[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4713 Introduced in House (IH)]

103d CONGRESS
  2d Session
                                H. R. 4713

 To promote public confidence in the Magnuson Fishery Conservation and 
                Management Act, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             June 30, 1994

 Mrs. Unsoeld (for herself and Ms. Cantwell) introduced the following 
   bill; which was referred to the Committee on Merchant Marine and 
                               Fisheries

_______________________________________________________________________

                                 A BILL


 
 To promote public confidence in the Magnuson Fishery Conservation and 
                Management Act, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Regional Fishery Management Councils 
Ethics Act of 1994''.

SEC. 2. FINDINGS, PURPOSES, AND POLICY.

    (a) Findings.--Section 101(a) of the Magnuson Fishery Conservation 
and Management Act (16 U.S.C. 1801(a)) is amended by adding at the end 
the following:
    ``(9) Agenda 21 of the United Nations Conference on Environment and 
Development provides conservation guidelines, principles, and 
commitments that should be respected in the management of the Nation's 
fishery resources. In particular, sustainable use should be regarded as 
the touchstone of the Nation's program of fishery conservation and 
management.''.
    (b) Purposes.--Section 2(b) of the Magnuson Fishery Conservation 
and Management Act (16 U.S.C. 1801(b)) is amended--
            (1) in paragraph (5) by striking ``and'' before ``(B)'' and 
        by striking ``; and'' and inserting the following: ``; and (C) 
        which are free from conflicts of interest affecting any Council 
        member;'';
            (2) in paragraph (6) by striking the period and inserting 
        ``; and''; and
            (3) by adding at the end the following:
            ``(7) to ensure that management decisions with respect to 
        the Nation's fishery resources are, and are perceived to be, 
        made in a fair and equitable manner.''.
    (c) Policy.--Section 2(c)(3) of the Magnuson Fishery Conservation 
and Management Act (16 U.S.C. 1801(C)(3)) is amended by inserting after 
``citizens'' the following: ``consistent with the conflict of interest 
provisions of section 302(k)''.

SEC. 3. CONFLICTS OF INTEREST.

