I
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 Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Regional Fishery Man-
agement 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 re-
spected in the management of the Nation’s fishery re-
sources. In particular, sustainable use should be regarded
as the touchstone of the Nation’s program of fishery con-
servation and management.’’.
(b) PURPOSES.—Section 2(b) of the Magnuson Fish-
ery 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 fol-
lowing: ‘‘; 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 Fish-
ery 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 provi-
sions 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 in-
serting the following:
‘‘(B) the spouse, child, grandchild, parent, sib-
ling, 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 regula-
tions’’ 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 re-
consideration if the determination of a National Ma-
rine Fisheries Service Regional Director has been re-
versed by the Secretary under paragraph (7) and the
vote of the individual would have resulted in a dif-
ferent action by the Council.’’;
(6) by redesignating paragraph (7) as para-
graph (8) and inserting after paragraph (6) the fol-
lowing:
‘‘(7)(A) A Council member required to disclose a fi-
nancial 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.
Council member who is the subject of the appeal is re-
quired 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 sub-
paragraph (C).’’; and
(7) in paragraph (8), as redesignated by para-
graph (6) of this subsection, by striking ‘‘with the
regulations prescribed under paragraph (5)’’ and in-
serting ‘‘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 mem-
ber 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 state-
ment of the reasons on which the determination is based.’’.
(c) OATH.—Section 302(b)(2) of the Magnuson Fish-
ery Conservation and Management Act (16 U.S.C.
1852(b)(2)), is amended by adding at the end the follow-
ing:
‘‘(E) As trustees of the Nation’s fishery resources,
each voting members of a Council shall, at the first meet-
ing of the Council the member attends each year, take
the following oath:
‘‘I, lllll, 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 car-
rying 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 com-
peting 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 con-
duct myself at all times according to the rules of conduct
prescribed by the Secretary of Commerce. I fully under-
stand 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 Man-
agement 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 ap-
pearance of, any of the following:
‘‘(A) Using the Council office for private gain.
‘‘(B) Giving preferential treatment to any per-
son.
‘‘(C) Impeding Government efficiency or econ-
omy.
‘‘(D) Losing complete independence or impar-
tiality.
‘‘(E) Making a Government decision outside of-
ficial channels.
‘‘(F) Affecting adversely the confidence of the
public in the integrity of a Council.’’.
(e) PROTECTION
OF COUNCIL STAFF FROM RE-
PRISAL 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 RE-
PRISAL.—
‘‘(1) PROHIBITION OF REPRISALS.—An individ-
ual who is an employee of a Council may not be dis-
charged, 
demoted, 
or 
otherwise 
discriminated
against as a reprisal for disclosing to a Member of
Congress or an official of the Department of Com-
merce or the Department of Justice information re-
lating 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 in-
dividual who believes they have been subjected to a
reprisal prohibited under subsection (a) may submit
a complaint to the Inspector General of the Depart-
ment of Commerce. Unless the inspector general de-
termines that the complaint is frivolous, the inspec-
tor 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 dis-
charges, 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 as-
sessed by the Secretary.
‘‘(4) CONSTRUCTION.—Nothing in this section
may be construed to authorize the discharge of, de-
motion 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 subpara-
graph (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 sec-
tion 302(k)’’; and
(B) by striking ‘‘and’’ after the semicolon
at the end of paragraph (4), by striking the pe-
riod at the end of paragraph (5) and inserting
‘‘; and’’, and by adding at the end the follow-
ing:
‘‘(6) for a Council member to knowingly and
willfully fail to recuse himself or herself in accord-
ance with section 302(k)(7).’’.
(2) CRIMINAL
OFFENSES.—Section 309(a) of
the Magnuson Fishery Conservation and Manage-
ment 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 proce-
dures 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 testi-
mony. Written statements shall be attested to by the
submitter. Oral testimony shall be under oath.’’;
(3) amending subparagraph (E) to read as fol-
lows:
‘‘(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 de-
scription of matters discussed and conclusions
reached, and copies of all reports received, issued, or
approved by the Council. The accuracy of all min-
utes shall be certified by the Chairman of the Coun-
cil. 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 fol-
lowing:
‘‘(G) Subject to section 552 of title 5, United
States Code, the records, reports, transcripts, min-
utes, appendixes, working papers, drafts, studies,
agenda or other documents which are made available
to or prepared for or by each Council shall be avail-
able for public inspection and copying at a single lo-
cation 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, ad-
journ 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 Coun-
cil, committee, or advisory panel a written descrip-
tion of the item signed by 2 or more members of the
Council at least 14 days before the date of the meet-
ing.’’; and
(5) adding at the end the following:
‘‘(7) Each Council shall establish appropriate proce-
dures applicable to it and its committees and advisory pan-
els to allow meaningful public participation in each meet-
ing 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 Coun-
cils.’’.
(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 sub-
paragraph (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 follow-
ing:
‘‘(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 wheth-
er it is consistent with the fishery management
plan it amends, the national standards, the
other provisions of this Act, and any other ap-
plicable 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 Coun-
cil in writing of the Secretary’s disapproval or par-
tial disapproval of a regulatory amendment by the
60th day after the receipt date for the amendment,
the amendment shall take effect and be imple-
mented.
‘‘(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 regu-
latory amendment is inconsistent;
‘‘(B) the nature of such inconsistency; and
‘‘(C) recommendations concerning the ac-
tions that could be taken by the Council to con-
form such regulatory amendment to the re-
quirements 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 imme-
diately—
‘‘(A) commence a review of the revised reg-
ulatory amendment to determine if it complies
with the items referred to in paragraph (1)(A);
and