Magnuson-Stevens Fishery Conservation and Management Act: Regional Fishery Management Councils; Operations
Federal Register: March 27, 2009 (Volume 74, Number 58)
Proposed Rules
Page 13386-13394
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr27mr09-19
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration 50 CFR Part 600
Docket No. 080102007-81097-01
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: Proposed rule; request for comments.
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 implement amendments to the Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act) that, among other things, govern the Council
Coordination Committee (CCC), expand the role of the Councils'
Scientific and Statistical Committee (SSC), require that SSC members disclose their financial interests, and provide for training of Council members and staff. Additionally, the proposed rule would make changes to the regulations requiring Councils to provide procedures for proposed regulations, clarifying restrictions on lobbying, and clarifying timing in the Council member nomination process. The proposed rule would also make technical and minor corrections to the regulations unrelated to the most recent Magnuson-Stevens Act amendments.
DATES: Written comments must be received no later than 5 p.m. e.d.t. on
July 6, 2009.
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
David_Rostker@omb.eop.gov, 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. The Magnuson-Stevens Act was reauthorized on January 12, 2007, with amendments throughout, and this proposed rule would implement some of the changes that were made to Section 302.
Additionally, several issues regarding Council operations and membership have prompted proposed
Page 13387
changes to the regulations. Key aspects of the proposed rule are: requirements relative to the CCC; requirements for SSCs and financial interest reporting for SSC members; an update of Council and committee meeting announcement requirements; a requirement for Councils to have procedures for proposed regulations; designation of an alternate for the Indian tribal representative of the Pacific Fishery Management
Council; requirements for nominating individuals to the Gulf of Mexico
Fishery Management Council; revisions to the process and deadline for governors to submit Council member nominations to the Secretary; restrictions on direct or indirect lobbying by Council members, Council staff, and contractors; addition of lobbying and advocacy as types of financial interest activities that must be reported by affected individuals; and the requirement for new Council members to attend a training course. Additionally, the proposed rule would implement several minor changes in Magnuson-Stevens Act section 302, as well as a number of technical changes and minor corrections, unrelated to the reauthorization of the Act. Many of the key aspects of the proposed rule reiterate statutory requirements of the Magnuson-Stevens Act. NMFS is including this statutory text in regulations so that relevant
Council process provisions both statutory and regulatory are presented together for ease of reference.
Statement of Organization, Practices and Procedures (SOPPs)
There have been continuing questions regarding Councils' SOPPs. The general public often does not understand the Councils' functions, how they are organized and what their limits are in fisheries management and policy. SOPPs have provided that information, but the public must go to the Council office for a copy or request a copy by mail. The increased use of the Internet makes it appropriate for the Councils to post their SOPPs on line. Therefore, NMFS proposes to amend Sec. 600.115 to require that Council SOPPs be made available on the
Internet. Additionally, NMFS proposes to clarify the regulatory sections with which the SOPPs must comply.
Council Coordinating Committee (CCC)
The proposed rule at a new Sec. 600.117 would govern the CCC. The
CCC consists of the chairs, vice chairs, and executive directors of each of the eight Councils or other Council members or staff, and discusses issues of relevance to all Councils, as specified in the
Magnuson-Stevens Act at section 302(l). The CCC is exempt from the requirements of the Federal Advisory Committee Act. Procedures for announcing and conducting open and closed meetings of the CCC are reflected in Sec. 600.135.
Scientific and Statistical Committees (SSCs)
This proposed rule addresses several changes in Magnuson-Stevens
Act section 302(g)(1) regarding SSCs. Section 600.133 of the proposed rule requires SSC members, appointed by the Councils, to be Federal employees, State employees, academicians, or independent experts with strong scientific or technical credentials and experience. It also requires SSC meetings to be held in conjunction with Council meetings to the extent practicable.
Section 302(g)(1)(D) of the Magnuson-Stevens Act includes a new requirement that SSC members shall be treated as ``affected individuals'' for purposes of sections 302(j)(2), (3)(B), (4) and
(5)(A) of the Act, which pertain to the disclosure of financial interests by affected individuals. Consistent with the Act, the proposed rule at Sec. 600.235 would require an SSC member to file the
Financial Interest Form with the NMFS Regional Administrator within 45 days prior to appointment and within 30 days of substantial changes to his/her financial interests and update his/her form annually. NMFS would retain the records for five years.
