66 



Subrapoutue on Pubtrim MftnAcement 

 Ccnnm of latenst ud tbo Mafflusoo Act 

 March Z9, 1994; Pip 2 



BACKGROUND 



The Magnuson Act created eight Regional Fishery Management Councils 

 (Councils) charged with managing and conserving U.S. fisheries resources through the 

 promulgation of fishery management plans in coordination with the National Marine 

 Fisheries Service (NMFS). In addition to managing fisheries resources for conservation 

 purposes, Councils are responsible for allocating resources among various and often 

 competing users. 



Section 302 of the Magnuson Act established the Regional Fisheries Management 

 Councils and the process for appointment of members to the Councils. Congress 

 specifically intended that the Councils should be composed primarily of experts with 

 "hands on knowledge about fishing and fisheries resources. Hence. Section 302 provides 

 that the voting members of the Councils shall consist of (a) the principal State official 

 responsible for marine fishery management from each state represented on the Council, 

 (b) the regional director of the Nationjil Marine Fisheries Service, or his representative, 

 and (c) members appointed by the Secretary of Commerce "who, by reason of their 

 occupational or other experience, scientific expertise, or training, are knowledgeable 

 regarding the conservation and management, or the commercial or recreational harvest, 

 of the fishery resources of the geographic area concerned." 



CONFLICT OF INTEREST 



There is no universal agreement on what constitutes a conflict of interest for a 

 member of a Council. Although it is generally agreed that a person who personally 

 profits as a direct result of decisions he makes in his official capacity would have a 

 conflict of interest, there are numerous other instances where there is substantially less 

 agreement. For example, does a recreational fisherman who fishes a specific stock of 

 fish and then participates in an allocation decision on that stock have a conflict. While 

 some would argue the presence of a monetary interest is necessary to create a conflict, 

 others would say that a person's nonmonetary interest could bias his judgement. 

 Similarly, a paid employee of a commercial, recreational, environmental or other 

 interested group may have his judgement unfairly affected by the views of his 

 employing organization. It has also been argued that allocations based on state of 

 residence may lead a Council member, especially the state fisheries official, to act to 

 further his or her state's interest as opposed to the national interest. 



The Magnuson Act specifically provides (section 301(kX7)) that certain actions 

 which' in another context would be an impermissible conflict of interest (and a violation 

 of 18 use 208, the federal conflict of interest statute) are lawful. For example, as long 

 as a Council member makes the financial disclosures mandated by section 302 (k), he is 

 generally not subject to the provisions of 18 USC 208 that prohibit an official from 

 acting in a manner that affects his financial interests. Further, unless they have made 

 the required disclosure. Council members are prohibited by National Oceanic and 

 Atmospheric Administration (NOAA) Regulations from participating in (1) a particular 

 matter primarily of "individual concern" or (2) a matter of general public concern which 

 is likely to have a "direct and predictable effect on a members financial interests" (50 

 CFR 601.35(bX8)). 



The Inspector General will testify that, "We have found, after some research, 

 that this exemption apparently is the only example in federal law of a direct statutory 

 blanket waiver from the prohibitions agamst conflicts of interest by federal officials...". 



