[Federal Register Volume 62, Number 84 (Thursday, May 1, 1997)]
[Rules and Regulations]
[Pages 23667-23671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-11353]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 970410085-7085-01; I.D. 022197E]
RIN 0648-AJ72


Procedures Governing Establishment and Operation of Fishery 
Negotiation Panels

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: The Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act) directs the Secretary of Commerce (Secretary) to 
implement regulations providing for the optional use of ``fishery 
negotiation

[[Page 23668]]

panels'' (FNPs) and negotiated rulemaking techniques in the development 
of fishery conservation and management measures. The Magnuson-Stevens 
Act requires the Secretary to establish procedures for the operation of 
FNPs comparable to those set out in the Negotiated Rulemaking Act 
(NRA). The following regulations are intended to implement these 
requirements.

EFFECTIVE DATE: May 1, 1997.

ADDRESSES: Comments should be submitted to the Highly Migratory Species 
Division, NMFS, Northeast Regional Office, 1 Blackburn Drive, 
Gloucester, MA 01930.

FOR FURTHER INFORMATION CONTACT: Mark Murray-Brown, 508-281-9260.

SUPPLEMENTARY INFORMATION:

Background

    Section 110 of Public Law No. 104-297, the Sustainable Fisheries 
Act of 1996, amended section 305 of the Magnuson-Stevens Act, by adding 
a new section (g) that authorizes both the Secretary and the Fishery 
Management Councils (Councils) to establish FNPs to assist in the 
development of conservation and management measures for a fishery under 
its authority 16 U.S.C. 1855(g). The same section requires NMFS to 
prepare regulations specifying the procedures for the establishment and 
operation of FNPs. Section 305(g) further specifies that the procedures 
are to be comparable to the procedures of the NRA (5 U.S.C. 561 et 
seq.). NMFS was also required to develop these regulations in 
cooperation with the Administrative Conference of the United States 
(ACUS), which had extensive experience with the NRA and had published 
in 1995 a Negotiated Rulemaking Sourcebook. Although the ACUS has since 
been disbanded, NMFS was able to use the ACUS Negotiated Rulemaking 
Sourcebook for guidance in preparing this rule.
    Both the Councils and NMFS already have extensive procedures 
regarding the preparation of fishery conservation and management 
measures and rule publication. However, in the case of Councils, there 
may be certain, specific circumstances where the use of FNPs may assist 
a Council with specific fisheries under its authority. Development of a 
report and identification of areas of consensus among interests on a 
contentious issue may assist Council debate and voting on a 
controversial measure if the Council has this information available 
before its regular meetings.
    In the case of the Secretary, section 305(g) of the Magnuson-
Stevens Act states that an FNP may be established to assist in the 
development of specific conservation and management measures in three 
specific areas. The first area involves rebuilding of fisheries under 
section 304(e)(5). This section requires the Secretary to prepare a 
fishery management plan (FMP) or plan amendment and regulations to stop 
overfishing and rebuild affected stocks of fish within a 9-month 
timeframe. The second area where an FNP may be used by the Secretary 
involves the management of highly migratory species (HMS) under section 
304(g). Finally, the Secretary may establish and use an FNP for any 
other fishery with the approval of the appropriate Council.

