[Federal Register Volume 63, Number 223 (Thursday, November 19, 1998)]
[Rules and Regulations]
[Pages 64182-64187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30898]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 600

[Docket No. 970728182-8272-02; I.D. 071697A]
RIN 0648-AG16


Magnuson-Stevens Act Provisions; Financial Disclosure

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 revise the rules of conduct and 
financial disclosure regulations applicable to Regional Fishery 
Management Council (Council) nominees, appointees, and voting members. 
The revisions would implement a provision of the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act) that was 
amended by the Sustainable Fisheries Act (SFA) in 1996. The new 
provision prohibits Council members from voting on matters that would 
have a significant and predictable effect on a financial interest 
disclosed in accordance with existing regulations.

DATES: Effective February 17, 1999.

ADDRESSES: Comments regarding burden-hour estimates for the collection-
of-information requirements contained in this final rule should be sent 
to George H. Darcy, F/SF3, National Marine Fisheries Service, 1315 
East-West Highway, Silver Spring, MD 20910; and the Office of 
Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Washington, D.C. 20503 (Attention: NOAA Desk Officer).

FOR FURTHER INFORMATION CONTACT: Margaret Frailey Hayes, Assistant 
General Counsel for Fisheries, NOAA Office of General Counsel, 301-713-
2231.

[[Page 64183]]

SUPPLEMENTARY INFORMATION:

Background

    On October 11, 1996, the President signed into law the SFA, which 
made numerous amendments to the Magnuson-Stevens Act (16 U.S.C. 1801 et 
seq.). Among those amendments was a provision that prohibits Council 
members from voting on matters that would have a significant and 
predictable effect on a financial interest disclosed in accordance with 
existing regulations. On August 7, 1997, NMFS published a proposed rule 
at 62 FR 42474 to implement the financial disclosure provisions of the 
SFA; comments were requested through September 8, 1997. Additional 
background information was included in the preamble of that proposed 
rule, and is not repeated here.

