[Congressional Record Volume 140, Number 87 (Friday, July 1, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: July 1, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
   REGIONAL FISHERY MANAGEMENT COUNCILS ETHICS ACT OF 1994 INTRODUCED

                                 ______


                          HON. JOLENE UNSOELD

                             of washington

                    in the house of representatives

                        Thursday, June 30, 1994

  Mrs. UNSOELD. Mr. Speaker, today I am introducing comprehensive 
legislation to respond to widespread concerns over how our Federal 
fisheries are being managed under the Magnuson Fishery Conservation and 
Management Act [MFCMA or Magnuson Act]. Joining me in introducing this 
bill is my Washington State and Merchant Marine and Fisheries Committee 
colleague Representative Maria Cantwell.
  The Magnuson Act was enacted in 1976 to provide for the conservation 
and management of important fishery resources off the coast of the 
United States. It established a 197-mile Fishery Conservation Zone, now 
referred to as the U.S. Exclusive Economic Zone [EEZ], adjacent to the 
then 3-mile territorial sea. The Magnuson Act established sovereign 
rights and exclusive management authority over all marine resources, 
except for tuna, within the EEZ.
  A principal purpose for enacting the Magnuson Act was to control the 
heavy foreign fishing off our coast that occurred in the years 
preceding the statute's enactment. In addition to restricting foreign 
access to U.S. fishery resources, principal goals of the act were to 
establish sound conservation and management practices and to encourage 
the development of the domestic fishing industry.
  To allow broad-based participation in the management process, the 
Magnuson Act created eight regional fishery management councils. Each 
Council is comprised of State and Federal officials and interested 
fishing industry, sport fishing, academic and environmental 
representatives. The primary responsibility of the councils is the 
development of fishery management plans for important fishery 
resources. National conservation and management standards are 
established in the Magnuson Act, and these standards must be met in 
developing the fishery management plans. For each fishery the plans set 
the optimum yields to be harvested annually, the total allowable level 
of foreign fishing, and the rules governing the harvesting and landing 
of fishery resources by both U.S. and foreign fishermen.
  The Secretary of Commerce, through the National Oceanic and 
Atmospheric Administration [NOAA], administers the Magnuson Act and has 
responsibility for reviewing and approving each fishery management plan 
and plan amendment prepared by the Councils. The Secretary of State, in 
consultation with the Secretary of Commerce, is responsible for 
allocating any surplus fish not harvested by U.S. fishermen among 
foreign nations and for negotiating governing international fishery 
agreements.

  In the years since enactment of the Magnuson Act, two of its 
principal goals have been accomplished. The development of the domestic 
industry has been largely achieved with the full utilization of 
virtually every commercial fishery in the EEZ. This in turn has 
accomplished an additional objective of restricting foreign access to 
U.S. fishery resources, because foreign fish harvesting and processing 
activities have now been displaced by the U.S. industry, which is given 
priority access to the resource under the act.
  However, the development of the domestic fishing industry has been, 
in some measure, a victim of its own success. It has placed increased 
pressure on the conservation and management objectives of the Magnuson 
Act and has created a new set of problems unknown to the authors of the 
act in 1976. Specifically, the displacement of foreign fleets has 
increased competition among domestic users for access to the resource.
  These developments have in turn put increasing pressures on the 
Council system. The objective of creating broad-based participation in 
the fishery management process by those who know the most about the 
fishery has created a significant tension in the Council system where 
the most knowledgeable and experienced in the industry are often those 
with the greatest potential to benefit monetarily by the regulatory 
decisions of the Council. The act has historically permitted commercial 
fishermen and others whose livelihood depends on the resource 
management decisions of the Council to be put in charge of those very 
decisions.
  Nowhere are these conflicts more clear than with economic allocation 
decisions. Management decisions made for reasons other than the 
conservation and management of the resource are necessarily economic in 
consequence if not motivation. They require a higher standard of 
scrutiny and care by Council members who are charged with the 
stewardship of the natural fisheries resources.
  Contributing to a loss of confidence are Council procedures which do 
not adequately disclose, on the record, information about the interests 
of witnesses and which limit public participation through cumbersome 
agenda procedures which make it difficult to know when and what issues 
will be raised during week-long Council meetings.
  The clear success in the Americanization of our fisheries resources 
has been shared by American fishermen and American processors who have 
managed the process through their unique role on the Councils. Absent 
from the table when management decisions have been made, however, is 
the American public for whom our national fisheries are a shared 
resource.
  Mr. Speaker, over the past 18 months our Fisheries Management 
Subcommittee has held numerous oversight hearings on our Federal 
fisheries management system in anticipation of reauthorization of the 
MFCMA. Numerous witnesses--representing every aspect of the Council 
management spectrum--testified before our committee. Nearly all 
suggested some type of reform was needed to restore the credibility of 
the decisions made by the Councils. Some suggested that allowing 
industry representatives to manage themselves creates a system rooted 
in conflicts of interests. An editorial in the Anchorage Daily News 
summed up this concern this way:

