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GAO-09-508R: 

United States Government Accountability Office: 
Washington, DC 20548: 

May 20, 2009: 

The Honorable Henry A. Waxman:
Chairman:
Committee on Energy and Commerce:
House of Representatives: 

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

Dear Mr. Chairman: 

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[Footnote 1] 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.[Footnote 2] 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.[Footnote 3] 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. 

You asked that we determine the validity of allegations against the 
Western Pacific Council related to (1) lobbying, (2) conflicts of 
interest, (3) the use of and accounting for federal funds, and (4) 
council operations. In conducting our work, we reviewed relevant laws 
and regulations, Commerce Department guidance, and council policies and 
procedures. We also reviewed council records--such as meeting minutes, 
publications, videos, testimony, financial disclosure forms, financial 
records, audit reports, and grant documents--and Hawaii state 
legislation and legislative reports. We interviewed individuals that 
have raised concerns about the council's conduct; officials from NOAA's 
National Marine Fisheries Service (NMFS); council members and staff; 
and others, such as Hawaii state legislators alleged to have knowledge 
of the council's misconduct. We conducted our review between October 
2008 and May 2009 in accordance with generally accepted government 
auditing standards. Those standards require that we plan and perform 
the audit to obtain sufficient, appropriate evidence to provide a 
reasonable basis for our findings and conclusions based on our audit 
objectives. We believe that the evidence obtained provides a reasonable 
basis for our findings and conclusions based on our audit objectives. 

Results in Brief: 

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. 

* 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. 

* 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. 

* 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. 

Background: 

Fishery management issues can be highly contentious. The interests of 
fishermen, fish processors, coastal communities, the government, and 
environmental organizations are often different and sometimes mutually 
incompatible. Such differences can lead to adversarial relationships 
among those interested in marine resource management. Over the years, 
differences have arisen, and have been expressed in the press and 
through complaints filed with the Commerce Department's Office of 
Inspector General, between the Western Pacific Council and members of 
groups who hold different views regarding the management of marine 
resources in waters within the council's jurisdiction. 

The Magnuson-Stevens Act has established standards that regional 
fishery management councils, including the Western Pacific Council, 
must follow when developing fishery management plans. For example, the 
council's fishery management plans must prevent overfishing while 
achieving, on a continuing basis, the optimum yield from the fishery. 
In addition, the act allows the council to consider historical fishing 
practices and the cultural and social practices of affected communities 
when developing fishery management plans. Once the council prepares a 
plan, it submits the plan to the Secretary of Commerce for approval. 
Once approved, the plan is implemented by NMFS and enforced by NMFS's 
Office for Law Enforcement, the U.S. Coast Guard, and local enforcement 
agencies. 

The Western Pacific Council currently finances all of its operations 
with grants from the Department of Commerce. In fiscal year 2007, for 
example, the council received $4.4 million from NOAA, according to 
NOAA. As a federal grant recipient, the council is subject to OMB 
Circular A-122 rules on the use of federal grant funds. Specifically, 
OMB Circular A-122 sets forth cost principles for nonprofit federal 
grantees and, among other things, disallows the use of federal grant 
funds to (1) attempt to influence the introduction, enactment, or 
modification of federal or state legislation through contact with 
legislators or legislative staff members, or (2) attempt to influence 
the introduction, enactment, or modification of federal or state 
legislation through grassroots lobbying.[Footnote 4] Under OMB Circular 
A-122, the council may provide technical and factual presentations on 
topics directly related to the performance of the council's grant 
through hearing testimony, statements, or letters to a legislature, its 
members, or staff in response to a documented request. 

According to the Commerce Department, a violation of these cost 
principles could result in (1) grant termination; (2) a special 
condition for future awards, such as education or training for the 
grantee; or (3) disbursement of the grant on a reimbursement basis 
only, meaning that the grantee would have to show that costs had been 
incurred in line with the cost principles before receiving federal 
grant funds to cover these costs. However, because the Magnuson-Stevens 
Act requires the Secretary of Commerce to fund the councils, 
terminating a council's grant is not a realistic option. Placing a 
condition on mandatory funding is also not a realistic option because 
the councils must be funded, even if a condition is violated. Finally, 
while requiring a council to seek reimbursement for costs would place 
an administrative burden on the council that might encourage 
compliance, there may be little, if any, cost actually associated with 
some restricted lobbying activities. In addition, a reimbursement 
approach could require NOAA to allocate resources to grant oversight 
that may not be commensurate with the grant amounts at issue. 

