Regional Fishery Management Councils; Guidelines for Council Operations/Administration

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 601

Docket No. [940259-4059; I.D. 100793B]

RIN 0648-AG16

Regional Fishery Management Councils; Guidelines for Council

Operations/Administration

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Interim final rule.

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SUMMARY: NMFS issues this interim final rule to revise regulations

concerning the practices, procedures, and operations of the Regional

Fishery Management Councils (Councils) under the Magnuson Fishery

Conservation and Management Act (Magnuson Act). This action would

foster fuller disclosure and make information easier to access in

required financial disclosures of Councils' nominees, voting members,

and Executive Directors. It is intended to disclose possible financial

conflicts of interest.

DATES: This interim final rule is effective April 11, 1994. Comments

must be received on or before May 10, 1994.

ADDRESSES: Send comments on this interim final rule and requests for

copies of NOAA Form 88-195 to: Richard H. Schaefer, Director, Office of

Fisheries Conservation and Management, NOAA, NMFS, Silver Spring Metro

Center #3, 1315 East-West Highway, Silver Spring, MD 20910.

Send comments on collection-of-information requirements to: The

Office of Information and Regulatory Affairs, Office of Management and

Budget, Washington, DC 20503 (Attention: Desk Officer for NOAA).

FOR FURTHER INFORMATION CONTACT: Richard W. Surdi, Office of Fisheries

Conservation and Management, room 14600, telephone (301) 713-2337,

Silver Spring Metro Center #3, 1315 East-West Highway, Silver Spring,

MD 20910.

SUPPLEMENTARY INFORMATION:

Background

NMFS received a petition for rulemaking from Emerald Seafoods,

Emerald Resource Management, Seahawk Pacific Seafoods, Seacatcher

Fisheries and Swan Fisheries asking the Secretary of Commerce

(Secretary) to adopt regulations related to: (1) Financial disclosure

requirements of Council members, (2) emergency rulemakings, (3)

requirements to balance the membership of the North Pacific Fishery

Management Council between different fishing interests, and (4) general

procedures for Secretarial review of fishery management plans (FMPs)

and regulatory amendments. NMFS published a notice of receipt of the

petition for rulemaking and a request for comments on April 15, 1991

(56 FR 15072).

Comments and Responses

Three comments were received on the petition for rulemaking. These

were from Williams, Kastner and Gibbs (representing the petitioners),

American Factory Trawler Association, and Royal Seafoods, Inc. All

three commenters supported the petition and, in some cases, expanded on

the rationale for adoption of the proposed provisions.

One commenter had an additional comment concerning unconstrained

conflicts of interest among Council members. This commenter indicated

that there is a fine line between the need for industry expertise and

conflicts of interest. The current system, which allows Council members

to vote on issues where they have a direct financial interest, crosses

over the line of acceptability. Citing E.O. 12674, commenters suggested

that NMFS develop a comprehensive set of rules governing Council member

conduct on issues in which they have a direct financial interest.

Because E.O. 12674 is specific in that it can apply only to Federal

employees, it cannot be used as a basis for regulations governing

Council members, who are not Federal employees. Furthermore, Congress

provided for industry members to participate in and vote on issues in

which they have a financial interest. Paragraph (A) of section 302(b)

of the Magnuson Act (16 U.S.C. 1852(b)(2)) provides for the appointment

of members based on their occupational experience, and paragraph (B)

requires a fair and balanced apportionment of the active participants

in the commercial and recreational fisheries under a Council's

jurisdiction when making appointments to that Council. Furthermore,

guidance for the conduct of Council members specifically, and members

of any deliberative body, in general, already exists.

Discussion

NMFS has considered the petition, public comments, and other

related issues, and decided to proceed with several of the rulemaking

suggestions proposed in the petition. The following paragraphs list the

suggestions contained in the petition for rulemaking, provide an

explanation as to why NMFS has decided to accept or reject the

suggested rulemaking, and describe the changes to be made.

1. Adopt a regulation that provides for meaningful disclosure of

the financial interests of Council members.

The petitioners requested six additional areas of information be

added to the financial form for Council members, including fisheries

participated in, product types produced, gear type used, revenue

generated, identity of primary buyers, and financial interest of

stockholders in a privately held corporation in which the Council

member is a stockholder. NMFS has determined that NOAA Form 88-195,

``Statement of Financial Interests for Use by Voting Members, Nominees

and Executive Directors of Regional Fishery Management Councils,''

should be amended to include information concerning the fisheries

participated in, the product type produced, and the gear type utilized.