    (a) Recusal.--Section 302(k) of the Magnuson Fishery Conservation 
and Management Act (16 U.S.C. 1852(k)), is amended--
            (1) by inserting before the period at the end of the 
        subsection heading ``and Recusal'';
            (2) in paragraph (2)--
                    (A) in the matter preceding subparagraph (A) by 
                inserting ``, or that will be held during the term of 
                the individual as a member of a Council,'' after 
                ``held''; and
                    (B) by striking subparagraph (B) and inserting the 
                following:
            ``(B) the spouse, child, grandchild, parent, sibling, or 
        partner of that individual;'';
            (3) in paragraph (3)(B) by striking ``within'' and all that 
        follows through the period and inserting ``to the appointing 
        authority not less than 14 days prior to taking office.'';
            (4) in paragraph (5)(B) by inserting ``and the office of 
        the Secretary'' after ``offices'';
            (5) in paragraph (6) by striking ``the regulations'' and 
        all that follows through the period and inserting the 
        following: ``this subsection shall require the action to be 
        reconsidered by the Council without the vote of the affected 
        individual if the vote of the affected individual would have 
        resulted in a different action by the Council under subsection 
        (e)(1). Such action shall also be remanded to the Council for 
        reconsideration if the determination of a National Marine 
        Fisheries Service Regional Director has been reversed by the 
        Secretary under paragraph (7) and the vote of the individual 
        would have resulted in a different action by the Council.'';
            (6) by redesignating paragraph (7) as paragraph (8) and 
        inserting after paragraph (6) the following:
    ``(7)(A) A Council member required to disclose a financial interest 
under paragraph (2) shall recuse himself or herself from voting in all 
Council actions that have a direct and predictable effect on that 
interest. A particular action shall be considered to have a direct and 
predictable effect on a financial interest if there is a close causal 
link between the action and any expected effect of the action on the 
financial interest. An effect may be considered to be direct and 
predictable even though it does not occur immediately.
    ``(B) If the authority of a Council member to vote in an action is 
challenged by another Council member on the basis of subparagraph (A), 
the Council shall provide to the Council member whose authority is 
challenged an opportunity to respond.
    ``(C) If, after being provided an opportunity to respond, the 
Council member does not recuse himself or herself from voting in an 
action and that member or the Council member challenging his or her 
authority requests that the National Marine Fisheries Service Regional 
Director for the region of the Council make a determination, then the 
Regional Director, after consultation with the National Oceanic and 
Atmospheric Administration General Counsel, shall determine whether the 
member is required to recuse himself or herself under subparagraph (A). 
If the Regional Director determines that recusal is required, the 
member shall recuse himself or herself from voting in the action and 
shall state for the record, for purposes of subparagraph (E), how he or 
she would have voted.
    ``(D) Any Council member may, within 14 days after the 
determination of the Regional Director under subparagraph (C), appeal 
such determination to the Secretary, who shall within not more than 30 
days after the date of the appeal make a final determination of whether 
the Council member who is the subject of the appeal is required to 
recuse himself or herself.
    ``(E) A vote of a Council with respect to which an appeal to the 
Secretary is made under subparagraph (D) shall not be final before the 
date the Secretary issues a determination under subparagraph (D). If 
the Secretary determines that the Council member is not required to 
recuse himself or herself, the vote of the member in the action shall 
be the vote stated for the record under subparagraph (C).''; and
            (7) in paragraph (8), as redesignated by paragraph (6) of 
        this subsection, by striking ``with the regulations prescribed 
        under paragraph (5)'' and inserting ``this subsection''.
    (b) Removal.--Paragraph (5) of section 302(b) of the Magnuson 
Fishery Conservation and Management Act (16 U.S.C. 1852(b)) is amended 
to read as follows:
    ``(5) The Secretary may remove for cause any member of a Council 
required to be appointed by the Secretary in accordance with subsection 
(b)(2), including for any violation of section 302(k) by the member, if 
the Secretary makes a written determination, accompanied by a statement 
of the reasons on which the determination is based.''.
    (c) Oath.--Section 302(b)(2) of the Magnuson Fishery Conservation 
and Management Act (16 U.S.C. 1852(b)(2)), is amended by adding at the 
end the following:
    ``(E) As trustees of the Nation's fishery resources, each voting 
members of a Council shall, at the first meeting of the Council the 
member attends each year, take the following oath:
    ``I, __________, as a duly appointed member of a Regional Fishery 
Management Council established under the Magnuson Fishery Conservation 