The Magnuson-Stevens Act and its regulations encourage representation 
of diverse interests on the councils, including commercial and 
recreational fishing interests. To allow those with financial interests 
in fisheries or fishery-related activities to participate on the 
councils, the act generally exempts public council members from federal 
conflict of interest law regarding participating in matters affecting 
their financial interests when they deliberate and vote on council 
matters, as long as they are in compliance with alternative provisions 
specifically applicable to council members.[Footnote 5] These 
provisions require public members to report any interest in a 
harvesting, processing, lobbying, advocacy, or marketing activity 
within any fishery over which the council has jurisdiction. Doing so 
allows them to vote on any matter that will not have an expected and 
substantially disproportionate benefit to their financial interests and 
is not primarily a matter of individual concern. If the decision would 
have such an effect, then the council member may not vote. However, the 
member may participate in discussions and deliberations regarding the 
matter after recusing himself and identifying the financial interest 
that would be affected. If the matter is primarily of individual 
concern, then the council member may not participate in voting, 
deliberations, rendering advice, and making recommendations. Commerce 
Department guidance defines "matters primarily of individual concern" 
as "those matters that affect a small number of identified, or easily 
identifiable, parties, rather than broad policy matters affecting many 
entities." 

The Magnuson-Stevens Act requires each fishery management council to 
publish a Statement of Organization, Practices, and Procedures (SOPPs) 
for carrying out the council's functions under the act. Among other 
things, the SOPPs provide information on the councils' accounting and 
budgetary control procedures and their operating policies and 
procedures. 

Lobbying: 

We found limited and inconclusive evidence regarding whether members 
and staff of the Western Pacific Council had engaged in lobbying 
activities in support of legislation or policy positions. These 
allegations included claims that the council had lobbied members of the 
executive branch, members of Congress, and members of the Hawaii state 
legislature; testified before Congress and the Hawaii state 
legislature; and organized grassroots lobbying efforts. 

* Lobbying members of the executive branch. We examined allegations 
that the council had communicated with the Secretary of Commerce and 
the President's Council on Environmental Quality regarding the 
council's opposition to the executive orders establishing the 
Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve[Footnote 6] 
and its subsequent designation as a marine sanctuary. The council's 
executive director acknowledged communicating the council's opposition 
to the fishery closures and no-anchoring provisions in the executive 
orders to the Secretary of Commerce and the Council on Environmental 
Quality. However, such contacts do not constitute prohibited lobbying 
under OMB rules. Specifically, OMB Circular A-122 does not bar council 
members and staff from communicating their views within the executive 
branch on executive branch matters. 

* Lobbying members of Congress. We examined allegations that the 
council had attempted to lobby members of Congress. We found limited 
and conflicting evidence regarding these allegations. OMB Circular A-
122 disallows the use of federal funds for efforts to introduce, enact, 
or modify legislation through communication with members of Congress. 
However, OMB Circular A-122 does allow the use of federal funds to 
present technical and factual information related to grant performance 
in response to a documented request by a legislative body, its members, 
or staff. Council officials acknowledged having met with members of 
Congress and their staffs, but said that they did so in response to 
requests for information. They also acknowledged having made courtesy 
visits to members of the Hawaiian congressional delegation while in 
Washington, D.C., but denied that these visits were used to lobby 
members of Congress regarding pending legislation. We interviewed a 
former member of Congress who believed that council representatives had 
come to his office without an invitation and lobbied him regarding 
pending legislation. According to the council's executive director, the 
legislator had invited council representatives to meet with him and the 
meeting did not involve lobbying. We were unable to resolve the 
conflicting recollections of this incident. We were also unable to 
determine whether the council's contacts with members of Congress were 
in accordance with OMB Circular A-122 because, according to council 
officials, they do not maintain documentation that would show the date 
and reason for each congressional contact, nor do they routinely notify 
NOAA regional counsel of these contacts. In addition, council officials 
told us that each year, council members and staff received a copy of 
the Commerce Department's rules of conduct for council members and 
employees, including rules on lobbying, but only new council members 
received training on these rules. 

