[Federal Register Volume 62, Number 175 (Wednesday, September 10, 1997)]
[Rules and Regulations]
[Pages 47584-47587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23940]


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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

[[Page 47585]]

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

[[Page 47586]]

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

[[Page 47587]]

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]
BILLING CODE 3510-22-F