and Management Act, hereby promise to conserve and manage the living 
marine resources of the United States of America by carrying out the 
business of the Council for the greatest overall benefit of the Nation, 
without regard to my own personal benefit. I recognize my 
responsibility to serve as a knowledgeable and experienced trustee of 
the Nation's marine fisheries resources, being careful to balance 
competing private or regional interests, and always aware and 
protective of the public interest in those resources. I commit myself 
to uphold the provisions, standards, and requirements of the Magnuson 
Fishery Conservation and Management Act and other applicable law, and 
shall conduct myself at all times according to the rules of conduct 
prescribed by the Secretary of Commerce. I fully understand the civil 
and criminal consequences of my failure to disclose my financial 
interests and to recuse myself from Council actions as required under 
applicable law. This oath is freely given and without mental 
reservation or purpose of evasion.''.
    (d) Requirement for Council Staff.--Section 302(f) of the Magnuson 
Fishery Conservation and Management Act (16 U.S.C. 1852(f)) is amended 
by adding at the end the following:
    ``(8) An individual on the staff of a Council shall avoid any 
action which might result in, or create the appearance of, any of the 
following:
            ``(A) Using the Council office for private gain.
            ``(B) Giving preferential treatment to any person.
            ``(C) Impeding Government efficiency or economy.
            ``(D) Losing complete independence or impartiality.
            ``(E) Making a Government decision outside official 
        channels.
            ``(F) Affecting adversely the confidence of the public in 
        the integrity of a Council.''.
    (e) Protection of Council Staff From Reprisal for Disclosure of 
Certain Information.--Section 302 of the Magnuson Fishery Conservation 
and Management Act (16 U.S.C. 1852) is further amended by adding at the 
end the following:
    ``(l) Protection of Council Staff Against Reprisal.--
            ``(1) Prohibition of reprisals.--An individual who is an 
        employee of a Council may not be discharged, demoted, or 
        otherwise discriminated against as a reprisal for disclosing to 
        a Member of Congress or an official of the Department of 
        Commerce or the Department of Justice information relating to--
                    ``(A) a possible violation of a law, rule, or 
                regulation related to a fishery management plan, or
                    ``(B) gross management, a gross waste of funds, an 
                abuse of authority, or a substantial and specific 
                threat to the health of a fishery.
            ``(2) Investigation of complaints.--An individual who 
        believes they have been subjected to a reprisal prohibited 
        under subsection (a) may submit a complaint to the Inspector 
        General of the Department of Commerce. Unless the inspector 
        general determines that the complaint is frivolous, the 
        inspector general shall investigate the complaint and, upon 
        completion of such investigation, submit a report of the 
        findings of the investigation to the person, the Council 
        concerned, and the Secretary of Commerce.
            ``(3) Civil penalty.--Any person that discharges, demotes, 
        or otherwise discriminates against an employee of a Council in 
        violation of paragraph (1) shall be subject to a civil penalty 
        of not more than $10,000 for each violation, which may be 
        assessed by the Secretary.
            ``(4) Construction.--Nothing in this section may be 
        construed to authorize the discharge of, demotion of, 
        discrimination against a Council staff for a disclosure other 
        than a disclosure referred to in subsection (a), or to modify 
        or derogate from a right or remedy otherwise available to an 
        individual who is an employee of a Council.''.
    (f) Prohibited Acts and Criminal Offenses.--
            (1) Prohibited acts.--Section 307 of the Magnuson Fishery 
        Conservation and Management Act (16 U.S.C. 1857) is amended--
                    (A) in paragraph (1) by striking ``or'' after the 
                semicolon at the end of subparagraph (M), by striking 
                the period at the end of subparagraph (N) and inserting 
                ``; or'', and by adding at the end the following:
                    ``(O) to submit false information, or fail to 
                submit required information, pursuant to section 
                302(k)''; and
                    (B) by striking ``and'' after the semicolon at the 
                end of paragraph (4), by striking the period at the end 
                of paragraph (5) and inserting ``; and'', and by adding 
                at the end the following:
            ``(6) for a Council member to knowingly and willfully fail 
        to recuse himself or herself in accordance with section 
        302(k)(7).''.
            (2) Criminal offenses.--Section 309(a) of the Magnuson 
        Fishery Conservation and Management Act (16 U.S.C. 1859(a)) is 
        amended--
                    (A) in paragraph (1) by striking ``or (L)'' and 
                inserting ``(L), or (O)''; and
                    (B) in paragraph (2) by striking ``307(2)'' and 
                inserting ``307(2) or (6)''.

