFS fishery management employees what are the greatest threats to maintaining sustainable fisheries in your region number one by catch number two environmental non-governmental organizations ahead of over capacity gear conflict environmental effects etc okay so there's a view out there that essentially there shouldn't be representatives on the councils because they don't belong there obviously that's a phony rationale in my opinion to reasons there's a public resource it's a long standing tradition of being a public resource these are essentially public $10 bills swimming or out there in the ocean and the idea that one group should be able to invest them non-conservatively when another group thinks maybe they ought to be invested more conservatively that is left in the ocean for reasons doesn't really make sense moreover more importantly from the industry perspective I would say that they have to realize that environmental groups are here they're not going away if they don't have access through the council decision-making process they will have access in other ways that is through the courts or by going to Congress and those results may not actually be as good as if you had a negotiated the original decision with the of these other kinds of members okay so what are the options for reforming the council okay in terms of composition one option I would call the no council option right we could simply go with the model that's used in every other natural resource decision-making process which would be use nymphs I'm not a big fan of that one personally nothing against nymphs but I actually think that one of the things the councils do is they provide a more transparent mechanism for decision-making than agencies ordinarily do everything's out in the open there's a lot of public discussion I actually like that I think we see a lot of industries where sorry a lot of agencies where industries have kind of a back door way to get in and we never see what's actually going on we could go to fewer appointed members or no appointed members and just use councils made up of state government representatives similar to sort of the marine fisheries commissions I'm also not a big fan of this what you see on Atlantic states marine fisheries commission is a lot of allocation battles just between states so the focus is getting fish for my state as opposed to actually representing a variety of interests more diverse councils I actually think would benefit a lot of provide a lot of benefits so when I say more diverse I don't mean just marine conservation members I mean even people who don't know a lot about fisheries members of the general public say a mayor of a town or a coastal town or something like that I think it would tremendously reduce the adversarial relationships that plague fisheries both between nymphs in the councils and between the environmental groups in the councils by forcing these people to actually work together rather than to resort to litigation and the legislative and around I think over time will build trust and NGOs would develop more sensitivity to industry concerns through this partnership nymphs could play a more appropriate role of a neutral reviewer of decisions and mostly there would be a greater perception of fairness in the system would be more fair given that we're trying to distribute a public resource among people who have very different views of how that resource ought to be used so in conclusion I would say you know this is something we can talk about now and it's worth thinking about even though it might be painful at first whether in the long run this might not produce a more efficient system thank you morning I'm as Susan did such a nice job introducing me Mike Connathan I work for Senator Snow on the extremely long titled commerce science transportation committee subcommittee on oceans atmosphere fisheries and Coast Guard and we're working on that but we like all of those things so we don't actually want to cut any of them out which is why we ended up being so long also as somebody who works in the senate and therefore has to wear a suit every day I wanted to point out that I'm the only one up there not actually in the tie because I take every opportunity that I can to get out of it I apologize for the informality if it's offending anyone but hopefully we can all roll with that I did graduate from URI's marine affairs program with Masters and Marine Affairs in 05 and have been working on the commerce committee ever since which put me down there sort of just in time to witness the actual final passage of the 2006-2007 amendments that just to clarify it actually passed congress at the end of 2006 and what I think was actually the last or maybe the second to last vote taken in the House of Representatives that year it was the ultimate under the wire as the clock was expiring sort of buzzer beater of that congress and it was subsequently not signed into law until after the holidays so we get this confusion over whether it's 2006 or 2007 I like 2006 because I'm partial to congress's action as opposed to the president but that's just me and I wanted to thank folks who have been recognizing Senator Stevens who was actually the chair of the committee when I started working down there and I did have an opportunity to work with him and see him work so effectively and be so involved in this issue that was really so integral to him I think he perhaps wouldn't just roll over in his grave at the last presentation but actually be trying to climb out of it and put the Hulk tie back on which he was so famous for wearing on the Senate floor when he really got into hardcore debate mode to sort of get his dander up and protect his what he perceived to be his interests and that we miss that energy certainly when it comes to these issues he was a tremendous advocate and he's missed in the Senate not the least of which for his bipartisan willingness to work in a bipartisan fashion which fortunately has really rubbed off on us in the Commerce Committee and we do continue to work in that fashion and I'll discuss how that's going to impact the future of fisheries and ocean policy negotiations which is really what I'm here to talk about we've had a great summary of the history and some of the key issues involved in the Magnuson Act obviously we're just scratching the surface here the book in front of Jean kind of tells the story of how much there is to really dig into and it's so my role here is to talk about what's next in this process