H.R. 4713 (103rd): Regional Fishery Management Councils Ethics Act of 1994

103rd Congress, 1993–1994. Text as of Jun 30, 1994 (Introduced).

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HR 4713 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, XXXXX, 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.