SEC. 4. REGIONAL FISHERY MANAGEMENT COUNCILS.

    (a) Council Procedures.--Section 302(j) of the Magnuson Fishery 
Conservation and Management Act (16 U.S.C. 1852(j)) is amended by--
            (1) amending paragraph (1) to read as follows:
    ``(1) Each Council shall comply with meeting procedures that ensure 
to the extent possible full and effective public participation by all 
interested persons.'';
            (2) adding at the end of paragraph (2)(D) the following: 
        ``Such written statement or oral testimony of a person shall be 
        preceded by a statement of the qualifications of the person and 
        a statement of the interest of the person, including financial 
        interest, in the subject of the written statement or oral 
        testimony. Written statements shall be attested to by the 
        submitter. Oral testimony shall be under oath.'';
            (3) amending subparagraph (E) to read as follows:
            ``(E) Detailed minutes of each meeting of each Council 
        shall be kept and shall contain a record of the persons 
        present, a complete and accurate description of matters 
        discussed and conclusions reached, and copies of all reports 
        received, issued, or approved by the Council. The accuracy of 
        all minutes shall be certified by the Chairman of the Council. 
        The Chairman shall submit to the Secretary a copy of the 
        minutes of each meeting. The minutes shall be treated as part 
        of the administrative record for purposes of judicial review 
        under section 302(l) or section 305(b).'';
            (4) adding at the end of paragraph (2) the following:
            ``(G) Subject to section 552 of title 5, United States 
        Code, the records, reports, transcripts, minutes, appendixes, 
        working papers, drafts, studies, agenda or other documents 
        which are made available to or prepared for or by each Council 
        shall be available for public inspection and copying at a 
        single location in the offices of the Council.
            ``(H) The National Marine Fisheries Service Regional 
        Director for each region may, whenever he or she determines it 
        to be in the public interest, adjourn or continue any meeting 
        of the Council for that region.
            ``(I) Any person may add an item to the agenda of a meeting 
        of a Council or of a committee or panel of a Council by 
        presenting to the chair of the Council, committee, or advisory 
        panel a written description of the item signed by 2 or more 
        members of the Council at least 14 days before the date of the 
        meeting.''; and
            (5) adding at the end the following:
    ``(7) Each Council shall establish appropriate procedures 
applicable to it and its committees and advisory panels to allow 
meaningful public participation in each meeting by (A) publishing or 
otherwise making an agenda available to interested persons sufficiently 
in advance of the meeting, and (B) ensuring that each agenda, as made 
available, is adhered to.
    ``(8) The Federal Advisory Committee Act (5 U.S.C. App.) shall not 
apply to the Councils or to the scientific and statistical committees 
or advisory panels of the Councils.''.
    (b) Fishery Management Plans.--Section 303(a) of the Magnuson 
Fishery Conservation and Management Act (16 U.S.C. 1853(a)) is 
amended--
            (1) by striking ``and'' at the end of paragraph (1)(B); and
            (2) by redesignating subparagraph (C) as subparagraph (D) 
        and inserting after subparagraph (B) the following:
                    ``(C) based on a clear preponderance of the 
                evidence in the record; and''.
    (c) Regulatory Amendments.--Section 304 of the Magnuson Fishery 
Conservation and Management Act (16 U.S.C. 1854) is amended by adding 
at the end the following:
    ``(h) Action on Regulatory Amendments.--
            ``(1) After the receipt date for a regulatory amendment 
        which was prepared by a Council, the Secretary shall--
                    ``(A) immediately commence a review of the 
                regulatory amendment to determine whether it is 
                consistent with the fishery management plan it amends, 
                the national standards, the other provisions of this 
                Act, and any other applicable law; and
                    ``(B) immediately publish the amendment in the 
                Federal Register for a 30-day public comment period.
            ``(2) The Secretary shall take action under this section on 
        any regulatory amendment which the Council characterizes as 
        being a final regulatory amendment.
            ``(3) If the Secretary does not notify the Council in 
        writing of the Secretary's disapproval or partial disapproval 
        of a regulatory amendment by the 60th day after the receipt 
        date for the amendment, the amendment shall take effect and be 
        implemented.
            ``(4) If after review the Secretary determines that the 
        regulatory amendment is not consistent with the items referred 
        to in paragraph (1)(A), the Secretary shall notify the Council 
        in writing of the Secretary's disapproval or partial 
        disapproval of the regulatory amendment. Such notice shall 
        specify--
                    ``(A) the applicable law or provision of the 
                fishery management plan with which the regulatory 
                amendment is inconsistent;
                    ``(B) the nature of such inconsistency; and
                    ``(C) recommendations concerning the actions that 
                could be taken by the Council to conform such 
                regulatory amendment to the requirements of applicable 
                law and the fishery management plan.
            ``(5) If the Secretary disapproves or partially disapproves 
        a regulatory amendment, the Council may submit a revised 
        regulatory amendment to the Secretary.
            ``(6) After the Secretary receives a revised regulatory 
        amendment, the Secretary shall immediately--
                    ``(A) commence a review of the revised regulatory 
                amendment to determine if it complies with the items 
                referred to in paragraph (1)(A); and
                    ``(B) publish the revised regulatory amendment in 
                the Federal Register for a 15-day public comment 
                period.
            ``(7) Before the close of the 30th day after the receipt 
        date for a revised regulatory amendment, the Secretary, after 
        taking into account any public comments, shall complete the 
        review and determine whether the revised regulatory amendment 
        complies with the items referred to in paragraph (1)(A). If the 
        Secretary determines that the revised regulatory amendment is 
        not in compliance with those items, the Secretary shall 
        immediately notify the Council of the Secretary's disapproval. 
        After notifying a Council of that disapproval, the Secretary 
        shall promptly provide to the Council a written statement of 
        the reasons on which the disapproval was based and advise the 
        Council that it may submit a further revised regulatory 
        amendment for review and determination under this paragraph. If 
        the Secretary does not notify the Council in writing of the 
        Secretary's disapproval or partial disapproval by the 30th day 
        after the receipt date, the revised regulatory amendment will 
        take effect and be implemented.
            ``(8) For purposes of this subsection, the term `receipt 
        date' means the 5th day after the day on which a Council 
        transmits to the Secretary a regulatory amendment or revised 
        regulatory amendment that the Council characterizes as a final 
        regulatory amendment.''.
    (d) Prohibition.--Section 307(1)(I) of the Magnuson Fishery 
Conservation and Management Act (16 U.S.C. 1857(1)(I)) is amended by 
inserting after ``to a Council,'' the following: ``in the form of 
testimony or in any other manner,''.
    (e) Judicial Review of Council Actions.--Section 302 of the 
Magnuson Fishery Conservation and Management Act (16 U.S.C. 1852) is 
amended by adding at the end the following:
    ``(l) Judicial Review of Council Action.--Any action of a Council 
shall be subject to judicial review under chapter 7 of title 5, United 
States Code, as an agency action.''.

