Magnuson Act Provisions; Appointment of Regional Fishery Management Council Members

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 970527125-7219-02; I.D. 032797B]

RIN 0648-AJ95

Magnuson Act Provisions; Appointment of Regional Fishery

Management Council Members

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

Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to amend the regulations governing

the nomination and appointment of members of regional fishery

management councils to establish the procedures applicable to the

nomination and appointment to the Pacific Fishery Management Council of

a representative of an Indian tribe with federally recognized fishing

rights from California, Oregon, Washington, or Idaho. The purpose of

this rule is to implement certain sections of the Magnuson-Stevens

Fishery Conservation and Management Act (Magnuson-Stevens Act) as

amended by the Sustainable Fisheries Act (SFA) which require such an

appointment.

EFFECTIVE DATE: September 5, 1997.

ADDRESSES: Comments on the collection of information aspects of this

rule should be sent to Mr. William Stelle, Jr., Administrator,

Northwest Region, NMFS, 76000 Sand Point Way, BIN C15700, Seattle, WA

98115-0070; or to Mr. William Hogarth, Acting Administrator, Southwest

Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA

90802-4213.

FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6142 or

Rodney McInnis at 562-980-4040.

SUPPLEMENTARY INFORMATION: On October 11, 1996, President Clinton

signed into law the Sustainable Fisheries Act, which, in pertinent

part, amended the Magnuson-Stevens Act to add a seat on the Pacific

Fishery Management Council (Pacific Council) exclusively for a

representative of an Indian tribe with federally recognized fishing

rights:

The Secretary shall appoint to the Pacific Council one

representative of an Indian tribe with Federally recognized fishing

rights from California, Oregon, Washington, or Idaho from a list of

not less than 3 individuals submitted by the tribal governments. The

Secretary, in consultation with the Secretary of the Interior and

tribal governments, shall establish by regulation the procedure for

submitting a list under this subparagraph (section 302(b)(5)(A)).

Sections 302(b)(5)(B)(i), (ii), and (iii) of the Magnuson-Stevens

Act require that representation be rotated among the tribes taking into

consideration the qualifications of the individuals on the list, the

various rights of the Indian tribes involved and judicial cases that

set out how those rights are to be exercised, and the geographic area

in which the tribe of the representative is located.

NMFS published a proposed rule to implement these provisions of the

Magnuson-Stevens Act with a 30-day comment period on July 1, 1997 (62

FR 35468). The comment period was subsequently extended through August

11, 1997, at the request of the Quileute Tribal Council.

As in the proposed rule, the final rule requires the Secretary of

Commerce (Secretary) to consult with the Bureau of Indian Affairs

(BIA), Department of the Interior, to determine from which Indian

tribes to solicit nominations for the Council seat. By statute, NMFS

must solicit nominees from those Indian tribes with federally

recognized fishing rights from California, Oregon, Washington, or

Idaho. The rule requires the Secretary to solicit written nominations

from each tribal government and produce a list of not less than three

individuals who are

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knowledgeable and experienced regarding the fishery resources affected

by the recommendations of the Pacific Council. The Secretary will

appoint one individual from this list to the Pacific Council for a term

of 3 years. Under the rule, prior service on the Council in a different

capacity will not disqualify a nominee proposed by a tribal government.

Also, if any tribal representative appointed to the Council vacates the

Council seat prior to the expiration of any term, the Secretary may

appoint a replacement for the remainder of the vacant term from the

original list of nominees or may solicit a new set of nominees

following the process described above. Under the rule, no tribal

representative may serve more than three consecutive terms in the

Indian tribal seat.

The rule requires the Secretary to rotate the appointment of a

tribal representative to the Pacific Council among the tribes, taking

into consideration the qualifications of the individuals nominated, the

various rights of the Indian tribes involved and judicial cases that

set out how those rights are to be exercised, and the geographic area

in which the tribe of the representative is located.