       The Council system is ethically bankrupt. We don't let 
     Exxon, ARCO, and BP run the Alaskan State Department of 
     Environmental Conservation. We don't put people from phone 
     and electric companies in charge of the state public 
     utilities commission. We shouldn't turn federal fisheries 
     over to fishermen whose decisions directly affect their 
     personal fortunes.

  Other witnesses provided our subcommittee with specific examples of 
the conflict of interest problems inherent in the current system. For 
example, excerpts from transcripts of North Pacific Council meetings 
where a controversial plan to allocate pollock was being discussed 
reveal one Council member stating:

       The big thing here is that we all know how we're going to 
     vote. We can hire legal staff to put it in legal order. The 
     whole thing--we could have voted first and . . . taken the 
     afternoon off and go [sic] on a tour of the city while they 
     testified.

  Later in the same meeting regarding the quality of analyses necessary 
for plan approval, a Council member states:

       Now what we're looking for, I take it, is the minimum that 
     the judge will let us by on not knowing which judge will be 
     looking at it.

  Later, when the Council was considering whether an alternative 
management proposal known as ITQ's should be considered, a member of 
the Council asks in response to the decision not to include this 
alternative:

       Should we just include a paragraph (in the plan) that told 
     the truth? Such as we had people that were running for public 
     office that didn't want to face the heat of making an ITQ 
     decision?

  Perhaps just as powerful, Mr. Speaker, is the testimony provided by 
Mr. Frank DeGeorge, inspector general of the U.S. Department of 
Commerce, based on his criminal investigations of the Council system. 
His March 23, 1994, testimony stated his findings that Council members 
vote on matters in which they have direct financial interests. However, 
because the Magnuson Act specifically exempts council members from 
legal prohibitions on such conflicts, they technically did not violate 
the law. Further, the inspector general stated:

       I believe that the laws that apply to other federal 
     operations should also apply to fishery management councils. 
     Public confidence in the process that manages a public 
     resource depends on the absence of even an appearance of 
     conflict.

  Mr. Speaker, all in all the record of our subcommittee's hearings 
indicates numerous commercial fishing interests, recreational fishing 
interests, conservation groups, government officials, and three of the 
regional councils want some kind of reform of the Councils. Clearly, 
this diversity of interests with a common concern sends a clear message 
that something must be done.
  The bill we are introducing today responds to these concerns. It is 
called the Regional Fishery Management Councils Ethics Act and it is 
intended to improve the Council process and restore public confidence 
in the Federal management of our Nation's fisheries. Specifically, this 
bill:
  Establishes more stringent financial disclosure mechanisms for 
Council members;
  Establishes a recusal mechanism to prevent Council members from 
voting when a direct financial conflict exists;
  Authorizes Secretary to remove Council members for violating conflict 
of interest provisions;
  Modifies application of 18 U.S.C. Sec. 208--criminal conflict of 
interest provisions--to cover violations of new conflict of interest 
provisions;
  Reinstates portions of the Federal Advisory Committee Act to require 
expanded public availability of documentation at Council meetings and 
improve public participation at Council meetings;
  Requires Council members to take oath stating their commitment to 
conserving and managing the living marine resources of the United 
States for the best interest of the nation;
  Requires Council staff to be impartial and provides them with 
whistleblower protections;
  Requires two-thirds vote for economic allocation decisions.
  My bill also introduces additional procedural mechanisms designed to 
promote and support an improved Council system that is more accountable 
to the public. I have focused on these issues initially because we must 
get the Councils back on track before our Nation's fisheries pass the 
point of no return.
  Finally, Mr. Speaker, I want to state my strong views that in 
addition to council procedure reforms other changes to the act are both 
necessary and essential. Specific to the North Pacific Council is the 
industry's proposal to expand Washington State representation on the 
Council and to provide for an individual transferable quota management 
regime for the ground fisheries. On a national level--and as stewards 
of these resources--we must confront and respond to the increasing 
concerns of waste and by-catch in our fisheries. Our goal must be to 
minimize by-catch, eliminate high-grading and dumping.
  Mr. Speaker, we have a lot of work to do during reauthorization of 
the MFCMA to assure the American public that the decisions made in the 
Councils are for the long-term good of the industry, the resource and 
the country, not just for the short-term profit of Council members. The 
act we are introducing today represents the first important step.