SEC. 5. NATIONAL STANDARDS.

    (a) National Standard No. 1.--Section 301(a)(1) of the Magnuson 
Fishery Conservation and Management Act (16 U.S.C. 1851(a)(1)) is 
amended to read as follows:
            ``(1) Conservation of fishery resources shall be the 
        principal objective of fishery management plans and of any 
        regulation promulgated to implement any such plan. Conservation 
        and management measures shall protect vulnerable spawning and 
        nursery areas, prevent overfishing, and minimize waste, 
        including the reduction of excessive fishing capacity and by 
        catch, while achieving, on a continuing basis, the optimum 
        yield from each fishery.''.
    (b) National Standard No. 5.--Section 301(a)(5) of the Magnuson 
Fishery Conservation and Management Act (16 U.S.C. 1851(a)(5)) is 
amended to read as follows:
    ``(5) Conservation and management measures shall, to the extent 
practicable, promote efficiency in the utilization of fishery 
resources, including the avoidance or reduction of excessive fishing 
capacity and by catch; except that no such measure shall have economic 
allocation as its sole purpose.''.
    (c) New National Standard.--Section 301(a) of the Magnuson Fishery 
Conservation and Management Act (16 U.S.C. 1851(a)) is amended by 
adding at the end the following:
    ``(8) Conservation and management measures shall promote the safety 
of life and property at sea.''.

SEC. 6. ECONOMIC ALLOCATIONS.

    (a) Two-Thirds Vote Required.--Section 302(e)(1) of the Magnuson 
Fishery Conservation and Management Act (16 U.S.C. 1852(e)(1)) is 
amended to read as follows:
    ``(1)(A) Except as provided in subparagraph (B)--
            ``(i) a majority of the voting members of any Council shall 
        constitute a quorum, but one or more such members designated by 
        the Council may hold hearings; and
            ``(ii) all decisions of any Council shall be by majority 
        vote of the voting members present and voting.
    ``(B) A Council decision that makes an economic allocation shall be 
by an affirmative vote by not less than \2/3\ of the total number of 
voting members of the Council, whether or not all such members are 
present and voting.
    ``(C) If a Council fails to make a decision referred to in 
subparagraph (B) and the National Marine Fisheries Service Regional 
Director for the region of the Council determines that such failure 
will adversely affect conservation of any stock of fish, the Regional 
Director shall, after consultation with each Council member, recommend 
an allocation regime to the Secretary.''.
    (b) Overcapitalization and Limited Entry.--
            (1) Required provision of management plan.--Section 303(a) 
        of the Magnuson Fishery Conservation and Management Act (16 
        U.S.C. 1853(a)) is amended in paragraph (8) by striking ``and'' 
        after the semicolon, in paragraph (9) by striking the period 
        and inserting ``; and'', and by adding at the end the 
        following:
            ``(10) establish a system for limiting access to the 
        fishery, consistent with section 303(b)(6), if the Secretary 
        makes a written determination that the fishery is 
        overcapitalized, and that such over capitalization is 
        contributing to overfishing.''.
            (2) Repeal of restriction on secretary.-- Section 304(c) of 
        the Magnuson Fishery Conservation and Management Act (16 U.S.C. 
        1854(c)) is amended by striking paragraph (3).

