[Federal Register Volume 66, Number 102 (Friday, May 25, 2001)]
[Proposed Rules]
[Pages 28876-28878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13287]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 010-427105-1105-01; I.D. 011001F]
RIN 0648-AJ82


Magnuson-Stevens Act Provisions; Update of Regulations Governing 
Council Operations

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

ACTION: Proposed rule, request for comments.

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SUMMARY: NMFS proposes to update regulations governing the operation of 
Regional Fishery Management Councils (Councils) under the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). 
This proposed rule would make amendments by codifying recent 
administrative and policy changes, and by making editorial changes for 
readability, clarity, and uniformity. The intent of this proposed rule 
is to update Council regulations to reflect current policies and 
procedures.

DATES: Comments must be received on or before June 25, 2001.

ADDRESSES: Comments should be sent to William T. Hogarth, Acting 
Assistant Administrator, NMFS, 1315 East-West Highway, Silver Spring, 
MD 20910. Comments on this document will not be accepted if submitted 
via email or the Internet.

FOR FURTHER INFORMATION CONTACT: Richard Surdi, F/SF5, NMFS, 301-713-
2337. This Federal Register document is also accessible via the 
Internet at the Office of the Federal Register website at http://www.access.gpo.gov/su_docs/aces/aces 140.tml.

SUPPLEMENTARY INFORMATION:

Background

    Currently, regulations pertaining to general provisions of the 
Magnuson-Stevens Act related to Council operations are contained in 
title 50 of the Code of Federal Regulations (CFR). NMFS is proposing to 
update part 600 (Regional Fishery Management Councils, subpart B, and 
Council Membership, subpart C), to codify important provisions of the 
recently withdrawn Council Operations and Administration Handbook 
(Handbook), which was a reference guide that compiled various 
requirements of the Magnuson-Stevens Act and other applicable law, as 
well as policy guidance. Some of the guidance contained in the Handbook 
consisted of regulations that were removed from title 50 of the CFR at 
the time the Handbook was developed. NMFS is proposing to reinstate 
some of those former regulations because they are not contained 
elsewhere and they are necessary for the Councils to function. Other 
proposed additions and revisions reflect necessary policy changes that 
were not contained in the Handbook, and were not previously in 
regulation.

Proposal

    1. The topic of compensation for Council staff (not Council 
members) would be added at Sec. 600.120, noting that Council pay rates 
must be consistent with the pay rates established for General Schedule 
Federal employees or the alternative personnel management system for 
the U.S. Department of Commerce (62 FR 67434; December 24, 1997). The 
Councils have the discretion to adjust pay rates and pay increases for 
cost of living (COLA) and other adjustments, but no pay adjustment may 
exceed the applicable percentage of salary for COLA and locality pay 
available to Federal employees in the same geographic area. In 
addition, the regulations would prohibit salary increases funded in 
lieu of life and medical/dental policies, a former regulation that was 
contained in the Handbook. Other additions at Sec. 600.120 that 
reinstate former regulations include fair hiring practices and the 
hiring of an independent legal counsel.
    2. The topic of payment for unused sick and annual leave would be 
added at Sec. 600.120. It would provide that unused sick leave may be 
accumulated to a maximum as established by the Council. It also 
provides for the distribution of accumulated funds for unused sick 
leave to the employee upon his or her retirement, or their estate upon 
his or her death, as established in the Council's Statement of 
Organization, Practices, and Procedures (SOPP). Each Council may pay 
for unused annual leave upon separation, retirement, or death of an 
employee.
    3. A requirement would be added under Sec. 600.125 regarding 
agreements, including grants, contracts, or cooperative agreements. 
Councils may not independently enter into agreements in which they will 
receive funds, and all such agreements must be approved and entered 
into by NOAA on behalf of the Council. A policy that was contained in 
the Handbook regarding the receipt of gifts or contributions would also 
be added at Sec. 600.125.
    4. Policies in the Handbook regarding meeting notification, meeting 
closures, and voting procedures that were also former regulations would 
be added at Sec. 600.135.
    5. A policy that was contained in the Handbook regarding the 
disposition of records that was also a former regulation would be added 
at Sec. 600.150.
    6. A policy contained in the Handbook regarding responding to 
Freedom of Information Act requests that was also a former regulation 
would be added at Sec. 600.155.
    7. The constituent states of the eight Regional Fishery Management 
Councils are represented by ``principal state officials'' designated by 
their Governors. Each principal state official under section 302(b) of 
the Magnuson-Stevens Act is currently required to be employed, on a 
full-time basis, in a position related to the development of fisheries 
management policies for that state. The proposed rule would amend the 
language at Sec. 600.205 so that a designee of that official would not 
have to be a full-time employee of the state, with the aforementioned 
responsibilities, but must be a resident of the state and knowledgeable 
and experienced in the fishery resources of the geographic area of 
concern to the Council. This would grant greater flexibility to the 
principal state official in selecting a designee, who may have the 
expertise and ability to serve, but might not be a full-time state 
employee.
    8. Section 302(d) of the Magnuson-Stevens Act establishes GS-15, 
step 7 General Schedule as a Council member's daily pay rate. This 
proposed rule would remove Sec. 600.245(a) which is inconsistent with 
the statutory provision.

