[Senate Report 111-297]
[From the U.S. Government Publishing Office]


111th Congress 
 2d Session                      SENATE                          Report
                                                                111-297
_______________________________________________________________________
                                                       Calendar No. 574
 
  TECHNICAL CORRECTIONS TO THE WESTERN AND CENTRAL PACIFIC FISHERIES 
                     CONVENTION IMPLEMENTATION ACT


                               __________


                              R E P O R T

                                 OF THE

           COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                                   on

                                S. 2871



                                     

               September 20, 2010.--Ordered to be printed
       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
                     one hundred eleventh congress
                             second session

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts         OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota        JOHN ENSIGN, Nevada
BARBARA BOXER, California            JIM DeMINT, South Carolina
BILL NELSON, Florida                 JOHN THUNE, South Dakota
MARIA CANTWELL, Washington           ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey      GEORGE S. LeMIEUX, Florida
MARK PRYOR, Arkansas                 JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri           DAVID VITTER, Louisiana
AMY KLOBUCHAR, Minnesota             SAM BROWNBACK, Kansas
TOM UDALL, New Mexico                MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
                     Ellen Doneski, Staff Director
                   James Reid, Deputy Staff Director
                     Bruce Andrews, General Counsel
                 Ann Begeman, Republican Staff Director
              Brian Hendricks, Republican General Counsel
                Todd Bertoson, Republican Senior Counsel
                                                       Calendar No. 574
111th Congress                                                   Report
                                 SENATE
 2d Session                                                     111-297

======================================================================

  TECHNICAL CORRECTIONS TO THE WESTERN AND CENTRAL PACIFIC FISHERIES 
                     CONVENTION IMPLEMENTATION ACT

                                _______
                                

               September 20, 2010.--Ordered to be printed

                                _______
                                

     Mr. Rockefeller, from the Committee on Commerce, Science, and 
                Transportation, submitted the following

                                 REPORT

                         [To accompany S. 2871]

    The Committee on Commerce, Science, and Transportation, to 
which was referred the bill (S. 2871) to make technical 
corrections to the Western and Central Pacific Fisheries 
Convention Implementation Act, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                          Purpose of the Bill

  The purpose of S. 2871 is to make technical corrections to 
the implementing statutes for the Western and Central Pacific 
Fisheries Commission and the Pacific Hake/Whiting Agreement.

