[Federal Register Volume 66, Number 223 (Monday, November 19, 2001)]
[Rules and Regulations]
[Pages 57885-57888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28880]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 010427105-1260-02; 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: Final rule.

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

DATES: Effective December 19, 2001.

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 Web site 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 updating 
part 600 (Regional

[[Page 57886]]

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C) to codify important provisions of the recently withdrawn Council 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 reinstating 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 were not 
contained in the Handbook, and were not previously in regulation.
    On May 25, 2001, NMFS published a proposed rule at 66 FR 28876 to 
update the regulations governing Council operations; comments were 
requested through June 25, 2001. The preamble of the proposed rule 
contained detailed descriptions of the proposed regulations, which are 
not repeated here. The following section contains the response to the 
only comment received during the comment period.

Comment and Response

    Comment. One commenter objected to the language in the proposed 
rule that would allow a person who is not a state employee to serve as 
a designee of a principal state official on a Regional Fishery 
Management Council. Currently, the principal state official's designee 
is required to be an employee of the state. This commenter argued that 
a state employee will best represent the state's and the public's 
interests in fishery management issues. A non-state employee, on the 
other hand, may represent narrower interests. Therefore, this commenter 
proposed maintaining the previous CFR language that addressed this 
issue.
    Response. NMFS maintains the change contained in the proposed rule. 
NMFS believes that the new language provides additional flexibility 
that will not compromise the representation of state and public 
interests in matters taken up by the Councils. This added flexibility 
was specifically requested by some of the Councils, in part because 
some states have very small offices and in the past have been limited 
to a small pool of candidates. Based on prior dealings with states, 
NMFS believes that the states will exercise this discretion in a 
responsible manner. It is not in a state's best interest to select 
someone with very narrow interests or experience, and it is not likely 
to do so. Essentially, this change will enable state governments to 
select their designees from a larger pool of candidates, better 
ensuring that the states' interests will be effectively represented.

Classification

    NMFS has determined that this final rule is consistent with the 
Magnuson-Stevens Act. This final rule has been determined to be not 
significant for purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this final rule will not have a significant 
economic impact on a substantial number of small entities as that term 
is defined in the Regulatory Flexibility Act, 5 U.S.C 601 et seq. The 
factual basis for this certification was published with the proposed 
rule. No comments were received regarding the economic impact of this 
final rule. As a result, no final regulatory flexibility analysis was 
prepared.
    NMFS has analyzed this final rule in accordance with the criteria 
of the National Environmental Policy Act (NEPA). This rule does not 
constitute a major Federal action significantly affecting the quality 
of the human environment because it provides only an update to 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 final rule contains no collection-of-information requirements 
subject to the Paperwork Reduction Act.

List of Subjects in 50 CFR Part 600

    Fisheries, Fishing.

    Dated: November 9, 2001.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 600 subparts B 
and C are 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. 1801 et 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 to 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 paragraphs (d) and (e) of this 
section, 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.

[[Page 57887]]

    (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, having included in the notification the time and 
place of the meeting and 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 consider not only 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 that is closed without notice may not exceed 2 
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 paragraph (c) of 
this section.
    (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 constitute 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 the 
majority report is submitted.

    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

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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 full 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. 01-28880 Filed 11-16-01; 8:45 am]
BILLING CODE 3510-22-S