October 1, 1992 CONTENTS HEARING DATE Frank, Hon. Barney, a Representative in Congress from the State of Massa- chusetts, and chairman, Subcommittee on Administrative Law and HOUSE OF REPRESENTATIVES, AND GOVERNMENTAL RELATIONS, The subcommittee met, pursuant to notice, at 10:30 a.m., in room 2237, Rayburn House Office Building, Hon. Barney Frank (chairman of the subcommittee) presiding. Present: Representatives Barney Frank and Don Edwards. Also present: Paul J. Drolet, counsel; Cynthia Blackston, chief clerk; and Raymond V. Smietanka, minority counsel. OPENING STATEMENT OF CHAIRMAN FRANK Mr. FRANK. I apologize for the delay. The Judiciary found itself short of a quorum for an important piece of legislation. The hearing of the Subcommittee on Administrative Law and Governmental Relations will come to order. This hearing is a result of conversations I had in New Bedford with people who represent the fishing industry, which is one that has been increasingly regulated in recent years. People recognize the need for rules and regulations. There is no likelihood that they are going to diminish substantially, although there are some individual regulations we hope will get done away with. What we have to do is to work out a way that those can be enforced fairly so the people who are prepared to live by the regulations don't get themselves disadvantaged vis-a-vis those who don't. But we also, I think, have to understand we are dealing here with people who are overwhelmingly very decent, very hard-working people, who find themselves confronting some physical and economic difficulties, and it is important that the enforcement take that into account, that enforcement not be done with an excess of vindictiveness, that it not be done arbitrarily. We are not talking here about protecting innocent citizens from violent criminals. We are talking about enforcing a set of rules deemed necessary for economic and environmental reasons. And I think that is an important distinction to keep in mind. This is not a case where a group of bad people have decided to take advantage of other law-abiding people. It is a situation in which very decent, hard-working people find themselves coping with rules that are difficult in some cases to understand, and that change. And what we want to see is that enforcement reflects that. Some comments I heard from people whose opinions I trust suggest to me we aren't always meeting that standard. That is a standard we have to meet. This hearing is a first in what I believe will be a regular oversight by this subcommittee on the question of administrative enforcement of these regulations. With that, we will call up our first panel. I thank my colleague, Mr. Edwards, from California for joining me. We may be joined by Mr. Reed. In the end of a session, there tends to be a lot of coming and going, but I can assure you this is something that is getting a lot of attention from the other Members, and as I said, it is just the first in a series. First, we will call forward our panel: Mr. Mickelson, Mr. Barnet, and Mr. Kvilhaug of Massachusetts. Mr. EDWARDS. Mr. Chairman, I congratulate and thank you for holding this very important hearing. I can't think of any industry more important to America than the fishing industry. Coming from California, we have great fishing waters off our coast, and certainly not comparable to the great deep water off of the coast of Massachusetts and the islands. And I think it is a very important subject. I have known about your long-term interest in this, and I think this is a very important hearing. I appreciate being able to participate. Mr. FRANK. I thank you. Sit down, gentlemen. Let me say I have a statement, if there is no objection, I will put in the record from John Gauvin, a fishery economist. He was going here in person but his plane was canceled, a circumstance with which I have become very familiar myself. [The prepared statement of Mr. Gauvin follows:] PREPARED STATEMENT OF JOHN GAUVIN, STAFF FISHERY ECONOMIST, SOUTH ATLANTIC FISHERY MANAGEMENT COUNCIL My name is John Gauvin. I am a resource economist working as staff fishery economist for the South Atlantic Fishery Management Council. Prior to working for the council, I researched some of the economic aspects of fishery enforcement and compliance with Dr. Jon Sutinen of the University of Rhode Island. Dr. Sutinen's expertise in that field is recognized worldwide and it is unfortunate that prior commitments make him unable to speak to you today. Dr. Sutinen and I did two in-depth studies of how fishery enforcement inputs such as the number of boardings or the number of field agents affect fishermen's perceptions of the odds of getting caught and punished for violating regulations. This work involved estimating probabilities of detection and conviction and the penalties fishermen expect for common violations as they compare to expected economic gains from those violations. The first study in 1987 evaluated enforcement in the Massachusetts lobster fishery and was undertaken for the Division of Marine Fisheries in that state. The second study in 1988 looked at the New England and Mid-Atlantic groundfish, scallop, and lobster fisheries. That study was funded by the New England Fishery Management Council. Dr. Sutinen and I are co-authors of several publications which present findings from these studies. I have included copies of two of our articles as reference material accompanying my testimony. One aspect of the study which described enforcement in New England federal waters fisheries was to evaluate NOAA General Counsel's role in fisheries enforcement. Herein were estimated the actual and perceived deterrence resulting from the judicial portion of fisheries enforcement. Specifically, this part of our research looked at factors influencing fishermen's decisions to settle or contest a notice of violation assessment (NOVA) from an economic point of view. One portion of that part of the study examined the Administrative Law Judge system as a part of the overall case hearing and settlement system. During the development of the study questionnaire, I had the opportunity to meet with many fishermen along the New England coast and discuss their views of the NMFS/NOAA enforcement system as well as solicit their opinions and suggestions pertaining to the survey instrument. I also devoted a |