Sections 302(j)(5)(B-C), (6) and (7) of the Act include requirements for public inspection of, and access to, Council member
Financial Interest Forms and recusals from voting. Because SSC members are not ``affected individuals'' for purposes of these sections, the proposed rule does not require that SSC members' Financial Interest
Forms be made available for inspection or made available on the internet. In addition, the proposed rule states that SSC members are not subject to the restrictions on voting under Sec. 600.235. The proposed rule also clarifies that SSC members are not automatically subject to the requirements of 18 U.S.C. 208, which pertains to actions affecting personal financial interests. Those requirements would only apply if a person is an officer or employee of the executive branch of the United States Government, or falls under another category of persons specified in that statute. NMFS seeks comments from the public on the proposed regulations that would affect the composition, purpose, and operation of the SSC, as well as the financial disclosure requirements for its members. Finally, existing regulations at Sec. 600.235(h) provide that 18 U.S.C. 208 would also not apply to an affected individual who is in compliance with the requirements of that section for filing a financial disclosure report. Consistent with section 302(j)(8) of the Magnuson-Stevens Act, the proposed rule would clarify this exemption only applies to an affected individual ``who is a voting member of a Council appointed by the Secretary, as described under section 302(j)(1)(A)(ii) of the Magnuson-Stevens Act.''
Additional changes in Magnuson-Stevens Act section 302(g)(1)(A),
(B) and (E) regard the function and roles of the SSC and the establishment of a peer review process. Some aspects of those changes were addressed in the National Standard 1 Guidelines revisions (74 FR 3178, January 16, 2009), which included guidance on annual catch limits and accountability measures and other aspects of overfishing and rebuilding. NMFS is continuing to explore other guidance that may be needed regarding these statutory changes.
Magnuson-Stevens Act section 302(g)(1)(F) requires the Secretary, subject to the availability of funds, to pay a stipend to members of
SSCs and advisory panels who are not employed by the Federal Government or a State marine fisheries agency. NMFS seeks comment from the public on the implementation of stipends should funding be available. In addition to issues such as the amount and frequency of the payments, and what criteria must be satisfied for one to qualify for the stipend,
NMFS seeks input from the public on the funding priority that should be given payment of the stipend, relative to the Councils' other financial obligations.
In anticipation of the stipend requirement, NMFS has begun to examine how Councils develop and use their SSCs, advisory panels, and other advisory committees. One concern has been that Councils use the terms ``advisory panel'' and ``advisory committee'' inconsistently. To help prepare for a clear analysis of the number and types of advisory committees and for a determination of who may be entitled to receive the stipend, NMFS proposes definitions in Sec. 600.10 for an
``advisory panel'', which would be established pursuant to Magnuson-
Stevens Act section 302(g)(2), and a ``fishing industry advisory committee'', established by a Council pursuant to section 302(g)(3)(A).
In addition, definitions for ``Region,'' ``Regional Administrator,'' and ``Science and Research Director'' would be updated to reflect that there
Page 13388
are now 6 regions, each with a regional administrator and a science and research director.
Public Notice of Meetings
The proposed rule at Sec. 600.135 would specify revised means for announcing meetings of a Council, SSC, advisory panels, other committees, and the CCC. The regulations currently require public notification specifically through the news media. The revised regulations would allow for notice of regular, emergency, and closed meetings by any means that will result, per section 302(i)(2)(c) of the
Magnuson-Stevens Act, in wide publicity in the major fishing ports of the region and those other ports with an interest in any of the fisheries likely to be addressed in the proceedings. Also, the proposed rule stipulates that notices about regular and emergency meetings by website and e-mail postings alone are not sufficient.
Council Procedure for Proposed Regulations
A new Sec. 600.140 is proposed to be added that would require each
Council to establish clear internal procedures for proposed regulations, consistent with Magnuson-Stevens Act section 303(c).
Section 303(c) pertains to the submission of proposed regulations to the Secretary which a Council deems necessary or appropriate for the purposes of implementing a fishery management plan or plan amendment and making modifications to regulations implementing a plan or plan amendment. Section 600.140 would require that each Council establish a clear procedure that sets forth how it deems proposed regulations as necessary or appropriate and also how it formally submits such regulations to the Secretary. Section 600.140 proposes that the procedure be described in the Council's SOPP or other written documentation available to the public to inform the public how it operates. The form and detail of the procedure may be prescribed by each Council, and may be based on any existing procedures as appropriate, subject to the requirements of the Magnuson-Stevens Act and approval by the Secretary.
Pacific Fishery Management Council Tribal Member Alternate
The proposed rule would establish a new section, Sec. 600.207, to specify the conditions under which a tribal Indian representative to the Pacific Fishery Management Council may designate an alternate for the period of the representative's term. The requirements for designating an alternate would be similar to those of state members.
