[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]
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