        Regional Fishery Management Councils Ethics Act of 1994


                      section-by-section analysis

                       Purpose of the Legislation

       The purpose of this bill is to improve the functioning of 
     the Regional Fishery Management Councils under the Magnuson 
     Fishery Conservation and Management Act and to restore public 
     confidence in the stewardship of national fishery resources.

                            Section 1--Title

       This section cites the short title of the bill as the 
     Regional Fishery Management Councils Ethics Act of 1994.

               Section 2--Findings, Purposes, and Policy

       This section clarifies the statement of purposes and 
     policies of the Magnuson Act to emphasize that the Councils 
     are to exercise their stewardship of the fishery resources in 
     a manner free from conflicts of interest affecting Council 
     members. The findings are amended to include a reference to 
     Agenda 21 of the United States Conference on Environment and 
     Development and the importance of promoting the sustainable 
     use of the Nation's fishery resources.

                    Section 3--Conflicts of Interest

       Publicized reports of conflicts of interest among Council 
     members brought about by the increased competition among user 
     groups has focused attention on the potential for abuse and 
     self-serving decisions present in the current system.
       The Magnuson Act currently requires Council members and 
     other ``affected individuals'' to disclose their financial 
     interests as they relate to any harvesting, processing or 
     marketing activity in connection with a fishery over which 
     the Council has jurisdiction. It does not, however, require a 
     member to recuse himself or herself once having made the 
     disclosure, even if a Council member would benefit directly 
     from a Council vote.
       Section 3(a): amends and broadens the disclosure 
     requirements to cover an expanded range of ``conflicts of 
     interest.'' These changes require a Council member holding a 
     financial interest that would be affected by an action of the 
     Council to recuse him or herself from voting on such action. 
     If the ability of a Council member to vote is challenged by 
     another Council member on this basis or the member in 
     question requests clarification, the issue is to be resolved 
     first by the NMFS Regional Director with the advice of 
     counsel. This decision may be appealed to the Secretary who 
     is to make the final determination within a thirty-day 
     period. In the event that the Secretary reverses the Regional 
     Director and determines that the Council action would had a 
     different outcome but for the Regional Director's decision, 
     then the Secretary must remand to the Council for 
     reconsideration consistent with the Secretary's decision. 
     This section also modifies the application of 18 U.S.C. 
     Sec. 208 to Council members by expanding coverage to include 
     violations of these new conflict of interest provisions.
       Section 3(b): authorizes the Secretary to remove for cause 
     a Council member who violates the Act's conflict of interest 
     prohibitions.
       Section 3(c): establishes an oath emphasizing the important 
     role of Council members as stewards and trustees of our 
     Nation's fisheries resources.
       Section 3(d): sets conduct criteria for Council staff. The 
     importance of maintaining impartiality and the appearance of 
     impartiality in the Council process is not limited to Council 
     members themselves, but extends to the Council staff as well. 
     To be sure that they are not left out by implication or 
     otherwise, new provisions, patterned after existing 
     Department of Commerce regulatory guidelines, are included 
     for Council staff.
       Section 3(e): establishes ``whistleblower'' protection 
     provisions to ensure Council staff are able to act 
     impartially and report violations without fear of 
     retribution.
       Section 3(f): adds to the itemization of prohibited acts in 
     the Magnuson Act the failure of a Council member to seek 
     recusal where required under this section as well as the 
     submission of false information or the failure to submit 
     information required under this section.