Establishment of an FNP

    Traditionally, negotiated rulemaking provides an opportunity for 
those with a stake in the potential rulemaking--including the agency--
to attempt to reach a consensus on the features of a rule before it is 
proposed by the agency. Following careful identification of the 
interests that would be significantly affected by the rule, an advisory 
committee is established on which the various interests are represented 
through direct representation or through coalitions formed for this 
purpose.
    The NRA established a statutory framework for conduct of negotiated 
rulemaking. This framework includes convening and determination of need 
for a negotiated rulemaking committee, publication of notice for 
applications for membership on the committee, establishment of the 
committee in accordance with the provisions of the Federal Advisory 
Committee Act (FACA), 5 U.S.C. Appendix, and operation of the committee 
with the use of a facilitator.
    This rule requires a Council or NMFS to, effectively, follow the 
elements of the NRA throughout the establishment and operation of an 
FNP and thus modifies the NRA procedures to meet the requirements of 
section 305(g). The intent is to create a committee, comprised of a 
balanced and representative set of all interests in a negotiation, that 
can achieve a consensus on all issues involved.
    The decision to establish an FNP under section 305(g) also requires 
consideration of other relevant procedures of the Magnuson-Stevens Act. 
For example, the decision to establish an FNP for situations involving 
rebuilding of fisheries also requires determinations regarding the 
relevant procedures of section 304(e)(5) of the Magnuson-Stevens Act. 
In this case, establishing an FNP, following the required FACA charter 
process, convening the FNP, conducting negotiations, publishing the 
FNP's report in the Federal Register, considering the report, 
considering public comments on the report, and making appropriate 
determinations would likely render the 9-month deadline under section 
304(e)(5) difficult to meet. Thus, it may be impractical to utilize the 
FNP process in a setting as time-sensitive as rebuilding overfished 
fisheries.
    FNPs may also be established to assist with HMS management under 
section 304(g). However, under section 302(g)(2) the Secretary is 
mandated to establish Fishery Advisory Panels for FMPs prepared for 
HMS. Therefore, in addition to the mandatory Fishery Advisory Panel, 
the Secretary may choose to establish an FNP to assist the Fishery 
Advisory Panel in the development of conservation and management 
measures. A decision to establish an FNP, in addition to the mandatory 
Fishery Advisory Panel, would have to weigh practical considerations of 
two groups, working on substantially similar issues, that may be 
comprised of the same individuals. As there is no limitation of the 
Secretary's ability to utilize the procedures of the NRA, the Secretary 
may choose to utilize the procedures of the NRA for the mandatory 
Fishery Advisory Panel. This rule in no way affects the ability of a 
Council to establish an advisory panel under section 302(g)(2) of the 
Magnuson-Stevens Act.
    Finally, the Secretary may establish and use FNPs for any other 
fishery with the approval of the appropriate Council. In these cases, a 
Council would choose to have NMFS take the lead on creating and 
operating an FNP, although the Council would still participate as a 
member of the FNP, and still have the responsibility for submitting any 
FMP amendment or regulation to the Secretary for review under the 
Magnuson-Stevens Act.

Operation of an FNP

    The intent of this rule is to specify that the following procedures 
apply to the operation of an FNP, if either the Council or NMFS 
exercises its authority to establish one. The FNP is chaired by a 
trained mediator or facilitator. Representatives from one or more 
Councils (as appropriate) and NMFS are members of the FNP, each 
representing the Council's and NMFS' own unique set of interests in the 
outcome. The facilitator oversees the process by focusing the members 
on the identification of issues and concerns and assisting them to 
consider ways in

[[Page 23669]]

which these can be addressed. The facilitator can also guide 
discussions between the negotiators and the parties they represent. 
Meetings are open to the public, in accordance with FACA, and, thus, 
all interested parties who are not members of the committee may observe 
the proceedings and participate during public comment periods. The 
process set out in this rule is thus a method of alternative dispute 
resolution in which an impartial neutral party is used to facilitate 
settlement of disputes about the terms of a potential conservation and 
management measure among the interests that would be significantly 
affected thereby.
    In addition, there are two critical features to this rule: (1) The 
entire process, if used, must take place prior to the beginning of the 
statutory requirements for implementing FMPs or regulations. However, 
the Council or NMFS has discretion prior to this point when to use this 
process. (2) Results and recommendations of the FNP are advisory in 
nature and neither the Council nor the Secretary is obligated to use 
any or all of the results of an FNP in implementing a rule. If used, an 
FNP's report could help resolve controversial areas of fish management 
before these areas are addressed by a Council or NMFS through Magnuson-
Stevens Act rulemaking procedures.

Report and Results of FNP Procedures

    For the purposes of this rule, and consistent with section 305(g) 
of the Magnuson-Stevens Act, an FNP is intended only to negotiate 
conservation and management measures rather than to develop a proposed 
rule. Thus, this rule modifies the procedures of the NRA to refer to 
conservation and management measures rather than rules or regulations.
    At the conclusion of its negotiations, an FNP may submit a report 
that would specify all the areas where consensus was reached by the 
panel, including, if appropriate, proposed conservation and management 
measures, as well as any other information submitted by members of the 
FNP. Once NMFS receives the report, the report will be published in the 
Federal Register for public comment. Finally, the FNP's report may be 
used by the Council or NMFS in the development of any regulation, FMP, 
or plan amendment.