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The Chief Counsel for Legislation and Regulation of the Department 
of Commerce certified to the Chief Counsel for Advocacy of the Small 
Business Administration that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities in the fishing industry. This proposed rule does not affect 
any small entities. Rather, it establishes procedures or guidelines for

[[Page 28877]]

the administration of the Councils. The Councils are established under 
the Magnuson-Stevens Act and are not a small business, small 
organization, or a small government jurisdiction, as these terms are 
defined in the Regulatory Flexibility Act, 5 U.S.C 601 et seq.
    NMFS has analyzed this proposed rule in accordance with the 
criteria of the National Environmental Policy Act (NEPA). This proposed 
rule does not constitute a major Federal action significantly affecting 
the quality of the human environment because it only provides notice 
and comment on agency procedure or practice (i.e., procedures and 
guidelines for the administration of Councils). NMFS has determined 
that issuance of this policy qualifies for a categorical exclusion as 
defined by NOAA 216-6 Administrative Order, Environmental Review 
Procedures
    This rule contains no collection-of-information requirements 
subject to the Paperwork Reduction Act.

List of Subjects in 50 CFR Part 600

    Fisheries, Fishing.

    Dated: May 22, 2001.
William T. Hogarth,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 600 subparts B 
and C are proposed to be amended as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

    1. The authority citation for part 600 continues to read:

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

    2. Section 600.120 of subpart B is revised to read as follows:


Sec. 600.120  Employment practices.

    (a) Council staff positions must be filled solely on the basis of 
merit, fitness for duty, competence, and qualifications. Employment 
actions must be free from discrimination based on race, religion, 
color, national origin, sex, age, disability, reprisal, sexual 
orientation, status as a parent, or on any additional bases protected 
by applicable Federal, state, or local law.
    (b) The annual pay rates for Council staff positions shall be 
consistent with the pay rates established for General Schedule Federal 
employees as set forth in 5 U.S.C. 5332, and the Alternative Personnel 
Management System for the U.S. Department of Commerce (62 FR 67434). 
The Councils have the discretion to adjust pay rates and pay increases 
based on cost of living (COLA) differentials in their geographic 
locations. COLA adjustments in pay rates and pay increases may be 
provided for staff members whose post of duty is located in Alaska, 
Hawaii, Guam, the U.S. Virgin Islands, the Northern Mariana Islands, 
and Puerto Rico.
    (1) No pay adjustment based on geographic location shall exceed the 
COLA and locality pay adjustments available to Federal employees in the 
same geographic area.
    (2) [Reserved]
    (c) Salary increases funded in lieu of life and medical/dental 
policies are not permitted.
    (d) Unused sick leave may be accumulated without limit, or up to a 
maximum number of days and contribution per day, as specified by the 
Council in its SOPP. Distributions of accumulated funds for unused sick 
leave may be made to the employee upon his or her retirement, or his or 
her estate upon his or her death, as established by the Council in its 
SOPP.
    (e) Each Council may pay for unused annual leave upon separation, 
retirement, or death of an employee.
    (f) One or more accounts shall be maintained to pay for unused sick 
or annual leave as authorized under (d) and (e), and will be funded 
from the Council's annual operating allowances. Councils have the 
option to deposit funds into these account(s) at the end of the budget 
period if unobligated balances remain. Interest earned on these 
account(s) will be maintained in the account(s), along with the 
principal, for the purpose of payment of unused annual and sick leave 
only. These account(s), including interest, may be carried over from 
year to year. Budgeting for accrued leave will be identified in the 
``Other'' object class categories section of the SF-424A.
    (g) A Council must notify the NOAA Office of General Counsel before 
seeking outside legal advice, which may be for technical assistance not 
available from NOAA. If the Council is seeking legal services in 
connection with an employment practices question, the Council must 
first notify the Department of Commerce's Office of the Assistant 
General Counsel for Administration, Employment and Labor Law Division. 
A Council may not contract for the provision of legal services on a 
continuing basis.