This information will better identify the nature of a Council member's

financial interest. Additional revisions not noted in the petition are

made to delete Part I of the form, which presently is completed by the

Agency but is no longer useful, and to add a statement to the General

Provisions section concerning penalties for false or incomplete

information.

The petitioners also requested that the form be updated every 6

months, on January 15 and June 15. Section 601.37 of title 50 CFR is

amended to require that Council members update the form annually,

beginning February 1, 1995, in addition to updating the form when a

financial interest is acquired or substantially changed, as is now

required. NMFS finds that requiring updates only as interests are

acquired or substantially changed does not provide for disclosure of

modest, but important, changes in financial interests and divestitures

of interests. Requiring an annual update will bring into focus a

member's need to update the current status of his/her interests,

particularly in terms of fishery participation, gear utilized, or

product types produced.

NMFS also believes it appropriate to make financial disclosure

forms more readily available to the public. Section 601.37 accordingly

is amended to require financial disclosure forms be available at all

Council meetings, and that their availability be so noted on the agenda

for each meeting. This provision is in addition to the requirement of

having the forms kept on file and available to the public at the

Council offices.

2. Adopt a rule that prohibits biological reasons from being used

to support an emergency rule unless a Council's Scientific and

Statistical Committee (SSC) concurs that a biological justification

exists.

NMFS rejected this provision because the Secretary does not have

the authority to condition a recommendation for emergency action by the

Council on the approval of an advisory body, such as the SSC. NMFS

notes, however, that a Council may establish such a condition as part

of an FMP.

3. Adopt a rule that requires the Secretary to balance the

governor-nominated voting membership of the North Pacific Fishery

Management Council (NPFMC) between the at-sea processing fleet and the

onshore processing fleet.

NMFS rejected this provision because its enactment would be

redundant to an existing provision of the Magnuson Act. Section 302(b)

of the Magnuson Act (see also interpretive policy published May 24,

1991, at 56 FR 23856) provides that the Secretary ``* * * shall, to the

extent practicable, ensure a fair and balanced apportionment, on a

rotating or other basis, of the active participants (or their

representatives) in the commercial and recreational fisheries under the

jurisdiction of the Council.'' Congress established a limited number of

seats on the Regional Fishery Management Councils to which the

Secretary appoints voting members. Only seven such seats are

established on the NPFMC. Considering the broad range of industry

sectors, gear types, and other interests that might wish representation

on the NPFMC and other Councils, it would be impossible to have every

interest represented. NMFS further finds that there are numerous

alternatives for having ideas and concerns considered by the Councils

and their panels, including participation in committee and panel

meetings, testifying at Council meetings, and providing the Council

with written testimony, suggestions, comments, or data.

4. Adopt a rule that sets forth clearly the procedures for

Secretarial review of regulations and amendments that have been

recommended to the Secretary for implementation by a Council.

The petitioners requested rulemaking that would: (1) Set forth the

review process followed by the Secretary when reviewing a regulation or

amendment, and (2) require all final rules promulgated by the Secretary

to set forth the procedure followed in reviewing the regulation or

amendment. These proposals are rejected. Detailed information

concerning the schedule and timing of the review process for an FMP or

amendment is available in the ``Operational Guidelines--Fishery

Management Plan Process.'' In addition, a detailed schedule of events

and dates is available for final Secretarial review of a specific plan

or amendment. Both documents are available to the public upon request

from NMFS (see ADDRESSES). A summary of key target dates relative to

the date of receipt from the Council follows. The dates noted are

target dates only and are subject to change, except those dates

specified in the Magnuson Act (so noted by an asterisk).

Date and Event

Day 0*--Receipt date of FMP or amendment from Council.

Day 1*--Begin Secretarial review and 60-day public comment on the FMP

or amendment.

Day 9--Assistant Administrator for Fisheries (AA), NOAA , clears

proposed rule for continued review and publication in the Federal

Register.

Day 15*--Secretary makes such changes as may be necessary and publishes

rule with any changes, together with an explanation of changes which

are substantive.

Day 60*--Public comment period ends on FMP or FMP amendment and

proposed rule.