Classification

    Under 5 U.S.C. 553(b)(A), prior notice and an opportunity for 
public comment are not required to be provided for this rule as this is 
a rule of procedure. Further, because prior notice and an opportunity 
for public comment are not required under 5 U.S.C. 553, or any other 
law, the analytical requirements of the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq., are not applicable. Finally, because this rule is 
not substantive, it is not subject to the 30-day delay in effective 
date required of substantive rules under 5 U.S.C. 553(d). This rule has 
been determined to be not significant for purposes of E.O. 12866.

List of Subjects in 50 CFR Part 600

    Fisheries, Fishing.

    Dated: April 25, 1997.
Nancy Foster,
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 is revised to read as 
follows:

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

    2. A new subpart I is added to read as follows:

Subpart I--Fishery Negotiation Panels

600.750  Definitions.
600.751  Determination of need for a fishery negotiation panel.
600.752  Use of conveners and facilitators.
600.753  Notice of intent to establish a fishery negotiation panel.
600.754  Decision to establish a fishery negotiation panel.
600.755  Establishment of a fishery negotiation panel.
600.756  Conduct and operation of a fishery negotiation panel.
600.757  Operational protocols.
600.758  Preparation of report.
600.759  Use of report.
600.760  Fishery Negotiation Panel lifetime.

Subpart I--Fishery Negotiation Panels


Sec. 600.750  Definitions.

    Consensus means unanimous concurrence among the members on a 
Fishery Negotiation Panel established under this rule, unless such 
Panel:
    (1) Agrees to define such term to mean a general but not unanimous 
concurrence; or
    (2) agrees upon another specified definition.
    Fishery negotiation panel (FNP) means an advisory committee 
established by one or more Councils or the Secretary in accordance with 
these regulations to assist in the development of fishery conservation 
and management measures.
    Interest means, with respect to an issue or matter, multiple 
parties that have a similar point of view or that are likely to be 
affected in a similar manner.
    Report means a document submitted by an FNP in accordance with the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act).


Sec. 600.751  Determination of need for a fishery negotiation panel.

    A Council or NMFS may establish an FNP to assist in the development 
of specific fishery conservation and management measures. In 
determining whether to establish an FNP, NMFS or the Council, as 
appropriate, shall consider whether:
    (a) There is a need for specific fishery conservation and 
management measures.
    (b) There are a limited number of identifiable interests that will 
be significantly affected by the conservation and management measure.
    (c) There is a reasonable likelihood that an FNP can be convened 
with a balanced representation of persons who:
    (1) Can adequately represent the interests identified under 
paragraph (b) of this section.
    (2) Are willing to negotiate in good faith to reach a consensus on 
a report regarding the issues presented.
    (d) There is a reasonable likelihood that an FNP will reach
    a consensus on a report regarding the issues presented within 1 
year from date of establishment of the FNP.
    (e) The use of an FNP will not unreasonably delay Council or NMFS 
fishery management plan development or rulemaking procedures.
    (f) The costs of establishment and operation of an FNP are 
reasonable when compared to fishery management plan development or 
rulemaking procedures that do not use FNP procedures.
    (g) The Council or NMFS has adequate resources and is willing to 
commit such resources, including technical assistance, to an FNP.
    (h) The use of an FNP is in the public interest.


Sec. 600.752  Use of conveners and facilitators.

    (a) Purposes of conveners. A Council or NMFS may use the services 
of a trained convener to assist the Council or NMFS in: (1) Conducting 
discussions to identify the issues of concern, and to ascertain whether 
the establishment of an FNP regarding such matter is feasible and 
appropriate.
    (2) Identifying persons who will be significantly affected by the 
issues