    3. Section 600.125 of subpart B is revised to read as follows:


Sec. 600.125  Budgeting, funding, and accounting.

    (a) Each Council's grant activities are governed by OMB Circular A-
110 (Uniform Administrative Requirements for Grants and Agreements with 
Institutions of Higher Education, Hospitals, and other Non-Profit 
Organizations), OMB Circular A-122 (Cost Principles for Non-Profit 
Organizations), 15 CFR Part 29b (Audit Requirements for Institutions of 
Higher Education and other Nonprofit Organizations), and the terms and 
conditions of the cooperative agreement. (See 5 CFR 1310.3 for 
availability of OMB Circulars.)
    (b) Councils may not independently enter into agreements, including 
grants, contracts, or cooperative agreements, whereby they will receive 
funds for services rendered. All such agreements must be approved and 
entered into by NOAA on behalf of the Councils.
    (c) Councils are not authorized to accept gifts or contributions 
directly. All such donations must be directed to the NMFS Regional 
Administrator in accordance with applicable Department of Commerce 
regulations.

    4. Section 600.135 is added to subpart B to read as follows:


Sec. 600.135  Meeting procedures.

    (a) Public notice of regular meetings of the Council, scientific 
statistical committee or advisory panels, including the agenda, must be 
published in the Federal Register on a timely basis, and appropriate 
news media notice must be given. The published agenda of any regular 
meeting may not be modified to include additional matters for Council 
action without public notice, or such notice must be given at least 14 
days prior to the meeting date, unless such modification is to address 
an emergency under section 305(c) of the Magnuson-Stevens Act, in which 
case public notice shall be given immediately. Drafts of all regular 
public meeting notices must be transmitted to the NMFS Headquarters 
Office at least 23 calendar days before the first day of the regular 
meeting. Councils must ensure that all public meetings are accessible 
to persons with disabilities, and that the public can make timely 
requests for language interpreters or other auxiliary aids at public 
meetings.
    (b) Drafts of emergency public notices must be transmitted to the 
NMFS Washington Office; recommended at least 5 working days prior to 
the first day of the emergency meeting. Although notices of, and 
agendas for, emergency meetings are not required to be published in the 
Federal Register, notices of emergency meetings must be promptly 
announced through the appropriate news media.
    (c) After notifying local newspapers in the major fishing ports 
within its region, including in the notification the time

[[Page 28878]]

and place of the meeting, as well as the reason for closing any meeting 
or portion thereof:
    (1) A Council, SSC, AP, or FIAC shall close any meeting, or portion 
thereof, that concerns information bearing on a national security 
classification.
    (2) A Council, SSC, AP, or FIAC may close any meeting, or portion 
thereof, that concerns matters or information pertaining to national 
security, employment matters, or briefings on litigation in which the 
Council is interested.
    (3) A Council, SSC, AP, or FIAC may close any meeting, or portion 
thereof, that concerns internal administrative matters other than 
employment. Examples of other internal administrative matters include 
candidates for appointment to AP, SSC, and other subsidiary bodies; and 
public decorum or medical conditions of members of a Council or its 
subsidiary bodies. In deciding whether to close a portion of a meeting 
to discuss internal administrative matters, a Council or subsidiary 
body should take into consideration the privacy interests of 
individuals whose conduct or qualifications may be discussed, but also 
the interest of the public in being informed of Council operations and 
actions.
    (d) Without the notice required by paragraph (c) of this section, a 
Council, SSC, AP, or FIAC may briefly close a portion of a meeting to 
discuss employment or other internal administrative matters. The closed 
portion of a meeting closed without notice may not exceed two hours.
    (e) Before closing a meeting or portion thereof, a Council or 
subsidiary body should consult with the NOAA General Counsel Office to 
ensure that the matters to be discussed fall within the exceptions to 
the requirement to hold public meetings described in section (c).
    (f) Actions that affect the public, although based on discussions 
in closed meetings, must be taken in public. For example, appointments 
to an AP must be made in the public part of the meeting; however, a 
decision to take disciplinary action against a Council employee need 
not be announced to the public.
    (g) A majority of the voting members of any Council constitutes a 
quorum for Council meetings, but one or more such members designated by 
the Council may hold hearings.
    (h) Decisions of any Council are by majority vote of the voting 
members present and voting (except for a vote to propose removal of a 
Council member, see 50 CFR 600.230). Voting by proxy is permitted only 
pursuant to 50 CFR 600.205(b). An abstention does not affect the 
unanimity of a vote.
    (i) Voting members of the Council who disagree with the majority on 
any issue to be submitted to the Secretary, including principal state 
officials raising federalism issues, may submit a written statement of 
their reasons for dissent. If any Council member elects to file such a 
statement, it should be submitted to the Secretary at the same time as 
the majority report.