* Lobbying members of the Hawaii state legislature. We investigated 
several allegations that the council had drafted legislation and 
contacted legislators regarding bills before the Hawaii state 
legislature. We also investigated an allegation that a council 
contractor had lobbied state legislators on the council's behalf in 
support of bills resulting from a series of conferences--known as 
Puwalu--that the council organized and cosponsored to help increase the 
participation of native Hawaiians in the fishery management process. 
However, we found no evidence to support these allegations. To 
determine the validity of these allegations, we interviewed council 
staff, who denied having drafted state legislation or lobbied state 
legislators. The council's executive director said that the council has 
provided information to state legislators at their request. However, 
the council does not keep documentation that would show the date and 
reason for each contact, nor do they routinely notify NOAA regional 
counsel of these contacts. Council staff also denied having contracted 
with the organizer of the Puwalu series to lobby the state legislature, 
and our review of the council's contracts with the Puwalu organizer 
showed that they did not include lobbying activities. We also 
interviewed Hawaii state legislators whom the council and the council 
contractor had allegedly lobbied. One legislator said that the council 
had not drafted the bill in question and no legislator could recall 
having been lobbied by the council regarding pending legislation. 
Another legislator told us that the contractor had lobbied him in 
support of legislation resulting from the Puwalu series, but identified 
herself as representing a group of native Hawaiian elders--not the 
council. 

* Testifying before Congress and the Hawaii state legislature. We 
investigated several allegations that the council had testified before 
Congress and the Hawaii state legislature in opposition to various 
pieces of legislation and had also written testimony for fishermen to 
deliver before the Hawaii state legislature. We found evidence that the 
council had delivered some testimonies that could be considered 
lobbying, but we did not find evidence to substantiate allegations that 
the council had written testimony for fishermen. OMB Circular A-122 
disallows the use of federal funds for expenses associated with 
testimony that is unsolicited or, even if solicited, is not purely 
technical or factual and directly related to the performance of a 
federal grant. Moreover, under OMB Circular A-122, the request to 
testify must be documented for any expenses associated with the 
testimony to be allowable. While the council's executive director told 
us that council members and staff had testified at the request of 
congressional and state legislative committees, council staff kept no 
documentation of these requests, nor did they routinely notify NOAA 
regional counsel of such requests. Therefore, we could not determine 
whether the council had been asked to testify. Such documentation is 
particularly important in the case of testimony before Hawaii state 
legislative committees because these committees allow solicited and 
unsolicited testimony, according to state legislators we spoke with. 
Further, among the testimonies we reviewed, we found several that 
included statements of advocacy for particular policy positions, in 
addition to technical and factual information. Specifically, we found 
that, in 1999 and 2000, the council's chairman testified at least five 
times before U.S. congressional and Hawaii state legislative 
committees. These testimonies were largely factual, but also included 
statements of the council's opposition to pending legislation. As the 
agency administering the council's grant, NOAA is responsible for 
implementing the requirements of OMB Circular A-122. Therefore, it 
would be up to NOAA to determine whether federal funds were used for 
lobbying and, if so, what the appropriate remedy to pursue would be. 

* Organizing grassroots lobbying. We looked into several allegations 
that the council had engaged in efforts to get others to influence 
federal and state legislation, primarily through the media and the 
Puwalu series of conferences. However, we could find no evidence to 
support these claims. Such conduct would violate OMB Circular A-122, 
and any associated costs would be unallowable expenditures of federal 
grant money. Specifically, we were unable to substantiate allegations 
that the council used the media to organize grassroots lobbying because 
the alleged instances appeared to involve an executive order rather 
than legislation, and OMB Circular A-122 does not prohibit attempting 
to influence executive branch decisions. In addition, we were unable to 
find evidence to substantiate allegations related to the Puwalu series. 
Specifically, council staff and the series organizer told us that the 
series was not intended to produce legislation, and the persons making 
the allegations provided no solid evidence to the contrary. 

Conflicts of Interest: 

We found no evidence to support allegations that public council members 
inappropriately voted or deliberated on matters concerning their 
financial interests. 