SEC. 7. IMPLEMENTATION OF NATIONAL STANDARDS.

    Section 301(b) of the Magnuson Fishery Conservation and Management 
Act, as amended (16 U.S.C. 1851(b)) is amended by striking ``advisory'' 
and by striking ``(which shall not have the force and effect of 
law).''.

SEC. 8. NONFISHING INDUSTRY REPRESENTATION.

    (a) United States Consumers.--Section 3(21)(A) of the Magnuson 
Fishery Conservation and Management Act (16 U.S.C. 1802(21)(A)) is 
amended by inserting after ``food production'' the following: ``, 
United States consumers,''.
    (b) Council Representation.--Section 302(a) of the Magnuson Fishery 
Conservation and Management Act (16 U.S.C. 1852(a)) is amended--
            (1) in paragraph (1) by striking ``17'' and inserting 
        ``19'', and by striking ``11'' and inserting ``13'';
            (2) in paragraph (2) by striking ``19'' and inserting 
        ``21'', and by striking ``12'' and inserting ``14'';
            (3) in paragraph (3) by striking ``13'' and inserting 
        ``15'', and by striking ``8'' and inserting ``10'';
            (4) in paragraph (4) by striking ``7'' and inserting ``9'', 
        and by striking ``4'' and inserting ``6'';
            (5) in paragraph (5) by striking ``17'' and inserting 
        ``19'', and by striking ``11'' and inserting ``13'';
            (6) in paragraph (6) by striking ``13'' and inserting 
        ``15'', and by striking ``8'' and inserting ``10'';
            (7) in paragraph (7) by striking ``11'' and inserting 
        ``13'', and by striking ``7'' and inserting ``9'';
            (8) in paragraph (8) by striking ``13'' and inserting 
        ``15'', and by striking ``8'' and inserting ``10'';
            (9) in each of paragraphs (1), (2), (3), (4), (5), and (6) 
        by inserting ``and at least 2 of whom shall not be 
        representatives of the fishing industry'' after ``each such 
        State'' each place it appears;
            (10) in paragraph (7) by inserting a comma followed by 
        ``and at least 2 of whom shall not be representatives of the 
        fishing industry'' after ``State of Washington''; and
            (11) in paragraph (8) by inserting a comma followed by 
        ``and at least 2 of whom shall not be representatives of the 
        fishing industry'' after ``Islands'' the second place it 
        appears.
    (c) Appointment of Nonfishing Industry Representatives.--Section 
302(b)(2) of the Magnuson Fishery Conservation and Management Act (16 
U.S.C. 1852(c)(2)) is amended by adding at the end the following:
    ``(E) Each Governor of a constituent State of a Council may submit 
to the Secretary the names of 2 individuals for each appointment of a 
member of the Council who under subsection (a) is prohibited from being 
a representative of the fishing industry.
    ``(F) Of the 2 members of a Council who under subsection (a) are 
prohibited from being representatives of the fishing industry, not more 
than 1 may be nominated by the Governor of a particular State.''.

SEC. 9. EFFECTIVE DATE.

    Sections 3, 4, 5, 6 and 7 shall take effect 90 days after the date 
of enactment of this Act, except that the Secretary shall proceed 
during that 90-day period with such regulatory proceedings, personnel 
actions, and other activities as the Secretary considers necessary to 
implement fully those sections upon that effective date.
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