{"id":14106,"date":"2021-12-01T01:30:46","date_gmt":"2021-12-01T01:30:46","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=14106"},"modified":"2021-12-01T02:01:00","modified_gmt":"2021-12-01T02:01:00","slug":"wespac-objects-to-proposed-changes-in-federal-fishery-management-law","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=14106","title":{"rendered":"Wespac Objects to Proposed Changes In Federal Fishery Management Law"},"content":{"rendered":"\n

By Patricia Tummons<\/em><\/strong><\/p>\n\n\n\n

Since its passage in 1976, the Magnuson-Stevens Act (MSA) has governed fishing in the federal waters of the United States. This is the law that established the governing framework of eight regional councils that are to recommend to the National Oceanic and Atmospheric Administration rules to manage fishing in their jurisdictions. For the region covering Hawai\u02bbi, U.S. territories in the Pacific, and other U.S. possessions, the respective council is the Western Pacific Fishery Management Council, or Wespac.<\/p>\n\n\n\n

The MSA has been reauthorized several times over the years. And now Congress is considering yet another round of amendments to the act.<\/p>\n\n\n\n

Probably the most far-ranging of these is H.R. 4690, introduced by Reps. Jared Huffman of California and Ed Case of Hawai\u02bbi. Among other things, the bill contains several provisions that would rein in some of the council\u2019s more controversial practices, require greater transparency, and hinder its ability to underwrite council members\u2019 pet projects throughout the region by administering, with little oversight, the so-called Sustainable Fisheries Fund.<\/p>\n\n\n\n

Last month, the Water, Oceans, and Wildlife subcommittee of the House Committee on Natural Resources held a hearing on proposed changes to the MSA. While Wespac executive director Kitty Simonds was not invited to testify, she, the council chair, and its four vice-chairs signed a letter to the bill\u2019s sponsors, attached to which was a 10-page summary of the council\u2019s objections to provisions in the bill.<\/p>\n\n\n\n

Transparency<\/em><\/strong><\/h4>\n\n\n\n

Among the eight councils, Wespac is perhaps the least transparent. Its website rarely links to all the materials given to council members in advance of council meetings. And when such links do exist, they are taken down within days. <\/p>\n\n\n\n

Materials relating to council finances are never posted. Members of the public are excluded from discussions of finances during meetings of the council\u2019s Executive and Budget Standing Committee.<\/p>\n\n\n\n

In the letter to Huffman and Case, the council states that \u201cTransparency and public involvement are foundational elements of MSA for carrying forward fisheries management decision making.\u201d However, in the comments appended to the letter, the council complains of the bill\u2019s proposals to mandate transparency and accountability. For example, the proposal to require roll-call votes on non-procedural matters \u201cwould result in an additional burden to the councils as many of its actions are non-procedural. \u2026 This provision would significantly increase the time spent on discussions and recommendations during meetings, lengthening meetings, and perhaps delaying the agenda for members and the public,\u201d the council argues.<\/p>\n\n\n\n

HB 4690 would also require councils to post on their website videos of council meetings \u201cor a searchable audio recording or written transcript of each meeting of the council and of the meetings of committees.\u201d<\/p>\n\n\n\n

This, too, was criticized by the council. \u201cIncluding audio\/video\/transcripts on the council\u2019s website would need to consider privacy and consent laws and may also discourage full discussion and participation by both members and the public. While council meetings are public, there are concerns of discussions being taken out of context as well as inadvertent comments being captured on audio or in transcripts,\u201d the council states. Also, the council \u201cwould require additional resources in order to meet this provision.\u201d<\/p>\n\n\n\n

Accountability<\/em><\/strong><\/h4>\n\n\n\n

The federal government writes the checks for council employees, and yet the MSA, as currently written, does not specifically state that the council and staff are federal employees. HB 4690 would change this, by requiring council employees, \u201cincluding executive directors, \u2026 be deemed federal employees with respect to any requirement that applies to federal employees.\u201d It also would make members of the council, council committees, and council advisory panels \u201csubject to all law, rules, and policies regarding ethics and sexual harassment and assault that apply to federal employees.\u201d<\/p>\n\n\n\n