* Council members voting on decisions in which they had conflicts of 
interest. We reviewed allegations ranging from general concerns that 
public council members with significant commercial fishing interests 
have benefited from council decisions, to concerns that a public 
council member could have personally benefited from a specific decision 
on which he had voted. However, we found no evidence to substantiate 
these allegations. The Magnuson-Stevens Act requires public council 
members to disclose their financial interest in harvesting, processing, 
lobbying, advocacy, or marketing activities within any fishery over 
which the council has jurisdiction. Further, such a council member may 
not vote on a matter that would have a "significant and predictable 
effect" on such an interest, defined as a close causal link between the 
decision and an "expected and substantially disproportionate benefit" 
relative to the interest of other participants in the fishery. NOAA 
regulations define "expected and substantially disproportionate 
benefit" to mean a greater than 10 percent interest in the total 
harvest of the fishery or sector of the fishery in question; in the 
fishery's harvesting, marketing, or processing activities; or in the 
vessels using the same gear type. Council members also may not vote on 
matters primarily of individual concern. During our review, one person 
who had raised concerns about conflicts of interest told us he was 
aware of the conflict of interest requirements but disagreed with them. 
Specifically, he said he believed that council members should not be 
allowed to vote on matters in which they have an interest, regardless 
of the size of their interest. 

* Council members participating in deliberations on decisions in which 
they had conflicts of interest. We reviewed allegations that when 
public council members recused themselves from voting on decisions in 
which they had conflicts of interest, they still participated in, and 
in some cases led, council deliberations on those matters. However, we 
determined that such participation is generally permissible. 
Specifically, the Magnuson-Stevens Act allows public council members to 
participate in deliberations on matters in which they have conflicts of 
interest after notifying the council that they will not be voting on 
the matter and after identifying the financial interest that would be 
affected. According to Commerce Department guidance, a recusal from 
voting may be announced at any time before voting on the matter. 
However, we found that it was not always clear from council meeting 
minutes whether members who had recused themselves had identified the 
financial interest that would be affected, as required by the Magnuson- 
Stevens Act. Finally, Commerce Department guidance states that a member 
disqualified from voting on a matter primarily of individual concern 
may not participate in deliberations on the matter. NOAA Regional 
Counsel for the Pacific Islands Region told us that there had been no 
violations of this prohibition since at least November 2005.[Footnote 
7] 

The Use of and Accounting for Federal Funds: 

We found no evidence to support allegations that the Western Pacific 
Council improperly used and accounted for federal funds. 

* Improperly using federal funds. We reviewed allegations that the 
council improperly used federal funds by organizing and sponsoring the 
Puwalu series. We found no evidence to support these allegations. One 
of the purposes of the Magnuson-Stevens Act is to ensure that the 
councils prepare, monitor, and revise fishery management plans in a way 
that will enable a broad range of stakeholders to participate in and 
advise on the establishment and administration of those plans. The act 
also encourages councils to develop ecosystem-based approaches to 
fisheries management. According to council officials, the purpose of 
the five Puwalu conferences, which were held between August 2006 and 
November 2007, was to engage native Hawaiians in resource management 
issues and encourage practitioners of native Hawaiian fishing 
traditions to become more involved in the development of an ecosystem- 
based approach to fisheries management. In the opinion of officials at 
NMFS's Pacific Island Regional Office, the series was well thought out 
and clearly in line with the approved uses and goals of the council's 
multiyear grant. 

* Improperly accounting for federal funds. We reviewed general 
allegations that the council had improperly accounted for federal 
funds. We found no evidence to substantiate these allegations. 
Specifically, our review of the council's 2006 and 2007 independent 
auditor reports found that the council received unqualified audit 
opinions for both years. Further, the independent auditor did not 
identify any significant deficiencies in the design and operation of 
controls that would adversely affect the council's ability to prevent 
or detect financial reporting misstatements, or to comply with 
requirements applicable to each major council program and OMB Circular 
A-133.[Footnote 8] Similarly, our limited review of council 
expenditures found that they were supported by adequate documentation 
and properly recorded.[Footnote 9] 