Comments and Responses

NMFS received five letters from tribal organizations commenting on

the proposed rule. Two letters were received from the Quileute Tribal

Council and one letter each from the Hoh Tribe, the Quinault Indian

Nation and the Columbia River Inter-Tribal Fish Commission (CRITFC)

representing the four Columbia River Treaty Tribes (Yakama, Warm

Springs, Umatilla and Nez Perce). These comments and NMFS' responses

are summarized below.

Comment 1: NMFS did not adequately consult with tribal governments,

as required by the Magnuson-Stevens Act, before preparing the proposed

rule. The CRITFC suggested that final regulations not be implemented

until that deficiency is cured by NMFS.

Response: NMFS needed to act quickly to implement procedures to

appoint a tribal member to the Council in order to have a tribal

representative appointed and seated on the Council for the very

important September and November 1997 Council meetings. At these

Council meetings, decisions will be made regarding harvestable amounts

of Pacific groundfish that will directly affect tribal harvests. NMFS

staff consulted informally with the staffs of the CRITFC, Northwest

Indian Fisheries Commission (NWIFC), and the Yurok and Hoopa Valley

Tribes prior to publication of the proposed rule. NMFS did not formally

send the proposed rule to each individual tribal government until after

the rule was published for public comment. After the rule was

published, it was sent to each individual tribal government to solicit

comment during the comment period. At the request of the Quileute

Tribe, the comment period was extended until August 11, 1997, to

provide additional time for tribal governments to comment. NMFS is

publishing the final rule without further delay in order to implement

the new provisions for the appointment of a tribal member to the

Council before the September Pacific Council meeting.

Comment 2: Both the CRITFC and Quileute Tribal Council commented

that the appointment of a tribal member to the Council should be

rotated among the three tribal regions (U.S. v. Washington tribes, the

Columbia River-U.S. v. Oregon and Idaho tribes, and the California

tribes). The Quileute stated that the Secretary ``shall'' rotate the

appointment every three years, and proposed that no tribal

representative may serve more than one term. CRITFC commented only that

it was their expectation that the ``appointments would rotate among the

three Regions.'' The Quinault opposed the required rotation among the

three areas every three years and the one-term limit.

Response: The Magnuson-Stevens Act, section 302(b)(5)(B), states

only that ``Representation shall be rotated among the tribes taking

into consideration--(i) the qualifications of the individuals on the

list referred to in subparagraph (A), (ii) the various rights of the

Indian tribes involved and judicial cases that set forth how those

rights are to be exercised, and (iii) the geographic area in which the

tribe of the representative is located.'' Although not specifically

identifying the areas/regions or tribes among which the appointment

shall be rotated, the statute provides the Secretary with the

discretion to rotate the appointment among the three regions identified

by the two commentators. In addition, as pointed out by the Quinault

Indian Nation, requiring rotation of the Council seat each 3 years and

limiting the tribal representative to one term appears inconsistent

with the provision of the Act that limits the number of times a single

individual can hold a Council seat to three consecutive terms. The

three term limitation implicitly recognizes the value of experience

gained by longer term service. In addition, the statute lists two

additional criteria the Secretary must take into account when rotating

the seat: The qualifications of the nominees and the rights of the

tribes. Therefore, the regulations use the plain language of the

statute in the belief that Congress wanted the Secretary to have some

discretion in rotating the appointments consistent with the guidance

contained in the statute. If Congress had intended the appointment to

rotate among three specific regions without exception, the statutory

language would have been more specific. Comment 3: Both the CRITFC and

the Quileute Tribal Council proposed modification of the NMFS-proposed

process for appointing a tribal member to the Council. This

modification would add an additional step to the process where, after

NMFS has solicited initial nominations from each individual tribal

government, NMFS would send the list of nominees back to each tribal

government so that the tribes could select a preferred nominee from

each of the three regions. The Quileute proposal suggested that each

tribe would vote for one of the nominees in its area. The Secretary

would be required to make the Council appointment from a list of the

three nominees with the most votes from each area. The nominees with

the most votes from the other two areas would serve as alternates. The

CRITFC proposal was similar to the Quileute proposal but not as

detailed. CRITFC suggested the same process by which NMFS would return

the list of nominees to the tribal governments for them to choose a

preferred nominee from each area, but CRITFC would expect the Secretary

to ``defer to the tribes in each respective area where there is a

consensus on their nominee.'' CRITFC also suggested that the BIA should

provide to the NMFS a list of tribes with federally recognized rights

and contacts at that tribe, and that the list be provided to each tribe

on the list.

