[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.