Comments on the August 7, 1997, Proposed Rule and Responses

    1. Comment. The Office of Government Ethics (OGE) questioned NMFS' 
legal authority for issuing the rule of conduct proposed for 
Sec. 600.225(b)(8).
    Response. NMFS has authority under the Magnuson-Stevens Act to 
prescribe uniform standards for the Councils' practices and procedures 
(section 302(f)(6)) and to promulgate rules to carry out the provisions 
of the Act (section 305(d)). The rule of conduct is really a paraphrase 
of 18 U.S.C. 208; Sec. 600.225(b)(8)(i) has been revised to match the 
statutory language more closely. Section 600.225(b)(8)(ii) continues 
the disqualification of all Council members from participating in 
matters ``primarily of individual concern.''
    2. Comment. OGE stated that conduct rules for Council members 
should be issued as supplemental regulations to the standards of 
conduct to which all Federal employees are subject.
    Response. That suggestion is inconsistent with an opinion of the 
Office of Legal Counsel, Department of Justice, dated December 9, 1993, 
which held that Council members are not Federal employees subject to 
the Executive Order on ethics or to the Government-wide standards of 
conduct. (Note, however, that Council members are considered special 
Government employees for purposes of the Federal conflict-of-interest 
statute, 18 U.S.C. 208.)
    3. Comment. OGE found the proposed rule unclear as to who must file 
a financial disclosure report, i.e., whether all members and nominees 
must file, or only those with interests in harvesting, processing, or 
marketing activities. It also found the proposed rule overly broad in 
requiring affected individuals to disclose interests in an industry 
related to harvesting, processing, or marketing activities.
    Response. NMFS has long interpreted section 302(j)(2) to require 
affected individuals to disclose financial interests in activities 
related to harvesting, processing, or marketing. If NMFS had read the 
financial-disclosure provision as narrowly as OGE suggests, many 
Council members such as fisheries association officers would have been 
subject to criminal liability under 18 U.S.C. 208. They would have been 
unable even to participate in Council deliberations on issues affecting 
their employment or other fiduciary interests. NMFS believes that 
Congress intended in the 1986 amendments to the Magnuson Act to allow 
persons with financial interests in activities related to harvesting, 
processing, or marketing to continue serving on Councils on the same 
footing as persons with more direct interests. The ``price'' of this 
participation was the disclosure of those interests, so that the public 
could be informed of possible biases by members affiliated with certain 
sectors of the fishing industry. In the 1996 amendments to the 
Magnuson-Stevens Act, Congress indicated no dissatisfaction with the 
agency's practice of requiring disclosure of financial interests in 
related activities, and did not amend section 302(j)(2).
    4. Comment. Another commenter pointed out a perceived inconsistency 
in the proposed rule between the broad scope of the requirement for 
disclosing financial interests, and the narrow scope of financial 
interests that would disqualify a member from voting. The commenter 
would prefer that the disqualifying financial interests be broadened to 
match the disclosed interests, so that representatives of fishing 
industry groups would be subject to the recusal provisions of the SFA.
    Response. The legislative history of the 1996 amendments to the 
Magnuson-Stevens Act indicates that Congress was concerned about 
members whose votes on Council actions might result in direct gain or 
loss to themselves or their companies. The SFA disqualifies members 
from voting on decisions that would have a ``significant and 
predictable effect'' on their financial interests. That phrase was 
defined as ``a close causal link between the Council decision and an 
expected and substantially disproportionate benefit to the financial 
interest of the affected individual relative to the financial interests 
of other participants in the same gear type or sector of the fishery.'' 
In developing the proposed rule, and again in considering the final 
rule, NMFS focused on the comparative aspect of the defined term. The 
disqualifying effect is not that the Council action will have a 
significant impact on the member's financial interest; the action must 
have a disproportionate impact as compared with that of other 
participants in the fishery sector. Therefore, the criteria for recusal 
are limited to persons whose financial interests are directly linked to 
harvesting, processing, or marketing activities.
    5. Comment. OGE suggested that NMFS require all affected 
individuals to file a confidential disclosure of all their financial 
interests, in addition to the financial disclosure report required by 
the Magnuson-Stevens Act to be filed by affected individuals who have 
financial interests in harvesting, processing, or marketing activities.
    Response. As noted above, Council members are not Federal employees 
for purposes of the OGE regulations. There is no explicit authority in 
the Magnuson-Stevens Act for requiring confidential financial 
disclosure, but NMFS expects that affected individuals with financial 
interests that are not required to be disclosed would seek advice from 
Departmental counsel regarding their participation in matters before 
their Councils.
    6. Comment. OGE stated that members' financial disclosure forms 
should be available for inspection at Council meetings.
    Response. NMFS agrees. This requirement appears in the current 
rule, and in the final rule at Sec. 600.235(b)(3).
    7. Comment. OGE found the criterion of a 10-percent share of an 
industry to be huge, eviscerating any potential restriction on industry 
participants. Besides lowering the percentage, OGE suggested a standard 
that would incorporate a dollar amount for the gross value of the 
individual's landings of fish.
    On the other hand, the Western Pacific Fishery Management Council 
said that 10 percent is too low for small fisheries. The Council 
proposed a tiered approach for the Western Pacific, with a standard of 
50 percent for fisheries smaller than 50 vessels; 25 percent for 
fisheries between 51 and 100 vessels; 15 percent for fisheries between 
101 and 200 vessels; and 10 percent for fisheries larger than 200.
    Response. NMFS does not believe a monetary standard, whether value 
of landings, value of fish processed, or value of fish marketed, is 
workable. OGE objected to the NMFS proposal but provided no alternative 
proportion, nor

[[Page 64184]]