Day 73--Regional Director transmits final rule package to NMFS

headquarters.

Day 95*--FMP or FMP Amendment is formally approved, disapproved, or

partially disapproved, and Council is notified of decision.

Day 110*--Final regulations published in the Federal Register.

Day 140--End of Administrative Procedure Act 30-day delayed

effectiveness period. Final regulations become effective.

The suggestion that all final rules disclose who reviewed the rule

or amendment, what was reviewed, and the identity of the person who

determined that the rule complied with the national standards is also

rejected. It is impractical and of no benefit to identify all those who

reviewed the rule or amendment, and to identify what was reviewed.

Except for the actual decisionmakers, all reviews are considered

advisory.

Classification

The AA has determined that this action is necessary for the

efficient administration and responsible operation of Councils and is

consistent with the Magnuson Act and other applicable law.

This interim final rule contains a modification to a collection-of-

information requirement previously approved by the Office of Management

and Budget (OMB) under OMB No. 0648-0192. Several new requirements are

added to NOAA Form 88-195, part II, under the section titled

``Financial Interests.'' Each voting member and Executive Director of a

Council and new nominees for Secretarial appointment to a Council are

required to provide information concerning: (1) Fisheries participated

in under Council jurisdiction, (2) the product types produced, and (3)

gear types utilized. Council members are required to update the form by

February 1 of each year, in addition to updating the form when a

financial interest is acquired or substantially changed, as is now

required. Part I, which is routinely completed by NMFS, is removed from

the form. A request for clearance of this change has received OMB

approval. Public reporting burden for this collection of information is

expected to increase by 5 minutes per respondent to an average 35

minutes per response, including the time for reviewing instructions,

searching existing data sources, gathering and maintaining the data

needed, and completing and reviewing the collection of information.

Please send comments concerning the burden estimate or any other aspect

of this collection of information, including suggestions for reducing

this burden to OMB (see ADDRESSES).

Pursuant to section 553(b)(B) of the Administrative Procedure Act,

the AA finds that prior notice and comment is contrary to the public

interest, because this rule institutes procedural changes that provide

increased information to the public regarding possible financial

conflicts of interest of individuals involved in establishing fishery

conservation and management measures. In addition, public comment was

solicited on the petition for rulemaking, and the additional data

requirements contained in the financial disclosure form were sent to

the regional fishery management Councils for review. This rule is not

subject to review under E.O. 12866.

List of Subjects in 50 CFR Part 601

Administrative practice and procedure, Fisheries, Fishing.

Dated: March 6, 1994.

Nancy Foster,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 601 is amended

as follows:

PART 601--REGIONAL FISHERY MANAGEMENT COUNCILS

1. The authority citation for part 601 continues to read as

follows:

Authority: 16 U.S.C. 1801 et seq.

2. In section 601.37, paragraph (a) is revised to read as follows:

Sec. 601.37 Financial disclosure.

(a) The Magnuson Act requires the disclosure by each Council

nominee, voting member appointed to the Council by the Secretary, and

Executive Director, of any financial interest of the reporting

individual in any harvesting, processing, or marketing activity that is

being, or will be, undertaken within any fishery under the authority of

the individual's Council, and of any such financial interest of the

reporting individual's spouse, minor child, partner, or any

organization (other than the Council) in which that individual is

serving as an officer, director, trustee, partner, or employee. The

information required to be reported must be disclosed on NOAA Form 88-

195, ``Statement of Financial Interests for Use by Voting Members,

Nominees, and Executive Directors of Regional Fishery Management

Councils'' (Financial Interest Form), or such other form as the

Secretary, or designee, may prescribe. The report must be filed by each

nominee for Secretarial appointment before the date of appointment as

prescribed by the Secretary. Voting members appointed by the Secretary,

and Executive Directors, must file an update of the report with the

Executive Director of the appropriate Council, with a copy sent to the

NMFS Regional Director for the geographic area concerned, on or before

February 1 of each calendar year. Individuals must also update the form

at any time a reportable financial interest is acquired or the

financial interests are otherwise substantially changed. The Financial

Interest Forms will be kept on file, and made available for public

inspection at reasonable hours at the Council offices. In addition, the

forms will be available for inspection at each Council meeting and

their availability will be so noted on the Council meeting agenda.

* * * * *

[FR Doc. 94-5644 Filed 3-10-94; 8:45 am]

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