[[Page 23670]]

presented in paragraph (a)(1) of this section.
    (b) Duties of conveners. The convener shall report findings under 
paragraph (a)(2) of this section and shall make recommendations to the 
Council or NMFS. Upon request of the Council or NMFS, the convener 
shall ascertain the names of persons who are willing and qualified to 
represent interests that will be significantly affected by the 
potential conservation and management measures relevant to the issues 
to be negotiated. The report and any recommendations of the convener 
shall be made available to the public upon request.
    (c) Selection of facilitator. Notwithstanding section 10(e) of the 
Federal Advisory Committee Act (FACA), a Council or NMFS may nominate a 
person trained in facilitation either from the Federal Government or 
from outside the Federal Government to serve as an impartial, neutral 
facilitator for the negotiations of the FNP, subject to the approval of 
the FNP, by consensus. The facilitator may be the same person as the 
convener used under paragraph (a) of this section. If the FNP does not 
approve the nominee of the Council or NMFS for facilitator, the FNP 
shall submit a substitute nomination. If an FNP does not approve any 
nominee of the Council or NMFS for facilitator, the FNP shall select, 
by consensus, a person to serve as facilitator. A person designated to 
represent the Council or NMFS in substantive issues may not serve as 
facilitator or otherwise chair the FNP.
    (d) Roles and duties of facilitator. A facilitator shall:
    (1) Chair the meetings of the FNP in an impartial manner.
    (2) Impartially assist the members of the FNP in conducting 
discussions and negotiations.
    (3) Manage the keeping of minutes and records as required under 
section 10(b) and (c) of FACA.


Sec. 600.753  Notice of intent to establish a fishery negotiation 
panel.

    (a) Publication of notice. If, after considering the report of a 
convener or conducting its own assessment, a Council or NMFS decides to 
establish an FNP, NMFS shall publish in the Federal Register and, as 
appropriate, in trade or other specialized publications, a document 
that shall include:
    (1) An announcement that the Council or NMFS intends to establish 
an FNP to negotiate and develop a report concerning specific 
conservation and management measures.
    (2) A description of the subject and scope of the conservation and 
management measure, and the issues to be considered.
    (3) A list of the interests that are likely to be significantly 
affected by the conservation and management measure.
    (4) A list of the persons proposed to represent such interests and 
the person or persons proposed to represent the Council or NMFS.
    (5) A proposed agenda and schedule for completing the work of the 
FNP.
    (6) A description of administrative support for the FNP to be 
provided by the Council or NMFS, including technical assistance.
    (7) A solicitation for comments on the proposal to establish the 
FNP, and the proposed membership of the FNP.
    (8) An explanation of how a person may apply or nominate another 
person for membership on the FNP, as provided under paragraph (b) of 
this section.
    (b) Nomination of members and public comment. Persons who may be 
significantly affected by the development of conservation and 
management measure and who believe that their interests will not be 
adequately represented by any person specified in a document under 
paragraph (a)(4) of this section may apply for, or nominate another 
person for, membership on the FNP to represent such interests. Each 
application or nomination shall include:
    (1) The name of the applicant or nominee and a description of the 
interests such person shall represent.
    (2) Evidence that the applicant or nominee is authorized to 
represent parties related to the interests the person proposes to 
represent.
    (3) A written commitment that the applicant or nominee shall 
actively participate in good faith in the development of the 
conservation and management measure under consideration.
    (4) The reasons that the persons specified in the document under 
paragraph (a)(4) of this section do not adequately represent the 
interests of the person submitting the application or nomination.
    (c) Public comment. The Council or NMFS shall provide at least 30 
calendar days for the submission of comments and applications under 
this section.


Sec. 600.754  Decision to establish a fishery negotiation panel.

    (a) Determination to establish an FNP. If, after considering 
comments and applications submitted under Sec. 600.753, the Council or 
NMFS determines that an FNP can adequately represent the interests that 
will be significantly affected and that it is feasible and appropriate 
in the particular case, the Council or NMFS may establish an FNP.
    (b) Determination not to establish FNP. If, after considering such 
comments and applications, the Council or NMFS decides not to establish 
an FNP, the Council or NMFS shall promptly publish notification of such 
decision and the reasons therefor in the Federal Register and, as 
appropriate, in trade or other specialized publications, a copy of 
which shall be sent to any person who applied for, or nominated another 
person for membership on the FNP to represent such interests with 
respect to the issues of concern.


Sec. 600.755  Establishment of a fishery negotiation panel.