Wespac objects to this: \u201cCouncil staff are not federal employees under the MSA which allows for greater flexibility in council operations and the ability to develop a different relationship with the fishing community. A restriction to council staff by designation as federal employees could reduce its effectiveness in its relationship with the fishing community and the public.\u201d<\/p>\n\n\n\n

In any event, the council goes on to say, this \u201cmay be redundant as council staff, members, and advisors are required to adhere to the Rules of Conduct by the U.S. Department of Commerce.\u201d<\/p>\n\n\n\n

\u00a0\u00a0If council staff, up to and including the executive director, were to become federal employees, it would limit Simonds\u2019 ability to hire and fire at will and would curb her ability to give generous bonuses to selected staff.<\/p>\n\n\n\n

Membership<\/em><\/strong><\/h4>\n\n\n\n

Anyone who has followed Wespac for any length of time comes to the realization that the pool of members is extremely limited. Federal law limits members to three consecutive three-year terms, but nothing prohibits them from being appointed again after they have sat out a term or two.<\/p>\n\n\n\n

Time and again, the same names appear. When the third term of Manny Duenas of Guam expired, his son Michael kept the seat warm until Manny could occupy it again, which occurred earlier this year. (On the same day the elder Duenas was sworn in as a new council member earlier this year, his son was appointed as an alternate on the Guam Advisory Panel, one of several committees that advise the council.) When McGrew Rice termed out as council member from Hawai\u02bbi, he was appointed to hold the at-large seat for the Commonwealth of the Northern Mariana Islands.<\/p>\n\n\n\n

When long-time council member Ed Ebisui died in 2018, his seat went to his son.<\/p>\n\n\n\n

American Samoa\u2019s William Sword is another council frequent flyer.<\/p>\n\n\n\n

On those rare occasions when the secretary of Commerce approves gubernatorial nominees for council membership that have not met with Simonds\u2019 approval, their tenure is rarely for more than one term.<\/p>\n\n\n\n

HB 4690 attempts to broaden council membership by requiring the secretary of Commerce to appoint to each council individuals who are knowledgeable in the area of either \u201cconservation and management, or the commercial, recreational, or subsistence harvest, of the fishery resources of the geographic area concerned\u201d or \u201cecosystem-based fishery management or climate science.\u201d In addition, at least one council member should not have any financial interest in the matters that come before the council.<\/p>\n\n\n\n

Wespac objects to this as well. This provision \u201ccould lead to fewer fishermen on the council and impact the bottom-up approach to fisheries management instituted by the MSA. \u2026 A dilution of input from council members with direct fisheries expertise to a more general ecosystem, science, and conservation expertise could result in potentially uninformed and ineffective management decisions.\u201d<\/p>\n\n\n\n

As to the proposal that at least one council member have no financial interest in the fisheries under the council\u2019s jurisdiction, the council says there is no need for that. \u201cMSA addresses financial interest through disclosure and recusal under limited circumstances. Council members are required to submit a conflict of interest statement that NOAA general counsel reviews before decision making. \u2026 This provision would increase the burden on the council to review all potential interests now and in the future.\u201d<\/p>\n\n\n\n

Yet another proposed revision to the MSA, specifically addressing Wespac, would restrict the appointment of at-large members to hold seats outside of their home jurisdiction.  \u201cIn appointing at-large members to [Wespac], the secretary shall ensure geographic representation across all constituent states of the council.\u201d<\/p>\n\n\n\n

Sustainable Fisheries Fund<\/em><\/strong><\/h4>\n\n\n\n

One full page of Wespac\u2019s comments is given over to objecting to the bill\u2019s proposed changes to the Western Pacific Sustainable Fisheries Fund. Congress established the fund to support fisheries development in the U.S. territories. It receives fines collected from owners of foreign boats found to have fished illegally in U.S. waters and also, since late 2011, it is the depository for the payments made by Hawai\u02bbi-based longliners each year so that they can continue fishing for bigeye tuna against territorial quotas long after they have maxxed out the quota allocated to Hawai\u02bbi by the Western and Central Pacific Fisheries Commission.<\/p>\n\n\n\n