* Inappropriately distributing cash. We reviewed allegations that the 
council distributed cash in white envelopes to certain participants of 
the Puwalu series in an attempt to buy loyalty to the council. We found 
that a total of 97 participants received cash payments at four of the 
five Puwalu conferences; however, we found no evidence to suggest that 
these payments were made to buy loyalty. Instead, they represented the 
participants' per diem for meals and incidental travel expenses to 
attend the conferences. Council staff said that they chose to make 
these payments in cash instead of by check because they believed it was 
the best way to maximize the attendance of native Hawaiian cultural 
practitioners, many of whom live off the land using traditional 
Hawaiian practices and may not have bank accounts or the identification 
necessary to cash checks. We reviewed seven cash payments and found 
that they were properly supported and accounted for. However, generally 
speaking, such cash payments are not advisable because, according to 
our Standards for Internal Control in the Federal Government,[Footnote 
10] cash is vulnerable to risk of loss or unauthorized use. 

We determined that allegations related to the following matters were 
based on incorrect information. 

* Mismanaging community demonstration project grants. We reviewed 
allegations that the council had mismanaged grants made under the 
Western Pacific Community Demonstration Project Program (CDPP). We 
determined that NOAA, not the council, is responsible for managing 
these grants. The Magnuson-Stevens Act authorizes the Secretary of 
Commerce to make grants to eligible western Pacific communities, based 
on recommendations from the council, for the purpose of establishing 
demonstration projects to foster and promote traditional indigenous 
fishing practices. Once projects are selected, NOAA provides funds 
directly to the grantees. According to a NOAA official we spoke with, 
NOAA has sole responsibility for overseeing the CDPP grants. 

* Using certain enforcement fines. We reviewed allegations that the 
council receives money from enforcement fines that it can spend however 
it wants. We determined that this allegation is factually inaccurate. 
The 2006 amendments to the Magnuson-Stevens Act established the Western 
Pacific Sustainable Fisheries Fund, which includes fines imposed on 
foreign vessels in waters off unincorporated areas under the council's 
jurisdiction, and specifies how these monies are to be used. As of 
March 2009, the council had received no monies from this fund, 
according to NOAA officials. 

* Paying profit sharing to council staff. We reviewed allegations that 
council staff were receiving profit sharing, or a percentage of the 
grant funds that go to the council. We found that these allegations 
were factually inaccurate. NOAA officials told us that the term "profit 
sharing" is used to describe the amount of the agency's annual 
contribution to staff retirement plans and is not based on any kind of 
profit or percentage of the council's funding. 

* Compensating the executive director. During our review, we heard 
allegations that the executive director is paid at an inappropriate 
level. We found that these allegations were factually inaccurate. 
According to NOAA regulations, the annual pay rate of council staff 
members must be consistent with the pay rates established for General 
Schedule (GS) federal employees and the Alternative Personnel 
Management System for the U.S. Department of Commerce. The council has 
set the executive director's pay at a rate in the range allowed for a 
GS-15 federal employee. In addition, the council has used the 
discretion allowed for in the regulations to adjust staff pay rates 
based on the cost of living differential for Hawaii. 

* Identifying and accounting for Puwalu funding. We reviewed 
allegations that the council was unable to identify the funding sources 
it used to organize and sponsor the Puwalu series and unable to account 
for the use of those funds. However, the council was able to provide 
this information to us and we found no irregularities. Specifically, 
our review of 14 Puwalu series expenditures noted that they were 
charged to the appropriate grants and properly accounted for.[Footnote 
11] 

Council Operations: 

We found no evidence to support allegations that the Western Pacific 
Council improperly denied the public access to records, and we found 
some evidence to support allegations that the council delayed providing 
information requested by an individual council member. We also found 
that the council has not clearly defined its policies regarding access 
to its records. 