            Section 4--Regional Fishery Management Councils

       Meaningful participation in the Council process can be 
     limited to the extent interested parties are unable to get 
     items on the agenda and where items that are on the agenda 
     are changed or postponed to other times. This can result in 
     extraordinary costs to participation in the process requiring 
     all interested participants to schedule the full week or more 
     during which Council meetings take place in order to be sure 
     that surprise action is not taken or that other matters are 
     not considered for which one would have no notice.
       Section 4(a): addresses procedural deficiencies with the 
     Council system. Council decisions increasingly rely on 
     information presented in public hearings and at Council 
     meetings. Although minutes are required to be kept, they are 
     insufficiently precise and can be unreliable given their 
     summary nature.
       The Magnuson Act originally placed the Councils under the 
     Federal Advisory Committee Act (FACA). They were subsequently 
     exempted from FACA coverage because some of the Councils had 
     complained that the procedural requirements of FACA were 
     hindering the interaction of the Councils with their own 
     scientific and statistical committees and advisory panels.
       This section restores portions of ``FACA'' and adds new 
     procedural provisions to ensure that the Councils function 
     with renewed public credibility and accountability, 
     including; 1) providing a mechanism to place items on the 
     Council's agenda and to impose some discipline on the agenda 
     process, requiring that witnesses presenting the testimony 
     make a statement of qualifications and a statement of 
     interest so that the probative value of the subsequent 
     testimony can be appropriately weighed and balanced by 
     Council members, and requiring such testimony to be made 
     under oath to enhance its reliability.
       Section 4(b): establishes the requirement that Fishery 
     Management Plans (FMPs) be based on a ``clear preponderance 
     of the evidence in the record.'' This provision is intended 
     to ensure that FMPs are supported by the evidence and reports 
     submitted to the Councils.
       Section 4(c): establishes time limits for regulatory 
     amendments to FMPs. There is currently no statutory time 
     limit for regulatory amendments. Some regulatory amendments 
     developed by the Councils take longer to be approved and 
     implemented than plans or plan amendments.
       Section 4(d): expands prohibited actions to include 
     knowingly submitting or presenting false information to a 
     Council or the Secretary.
       Section 4(e): subjects Council actions to judicial review.

                     Section 5--National Standards

       Section 5(a): modifies National Standard No. 1 to further 
     emphasize conservation goals, including the protection of 
     spawning and nursery areas and prevention of overfishing, and 
     minimization of by-catch.
       Section 5(b): amends National Standard No. 5 by requiring 
     conservation management measures to promote ``reduction of 
     excess fishing capacity and bycatch.''
       Section 5(c): adds new National Standard No. 8 which seeks 
     to promote ``the safety of life and property at sea.''

                    Section 6--Economic Allocations

       This section addresses issues related to those difficult 
     decisions Councils must now face involving the economic 
     allocation of fishery resources among U.S. user groups and 
     the need to establish limited entry systems when the 
     Secretary determines that overcapitalization is contributing 
     to overfishing.
       Section 6(a): amends existing standards to require an 
     affirmative vote of not less than two-thirds of the voting 
     members for any Council decision involving an economic 
     allocation. This is designed to ensure that decisions as 
     significant as these reflect a broad consensus of the 
     Council.
       Section 6(b): requires Councils to develop a limited entry 
     system for fisheries when the Secretary determines 
     overcapitalization is contributing to overfishing in that 
     fishery. This section also removes the restriction 
     prohibiting the use of limited entry systems.

            Section 7--Implementation of National Standards

       The advisory guidelines established by the Secretary and 
     based on the National Standards to assist in the development 
     of fishery management plans currently do not have the force 
     and effect of law.
       Section 7: removes this limitation and gives the National 
     Standards the force and effect of law.

                 Section 8--Non-Industry Representation

       Although properly entitled to be involved in the decision-
     making process governing a national resource taken by 
     fishermen every year, consumers, conservationists and other 
     non-industry stakeholders of our fishery resources have long 
     been absent from any meaningful role in the Council process.
       Section 8: insures non-industry representatives a place at 
     the table by adding two new seats to each council dedicated 
     to a non-industry representative.

                        Section 9--Effectve Date

       This section puts the changes of this Act into effect 90 
     days after enactment, and directs the Secretary to use that 
     90 days to prepare rules and take other implementing actions.

                          ____________________