did it provide any quantitative data or qualitative information to 
support its position.
    While NMFS has no quantitative data on which to base the selection 
of 10 percent as the disqualifying industry share, qualitative 
information available from existing disclosure forms and other sources 
indicates that this value would accomplish the Congressional intent of 
disqualifying from voting only those current Council members whose 
financial interests would be disproportionately affected by Council 
actions, in comparison with the financial interests of other 
participants in the fishery sector.
    NMFS does not agree with the suggested tiered approach for the 
Western Pacific, because a Council member owning nearly half the 
vessels in a small fishery would be able to vote on a matter that could 
disproportionately benefit his or her financial interest. NMFS received 
no other suggestions for a tiered approach, although the proposed rule 
specifically invited comments on this issue.
    8. Comment. OGE questioned the need for a provision for voluntary 
recusal, at Sec. 600.235(d), and its limitation to only those financial 
interests that have been disclosed.
    Response. Any Council member may decline to vote on a matter before 
the Council for any reason. NMFS included a provision to remind members 
of this.
    9. Comment. OGE was troubled by the statutory allowance of 
participation in deliberations by members who are recused, because 
active participation may have as much effect on the outcome as a vote. 
OGE recommended that Sec. 600.235(e) be amended to clarify that only 
those who are recused under section 302(j) of the Magnuson-Stevens Act 
are allowed to participate, while members with other types of financial 
interests may be precluded from participating under 18 U.S.C. 208.
    Response. This provision has been revised in accordance with OGE's 
recommendation with respect to particular matters of individual 
concern.
    10. Comment. Concerning Sec. 600.235(f)(4), OGE asked what would 
happen to a Council decision if the designated official determined that 
a Council member could vote, another Council member requested a review 
of that determination, and the NOAA General Counsel found that the 
member should not have voted.
    Response. The provision has been clarified, at Sec. 600.235(f)(5), 
to indicate, in accordance with section 302(j)(7)(E) of the Magnuson-
Stevens Act, that the eventual ruling by the NOAA General Counsel will 
not disturb the Council decision.
    11. Comment. The Western Pacific Fishery Management Council asked 
why a Council member should have the opportunity to request a review of 
a determination, if there will be no effect on the Council decision.
    Response. Section 302(j)(7) of the Magnuson-Stevens Act provides 
for the request for a review, but states that the eventual ruling is 
not cause for invalidation or reconsideration of the Council's decision 
by the Secretary. The Council itself might decide to vote on the issue 
again at a later meeting, if review of the determination reversed the 
initial ruling. The General Counsel's ruling would also have 
precedential value for subsequent determinations.
    12. Comment. OGE asked whether one Council member can question 
another member's action, if the designated official has not made a 
determination.
    Response. There is legislative history indicating that only the 
member whose action is in question may request a determination by the 
designated official. Another member, however, is free to bring the 
issue to the attention of the designated official, who would then 
consider making a determination on his/her own initiative under 
Sec. 600.235(f)(2).

Changes From the August 7, 1997, Proposed Rule

    Section 600.225(b)(8)(i) has been revised to track more closely the 
provisions of 18 U.S.C. 208. Unless exempted, a Council member may not 
participate personally and substantially in a particular matter in 
which the individual, family members, or business associates have a 
financial interest. This rule of conduct does not apply to financial 
interests required to be disclosed under Sec. 600.235(b), nor to 
members who are exempt under 18 U.S.C. 208(b) (1) or (2). Section 
600.225(b)(8)(ii) continues the disqualification of all Council members 
from participating in matters ``primarily of individual concern.''
    A definition of ``Council decision'' has been added to clarify that 
the recusal requirements do not apply to actions by Council committees. 
A committee vote is not binding on the Council and thus cannot have a 
``significant and predictable effect'' on a member's financial 
interest. Under Sec. 600.235(e), however, an affected individual who 
will be recused from voting on a Council decision must notify the 
Council of the recusal before participating in committee deliberations.
    A definition of ``financial interest in harvesting, processing, or 
marketing'' has been added at Sec. 600.235(a), to apply only to the 
disclosure and recusal provisions. The phrase ``ownership interests'' 
includes leases of fishing vessels and individual fishing quotas.
    Section 600.235(b)(1) has been revised to use the term ``financial 
interest in harvesting, processing, or marketing,'' which allows 
removal of some text that is now covered in the definition.
    A sentence in the current regulations, which was inadvertently 
omitted from the proposed rule, has been added to Sec. 600.235(b)(3) to 
require that financial interest forms be made available at Council 
meetings and hearings.
    Two sentences have been added at the end of Sec. 600.235(c)(2) to 
specify that financial interests of affected individuals and other 
participants will be judged based on the most recent fishing year for 
which information is available. For IFQ fisheries, however, the 
judgment will be based on the percentage of IFQs assigned to the 
affected individual.
    Section 600.235(e) has been revised to clarify that only those 
recused under this section may participate in Council deliberations; 
members with financial interests in a particular matter, other than 
harvesting, marketing, or processing, may not participate if precluded 
by 18 U.S.C. 208 and Sec. 600.225(b)(8)(i).
    Section 600.235(f)(4) directs Council Chairs not to count the vote 
of a member who attempts to vote despite a recusal determination.
    Section 600.235(f)(5) clarifies that the NOAA General Counsel's 
ruling on review of a recusal determination is not cause for 
invalidation or reconsideration of the Council's decision by the 
Secretary.
    Section 3507 of the Paperwork Reduction Act (PRA) requires agencies 
to inventory and display a current control number assigned by the 
Director, OMB, for each agency information collection. Section 902.1(b) 
of 15 CFR identifies the location of NOAA regulations for which OMB 
control numbers have been issued. This final rule amends Sec. 902.1(b) 
by adding the control number for this collection of information.