* Denying the public access to council records. We reviewed allegations 
that the council denied the public access to council records. We found 
no evidence to support these allegations. The Magnuson-Stevens Act 
requires that a council's administrative record, including meeting 
minutes, and records or other documents made available to or prepared 
for or by the council in connection with council meetings, be made 
available for public inspection and copying in the council office. The 
council makes these records, such as council meeting minutes and 
briefing book materials prepared for council members in advance of 
council meetings, available at its office. However, it has posted few 
of these records on its Web site. In contrast, the Pacific Fishery 
Management Council's Web site contains meeting minutes from 2001 to the 
present and briefing book materials from 2002 to the present, and the 
North Pacific Fishery Management Council's Web site contains meeting 
minutes from 2000 to the present. In addition, the executive director 
told us that it is the council's policy to require members of the 
public to file a Freedom of Information Act (FOIA) request to obtain 
information that is not normally made available to the public. However, 
we found that the council's SOPPs do not fully communicate these 
policies. Specifically, the SOPPs state that summary minutes of council 
meetings are available to the public for inspection in the council 
office. However, the SOPPs do not mention the availability of other 
records or documents for public inspection, nor do they mention that 
members of the public must file a FOIA request to obtain information 
that is not normally made available to the public for inspection. By 
not providing a complete statement of its records access policy, the 
council may be causing confusion about what records are available and 
how to access them. 

* Withholding information requested by individual council members. We 
reviewed allegations that council staff had delayed providing budget 
information requested by individual council members. In the instance we 
reviewed, we found that it took council staff about 8 weeks to provide 
the requested information--copies of the council's 2006 and 2007 annual 
budgets and the council's 2006 audit report. Shortly thereafter, the 
council member decided to file a FOIA request to get additional 
information. The Magnuson-Stevens Act and its regulations do not 
specifically address council member requests for records. However, the 
executive director told us that council members have unrestricted 
access to council records. In addition, the council's SOPPs state that 
council members desiring special reports or information should request 
them from the council chair or executive director. According to the 
executive director, it can be time-consuming for staff to prepare 
detailed documents that are not normally prepared for the council. The 
executive director also expressed concern about safeguarding sensitive 
information, such as staff compensation, that the public does not 
normally receive. However, we found that the council has no written 
policies and procedures for responding to council members' requests for 
information, including the time frames for responding and the types of 
documents that council staff should reasonably be expected to prepare. 
The lack of such policies and procedures may create the perception that 
council staff are withholding information that council members need to 
fulfill their duties. 

* Describing the Western Pacific Council as a policy-making body. 
During the course of our review, we found that the council sometimes 
describes itself as a "policy-making" body. However, while the council 
plays a significant role in developing fishery management policy, it 
does not have the authority to approve or authorize such policy. 
Instead, the Secretary of Commerce is ultimately responsible for the 
management, conservation, and protection of living marine resources in 
federal waters. For this reason, describing itself as a policy-making 
body could cause confusion. 

Conclusions: 

The conflicts that arise between regional fishery management councils 
and stakeholder groups can be exacerbated by a lack of transparency in 
council actions, which, in turn, can lead to perceptions of misconduct 
and mismanagement. In the case of the Western Pacific Council, the 
council's failure to maintain documentation of all requests for 
information from federal and state legislators--a generally allowable 
use of the council's grant funds--and its decision to distribute cash 
per diem payments to some meeting participants--even if properly 
accounted for--may have contributed to the allegations of misconduct. 
Enhanced transparency regarding council activities and policies would 
help facilitate informed stakeholder participation in the council 
process, provide checks against misconduct and mismanagement, and help 
protect against unfounded accusations of impropriety. 

Recommendations for Executive Action: 

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

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

To improve the transparency of the council's operations, we recommend 
that the Administrator of NOAA 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 and Other Interested Party Comments and Our Evaluation: 

We provided a draft copy of this report to the Department of Commerce 
and the Western Pacific Council for their review and comment. We 
received a written response from the Secretary of Commerce that 
includes comments from NOAA. We also received comments from the 
council. NOAA agreed with all of our recommendations and said it will 
take action to address the concerns identified. NOAA also provided 
technical comments, which we incorporated into the report as 
appropriate. The Western Pacific Council's written response consisted 
of technical and editorial comments, which we incorporated as 
appropriate. NOAA's and the council's comments are presented in 
enclosures I and II. 

As agreed with your office, unless you publicly announce the contents 
of this report earlier, we plan no further distribution until 30 days 
from the report date. At that time, we will send copies of this report 
to the Secretary of Commerce, the Administrator of NOAA, the Director 
of the National Marine Fisheries Service, the Chair of the Western 
Pacific Fishery Management Council, and interested congressional 
committees. In addition, the report will be available at no charge on 
the GAO Web site at [hyperlink, http://www.gao.gov]. 