the current authorization that we passed in 2006 is going to expire in 2012 which means that we have sort of already entered into although it seems like just yesterday that we reauthorized that we're already entering into the season now where we're going to have to talk about the next reauthorization and begin those conversations in earnest just because the authorization expires in 2012 obviously doesn't mean that we need to have something done by 2012 because last time the authorization expired in 99 and it was seven years until it was actually officially reauthorized and so hopefully we can avoid that circumstance arising again but as we do that the issues that are going to become really the sort of primary focus of these conversations we can already start to take a sense of where this is headed there are a few bills that have already been introduced in this congress dealing with some of the issues that other presenters have talked about specifically legislation introduced by Representative Perrone and Senator Schumer to deal with issues of flexibility and rebuilding timelines this is something that's fairly controversial based on the amendments that have gone before that have sort of stipulated this ten year rebuilding timeline and as these economic considerations bump up against the conservation considerations there will perpetually be an effort to add additional flexibility and so that's something that we're going to have to fight out over the next couple of years. Another major issue is going to be the issue of fishery science and sort of clarifying the role of not only fisheries biology but also the socioeconomic analyses that are required under the law to come up with catch limits and really be able to establish the ACLs and the accountability measures, annual catch limits and accountability measures that were put in place under the 2006 reauthorization so we've got our work cut out for us going ahead and I also want to talk a little bit about the process that's going to allow that work to take place and Senator Whitehouse really did a better job sort of laying that out than I possibly could but the issue of the use of the sort of filibuster and holds that can be placed on bills is one that we are going to have to deal with. When we did pass Magnuson in 2006 even then it was a bill that had to be passed by a process known as unanimous consent in the Senate which basically means that any senator can block a bill from being passed. If you get unanimous consent it means that effectively all hundred senators have said we're willing to let this go without a vote and obviously that's something that rarely takes place these days in the culture of the filibuster so that is really the major obstacle that we're going to be facing as we look towards this reauthorization because when you get right down to it the idea of six days of what is already an extremely short legislative calendar to deal with a fisheries issue which all of us think is certainly worth that level of attention but may not have that perspective from a nationwide view that's unlikely to happen so whatever the result is that comes out of this process it's likely to be something where all of these concerns and conflicts are going to have to be worked out in advance which means my job gets tougher but that's what I'm here for so I'm happy to go ahead and do that and basically if you put this in terms that perhaps some of the attorneys in the room are a little more familiar with you can look at this as the difference between basically taking a case to trial and settling it there's a lot more work up in advance the negotiations that are involved in a settlement are basically what we're looking for in terms of unanimous consent and as I referenced even in 2006 when we were seven years behind and we had really a more bipartisan Congress operating in more bipartisan fashion we're still looking at a unanimous consent process to pass this bill I also want to address I mentioned the compromise that we tend to carry over on the commerce committee which is a leftover from Senator Stevens and the work that he did with Senator Inouye who was chair of the committee at that time and it really comes down as well to the fact that the issues that we deal with on the subcommittee tend to transcend party alliance and they really adhere more to geographic distributions coastal members of different parties may diverge on some issues but they tend to want to protect the economy and the ecology of their coastal regions of course and on a smaller scale we tend to get regional interest together and so you see the Republican members that I work with, Senator Snow, obviously Senator Whitehouse working together very closely on many oceans issues really coming together to address the concerns that you've heard about from folks here on the ground fisheries, you see similar things happening in the Gulf of Mexico and yet still doesn't mean there's a unanimous voice and so fisheries adapt to the mandates in the last reauthorization particularly catch limits and accountability measures and authority to develop catchier programs. Divergences of opinion are certainly becoming more prevalent. Unemployment economic considerations become major policy drivers and so you've got members from regions of fisheries that are threatened by these catch reductions folks are starting to scream about the effect this ultimately has on employment in coastal communities and economic development in coastal communities and really tend to exert then more pressure on their members of Congress to represent their economic interest in the short term as well as the long term and so you get these movements toward introducing bills to include flexibility and really try to look at some of these underlying linchpins of the law that have been put in place and supported so strenuously by the conservation community over the years. And in New England you see not just from a legislative perspective we're also seeing it very much at the regulatory level with pressure on the National Marine Fisheries Service, on the council to find ways to increase catch limits in the ground fishery while still acting within the law and adhering to the goals of the Magnus and Stevens Act to end over fishing and rebuild these depleted stocks within the time frames that have been established in the law. And we see, we've seen in recent months pressure for regulatory action including use of the secretarial action, excuse me emergency authority that's