Classification

    This rule has been determined to be not significant for purposes of 
E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this rule would not have a 
significant economic impact on a substantial

[[Page 64185]]

number of small entities. No comments were received regarding this 
certification. As a result, a regulatory flexibility analysis was not 
prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall a person be subject to a penalty for failure 
to comply with, a collection of information subject to the requirements 
of the PRA unless that collection of information displays a currently 
valid OMB control number.
    This rule contains a collection-of-information requirement subject 
to the PRA. This collection-of-information requirement has been 
approved by OMB under control number 0648-0192. Public reporting burden 
is estimated to average 35 minutes per response to fill out and submit 
the Financial Interest Form, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Send comments regarding burden estimates, or 
any other aspect of this data collection, including suggestions for 
reducing the burden, to NMFS and OMB (see ADDRESSES).

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 600

    Administrative practice and procedure, Confidential business 
information, Fisheries, Fishing, Fishing vessels, Foreign relations, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Statistics.

    Dated: November 13, 1998.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 15 CFR chapter IX and 50 
CFR chapter VI are amended as follows:

15 CFR Chapter IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:

    Authority: 44 U.S.C. 3501 et seq.

    2. In Sec. 902.1, paragraph (b), the table is amended by adding in 
numerical order the following entry to read as follows:


Sec. 902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                             Current OMB control number
 CFR part or section where the information  (All numbers begin with 0648-
     collection requirement is located                    )
------------------------------------------------------------------------
 
                  *        *        *        *        *
50 CFR
 
                  *        *        *        *        *
  600.235.................................  -0192
 
                  *        *        *        *        *
------------------------------------------------------------------------

* * * * *

50 CFR Chapter VI
PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    3. 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.

    4. In Sec. 600.225, the last sentence in paragraph (b)(4) is 
removed, and paragraph (b)(8) is revised to read as follows:


Sec. 600.225  Rules of conduct.

* * * * *
    (b) * * *
    (8)(i) Except as provided in Sec. 600.235(h) or in 18 U.S.C. 208, 
no Council member may participate personally and substantially as a 
member through decision, approval, disapproval, recommendation, the 
rendering of advice, investigation, or otherwise, in a particular 
matter in which the member, the member's spouse, minor child, general 
partner, organization in which the member is serving as officer, 
director, trustee, general partner, or employee, or any person or 
organization with whom the member is negotiating or has any arrangement 
concerning prospective employment, has a financial interest. (Note that 
this financial interest is broader than the one defined in 
Sec. 600.235(a).)
    (ii) No Council member may participate personally and substantially 
as a member through decision, approval, disapproval, recommendation, 
the rendering of advice, investigation, or otherwise, in a particular 
matter primarily of individual concern, such as a contract, in which he 
or she has a financial interest, even if the interest has been 
disclosed in accordance with Sec. 600.235.
    5. Section 600.235 is revised to read as follows:


Sec. 600.235  Financial disclosure.

