[Federal Register Volume 74, Number 233 (Monday, December 7, 2009)]
[Proposed Rules]
[Pages 64042-64044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29062]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 080102007-91368-02]
RIN 0648-AW18


Magnuson-Stevens Fishery Conservation and Management Act; 
Regional Fishery Management Councils; Operations

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

ACTION:  Supplementary proposed rule; request for comments.

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SUMMARY:  NMFS proposes changes to the regulations that address the 
operations and administration of Regional Fishery Management Councils 
(Councils). The regulatory changes are needed to clarify which Council 
documents should be available to the public, clarify Council member 
nomination procedures, clarify financial disclosure requirements for 
Council members, and revise the security assurance procedures for 
nominees to and members of the Councils.

DATES:  Written comments must be received no later than 5 p.m. e.d.t. 
on January 6, 2010.

ADDRESSES:  You may submit comments, identified by ``RIN 0648-AW18,'' 
by any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
     Fax: 301-713-1175.
     Mail: Alan Risenhoover, Director, Office of Sustainable 
Fisheries, National Marine Fisheries Service, 1315 East-West Highway, 
SSMC3, Silver Spring, MD 20910. Please mark the outside of the envelope 
``Council Operations.``
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter n/a in the required 
fields, if you wish to remain anonymous). Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe pdf file formats only.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to the Office of Sustainable Fisheries 
at the mailing address or fax number specified above and by e-mail to 
[email protected], or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT:  William Chappell, at 301-713-2337.

SUPPLEMENTARY INFORMATION: Section 302 of the Magnuson-Stevens Act 
includes provisions for the establishment and administration of the 
Councils. On March 27, 2009 at 74 FR 13386, NMFS published a proposed 
rule affecting these regulations. Subsequent to the publication of that 
proposed rule, several issues regarding Council operations and 
appointments to the Councils have demonstrated a need for additional 
proposed changes to the regulations. These proposed changes are all 
administrative in nature and would increase the transparency of the 
Council process to the public or improve the efficiency of the Council 
member appointments process. A discussion of the specific proposed 
changes follows.

Government Accounting Office (GAO) report recommendations.

    On May 20, 2009, the GAO submitted a report on the Western Pacific 
Fishery Management Council (GAO-09-508R Fisheries Management) that 
provided several recommendations to improve the transparency of the 
Council's operations. NMFS' considers two of those recommendations 
appropriate for all Councils. The first recommendation was for the 
Council to maintain current and archived copies of documents available 
for public inspection, such as the Council's meeting minutes and 
briefing book materials, on the Council's Web site. The second 
recommendation was for the Council to adopt procedures that require 
Council meeting minutes to include not only a Council member's 
statement of recusal from voting, but also the nature of the financial 
interest that would be affected.
    Some of the Councils already maintain many of their documents on 
their web sites. Among documents that may be available are current 
drafts of fishery management plan (FMP) amendments the Council is 
developing, proposed regulatory amendments to FMPs, and analysis for 
those actions. Documentation (briefing book documents) for upcoming 
Council meetings may also be posted, as are meeting summaries. In some 
cases, transcripts of past meetings may also be available. Some 
Councils have their FMPs and amendments posted, along with current 
regulations or links to them. Other archival documents such as 
histories of the FMPs and synopses of FMPs are often available.
    Posting of information is limited by the size of the server 
supporting the Council's Web site and the staff time and expertise in 
posting and maintaining documents on the server. In some cases, 
documents are so large that posting them on the Web site is 
impracticable, so they are made available for retrieval through a file 
sharing protocol (FTP) site. Because of variations among the Councils, 
NMFS proposes that Councils post their documents ``to the extent 
practicable.'' Current documents and information related to current and 
recent meetings are of a higher priority than documents related to past 
actions. However, both are of interest to the public. Posting them on 
the Internet or making them readily available through an FTP site or 
other technology improves the transparency of the Council process to 
the public and reduces the amount of staff time needed in responding to 
inquiries from the public. For documents too large to maintain on the 
Web site, not available electronically, or seldom requested, the 
Council must provide copies of the documents for viewing at the Council 
office during regular business hours or may provide the documents 
thorough the mail.
    In response the GAO's recommendation, NMFS proposes that a Council 
member's statement of recusal from voting would also include the nature 
of the financial interest that would be affected and to require that 
Council meeting minutes include that information. Under the current 
regulations at Sec.  600.235(e), Council members are already required 
to identify the financial interest that would be affected if they 
wanted to participate in the deliberations on an issue for which they 
have recused themselves. This proposal would go a step further in 
requiring them to identify the financial interest any time they recuse 
themselves. This identification would make the reason behind the 
recusal and the interests at stake more transparent to the other 
members of the Council and to the public.

[[Page 64043]]

Obligatory/at large issue for Council member nominations.

    Sec. 600.215 (b)(5) contains confusing language regarding 
nominations for non-concurrent expiration of obligatory and at-large 
seats. It is uncertain whether this situation has ever arisen. Due to 
the standard expiration date of appointments (August 10), this 
particular situation may never arise. In the unlikely event that a 
Council seat would be vacated near to the time of the annual 
appointment process, the Secretary has the authority to either include 
that seat in the general solicitation for nominees or require a 
separate nomination process.

Financial disclosure and corporate connections.