If you or your staff have any questions about this report, please 
contact David Maurer at (202) 512-3841 or maurerd@gao.gov, or Susan 
Ragland at (202) 512-9406 or raglands@gao.gov. Contact points for our 
Offices of Congressional Relations and Public Affairs may be found on 
the last page of this report. In addition to the individuals named 
above, Stephen Secrist, Assistant Director; Glenn Slocum, Assistant 
Director; Antoinette Capaccio; Daniel Egan; Richard Johnson; Susan 
Malone; Alison O'Neill; and Brian Tremblay made key contributions to 
this report. 

Sincerely yours, 

Signed by: 

David C. Maurer:
Acting Director, Natural Resources and Environment: 

Signed by: 

Susan Ragland:
Director, Financial Management and Assurance: 

Enclosures (2): 

[End of section] 

Enclosure I: Comments from NOAA: 

Note: A GAO comment supplementing those in the report text appears at 
the end of this enclosure. 

United States Department Of Commerce: 
Office of the Secretary: 
Washington, D.C. 20230: 

May 12, 2009: 

Mr. David C. Maurer: 
Director, Natural Resources and Environment: 
U.S. Government Accountability Office: 
441 G Street, NW: 
Washington, DC 20548: 

Dear Mr. Maurer: 

Thank you for the opportunity to review and comment on the Government 
Accountability Office's draft report entitled Fisheries Management: 
Alleged Misconduct of Members and Staff of the Western Pacific Fishery 
Management Council (GAO-09-508R). On behalf of the Department of 
Commerce, I enclose the National Oceanic and Atmospheric 
Administration's programmatic comments on the draft report. 

Sincerely, 

Signed by: 

Gary Locke: 

Enclosure: 

[End of letter] 

Department of Commerce: 
National Oceanic and Atmospheric Administration: 

Comments on the Draft GAO Report Entitled: Fisheries Management: 
Alleged Misconduct of Members and Staff of the Western Pacific Fishery 
Management Council (GAO-09-508R - May 2009): 

General Comments: 

The Department of Commerce's National Oceanic and Atmospheric 
Administration (NOAA) appreciates the opportunity to review the 
Government Accountability Office's (GAO) draft report. As indicated 
below, NOAA concurs with all three draft report recommendations and 
will take action to address the concerns identified. 

NOAA Response to GAO Recommendations: 

Recommendation 1: "To help ensure compliance with OMB Circular A-122 
requirements governing federal grant recipients, we recommend that NOAA 
direct [the Western Pacific Fishery Management Council [WESPAC]) to 
maintain documentation of all requests for information from federal and 
state legislators." 

NOAA Response: NOAA agrees with the recommendation and will direct 
WESPAC to maintain documentation of all requests for information from 
federal and state legislators. 

Recommendation 2: "To reduce the risk of loss or unauthorized use 
associated with reimbursing meeting participant expenses with cash, we 
recommend that NOAA direct WESPAC to pay per diem costs for meeting 
participants by check to the extent practicable." 

NOAA Response: NOAA agrees with the recommendation and will direct 
WESPAC to pay per diem costs for meeting participants by check to the 
extent practicable. 

Recommendation 3: "To improve the transparency of WESPAC's operations, 
we recommend that NOAA work with WESPAC 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 the council's 
administrative record, including council meeting minutes, 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. 

* Clarifying the council's advisory role by not describing itself as a 
policy-making body." 

NOAA Response: NOAA agrees with the recommendation and will work with 
WESPAC, taking appropriate actions to improve the transparency of 
WESPAC's operations. GAO should note, however, that an "administrative 
record" in a court case may include a large amount of background 
information not typically posted on agency or Council Web sites. NOAA 
views GAO's references to "the administrative record" as pertaining to 
those documents provided to the Council (i.e., Fishery Management 
Plans, amendments, and analysis, including drafts for Council votes, 
records of discussion, and votes (i.e., minutes)), but not necessarily 
internal staff background documents or other documents that may or may 
not be part of a litigation administrative record. [See comment 1] 

GAO Comment: 

1. We revised the text to make clear that we were suggesting that the 
council maintain 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. 