Response: NMFS believes the idea of providing the list of nominees

to the affected Indian tribes is worth further consideration and

intends to consult further with the tribes regarding a process by which

all of the affected Indian tribes might have an opportunity to comment

on the list of nominees. NMFS notes, however, that the tribes have the

ability to consult among themselves primarily through the Inter-Tribal

fish commissions (Northwest Indian Fish Commission and CRITFC) at the

time that nominations are initially solicited. Thus, the tribes from

each area initially could coordinate the nomination of a single

individual without the need for coordination through NMFS. While NMFS

believes this is a suggestion worth exploring for the long term, its

consideration should not hold up the promulgation of a final

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rule governing the appointment for the upcoming term while NMFS further

explores this proposal. Consequently, NMFS is adopting the process as

proposed in the proposed rule but will formally consult with each

Indian tribe with federally recognized fishing rights, from which

nominations were initially solicited, regarding the consultation

process proposed by the Quileute and CRITFC. If, after consultation

with all of the tribes, NMFS determines that a different process should

be adopted for the future, NMFS will amend this regulation. Regardless

of what process is selected for consulting with the tribes, NMFS cannot

adopt a rule whereby the Secretary would be bound by a vote among the

tribes, as suggested by the Quileute comments. Such a rule would

eliminate the Secretary's discretion in making appointments and the

Secretary's ability to take into account the statutory criteria

discussed above in response to comment 2. The Secretary will, however,

take into account the breadth of support from other tribes when

selecting the tribal Council member.

Comment 4: The Quileute, the Hoh, and CRITFC all suggested that the

regulations should provide for regional ``alternates'' or

``designees.'' The designees would be allowed to occupy the Council

seat and vote on matters primarily affecting the region that they

represent. The Quinault agreed this was a good idea, but acknowledged

the statute probably does not permit this.

Response: The Magnuson-Stevens Act includes as voting members of

Council the state director or designee and the NMFS Regional Director

or designee. For all other council members, the statute does not

authorize voting by designees. Without statutory authorization NMFS

cannot provide the ability for ``designees'' to vote.

Comment 5: The Quileute Tribe commented that prior service by a

tribal member who has served three consecutive terms on the Council, in

a position where the tribal member was nominated by a State Governor to

fill one of the State Council seats, should disqualify the individual

for appointment to the Tribal Council seat. The Quinault Indian Nation

commented that the three-term prohibition applies to three terms in the

same Council seat and that the proposed rule correctly interprets the

SFA.

Response: NMFS agrees with the Quinault Indian Nation comment. In

the proposed rule NMFS states that prior service will not disqualify a

nominee proposed by a tribal government from serving in the newly-

created tribal seat. Thus, the three-term consecutive limit prohibition

applies to service time in the new Council seat that Congress

established specifically to represent tribal governments. Prior service

in a state governor-nominated Council seat does not disqualify a tribal

government's nominee for the newly established tribal Council seat.

Classification

Since this rule is procedural or interpretative in its entirety,

under 5 U.S.C. 553(d) it is not subject to a 30-day delay in

effectiveness date.

This final rule has been determined to be not significant for

purposes of E.O. 12866.

Because prior notice and opportunity for public comment is not

required for this rule by 5 U.S.C. 553 or by any other law, under 5

U.S.C. 603(a) and 604(a) this rule is not subject to the analytical

requirements of the Regulatory Flexibility Act.