    (a) General authority. (1) A Council may establish an FNP to assist 
in the development of specific conservation and management measures for 
a fishery under its authority.
    (2) NMFS may establish an FNP to assist in the development of 
specific conservation and management measures required for:
    (i) A fishery for which the Secretary has authority under section 
304(e)(5) of the Magnuson-Stevens Act, regarding rebuilding of 
overfished fisheries;
    (ii) A fishery for which the Secretary has authority under 16 
U.S.C. section 304(g), regarding highly migratory species; or
    (iii) Any fishery with the approval of the appropriate Council.
    (b) Federal Advisory Committee Act (FACA) In establishing and 
administering such an FNP, the Council or NMFS shall comply with the 
FACA with respect to such FNP.
    (c) Balance. Each potentially affected organization or individual 
does not necessarily have to have its own representative, but each 
interest must be adequately represented. The intent is to have a group 
that as a whole reflects a proper balance and mix of interests. 
Representatives must agree, in writing, to negotiate in good faith.
    (d) Membership. The Council or NMFS shall limit membership on an 
FNP to no more than 25 members, unless the Council or NMFS determines 
that a greater number of members is necessary for the functioning of 
the FNP or to achieve balanced membership. Each FNP shall include at 
least one person representing the Council in addition to at least one 
person representing NMFS.


Sec. 600.756  Conduct and operation of a fishery negotiation panel.

    (a) Roles and duties of an FNP. Each FNP shall consider the issue 
proposed by the Council or NMFS for consideration and shall attempt to 
reach a consensus concerning a report to assist

[[Page 23671]]

in the development of a conservation and management measure with 
respect to such matter and any other matter the FNP determines is 
relevant to the development of a conservation and management measure. 
An FNP may adopt procedures for the operation of the FNP.
    (b) Roles and duties of representative of the council or NMFS. The 
person or persons representing the Council or NMFS on an FNP shall 
participate in the deliberations and activities of the FNP with the 
same rights and responsibilities as other members of the FNP, and shall 
be authorized to fully represent the Council or NMFS in the discussions 
and negotiations of the FNP.


Sec. 600.757  Operational protocols.

    (a) Services of conveners and facilitators. A Council or NMFS may 
employ or enter into contracts for the services of an individual or 
organization to serve as a convener or facilitator for an FNP 
established under Sec. 600.755, or may use the services of a government 
employee to act as a convener or a facilitator for such an FNP.
    (b) Councils. For an FNP proposed and established by one or more 
Councils approved expenses shall be paid out of the Council's operating 
budget.
    (c) Expenses of FNP members. Members of an FNP shall be responsible 
for their own expenses of participation in such an FNP, except that 
NMFS or the Council may, in accordance with section 7(d) of FACA, pay 
for a member's reasonable travel and per diem expenses, and a 
reasonable rate of compensation, if:
    (1) Such member certifies a lack of adequate financial resources to 
participate in the FNP.
    (2) The Council or NMFS determines that such member's participation 
in the FNP is necessary to assure an adequate representation of the 
member's interest.
    (d) Administrative support. The Council or NMFS shall provide 
appropriate administrative support to an FNP including technical 
assistance.


Sec. 600.758  Preparation of report.

    (a) At the conclusion of the negotiations, an FNP may submit a 
report. Such report shall specify:
    (1) All the areas where consensus was reached by the FNP, 
including, if appropriate, proposed conservation and management 
measures.
    (2) Any other information submitted by members of the FNP.
    (b) Upon receipt of the report, the Council or NMFS shall publish 
such report in the Federal Register for public comment.


Sec. 600.759  Use of report.

    A Council or NMFS may, at its discretion, use all or a part of a 
report prepared in accordance with Sec. 600.758 in the development of 
conservation and management measures. Neither a Council nor NMFS, 
whichever is appropriate, is required to use such report.


Sec. 600.760  Fishery Negotiation Panel lifetime.

    (a) An FNP shall terminate upon either:
    (1) Submission of a report prepared in accordance with 
Sec. 600.758; or
    (2) Submission of a written statement from the FNP to the Council 
or NMFS that no consensus can be reached.
    (b) In no event shall an FNP exist for longer than 1 year from the 
date of establishment unless granted an extension. Upon written request 
by the FNP to the Council or NMFS, and written authorization from the 
Council or NMFS (whichever is appropriate), the Secretary may authorize 
an extension for a period not to exceed 6 months. No more than one 
extension may be granted per FNP.
[FR Doc. 97-11353 Filed 4-30-97; 8:45 am]
BILLING CODE 3510-22-F