[End of enclosure 1] 

Enclosure II: Comments from the Western Pacific Fishery Management 
Council: 

Western Pacific Regional Fishery Management Council: 
A Council Authorized by the Magnuson Fishery Conservation and 
Management Act of 1976: 
1164 Bishop Street: 
Suite 1400: 
Honolulu, Hawaii 96813: 
Telephone: (808) 522-8220: 
Fax: (808) 522-1226: 
[hyperlink, http://www.wpcouncil.org] 

May 5, 2009: 

David C. Maurer: 
Director: Natural Resources and Environment: 
Susan Ragland: Financial Management and Assurance: 
US Government Accountability Office: 
441 G St., NW: 
Washington, DC 20548: 

Dear Directors Maurer and Ragland: 

Thank you for the opportunity to review the draft GAO report that 
responds to allegations by some conservation advocacy organizations of 
misconduct by the Western Pacific Regional Fishery Management Council. 

We propose a few edits which we believe clarify some of the findings in 
the report (which we have enclosed). 

First is a request to replace the acronym "WESPAC" throughout the 
document with the word "Council" or the acronym "WPRFMC," as we refer 
to our organization using either of these two terms and do not 
generally use the acronym WESPAC. 

Second, we have made some edits to the Results in Brief section. We 
suggest that this section include a summary of the Conflicts of 
Interest findings as this issue is one of the four items that Rep. 
Waxman asked to be reviewed. We also request that some additional text 
from the main body of the report be added to the Results in Brief so 
this section clearly reflects the report's findings. It is likely that 
most people and the media will focus only on this part of the report. 

Third, there are a few areas in the main part of the report that could 
be clarified, and we have suggested revisions to the text. 

Fourth, the Council requests that a list of the interested parties be 
included in the report. 

We respectfully request that you and your staff consider these 
comments. We will be pleased to respond to any questions or comments 
you may have on our review of the draft report. 

Sincerely, 

Signed by: 

Sean Martin: 
Council Chair: 

Enclosure: 

cc: David Maurer, Susan Ragland, Glenn Slocum: 

[End of enclosure 2] 

Footnotes: 

[1] Federal waters typically extend from 3 to 200 nautical miles off 
the coast of the United States and its possessions and trust 
territories. 

[2] In addition, the council has 3 nonvoting members representing the 
U.S. Fish and Wildlife Service, the U.S. Coast Guard, and the U.S. 
Department of State. 

[3] OMB Circular A-122, Cost Principles for Non-Profit Organizations, 
has been promulgated as a regulation at 2 CFR Part 230. 

[4] Grassroots lobbying refers to indirect efforts to influence 
legislation by preparing, distributing, or using publicity, or by 
urging people to contribute to or participate in any mass 
demonstration, march, rally, fundraising drive, lobbying campaign, or 
letter writing or telephone campaign. 

[5] Consistent with the views of the Justice Department's Office of 
Legal Counsel in similar circumstances, the Commerce Department does 
not consider public council members to be subject to the regulations 
(found at 5 CFR Part 2635) governing the ethical conduct of executive 
branch employees because they are not under the supervision of a 
federal officer or employee. 

[6] On December 4, 2000, President Clinton signed Executive Order 
13178, establishing the Northwestern Hawaiian Islands Coral Reef 
Ecosystem Reserve. The executive order set forth and asked for comment 
on certain conservation measures, including a prohibition on commercial 
fishing in specified areas within the reserve. After a 30-day comment 
period, President Clinton issued Executive Order 13196, which amended 
Executive Order 13178 and, among other things, made permanent those 
fishing closures. 

[7] The Office of the Pacific Islands Regional Counsel was established 
in November 2005. 

[8] OMB Circular A-133 sets forth standards for obtaining consistency 
and uniformity among federal agencies for the audit of states, local 
governments, and nonprofit organizations expending federal awards. 

[9] We reviewed a judgmental sample of transactions to obtain a better 
understanding of the extent and nature of council expenditures, and the 
design and operation of internal controls in place concerning the 
receipt and expenditure of grant funds. Our review was based upon 
limited procedures. The results are not generalizable and would not 
necessarily identify all instances of inappropriate accounting for 
government funds. 

[10] GAO, Standards for Internal Control in the Federal Government, 
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1] 
(Washington, D.C.: November 1999). 

[11] See footnote 9, above. 

[End of section] 

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