[Federal Register Volume 59, Number 48 (Friday, March 11, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5644]
[[Page Unknown]]
[Federal Register: March 11, 1994]
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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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