                          Background and Needs

  The Western and Central Pacific Fisheries Convention 
Implementation Act (WCPFC Implementation Act) implements the 
Convention on the Conservation and Management of Highly 
Migratory Stocks in the Western and Central Pacific Ocean 
(Convention), adopted on September 5, 2000, in Honolulu, 
Hawaii. The Convention, which the United States signed in 2000, 
became effective on June 19, 2004, prior to U.S. ratification. 
The President transmitted the Convention to the Senate on May 
16, 2005, and the Senate provided its advice and consent on 
November 17, 2005. The objective of the Convention is to ensure 
the long-term conservation and sustainable use of tuna and 
other highly migratory stocks in the Western and Central 
Pacific Ocean. Additionally, the Convention is intended to help 
to reduce the impact of fishing for such stocks on non-target 
species. The Convention adopts provisions that implement key 
aspects of the 1995 United Nations Fish Stocks Agreement, 
including provisions on compliance and enforcement, and bycatch 
of non-target species.
  The WCPFC Implementation Act calls for the appointment of 
United States Commissioners and the establishment of a 
permanent Advisory Committee to be composed of individuals with 
experience in or knowledge of the fisheries covered by the 
Convention. However, the statute also applies Federal conflict 
of interest laws to both the Commissioners and the members of 
the Advisory Committee. Industry members serving as 
Commissioners or Advisory Committee members, chosen based on 
their direct knowledge and experience in Western and Central 
Pacific Fisheries Commission matters, are considered to have a 
conflict of interest as defined by Federal conflict of interest 
laws, and therefore, cannot provide the expertise for which 
they were appointed without violating Federal conflict of 
interest laws.
  A separate statute, the Pacific Whiting Act, implements the 
Agreement between the Government of the United States and the 
Government of Canada on Pacific Hake/Whiting. It was negotiated 
in 2003 to end the disagreement between the United States and 
Canada over conservation and management of Pacific whiting. It 
specifies joint committees and management protocols to ensure 
the long-term health of the whiting stock and sustainability of 
these critically important U.S. fisheries.
  The Pacific Whiting Act calls for the appointment of a Joint 
Management Committee, Joint Scientific Review Group, Joint 
Technical Committee, and Advisory Panel. The Joint Management 
Committee and Advisory Panel are to include individuals from 
the commercial sector of the whiting fishing industry. However, 
the statute also applies Federal conflict of interest laws to 
the members of the Advisory Panel and Joint Management 
Committee. As a result, industry members chosen to serve in 
either of these capacities will, based on their direct 
knowledge and experience in Pacific Whiting matters, be 
disqualified from serving. In other words, they cannot serve on 
the bodies and provide the expertise for which they were 
appointed without violating Federal conflict of interest laws.
  Most implementing legislation for international fish 
commissions does not include language that treats Commissioners 
and Advisory Committee members as Federal employees except, in 
certain cases, for the purposes of injury compensations and 
tort claims. The WCPFC Implementation Act and Pacific Whiting 
Act, in contrast, expanded the Federal employee status of 
Commissioners and Joint Committee and Advisory Panel members to 
include: (1) requirements concerning ethics, conflicts of 
interest, and corruption; and (2) other criminal or civil 
statutes or regulations governing the conduct of Federal 
employees. This expanded language is unlike other implementing 
legislation for international commissions and has the 
unintended consequence of precluding some of the individuals 
who should be appointed as Commissioners or advisory panel 
members because they could potentially benefit economically 
from carrying out the functions for which they were appointed. 
In other words, the industry committee representatives and 
Advisory Panel members required under the two Acts cannot serve 
because they are part of the industry.
  To fulfill the congressional intent for the appointment of 
industry members, amendments to the two Acts are necessary to 
remove the expansion language. This will make the WCPFC 
Implementation Act and Pacific Whiting Act consistent with 
other international fishery commissions to allow for full 
participation of members. The bill would strike the conflict of 
interest language included in the WCPFC Implementation Act and 
the Pacific Whiting Act. Until there is a resolution of the 
current conflict of interest issue for the members of the 
Advisory Panel and joint committees, the United States cannot 
fully implement the Acts.

                         Summary of Provisions

  S. 2871 would amend section 503 of the WCPFC Implementation 
Act to consider non-Federal individuals serving as 
Commissioners on the Commission for the Conservation and 
Management of Highly Migratory Fish Stocks in the Western and 
Central Pacific Ocean or advisory committee members to be 
Federal employees only for purposes of injury compensation or 
tort claims liability.
  The bill would also amend the Pacific Whiting Act of 2006 to: 
(1) reduce to two the number of individuals appointed by the 
Secretary of Commerce to serve as scientific experts on the 
joint technical committee; and (2) consider non-Federal 
individuals serving on the joint management committee, the 
scientific review group, the joint technical committee, or the 
advisory panel, to be Federal employees only for purposes of 
injury compensation or tort claims liability.

                          Legislative History

  S. 2871 was introduced by Senator Inouye on December 10, 
2009, and was cosponsored by Senators Cantwell, Wyden, and 
Murray. The bill was referred to the Committee on Commerce, 
Science, and Transportation. On March 24, 2010, the Committee 
met in open executive session and, by voice vote, ordered S. 
2871 reported without amendment.

                            Estimated Costs

  In accordance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate and section 403 of the 
Congressional Budget Act of 1974, the Committee provides the 
following cost estimate, prepared by the Congressional Budget 
Office:

                                                     April 6, 2010.
Hon. John D. Rockefeller IV,
Chairman, Committee on Commerce, Science, and Transportation, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2871, a bill to make 
technical corrections to the Western and Central Pacific 
Fisheries Convention Implementation Act, and for other 
purposes.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jeff LaFave.
                Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

S. 2871--A bill to make technical corrections to the Western and 
        Central Pacific Fisheries Convention Implementation Act, and 
        for other purposes

