Statement on Signing the Fishery Conservation Amendments of 1990

I am today signing H.R. 2061, the "Fishery Conservation Amendments of 1990," notwithstanding reservations I have concerning some of its provisions.

H.R. 2061 authorizes appropriations for and amends the Magnuson Fishery Conservation and Management Act, which provides the primary authority for the conservation and management of fishery resources within the 200-mile Exclusive Economic Zone (EEZ) off our coasts. Many of the amendments made by H.R. 2061 will enable us to better conserve and manage our precious fishery resources.

However, numerous provisions of the Act could be construed to encroach upon the President's authority under the Constitution to conduct foreign relations, including the unfettered conduct of negotiations with foreign nations. Further, one provision directs that fishery management plans prepared or approved by the Secretary of Commerce contain "regulations implementing recommendations by international organizations in which the United States participates." If this provision were construed to require the Secretary to implement the recommendations of international organizations in which the United States participates, it would unconstitutionally subject the executive branch to the control of international bodies that are not politically accountable to the American people. Finally, two provisions purport to direct the Secretary to make legislative recommendations to the Congress. Under Article II, Section 3 of the Constitution, the President possesses the exclusive authority to determine which legislative measures he and his subordinates will recommend.

To avoid constitutional questions that might otherwise arise, I will construe all these provisions to be advisory, not mandatory.

I am concerned that several of the Act's provisions regarding highly migratory species not be construed to create a gap in the authority of the United States to manage those species. Current law defines "highly migratory species" to mean only species of tuna and excludes such species from the exclusive fishery management authority asserted by the United States in our EEZ. H.R. 2061 would eliminate this exclusion effective January 1, 1992. Thus, effective as of that date, the United States will assert management authority over tuna in its EEZ. As a matter of international law, effective immediately the United States will recognize similar assertions by coastal nations regarding their exclusive economic zones.

The Act also expands the definition of "highly migratory species" to include marlin, ocean sharks, sailfishes, and swordfish -- non-tuna species for which management authority is presently asserted and exercised. Consequently, H.R. 2061 could be interpreted to expand the exclusion and thus withdraw the authority to manage these species until the exclusion is eliminated in 1992. It is my understanding that the Congress intended the management of these species to continue.

Accordingly, for purposes of the tuna exclusion that remains in effect until 1992, I will not construe the revised definition to take effect. For all other purposes, the revised definition takes effect immediately. Thus, the authority of the United States to manage the species added to the definition will continue, and the responsibility for managing those species will transfer immediately from specified fishery management councils to the Secretary.

Finally, the Act contains a provision that departs from procedures currently governing challenges to regulatory action taken under the Magnuson Fishery Conservation and Management Act. The provision severely threatens the ability of the Attorney General to provide reasoned and responsible representation to the Secretary of Commerce in response to administrative challenges to the Secretary's rule-making authority under the Act. It also imposes unnecessarily burdensome filing requirements on the Secretary. The Attorney General and the Secretary will propose corrective legislation next year to cure these procedural difficulties.

George Bush

The White House,

November 28, 1990.