    (a) Definitions. For purposes of Sec. 600.235:
    Affected individual means an individual who is--
    (1) Nominated by the Governor of a state or appointed by the 
Secretary of Commerce to serve as a voting member of a Council in 
accordance with section 302(b)(2) of the Magnuson-Stevens Act; or
    (2) A representative of an Indian tribe appointed to the Pacific 
Council by the Secretary of Commerce under section 302(b)(5) of the 
Magnuson-Stevens Act who is not subject to disclosure and recusal 
requirements under the laws of an Indian tribal government.
    Council decision means approval of a fishery management plan (FMP) 
or FMP amendment (including any proposed regulations); request for 
amendment to regulations implementing an FMP; finding that an emergency 
exists involving any fishery (including recommendations for responding 
to the emergency); and comments to the Secretary on FMPs or amendments 
developed by the Secretary. It does not include a vote by a committee 
of a Council.
    Designated official means an attorney designated by the NOAA 
General Counsel.
    Financial interest in harvesting, processing, or marketing (1) 
includes:
    (i) Stock, equity, or other ownership interests in, or employment 
with, any company, business, fishing vessel, or other entity engaging 
in any harvesting, processing, or marketing activity in any fishery 
under the jurisdiction of the Council concerned;
    (ii) Stock, equity, or other ownership interests in, or employment 
with, any company or other entity that provides equipment or other 
services essential to harvesting, processing, or marketing activities 
in any fishery under the jurisdiction of the Council concerned, such as 
a chandler or a dock operation.
    (iii) Employment with, or service as an officer, director, or 
trustee of, an association whose members include companies, vessels, or 
other entities engaged in harvesting, processing, or marketing 
activities, or companies or other entities providing services essential 
to harvesting, processing, or marketing activities in any fishery under 
the jurisdiction of the Council concerned; and
    (iv) Employment with an entity providing consulting, legal, or 
representational services to any entity engaging in, or providing 
equipment or services essential to, harvesting, processing, or 
marketing activities in any fishery under the jurisdiction of the

[[Page 64186]]

Council concerned, or to any association whose members include entities 
engaged in the activities described in paragraphs (1) (i) and (ii) of 
this definition;
    (2) Does not include stock, equity, or other ownership interests 
in, or employment with, an entity engaging in advocacy on environmental 
issues or in scientific fisheries research in any fishery under the 
jurisdiction of the Council concerned, unless it is covered under 
paragraph (1) of this definition. A financial interest in such entities 
is covered by 18 U.S.C. 208, the Federal conflict-of-interest statute.
    (b) Reporting. (1) The Magnuson-Stevens Act requires the disclosure 
by each affected individual of any financial interest in harvesting, 
processing, or marketing activity, and of any such financial interest 
of the affected 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 and 
Nominees of Regional Fishery Management Councils'' (Financial Interest 
Form), or such other form as the Secretary may prescribe.
    (2) The Financial Interest Form must be filed by each nominee for 
Secretarial appointment with the Assistant Administrator by April 15 
or, if nominated after March 15, 1 month after nomination by the 
Governor. A seated voting member appointed by the Secretary must file a 
Financial Interest Form with the Executive Director of the appropriate 
Council within 45 days of taking office; must file an update of his or 
her statement with the Executive Director of the appropriate Council 
within 30 days of the time any such financial interest is acquired or 
substantially changed by the affected individual or the affected 
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; and must update his or her 
form annually and file that update with the Executive Director of the 
appropriate Council by February 1 of each year.
    (3) The Executive Director must, in a timely manner, provide copies 
of the financial disclosure forms and all updates to the NMFS Regional 
Administrator for the geographic area concerned, the Regional Attorney 
who advises the Council, the Department of Commerce Assistant General 
Counsel for Administration, and the NMFS Office of Sustainable 
Fisheries. The completed financial interest forms will be kept on file 
in the office of the NMFS Regional Administrator for the geographic 
area concerned and at the Council offices, and will be made available 
for public inspection at such offices during normal office hours. In 
addition, the forms will be made available at each Council meeting or 
hearing.
    (4) Councils must retain the disclosure form for each affected 
individual for at least 5 years after the expiration of that 
individual's last term.
    (c) Restrictions on voting. (1) No affected individual may vote on 
any Council decision that would have a significant and predictable 
effect on a financial interest disclosed in his/her report filed under 
paragraph (b) of this section.
    (2) As used in this section, a Council decision will be considered 
to have a ``significant and predictable effect on a financial 
interest'' if there is a close causal link between the decision and an 
expected and substantially disproportionate benefit to the financial 
interest in harvesting, processing, or marketing of any affected 
individual or the affected 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, 
relative to the financial interests of other participants in the same 
gear type or sector of the fishery. The relative financial interests of 
the affected individual and other participants will be determined with 
reference to the most recent fishing year for which information is 
available. However, for fisheries in which IFQs are assigned, the 
percentage of IFQs assigned to the affected individual will be 
dispositive.
    (3) ``Expected and substantially disproportionate benefit'' means a 
quantifiable positive or negative impact with regard to a matter likely 
to affect a fishery or sector of the fishery in which the affected 
individual has a significant interest, as indicated by:
    (i) A greater than 10-percent interest in the total harvest of the 
fishery or sector of the fishery in question;
    (ii) A greater than 10-percent interest in the marketing or 
processing of the total harvest of the fishery or sector of the fishery 
in question; or
    (iii) Full or partial ownership of more than 10 percent of the 
vessels using the same gear type within the fishery or sector of the 
fishery in question.
    (d) Voluntary recusal. An affected individual who believes that a 
Council decision would have a significant and predictable effect on 
that individual's financial interest disclosed under paragraph (b) of 
this section may, at any time before a vote is taken, announce to the 
Council an intent not to vote on the decision.
    (e) Participation in deliberations. Notwithstanding paragraph (c) 
of this section, an affected individual who is recused from voting 
under this section may participate in Council and committee 
deliberations relating to the decision, after notifying the Council of 
the voting recusal and identifying the financial interest that would be 
affected.
    (f) Requests for determination. (1) At the request of an affected 
individual, the designated official shall determine for the record 
whether a Council decision would have a significant and predictable 
effect on that individual's financial interest. The determination will 
be based upon a review of the information contained in the individual's 
financial disclosure form and any other reliable and probative 
information provided in writing. All information considered will be 
made part of the public record for the decision. The affected 
individual may request a determination by notifying the designated 
official--
    (i) Within a reasonable time before the Council meeting at which 
the Council decision will be made; or
    (ii) During a Council meeting before a Council vote on the 
decision.
    (2) The designated official may initiate a determination on the 
basis of--
    (i) His or her knowledge of the fishery and the financial interests 
disclosed by an affected individual; or
    (ii) Written and signed information received within a reasonable 
time before a Council meeting or, if the issue could not have been 
anticipated before the meeting, during a Council meeting before a 
Council vote on the decision.
    (3) At the beginning of each Council meeting, or during a Council 
meeting at any time reliable and probative information is received, the 
designated official shall announce the receipt of information relevant 
to a determination concerning recusal, the nature of that information, 
and the identity of the submitter of such information.
    (4) If the designated official determines that the affected 
individual may not vote, the individual may state for the record how he 
or she would have voted. A Council Chair may not allow such an 
individual to cast a vote.
    (5) A reversal of a determination under paragraph (g) of this 
section may not be treated as cause for invalidation or reconsideration 
by the Secretary of a Council's decision.

