For example, NOAA General Counsel has issued an opinion stating that the FCMA requires that a Council prepare a fishery management plan for each fishery which is pursued in the Fishery Conservation Zone (though with recognition for differing priorities in terms of time urgency) [Sec. 302 (h)]. [However, FCMA elsewhere defines the geographic area of Council authority as "seaward of (such) States" [Sec. 302 (a)], ] which according to legal counsel means within the Fishery Conservation Zone, seaward of State jurisdiction over territorial waters.

The inference some have made from the above is that the Councils should develop management plans for only that portion of the fishery harvested seaward of the (three-mile) limit of State jurisdiction over territorial waters (as was done by the North Pacific Council for the troll salmon fishery, for example). However, this approach fails to satisfy National Standard 3: "To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination." This rationale influenced development of the Pacific Council's ocean salmon management plan, which proposed a single management regime for waters inside and outside the three-mile limit, with the Secretary of Commerce to regulate the fishery in the Fishery Conservation Zone, the individual States to enact parallel regulations for their jurisdictional areas within the territorial sea.

I suggest that the Congress clarify its intent in view of the uncertainties I have outlined. I am confident that Congress intended a broad planning responsibility for the Council per National Standard 3 but recognized State prerogatives for actual regulation within the territorial sea. Toward clarification of that view, I recently / prepared the following analysis and recommendation of principles for PMFC's Executive Committee (the fisheries agency Directors of PMFC's member States). It would be most helpful to know if this analysis properly interprets Congressional intent.

Suggested principles Concerning Fishery Management Jurisdiction

1. FCMA mandates Regional Council responsibility to develop fishery management plans, consistent with prescribed National Standards, for fisheries seaward of the member States (Sec. 302a, h); FCMA authorizes Councils to recommend implementing regulations.

2. However, authority to regulate fisheries pursuant to such management plans is not given to the Councils; it is mandated to the Secretary of Commerce for areas beyond the 3-mile limit of the territorial sea (Sec. 305), and remains with the States for areas within State jurisdiction--inside the 3-mile limit of the territorial sea (Sec. 306).

3. It was the clear intent of Congress that Council management planning responsibilities apply to all fisheries subject to significant harvest in the Fishery Conservation Zone (e.g.. beyond 3 miles). This is implicit in Sec. 2; Findings, Purposes and Policies, and is mandated in Sec. 302 h.

4. It is equally obvious that rational management planning requires analysis of the fishery as a whole, as prescribed under National Standard 3 (Sec. 301a), that, To the extent practicable, an individual stock of fish (or interrelated stocks) shall be managed as a unit throughout its range.

5. As operational conclusion from the above principles: for any fishery harvested at significant levels in the Fishery Conservation Zone, the Fishery Management Council should prepare a fishery management plan based upon the best available information concerning that fishery throughout its range. The Council may recomend regulations for implementation purposes; however, the Secretary of Commerce and the States are mandated the regulatory authority within their respective areas of jurisdiction. The Councils can be expected to exert their considerable influence to assure that Council-approved management plans are effectively implemented.

6. This rationale is (and should be) independent of the special "federal preemption" clause (Sec. 306 b) of FCMA which, for some fisheries under certain conditions, authorizes the Secretary of Commerce to override normal State authority within the territorial sea. That section was designed to assure regional consistency in the implementation of management through regulations, and should not be inferred as a limitation on normal Council planning functions.

IMPEDIMENTS TO FCMA EFFECTIVENESS

WHICH MERIT LONG-RANGE CONGRESSIONAL ATTENTION

The previous section reflected uncertainty concerning Congressional intent. Let me
now address five impediments to full and effective implementation of FCMA, all of
which probably require Congressional resolution in some form. Not in any order
of priority, these relate to:

.requirements for conformances of operations under FCMA with the Federal
Advisory Committee Act;

•problems of achieving rational fishery management which also comply with interpretations of Indian Treaty rights;

-problems created by exclusion of marine mammals from the provisions of the Act;

-concerns for foreign operations in combination with U.S. fisheries within the Fishery Conservation Zone;

-need for a national program of fisheries development in support of Eastland Fisheries Survey recommendations.

Strictures Upon Efficient Council Operations

Imposed by the Federal Advisory Committee Act (FACA)

Experiences over the first 18 months of Council operations suggest the need to ameliorate the rigorous constraints placed upon meeting schedules and operations by the FACA. Strict interpretation of that Act requires that notices of all meetings of Councils, Advisory Panels, and Scientific and Statistical Committees must be advertised in advance in the Federal Register. This requires a 45-day setback in meeting scheduling, and saddles our Councils with timing constraints that make it extremely difficult to carry out their business in an orderly fashion, particularly where emergency problems arise.