For many years, decisions as to how the funds should be spent were made by Wespac, with little to no oversight from NOAA and no public input. HB 4690 proposes that those decisions be made now by NOAA following advice from a panel completely independent of the council.<\/p>\n\n\n\n

Two years ago, three members of the House \u2014 Reps. Huffman and Case, and Raul Grijalva \u2014 and the delegate from the Commonwealth of the Northern Mariana Islands, Gregorio K.C. Sablan, asked NOAA\u2019s inspector general to audit expenditures made from the SFF.<\/p>\n\n\n\n

That audit was released last month. It found that records of expenditures for several years could not be found. Of the records that were examined for the years 2010 to 2019, the council could not adequately account for $1,237,671 in awards \u2014 or roughly 40 percent of the $3,038,496 in claimed costs. The council, the audit states, \u201cdid not retain adequate support for claimed costs, obtain required approvals from the awarding agency, or properly allocate costs to the WPSFF awards. The subrecipients did not provide adequate documentation to support certain claimed costs and did not spend all federal funds received.\u201d<\/p>\n\n\n\n

Among other things, the council was faulted for making payments from grant awards before the grant was received, paying tens of thousands of dollars for travel expenses for non-employees without receiving approval from NOAA, and using SFF funds to cover council administrative costs. In that latter category, for example, the audit found \u201cimproperly allocated claimed costs of $552,235 for administrative costs \u2026 including a $115,000 year-end contribution to employee 401k plans, $108,341 for office rent, and $271,121 for employee compensation.\u201d<\/p>\n\n\n\n

Despite the opacity of the existing procedure for allocating monies from the SFF, Wespac states that the proposal to have decisions made by an advisory group \u201cmay reduce transparency and limit input from the fishing community, which is afforded through the current process.\u201d<\/p>\n\n\n\n

More than a decade ago, a staffer at NMFS\u2019 Pacific Islands Regional Office informed Environment Hawai\u02bbi <\/em>that changes in program expenses of up to 10 percent of the value of a grant could be made without prior approval from NMFS. The audit states that the council, too, \u201cbelieved that moving funds between awards was allowable if less than 10 percent of the total award.\u201d This claim was unfounded.<\/p>\n\n\n\n

Volume 32, Number 6 December 2021<\/p>\n\n\n\n

For Further Reading<\/em><\/strong><\/p>\n\n\n\n

Environment Hawai\u02bbi <\/em>has published many reports addressing Wespac expenditures and procedures. For example:<\/p>\n\n\n\n

\u201cHawai\u02bbi Gets Special Treatment in Revised Magnuson-Stevens Act<\/a>,\u201d April 2007;<\/p>\n\n\n\n

\u201cNMFS Reporting Requirements Give Council Broad Leeway Over Spending<\/a>,\u201d June 2008;<\/p>\n\n\n\n

\u201cFishery Council Balks in Complying with Freedom of Information Act<\/a>,\u201d \u201cWespac Erects More Hurdles in Path of Public Seeking Council Information<\/a>,\u201d and \u201cFOIA Responses Shed Light on Council Support of Puwalu<\/a>,\u201d May 2009;<\/p>\n\n\n\n

\u201cMeeting of Government Fishery Managers at Kohala Resort Costs Public a Quarter Million<\/a>,\u201d May 2013;<\/p>\n\n\n\n

\u201cWespac Fails to Account for Food, Drink, at 2012 Reception It Hosted for CCC<\/a>,\u201d November 2013.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Patricia Tummons Since its passage in 1976, the Magnuson-Stevens Act (MSA) has governed fishing in the federal waters of the United States. This is the law that established the governing framework of eight regional councils that are to recommend … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":14126,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[490,8],"tags":[7],"class_list":["post-14106","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-december-2021","category-fisheries","tag-patricia-tummons"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14106","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=14106"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/14106\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/14126"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=14106"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=14106"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=14106"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}