    S. 2871 would amend existing laws related to certain 
international fishing agreements. Based on information from the 
National Oceanic and Atmospheric Administration (NOAA), CBO 
estimates that implementing the legislation would have no 
significant cost. Enacting S. 2871 would not affect direct 
spending or revenues; therefore, pay-as-you-go procedures would 
not apply.
    Under current law, individuals appointed to serve on 
commissions and advisory bodies under certain international 
fishing agreements are subject to various eligibility 
requirements. Under the bill, some of those eligibility 
requirements would be changed. Because those changes would not 
affect the number of individuals appointed to serve on those 
bodies, CBO estimates that implementing this provision would 
not affect the federal budget.
    S. 2871 also would reduce the number of scientific experts 
appointed to the joint technical committee under the Pacific 
Whiting Act of 2006. Although members of that committee do not 
receive compensation, implementing S. 2871 could reduce the 
cost of reimbursable expenses paid to committee members. Based 
on information from NOAA, CBO estimates that any savings from a 
reduction in those expenses would be negligible.
    S. 2871 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Jeff LaFave. The 
estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

  In accordance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee provides the 
following evaluation of the regulatory impact of the 
legislation, as reported:

                       NUMBER OF PERSONS COVERED

  S. 2871 would not authorize any new regulations, and 
therefore would not subject any individuals or businesses to 
new regulations.

                            ECONOMIC IMPACT

  S. 2871 is not expected to have an adverse impact on the 
nation's economy.

                                PRIVACY

  The reported bill would not have any adverse impact on the 
personal privacy of individuals.

                               PAPERWORK

  S. 2871 would not increase paperwork requirements for the 
private sector.

                   Congressionally Directed Spending

  In compliance with paragraph 4(b) of rule XLIV of the 
Standing Rules of the Senate, the Committee provides that no 
provisions contained in the bill, as reported, meet the 
definition of congressionally directed spending items under the 
rule.

                      Section-by-Section Analysis


Section 1. Technical Corrections to the Western and Central Pacific 
        Fisheries Convention and Implementation Act.

  This section would amend section 503 of the WCPFC 
Implementation Act (16 U.S.C. 6902) to clarify that the 
Commissioners appointed to the Western and Central Pacific 
Fisheries Management Commission should include the chairman or 
a member of the Western Pacific Fishery Management Council and 
the chairman or a member of the Pacific Fishery Management 
Council. This section would clarify the employment status of 
Commissioners and remove conflict of interest language that 
prevents U.S. industry members from participating in the 
substantive discussions on international management of 
fisheries in this area.

Section 2. Pacific Whiting Act of 2006.

  This section would amend section 605(a)(1) of the Pacific 
Whiting Act of 2006 (16 U.S.C 7004(a)(1)) to reduce to two the 
number of individuals appointed by the Secretary of Commerce to 
serve as scientific experts on the joint technical committee. 
This section would also amend section 609(a) of the Act (16 
U.S.C 7008(a)) to clarify the employment status of committee 
and advisory panel members and remove conflict of interest 
language that prevents U.S. industry members from participating 
in the substantive discussions on international management of 
fisheries in this area.

                        Changes in Existing Law

  In compliance with paragraph 12 of rule XXVI of the Standing 
Rules of the Senate, changes in existing law made by the bill, 
as reported, are shown as follows (existing law proposed to be 
omitted is enclosed in black brackets, new material is printed 
in italic, existing law in which no change is proposed is shown 
in roman):

  WESTERN AND CENTRAL PACIFIC FISHERIES CONVENTION IMPLEMENTATION ACT

                            [16 U.S.C. 6902]

SEC. 503. APPOINTMENT OF UNITED STATES COMMISSIONERS.