    Current guidance, either in the regulations at Sec.  600.235(a) or 
on the financial disclosure form, do not specify disclosing corporate 
connections of companies for which a nominee works. This has become a 
concern, particularly if the company in question is solely owned by 
another corporation, meaning that there can be conflict of interest 
that is not necessarily obvious or disclosed. The financial disclosure 
regulations are proposed to be expanded to cover this situation. 
Further, NMFS plans to substantially update the financial disclosure 
form to better accommodate the revised requirements of the law and the 
fact that some Council members are neither actively fishing nor do they 
directly own fisheries related businesses.
    In addition, NMFS is proposing to amend the regulations at Sec.  
660.235(b)(2) to clarify that Council members must update their 
financial disclosure forms annually and file the updated form with the 
Executive Director of the Council by February 1 of each year, 
regardless of whether any information has changed on that form.

Security assurances

    Sec. 600.240(a) currently requires a background check (NACI) for 
all nominees and members. This check can take in excess of three months 
to complete, especially when a large number of checks are requested 
simultaneously, as for Council member nominees. In order to reduce the 
large glut of work caused by the nomination process, as well as the 
extra work done by the nominees that are not appointed, NMFS proposes 
that only those nominees selected be required to submit the forms 
necessary to begin a background investigation. Further, NMFS proposes 
that appointments be made conditional upon a favorable background 
investigation. Otherwise, under current regulations, it would take a 2/
3 vote of the Council to remove a member.

Classification

    This action 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 proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this determination is as follows:

    This proposed rule would update operational and administrative 
procedures of the eight Regional Fishery Management Councils. It 
consists of varied measures that respond to emerging Council issues. 
The proposed rule includes:
    1. Requirement for Councils to maintain publically available 
documents on its Internet site to the extent practicable;
    2. Removing confusing language regarding the non simultaneous 
appointment of obligatory and at large seats;
    3. Requirement for Councils members to identify whether 
organizations they are associated with are subsidiaries of companies 
having interests in the fisheries;
    4. Requirement for Council members to identify the financial 
interest affected when recusing themselves from votes; and
    5. Removing a requirement for nominees for membership to Fishery 
Management Council to submit forms for a background check and make 
other minor changes to conform to current security practice.
    6. Clarifies that Council members must update their financial 
disclosure forms annually and file the updated form with the 
Executive Director of the Council by February 1 of each year, 
regardless of whether any information has changed on that form.

    As a result, an initial regulatory flexibility analysis is not 
required and none has been prepared.
    This proposed rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by OMB under Control Number 0649-0192. Public reporting burden 
for completing and submitting the Statement of Financial Interests, 
Form 88-195, is estimated to average 35 minutes 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. Send comments regarding this burden 
estimate, or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-
mail to [email protected] or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to 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.

List of Subjects in 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: December 1, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR part 600 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. In Sec.  600.150, add paragraph (b) to read as follows:


Sec.  600.150  Disposition of records.

* * * * *
    (b) Each Council is required, to the extent practicable, to 
maintain documents generally available to the public on its Internet 
site. Documents for posting must include: fishery management plans and 
their amendments for the fisheries for which the Council is 
responsible, drafts of fishery management plan amendments under 
consideration, analysis of actions the Council has under review, 
minutes of past meetings of the Council its committees, materials 
provided to Council members in preparation for meetings, and other 
Council documents of interest to the public. For documents too large to 
maintain on the Web site, not available electronically, or seldom 
requested, the Council must provide copies of the documents for viewing 
at the Council office during regular business hours or may provide the 
documents thorough the mail.
    3. In Sec.  600.215, revise (b)(5) to read as follows:

[[Page 64044]]

Sec.  600.215  Council nomination and appointment procedures.

* * * * *
    (b) * * *
    (5) When the terms of both an obligatory member and an at-large 
member expire concurrently, the Governor of the state holding the 
expiring obligatory seat may indicate that the nominees who were not 
selected for appointment to the obligatory seat may be considered for 
appointment to an at-large seat, provided that the resulting total 
number of nominees submitted by that governor for the expiring at-large 
seat is no fewer than three different nominees.
* * * * *
    4. In Sec.  600.235, revise paragraph the definition of Financial 
interest in harvesting processing lobbying, advocacy, or marketing in 
paragraph (a) and paragraphs (b)(2) and (d) to read as follows:


Sec.  600.235  Financial disclosure.

    (a) * * *
    Financial interest in harvesting processing lobbying, advocacy, or 
marketing (1) includes:
    (i) Stock, equity, or other ownership interests in, or employment 
with, any company, business, fishing vessel, or other entity or any 
subsidiary of such entities 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 or any subsidiary of such entities 
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 or any subsidiaries of such 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 Council concerned, or to any association whose 
members include entities engaged in the activities described in 
paragraphs (1)(i) and (ii) of this definition;
* * * * *
    (b) * * *
    (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, regardless of whether 
any information has changed on that form.
* * * * *
    (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 and identifying the 
financial interest that would be affected.
* * * * *
    5. In Sec.  600.240, revise paragraph (a) to read as follows:


Sec.  600.240  Security assurances.

    (a) DOC Office of Security will issue security assurances to 
Council members following completion of favorable background 
investigations. A Council member's appointment is conditional until 
such time as the background investigation has been favorably 
adjudicated. The Secretary will revoke the member's appointment if that 
member receives an unfavorable background investigation. Security 
assurances will be valid for 5 years from the date of issuance. A 
security assurance will not entitle the member to access classified 
data. In instances in which Council members may need to discuss, at 
closed meetings, materials classified for national security purposes, 
the agency or individual (e.g., Department of State, U.S. Coast Guard) 
providing such classified information will be responsible for ensuring 
that Council members and other attendees have the appropriate security 
clearances.
* * * * *
[FR Doc. E9-29062 Filed 12-7-09; 8:45 am]
BILLING CODE 3510-22-S