included in the law to increase catch limits outside the council process. This is a fairly controversial measure which Secretary Locke, Secretary of Commerce has become very personally involved in. He's made numerous trips up here to the region attempting to come to some form of compromise that will allow the fishery to continue to operate under the new sector management system as we try to move that process forward and really give that an opportunity to address some of the overfishing that has been going on in this fishery for generations, sorry years probably not generations, some folks would take issue with that. Okay, thanks. So in any case there's going to be pressure as we move forward to include additional fishery to flexibility for fisheries management from that rebuilding timeline whether that actually makes it into law or not you know that's going to be a fight that's ongoing I think there's been some conversation that we may have come to a crossroads with regard to the ten year timeline. Some folks have begun to question whether it's appropriate to have a single deadline applicable to all species sort of regardless of biology the counter argument to that being that if you don't have a firm deadline in place as we didn't prior to the 96 amendments then you just see effectively the overfishing allowed to continue indefinitely as we wait for perhaps new science to come along and hope that things get better in the future. So let's go ahead and hit the points here so that we're covered at the end. So ultimately what we're going to have here is a strong push to figure out how to figure out what the points are that we can all basically agree on and I think the greatest thing that I've seen on that front is that what we all can agree on is that the science that is used to set these catch limits currently simply isn't sufficient to do the job. Senator Snow commissioned a report by the Inspector General investigating the Northeast Fisheries Science Center in 2009 and the result of that was to show that while scientists are in fact doing the best they can with the science that they have available to them the science that they have available to them is in many ways insufficient to set catch limits with the level of certainty that the law now requires in providing annual catch limits in each fishery that are not to be exceeded by council action. So really what we're going to see at this point is a movement towards strengthening science in the act and providing a framework that can support better stock assessments that includes cooperative research and other efforts to really underline that if we're having policy that is so reliant on scientific information we really need to provide our managers with information that they can use to set the catch limits really to the best of their ability. So I'll leave it there. I haven't had a chance to touch on several other issues that I wanted to get to. The chair is obviously being key among them as well as issues of future sustainability but in the interest of time I'll leave it at that. Thank you. I want to ask all of our panelists if you could write the magazine scheme today and you didn't have to worry about the politics of getting your giving away and you didn't have to worry about the politics of it. What one thing would you most want to change over here? We'll just go down the road and take a minute to say what one thing you would most want to make and then we'll take questions from you. Well Susan, I think Susan asked this question first and I'm very sorry you did because I struggled with it and couldn't come up with anything that I thought was a very good answer and I went back and looked at a chapter I wrote on fisheries and a textbook 20 years ago and I went through all the options and at the end I concluded that the system we had was the least worth system that I could imagine which is what Winston Churchill said about democracy and I think that the two elements of the system that we have that are really critical one is decision making by the councils and two, a system of national standards which are regionally applied by those councils is a pretty good one and I think you can modify the system around the edges and you can argue that the Secretary of Commerce and NIMP should exercise greater authority than they have to rein in councils when the councils are not hewing to the national standards and the other requirements of the act. I think on the whole the structure we have is pretty good so if I were going to rewrite the statute I might try to make it simpler but I wouldn't fundamentally alter the structure. I think the issue that I would focus on would be dealing with what I call the undercapitalization of science and management. This is one of the few, one of the only natural resources that the U.S. manages where no resource rents are collected from the users and the other areas they're fairly minimal but at least token range fees and stumpage fees and other revenue gets raised from the people who are converting those public resources into economic goods and I think at some level we have to, maybe it's the national endowment maybe it's other mechanisms but we have to figure out ways to fund science and management and particularly the data. I think from my perspective the weakest data right now is in the social and economic domains. We're making major decisions about this resource based on anecdotes at microphones that there's really no way to validate out in the field. So social economic and then I think the third data set that we just have to make better investments in is getting a better sense of how many and what kinds of fish are actually getting killed out on the water. Not how much gets landed at the docks but what the actual mortalities are so that the models can actually be run with real data rather than proxy data or other surrogates for the real data. But that requires funding. It's not a technology issue, it's really just a matter of funding and congress has not supported it for obvious reasons and we don't have the climate right now so I think we really should start talking about some level of resource rents as well as other tools that were in strong agreement like the National Endowment as a mechanism. I must condition my opinion here being my own particularly since my boss is sitting in the and my main clients are also in the audience but I'm going to pick a very practical provision that I think needs to be looked at and it already is being looked at and that