This rule contains a collection-of-information requirement subject

to the Paperwork Reduction Act (PRA). The reporting burden for Indian

tribal government nominations for the Council appointments is estimated

to average 120 hours 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.

Notwithstanding any other provision of the law, no person is

required to respond to, nor shall any person be subject to a penalty

for failure to comply with, a collection-of-information subject to the

PRA, unless that collection-of-information displays a currently valid

OMB control number. The collection of this information has been

approved by the OMB under Control Number 0648-0314. Send comments on

the collection of information aspects of this rule to the NMFS

Northwest or Southwest Regional Administrators (see ADDRESSES) or to

OMB at the Office of Information and Regulatory Affairs, Office of

Management and Budget, Washington, DC 20503 (Attention: NOAA Desk

Officer).

List of Subjects in 50 CFR Part 600

Administrative practice and procedure, Fisheries, Fishing,

Intergovernmental relations.

Dated: September 4, 1997.

David L. Evans,

Deputy Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For the reasons set out in the preamble, 50 CFR part 600 is amended

as follows:

PART 600--MAGNUSON ACT PROVISIONS

1. The authority citation for part 600 continues to read as

follows:

Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

2. In Sec. 600.215, the introductory text is removed, paragraphs

(a) through (g) are redesignated as paragraphs (a)(1) through (a)(7)

respectively, paragraphs (c)(1) through (c)(6) are redesignated as

paragraphs (a)(3)(i) through (a)(3)(vi) respectively, paragraphs (f)(1)

and (f)(2) are redesignated (a)(6)(i) and (a)(6)(ii) respectively,

paragraphs (g)(1) through (g)(6) are redesignated (a)(7)(i) through

(a)(7)(vi) respectively, and paragraphs (a) introductory text and (b)

are added to read as follows:

Sec. 600.215 Appointments.

(a) Members appointed from Governors' lists. This paragraph applies

to council members selected by the Secretary from lists submitted by

Governors pursuant to section 302(b)(2)(C) of the Magnuson-Stevens Act.

* * * * *

(b) Tribal Member. This paragraph applies to the selection of the

Pacific Fishery Management Council's tribal member as required by

section 302(b)(5) of the Magnuson-Stevens Act.

(1) The Secretary shall appoint to the Pacific Fishery Management

Council one representative of an Indian tribe with federally recognized

fishing rights from California, Oregon, Washington, or Idaho from a

list of not less than three individuals submitted by the tribal

Governments.

(2) The Secretary shall solicit nominations of individuals for the

list referred to in paragraph (b)(1) of this section only from those

Indian tribes with federally recognized fishing rights from California,

Oregon, Washington, or Idaho. The Secretary will consult with the

Bureau of Indian Affairs, Department of the Interior, to determine

which Indian tribes may submit nominations.

(3) To assist in assessing the qualifications of each nominee, each

tribal government must furnish to the NMFS Office of Sustainable

Fisheries a current resume, or equivalent, describing the nominee's

qualifications with emphasis on knowledge and experience related to the

fishery resources affected by recommendations of the Pacific Council.

Prior service on the Council in a different capacity will not

disqualify nominees proposed by tribal governments.

(4) Nominations must be provided to NMFS by March 15 of the year in

which

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the term of the current tribal member expires.

(5) The Secretary shall rotate the appointment among the tribes

taking into consideration:

(i) The qualifications of the individuals on the list referred to

in paragraph (b)(1) of this section.

(ii) The various rights of the Indian tribes involved and judicial

cases that set out how those rights are to be exercised.

(iii) The geographic area in which the tribe of the representative

is located.

(iv) No tribal representative shall serve more than three

consecutive terms in the Indian tribal seat.

(6) Any vacancy occurring prior to the expiration of any term shall

be filled in the same manner as described above except that the

Secretary may use the list referred to in paragraph (b)(1) of this

section from which the vacating member was chosen.

* * * * *

[FR Doc. 97-23940 Filed 9-5-97; 10:40 am]

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