  (a) In General.--The United States shall be represented on 
the Commission by 5 United States Commissioners. The President 
shall appoint individuals to serve on the Commission at the 
pleasure of the President. In making the appointments, the 
President shall select Commissioners from among individuals who 
are knowledgeable or experienced concerning highly migratory 
fish stocks in the Western and Central Pacific Ocean, one of 
whom shall be an officer or employee of the Department of 
Commerce, and one of whom shall be the chairman or a member of 
the Western Pacific Fishery [Management Council and] Management 
Council, and one of whom shall be the chairman or member of the 
Pacific Fishery Management Council. The Commissioners shall be 
entitled to adopt such rules of procedures as they find 
necessary and to select a chairman from among members who are 
officers or employees of the United States Government.
  (b) Alternate Commissioners.--The Secretary of State, in 
consultation with the Secretary, may designate from time to 
time and for periods of time deemed appropriate Alternate 
United States Commissioners to the Commission. Any Alternate 
United States Commissioner may exercise at any meeting of the 
Commission, Council, any Panel, or the advisory committee 
established pursuant to subsection (d), all powers and duties 
of a United States Commissioner in the absence of any 
Commissioner appointed pursuant to subsection (a) of this 
section for whatever reason. The number of such Alternate 
United States Commissioners that may be designated for any such 
meeting shall be limited to the number of United States 
Commissioners appointed pursuant to subsection (a) of this 
section who will not be present at such meeting.
  (c) Administrative Matters.--
          [(1) Employment status.--Individuals serving as such 
        Commissioners, other than officers or employees of the 
        United States Government, shall be considered to be 
        Federal employees while performing such service, only 
        for purposes of--
                  [(A) injury compensation under chapter 81 of 
                title 5, United States Code;
                  [(B) requirements concerning ethics, 
                conflicts of interest, and corruption as 
                provided under title 18, United States Code; 
                and
                  [(C) any other criminal or civil statute or 
                regulation governing the conduct of Federal 
                employees.]
          (1) Employment status.--Individuals serving as such 
        Commissioners, other than officers or employees of the 
        United States Government, shall not be considered 
        Federal employees except for the purposes of injury 
        compensation or tort claims liability as provided in 
        chapter 81 of title 5, United States Code, and chapter 
        171 of title 28, United States Code.
          (2) Compensation.--The United States Commissioners or 
        Alternate Commissioners, although officers of the 
        United States while so serving, shall receive no 
        compensation for their services as such Commissioners 
        or Alternate Commissioners.
          (3) Travel expenses.--
                  (A) The Secretary of State shall pay the 
                necessary travel expenses of United States 
                Commissioners and Alternate United States 
                Commissioners in accordance with the Federal 
                Travel Regulations and sections 5701, 5702, 
                5704 through 5708, and 5731 of title 5, United 
                States Code.
                  (B) The Secretary may reimburse the Secretary 
                of State for amounts expended by the Secretary 
                of State under this subsection.
  (d) Advisory Committees.--
          (1) Establishment of permanent advisory committee.--
                  (A) Membership.--There is established an 
                advisory committee which shall be composed of--
                          (i) not less than 15 nor more than 20 
                        individuals appointed by the Secretary 
                        of Commerce in consultation with the 
                        United States Commissioners, who shall 
                        select such individuals from the 
                        various groups concerned with the 
                        fisheries covered by the WCPFC 
                        Convention, providing, to the maximum 
                        extent practicable, an equitable 
                        balance among such groups;
                          (ii) the chair of the Western Pacific 
                        Fishery Management Council's Advisory 
                        Committee or the chair's designee; and
                          (iii) officials of the fisheries 
                        management authorities of American 
                        Samoa, Guam, and the Northern Mariana 
                        Islands (or their designees).
                  (B) Terms and privileges.--Each member of the 
                advisory committee appointed under subparagraph 
                (A) shall serve for a term of 2 years and shall 
                be eligible for reappointment. The advisory 
                committee shall be invited to attend all non-
                executive meetings of the United States 
                Commissioners and at such meetings shall be 
                given opportunity to examine and to be heard on 
                all proposed programs of investigation, 
                reports, recommendations, and regulations of 
                the Commission.
                  (C) Procedures.--The advisory committee 
                established by subparagraph (A) shall determine 
                its organization, and prescribe its practices 
                and procedures for carrying out its functions 
                under this chapter, the Magnuson-Stevens 
                Fishery Conservation and Management Act (16 
                U.S.C. 1801 et seq.), and the WCPFC Convention. 
                The advisory committee shall publish and make 
                available to the public a statement of its 
                organization, practices, and procedures. A 
                majority of the members of the advisory 
                committee shall constitute a quorum. Meetings 
                of the advisory committee, except when in 
                executive session, shall be open to the public, 
                and prior notice of meetings shall be made 
                public in a timely fashion. and the advisory 
                committee shall not be subject to the Federal 
                Advisory Committee Act (5 U.S.C. App.).
                  (D) Provision of information.--The Secretary 
                and the Secretary of State shall furnish the 
                advisory committee with relevant information 
                concerning fisheries and international fishery 
                agreements.
          (2) Administrative matters.--
                  (A) Support services.--The Secretary shall 
                provide to advisory committees in a timely 
                manner such administrative and technical 
                support services as are necessary for their 
                effective functioning.
                  (B) Compensation; status; expenses.--
                Individuals appointed to serve as a member of 
                an advisory committee--
                          (i) shall serve without pay, but 
                        while away from their homes or regular 
                        places of business in the performance 
                        of services for the advisory committee 
                        shall be allowed travel expenses, 
                        including per diem in lieu of 
                        subsistence, in the same manner as 
                        persons employed intermittently in the 
                        Government service are allowed expenses 
                        under section 5703 of title 5, United 
                        States Code; and
                          [(ii) shall be considered Federal 
                        employees while performing service as 
                        members of an advisory committee only 
                        for purposes of--
                          [(I) injury compensation under 
                        chapter 81 of title 5, United States 
                        Code;
                          [(II) requirements concerning ethics, 
                        conflicts-of-interest, and corruption, 
                        as provided by title 18, United States 
                        Code; and
                          [(III) any other criminal or civil 
                        statute or regulation governing the 
                        conduct of Federal employees in their 
                        capacity as Federal employees.]
                          (ii) shall not be considered Federal 
                        employees except for the purposes of 
                        injury compensation or tort claims 
                        liability as provided in chapter 81 of 
                        title 5, United States Code, and 
                        chapter 171 of title 28, United States 
                        Code.