I am fully aware of the reasons for the Federal Advisory Committee Act, and the growing concern that the public be kept fully advised of actions which are of. public concern. For that purpose, wide dissemination of information via the local press may be far more effective as a communication medium than publication in the Federal Register. I would wonder if knowledgeable Congressional staff specialists might explore a procedure wereby certain meetings having obvious national interest, such as action to approve a fishery management plan, would be published as specified under FACA in the Federal Register. However, could not the public's right to know be better served by publication of meeting notices in major newspapers of the service area rather than the Federal Register? If so, a much more realistic setback time could be achieved, and more flexible operations result.

It seems also desirable that some emergency procedure be authorized which would permit a Council to meet on short notice under expressly specified emergency conditions. In any case, the constraints which are imposed by rigid adherence to the Federal Advisory Committee Act should be carefully studied and every effort made to secure realistic modifications of any really unnecessary constraints.

Rational Fishery Management and Compliance with Indian Treaty Requirements

You are well aware of the very serious difficulties which have beset management of Northwest salmon fisheries since the February 1974 decision by Federal District Court Judge George H. Boldt regarding treaty rights of Western Washington treaty tribes. This decision has required a massive reallocation of the salmon harvest

to comply with the court's interpretation of treaty language (assigning to the 14 treaty tribes the right to catch up to 50% of the available salmon and steelhead, in addition to fish needed for ceremonial purposes and personal consumption and those caught on reservations). It also gave to the tribes the power to regulate Indian harvest of salmon and steelhead at "usual and accustomed fishing grounds and stations";.therefore not confined to reservations. This ruling permits the State to limit those treaty rights only if the State can demonstrate that perpetuation of the species is endangered.

The resultant dislocation of non-Indian fisheries under the harvest reallocations required by Judge Boldt has received widespread attention. Less apparent, but of great potential for long-term disruption of fisheries management, is the fragmentation of management authority, now divided among all the concerned treaty tribes, the State, and the federal government. In view of the difficult problems thus created, the National Conference for the Eastland Fisheries Survey adopted a carefully worded recommendation which focused upon the need for Congressional action to create, where necessary, "appropriate institutional arrangements" for conservation and enhancement of resources, while at the same time protecting Indian Treaty rights. The full text of that Resolution is as follows:1

"Consider the various Indian treaties with the intent of
creating, where needed, appropriate institutional
arrangements to conserve and enhance the fishery resources
while protecting those rights reserved by the Indians..."

A National Task Force convened by President Carter has labored hard to achieve resolution of these problems. Also the Supreme Court has been asked to review this controversial case. If these efforts fail, it may be necessary for the Congress itself to intervene if the FCMA is to be applied effectively to affected fisheries. In May 1974, I first advised PMFC's Congressional Delegation of Northwest concerns for the effective management of these fisheries, closing a detailed review of these problems as follows:

"Since the original treaty provisions underlying Judge Boldt's decision were ratified by an earlier Congress, the present-day Congress may need to undertake prompt and forthright steps for update and clarification of intent where appropriate, and for implementing action where necessary. Our Western States have

Eastland Fisheries Survey--A Report to the Congress, May 1977, p. 18.

experienced many decades of controversy, litigation, and resources management problems as direct outgrowth of uncertainties regarding present-day implementation of 19th Century Indian treaties. It would be to the benefit of all our citizens if Congressional action could end these escalating claims and counter-claims, and permit our management agencies and fisheries user groups to concentrate their energies upon conservation and wise use of anadromous fish resources."

Exclusion of Marine Mammals from Provisions of FCMA

Our Pacific coast fisheries constituency is solidly united in the conviction that marine mammals should be subject to the same conservation and management principles which apply to other elements of the marine ecosystem. Instead, under the provisions of the Marine Mammal Protection Act of 1972, all marine mammals, regardless of their population size or impacts upon the ecosystem, are blanketed under the total protection of a moratorium on taking or even harassment. While a permit system allows for exceptions in special cases, it is cumbersome and costly to administer, and not a realistic answer to the problem.

For four successive years, the Pacific Marine Fisheries Commission has unanimously approved resolutions calling for major revisions in the Marine Mammal Protection Act of 1972 to bring it into conformance with realistic principles of marine ecosystem management. PMFC's 1974 resolution emphasized the severe economic impact of marine mammal destruction of commercial fishing gear and predation upon desirable fish species, and recommended that the Endangered Species Act of 1973 be substituted for the Marine Mammal Protection Act to protect only those marine mammal species truly needing special protection.

PMFC's 1975 resolution stressed the unrealistic restrictions placed upon responsible management of the nation's living marine resources by certain of the definitions set forward in the Marine Mammal Protection Act, and emphasized the cumbersome procedures whereby States are permitted to participate in management of marine mammals. The resoltuion urged that such terms as "depletion", "moratorium", and "take" be redefined "so that State and Federal agencies can consider all animals in the marine ecosystem when managing the ocean's fisheries resources"; also that the Marine Mammal Protection Act be amended so that the goal of reducing mammal mortality incidental to commercial fishing be defined in more practical and realistic terms.