is the rigidity of the time frame for rebuilding fisheries. I appreciate the idea that, and this is in section 304E that I talked about very quickly, I appreciate that the Madison Stevens Act now requires a quantifiable limit on how long it takes or how long a fishery management plan can take to rebuild fisheries but I think the setting just basically an arbitrary time period for that creates more problems than it solves so I think there needs to be some creativity in developing a less rigid standard that still manages to maintain some extreme parameter that will guide councils in developing effective rebuilding plans. I know the New England ground fish fisheries is probably the closer child for problems in addressing fishery management measures and having this fairly rigid rebuilding standard invites all kinds of political influence and rhetoric that I think really gets in the way of effective management so that would be my choice and apparently it is being looked at now in Congress. Okay well I pretty much already told you what my change would be. I would say talking about the flexibility issues and the rebuilding time frames, the reason we have that is because before that and actually many councils using the exceptions that are in there now based on the biology of the stock we saw time frames that were, I can use the word ridiculous 50 years, 60 years, things like that were essentially weren't rebuilding the stock, I mean at least the chances of it being rebuilt were microscopic and certainly would be deferred but I would argue tying this into the composition issue that essentially what's happening there is you've got environmental groups over a long period of time or marine conservation groups lobbying for these external controls on council decision making why because they're not actually involved in making the decision so that's the only option I think a lot of the need for a lot of that stuff or the pressure from that outside external control by Congress or by courts would go away if the conservation interests which are like I said not going away do feel powerfully vested in this issue were intimately involved in the decision making from the beginning. I actually believe that those stringent controls, the view has always been from the conservation community that those kind of stringent controls were necessary to keep the councils in line because otherwise the rebuilding periods would be infinite which is what we were seeing. So I think that's those are a symptom of the marginalization of other groups interested in fishery management. Mike. Yeah I want to pick up on a couple of threads that came up from some of these other answers first being that I need to also issue a disclaimer that my statements do not represent the perspective of my boss over the commerce committee. One of the questions that makes a congressional staffer the most nervous is one where he could potentially be quoted by name and rather than attributed but I think you know given President Champagne's assertion in his speech that these universities are a safe place for rational discourse I'm willing to dip my toe in the pool here and just to clarify something on flexibility and sort of where those efforts stand in the senate there are bills that have been introduced one by as I said Senator Schumer one by Senator Nelson as well to address some issues in the gulf and the snapper group of fishery neither of those bills has gained momentum even to move through the commerce committee and I think that speaks to the fact that tinkering with flexibility remains a very controversial issue when it comes to fisheries management and not one that is likely to move anytime soon that said it is something that is certainly worthy of significant debate I think that probably in terms of changes the key issue as I touched on towards the end of my talk was improvement in science and ensuring that we build into the law the opportunity for additional scientific research to be done and authorization for funding to be spent on that research one key point is that in an authorizing bill we don't actually spend money as the job of the appropriations committee and that is across the board a key fighting in congress right now is budgetary concerns so I think we need a mandate for more frequent stock assessments better development of fisheries models data collection ocean observing and including socio-economic data in these scientific models that are being developed as well as the funding for them and perhaps national fund for the oceans can facilitate that issue as well great thanks why don't we take questions from the audience now and my other job is moderators to repeat your questions so that we have them recorded questions anyone yes sir Senator Whitehouse talked about there isn't a constituency for the oceans people other than fishing interests pool the people to be appointed to councils other than where they come from and why don't we see that now why don't we see individual citizens who are non-part of commercial organization fisheries stepping up the question is why aren't the more members of the general public appointed to councils now first question I think it's an interesting question I think what you would see is just an expansion I would venture to guess that certainly there are lots of and when we talk about conservation groups there's a whole spectrum of conservation groups so from more extreme to more central but I think all those groups would be interested in having representation on individuals, academics have traditionally been involved whether fisheries scientists, marine biologists, social scientists certainly be interested in being involved and I think also the way the process works it's up to governors to nominate so for example I serve on a coastal management commission in South Carolina we have mayors and legislators who don't have any particular background or expertise but they were asked to serve in this capacity because they have a great wealth of general management experience and it adds some new ideas the reason we don't see that now is because the language are the two reasons one is because the process of having governors nominate essentially those people are going to be governors are going to nominate groups that will reward them politically and the language of the statute speaks of guaranteeing a certain number of seats for active participants in the fisheries the language is actually specifically meant to exclude or favor I should say the fisheries