Fisheries Management:

Alleged Misconduct of Members and Staff of the Western Pacific Fishery Management Council

GAO-09-508R: Published: May 20, 2009. Publicly Released: Jun 19, 2009.

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In recent years, several Hawaii-based conservation advocacy organizations and others have raised a variety of concerns about the conduct of members and staff of the Western Pacific Fishery Management Council (Western Pacific Council) related to lobbying and conflicts of interest, among other things. The Western Pacific Council is one of eight regional fishery management councils established by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The council is responsible for developing management plans for fisheries in federal waters off Hawaii, American Samoa, Guam, the Northern Mariana Islands, and other U.S. Pacific islands. The council has 13 voting members--including 5 designated state and federal fishery managers and 8 members of the public with expertise in commercial and recreational fishing and marine conservation who are appointed by the Secretary of Commerce. The council employs an executive director with a staff of 13 to assist in the performance of its functions. An attorney from the National Oceanic and Atmospheric Administration (NOAA), an agency within the Department of Commerce, advises the council on regulatory and procedural matters and attends all council meetings. The Western Pacific Council currently finances all of its operations with grants from the Department of Commerce. As a federal grant recipient, the council is subject to Office of Management and Budget (OMB) requirements, such as OMB Circular A-122. Among other things, these requirements prohibit the use of federal funds to engage in certain lobbying activities at both the federal and state level. However, they do not prohibit the council from using federal funds to provide technical and factual presentations to federal and state legislators when asked to do so. Public council members are exempt from federal criminal conflict of interest law regarding participation in matters affecting their financial interests when they make decisions on council matters as long as they are in compliance with the financial disclosure and recusal requirements set out in the Magnuson-Stevens Act and its implementing regulations. Council members may not vote on matters that would have a "significant and predictable effect" on the financial interests they are required to disclose, but they may participate in deliberations on such matters if they recuse themselves and identify the interest that would be affected. These requirements help fulfill one of the purposes of the act, which is to encourage the participation of a wide range of stakeholders--including those with commercial fishing interests--in developing fishery management plans.

Overall, we found little or no evidence to substantiate many of the allegations related to lobbying, conflicts of interest, the use of and accounting for federal funds, and council operations, in part because some of the allegations were factually inaccurate. However, we identified some concerns related to lobbying, the use of and accounting for federal funds, and council operations. (1) Lobbying. We found conflicting evidence about whether the council had lobbied a member of Congress, as well as evidence that the council had delivered some testimonies that could be considered lobbying because they included statements of the council's opposition to pending legislation. According to OMB Circular A-122, federal grantees cannot use federal funds to attempt to introduce, enact, or modify legislation through communication with Congress, but are allowed to use federal funds to present technical and factual information related to the performance of their grant-funded activities in response to a documented request by a legislative body, its members, or staff. However, the council does not maintain such documentation. Consequently, we are recommending that NOAA require the council to maintain documentation of all requests for input from federal and state legislators. (2) Use of and accounting for federal funds. We determined that the council had made and accounted for cash payments for per diem travel costs to participants at a series of conferences. Generally speaking, such cash payments are not advisable because they are vulnerable to risk of loss or unauthorized use. Consequently, we are recommending that NOAA direct the council to pay per diem costs for meeting participants by check to the extent practicable. (3) Council operations. We identified various council practices that limit transparency regarding the council's contacts with federal and state legislators and its policies for providing public access to council records. Consequently, we are recommending that NOAA work with the council to implement a variety of actions to help improve the transparency of the council's operations, such as notifying NOAA regional counsel before meeting with federal and state legislators or testifying before one of their committees, and maintaining copies of documents available for public inspection, such as council meeting minutes and briefing book materials prepared for council members in advance of council meetings, on its Web site.

Status Legend:

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  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Recommendations for Executive Action

    Recommendation: To help ensure compliance with OMB Circular A-122 requirements governing federal grant recipients, the Administrator of NOAA should direct the Western Pacific Fishery Management Council to maintain documentation of all requests for information from federal and state legislators.

    Agency Affected: Department of Commerce: National Oceanic and Atmospheric Administration

    Status: Closed - Implemented

    Comments: The Administrator of the Pacific Islands Regional Office of NOAA's National Marine Fisheries Service (NMFS) directed the Western Pacific Fishery Management Council to maintain documentation of all requests for information from federal and state legislators, and NMFS has verified that the council is maintaining such documentation.

    Recommendation: To reduce the risk of loss or unauthorized use associated with reimbursing meeting participant expenses with cash, the Administrator of NOAA should direct the Western Pacific Fishery Management Council to pay per diem costs for meeting participants by check to the extent practicable.

    Agency Affected: Department of Commerce: National Oceanic and Atmospheric Administration

    Status: Closed - Implemented

    Comments: The Administrator of the Pacific Islands Regional Office of NOAA's National Marine Fisheries Service (NMFS) directed the Western Pacific Fishery Management Council to pay per diem costs for meeting participants by check to the extent practicable. NMFS has verified that the council is doing so. In addition, the council has updated its Standard Operating Practices and Procedures to include the procedure to reimburse payments by check or money order and is following the procecure pending final NMFS approval.

    Recommendation: To improve the transparency of the council's operations, the Administrator of NOAA should work with the Chair of the Western Pacific Fishery Management Council to implement actions such as notifying NOAA regional counsel before meeting with federal or state legislators or testifying before one of their committees; asking NOAA regional counsel to provide an annual briefing to council members and staff on the rules governing their conduct, including limits on contacts with legislators; adopting procedures that require council meeting minutes to include not only a council member's statement of recusal from voting, but also the nature of the financial interest that would be affected; maintaining current and archived copies of documents available for public inspection, such as the council's meeting minutes and briefing book materials, on the council's Web site; developing and making available the council's policy regarding the types of records that are available to the public at the council office, the types of records that are available through a FOIA request, and the procedures for reviewing or requesting these records; communicating directly with a council member who has requested council information and, if necessary, negotiating a timely response so that council members needing information do not have to file FOIA requests; and clarifying the council's advisory role by describing itself as a body that develops fishery management policy for review and approval by the Secretary of Commerce.

    Agency Affected: Department of Commerce: National Oceanic and Atmospheric Administration

    Status: Closed - Implemented

    Comments: The Administrator of the Pacific Islands Regional Office of NOAA's National Marine Fisheries Service (NMFS) proposed several actions to improve the transparency of the council's operations. The council has updated its Statement of Organization Practices and Procedures to include the procedures to improve transparency and NMFS has verified that the council is following the procedures pending final NMFS approval.

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