    5. Section 600.150 is added to subpart B to read as follows:


Sec. 600.150  Disposition of records.

    (a) Council records must be handled in accordance with NOAA records 
management office procedures. All records and documents created or 
received by Council employees while in active duty status belong to the 
Federal Government. When employees leave the Council, they may not take 
the original or file copies of records with them.
    (b) [Reserved]

    6. Section 600.155 is added to subpart B to read as follows:


Sec. 600.155  Freedom of Information Act (FOIA) requests.

    (a) FOIA requests received by a Council should be coordinated 
promptly with the appropriate NMFS Regional Office. The Region will 
forward the request to the NMFS FOIA Official to secure a FOIA number 
and log into the FOIA system. The Region will also obtain clearance 
from the NOAA General Counsel's Office concerning initial determination 
for denial of requested information.
    (b) FOIA requests will be controlled and documented in the Region. 
The requests should be forwarded to the NMFS FOIA Officer who will 
prepare the Form CD-244, ``FOIA Request and Action Record,'' with the 
official FOIA number and due date. In the event the Region determines 
that the requested information is exempt from disclosure, in whole or 
in part, under the FOIA, the denial letter prepared for the Assistant 
Administrator's signature, along with the ``Foreseeable Harm'' Memo and 
list of documents to be withheld, must be cleared through the NMFS FOIA 
Officer. Upon completion, a copy of the signed CD-244 and cover letter 
transmitting the information, should be provided to the NMFS FOIA 
Officer and the NOAA FOIA Officer.

    7. Section 600.205 of subpart C is revised to read as follows:


Sec. 600.205  Principal state officials and their designees.

    (a) Only a full-time state employee of the state agency responsible 
for marine and/or anadromous fisheries shall be appointed by a 
constituent state Governor as the principal state official for purposes 
of section 302(b) of the Magnuson-Stevens Act.
    (b) A principal state official may name his/her designee(s) to act 
on his/her behalf at Council meetings. Individuals designated to serve 
as designees of a principal state official on a Council, pursuant to 
section 302(b)(1)(A) of the Magnuson-Stevens Act, must be a resident of 
the state, and be knowledgeable and experienced, by reason of his or 
her occupational or other experience, scientific expertise, or 
training, in the fishery resources of the geographic area of concern to 
the Council.
    (c) New or revised appointments by state Governors of principal 
state officials, and new or revised designations by principal state 
officials of their designees(s), must be delivered in writing to the 
appropriate NMFS Regional Administrator and the Council chair at least 
48 hours before the individual may vote on any issue before the 
Council. A designee may not name another designee. Written appointment 
of the principal state official must indicate his or her employment 
status, how the official is employed by the state fisheries agency, and 
whether the official's full salary is paid by the state. Written 
designation(s) by the principal state official must indicate how the 
designee is knowledgeable and experienced in fishery resources of the 
geographic area of concern to the Council, the County in which the 
designee resides, and whether the designee's salary is paid by the 
state.


Sec. 600.245  [Amended]

    8. In Sec. 600.245 of subpart C, paragraph (a) is removed, and 
paragraphs (b), (c), and (d) are redesignated as paragraphs (a), (b), 
and (c), respectively.
[FR Doc. 01-13287 Filed 5-24-01; 8:45 am]
BILLING CODE 3510-22-S