exclude non-fisheries participants or favor fisheries participants so you'd have to rewrite that you'd have to work on the nomination process you'd have to work on directions to the secretary of commerce in terms of picking choosing from those nomination lists but I don't think you'd have a problem finding people to serve because the council again we're talking about there are 110 council members or something like that in the United States so you're talking about you need to recruit 20 new people or something like that that's all we're really talking about I'm taking over the moderator role Jared had to go teach a class and apparently students think they need to go to his class it's con law so it's probably important we are running a little bit late but again I want to offer you all opportunity for questions we have about 5 minutes and we'll still have an hour for lunch so I know you're all hungry but hang in there so the question had to do with streamlining efforts and changes that can be made to the act in reauthorization the issue of interagency participation is one that we deal with in pretty much every ocean policy initiative that comes through the committee which is basically every ocean policy initiative that we deal with in the senate and it is an ongoing problem I think in terms of getting federal agencies to cooperate effectively and part of that goes back to agencies wanting to protect their jurisdiction over issues part of it goes back to the funding that comes into agencies and restrictions on how they can use the money that they're allocated that they're appropriated by congress and as agencies frequently feel that the money that they have is they're not officially allowed to say this but I think if they were they would say that the money that they have they can always use more and so they need to use their funding to apply to their specific role and so when you talk about trying to increase coordination among agencies it becomes a very difficult thing very quickly and we have looked at various ways of doing that interagency committees and things of that nature and ultimately it's a tough note to crack trying to figure out how to bring agencies to the table and participate actively in these conversations so I don't think that's a very satisfactory answer other than just to say that it's we acknowledge that it is an ongoing difficulty in a lot of different capacities not just in fisheries management it's something that we're trying to address Other thoughts from the panel on that Peter I think there have been efforts to make the tent bigger and make it more make some of the themes in the tent more unified across agency levels up my own sense is that the the struggle to produce the homeland security agency is still so crushing everyone's minds that there won't be an agency reorganization that goes through congress anytime soon and therefore I think you have sort of default mechanisms coming up in the executive like the executive order on the national ocean policy that is intended to bring the various agencies that have marine interests in the different regions together developing at least a conversation around some common interests and getting to some of the subterranean conflicts that they currently have with each other that are impeding forward progress on ocean management so you know it probably should have gone through congress it would have been more forceful if it went through congress but the national ocean policy I think is exactly the response to what you're raising is a legitimate issue time for one more Morgan I was expecting your conclusion to be get rid of the councils so I was a little surprised when you didn't go there listening to everybody in the panel reminds me a little bit of a panel I listened to of oil and gas people and it was a pretty broad range of people but no one was willing to blow up the system they knew the system they were used to it and I feel like you're a little bit of that here today if you were designing from scratch you think you'd really come up with a council system if you were designing a system to manage some other natural resources like the council system do you really believe that it's the way to go would you recommend another system or are you just not quite ready to blow it up I'm still scared of Senator Stevens I can't say it I think I really get a little nervous even I'm going to rephrase that just for the recording so the question was is there truly an appetite for gutting the council system in the natural resource management scheme or are we just so used to it that we don't want to touch it or so scared of Senator Stevens I think my answer would be look their agency certainly agency managed natural resource systems have lots of issues too my bigger picture answer would be I don't think I would start with the Magnuson or put it in the Magnuson Stevens act what I think I would start with would be I guess my view is that the efficient systems are the ones that have narrow goals as opposed to multiple use goals like the Magnuson Stevens act so what I would start with would be essentially not to go too far off track but a division of the ocean much like our public lands out west into areas where essentially there would be use priority so certain areas would be say commercial fishing areas where there would be some conservation requirements but they wouldn't be as stringent in other words it would be really up to the commercial fishing industry to defend for itself and we could afford to do that because that wouldn't apply to the entire ocean and so would and the agency managing that would have a goal of promoting commercial fishing so I think doing it that way would rather than battling everything out and getting into the essentially what are value battles because of lack of facts would be more efficient so I don't know if I would start with it I do there are some things I'd like to talk about like I said about the council system if it had more diversity I think it could actually be a little better than an agency. So this reminds me of a quote that I heard in law school that democracy is the worst form of government except for all the other ones right so thank you all for your patience thank you to our panelists really esteemed group of people we're going to take a lunch break lunch is available out there it's box lunch and there's plenty of seating options sort of out and about on the second floor and we'll be back here at 1.30 to talk about other resource schemes.