           *       *       *       *       *       *       *


                      PACIFIC WHITING ACT OF 2006

SEC. 605. UNITED STATES REPRESENTATION ON JOINT TECHNICAL COMMITTEE.

                            [16 U.S.C. 7004]

  (a) Scientific Experts.--
          (1) In general.--The Secretary, in consultation with 
        the Secretary of State, shall appoint [at least 6 but 
        not more than 12] no more than 2 individuals to serve 
        as scientific experts on the joint technical committee, 
        at least 1 of whom shall be an official of the National 
        Oceanic and Atmospheric Administration.
          (2) Term of office.--An individual appointed under 
        paragraph (1) shall be appointed for a term of not to 
        exceed 4 years, but shall be eligible for 
        reappointment. An individual appointed to fill a 
        vacancy occurring prior to the expiration of the term 
        of office of that individual's predecessor shall be 
        appointed for the remainder of that term.
  (b) Independent Member.--In addition to individuals appointed 
under subsection (a), the Secretary, jointly with the 
Government of Canada, shall appoint 1 independent member to the 
joint technical committee selected from a list of names 
provided by the advisory panel.

SEC. 609. ADMINISTRATIVE MATTERS.

                            [16 U.S.C. 7008]

  [(a) Employment status.--Individuals appointed under section 
603, 604, 605, or 606 of this title who are serving as such 
Commissioners, other than officers or employees of the United 
States Government, shall be considered to be Federal employees 
while performing such service, only for purposes of--
          [(1) injury compensation under chapter 81 of title 5, 
        United States Code;
          [(2) requirements concerning ethics, conflicts of 
        interest, and corruption as provided under title 18, 
        United States Code; and
          [(3) any other criminal or civil statute or 
        regulation governing the conduct of Federal employees.]
  (a) Employment Status.--Individuals appointed under section 
603, 604, 605, or 606 of this title, other than officers or 
employees of the United States Government, shall not be 
considered to be Federal employees while performing such 
service, except for purposes of injury compensation or tort 
claims liability as provided in chapter 81 of title 5, United 
States Code, and chapter 171 of title 28, United States Code.

                                  
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