[[Page 64187]]

    (g) Review of determinations. (1) Any Council member may file a 
written request to the NOAA General Counsel for review of the 
designated official's determination. A request for review must be 
received within 10 days of the determination.
    (2) A request must include a full statement in support of the 
review, including a concise statement as to why the Council's decision 
did or did not have a significantly disproportionate benefit to the 
financial interest of the affected individual relative to the financial 
interests of other participants in the same gear type or sector of the 
fishery, and why the designated official's determination should be 
reversed.
    (3) If the request for review is from a Council member other than 
the affected individual whose vote is at issue, the requester must 
provide a copy of the request to the affected individual at the same 
time it is submitted to the NOAA General Counsel. The affected 
individual may submit a response to the NOAA General Counsel within 10 
days from the date of his/her receipt of the request for review.
    (4) The NOAA General Counsel must complete the review and issue a 
decision within 30 days from the date of receipt of the request for 
review. The NOAA General Counsel will limit the review to the record 
before the designated official at the time of the determination, the 
request, and any response.
    (h) Exemption from other statutes. The provisions of 18 U.S.C. 208 
regarding conflicts of interest do not apply to an affected individual 
who is in compliance with the requirements of this section for filing a 
financial disclosure report.
    (i) Violations and penalties. It is unlawful for an affected 
individual to knowingly and willfully fail to disclose, or to falsely 
disclose, any financial interest as required by this section, or to 
knowingly vote on a Council decision in violation of this section. In 
addition to the penalties applicable under Sec. 600.735, a violation of 
this provision may result in removal of the affected individual from 
Council membership.

[FR Doc. 98-30898 Filed 11-18-98; 8:45 am]
BILLING CODE 3510-22-P