Gulf of Mexico Fishery Management Council Nominations
The proposed rule would specify new procedures in Sec. 600.215 for nominating and appointing members to the Gulf of Mexico Fishery
Management Council. Consistent with new language in the Magnuson-
Stevens Act, the proposed rule requires the Governors of each Gulf state to ensure their list of nominees for appointment to the Council includes representatives of certain fishery sectors, as well as at least one other individual knowledgeable in fishery conservation and management. The rule also provides a process for the citizens of a Gulf coastal state to nominate individuals, should the Governor's nominees be determined by the Secretary to be unqualified for appointment.
Council Member Nomination Process
NMFS proposes to amend Sec. 600.215 regarding the submission of
Council member nominations by state governors to allow more flexibility in the timing. Current guidelines require state governors to submit names of Council seat nominees and their complete nomination packages to NMFS by March 15. The proposed rule would soften the deadline, requiring submission of nominees' names by March 15 and allowing until
March 31 for submission of the completed nomination packages.
This proposed rule change is needed to accommodate the lengthy and complex procedure for Council nominees to file for and receive official security assurances. The security assurance application procedure requires extensive personal history information to be submitted by computer. Due to timing of the process, software and internet connectivity problems, and availability of the personal information, the security assurance filings can be delayed, resulting in submission of the completed nomination packages after March 15.
Recognizing the difficulty of the process, NMFS has accommodated late submission of nomination packages. NMFS intends to provide states every reasonable opportunity to submit nominations for open Council seats, and, therefore, while submission of the names for nomination must be submitted by March 15, the proposed rule would give states until March 31 to submit the completed nomination package.
NMFS retains the requirement for having completed packages prior to accepting nominations for any seat, and the option not to consider any nominations for at-large seats not completed by March 31. It remains
NMFS' expectation that governors will submit, at a minimum, their list of nominees by March 15.
The Secretary must make Council member appointments by June 27 to allow new members to be seated by August 11 and complete the regular nomination cycle. Any later submission of nominees jeopardizes that process.
Notifying governors and commencing the nomination process earlier may help the situation but would not solve the problem of late nomination package submissions. Currently, NMFS contacts governors each
December and January to solicit nominations for upcoming obligatory and at-large seats. Some gubernatorial terms begin in January and a change in administration, as well as other year-end priorities can confound the state's Council nomination process.
Restrictions on Lobbying
NMFS proposes to add a new paragraph concerning lobbying to Sec. 600.225, which sets forth the Council Rules of Conduct. There have been recent questions from the Councils and inquiries from the public regarding what is allowed and not allowed in the way of direct or indirect lobbying by Council members and staff. Direct lobbying involves contacts with legislators, their staffs, or other government officials, either in person or through written or oral communication.
Indirect or ``grassroots'' lobbying involves contacting others and urging them to support or to advocate for improve appropriations or changes to legislation or policy.
To provide Council members, Council staff and members of the public a better idea of restrictions on lobbying activities, NMFS proposes to add a new Sec. 600.227 Lobbying. Restrictions on lobbying activities that apply to the Regional Fishery Management Councils, as recipients of Federal financial assistance, are encompassed in 31 U.S.C. 1352(a)(1)and (2), 15 CFR 28.100(a), and in applicable cost-principles set forth at 2 CFR part 230. As a condition of receiving such assistance, the Councils agree to abide by these restrictions. The proposed Sec. 600.227 would provide not only references to these lobbying restrictions, but also general guidance with respect to certain proscribed actions.
Financial Disclosure by Council and SSC Members
The amended Magnuson-Stevens Act expands the array of business activities
Page 13389
that must be reported by affected individuals in their financial disclosures. An ``affected individual'' is a person who is nominated by a state Governor or appointed by the Secretary to serve as a voting member of a Council under section 302(b)(2) and (b)(5) of the Magnuson-
Stevens Act. Members of an SSC are also considered affected individuals for specific paragraphs of Sec. 600.235. Affected individuals must disclose any financial interests they have in certain activities that may fall under the jurisdiction of the Council. Per the amended
Magnuson-Stevens Act, lobbying and advocacy are added to fishery harvesting, processing, and marketing as the types of activities, upon which the individual must report. The proposed rule would implement this change by expanding and updating the definition of financial interests in Sec. 600.235 to include the activities of lobbying and advocacy. It would also remove from the definition of financial interests the exclusion of financial concerns associated with environmental advocacy. For clarity, Financial Interest Form is defined.
Consistent with the Magnuson-Stevens Act, at Sec. 600.235 the proposed rule would require the financial disclosures made by Council members appointed by the Secretary to be posted on the internet and accessible to the public.
Council Member Training
Another new section, Sec. 600.250, addresses a Magnuson-Stevens
Act requirement for the Secretary to develop a training course and for newly appointed Council members to attend the training course within one year of appointment. The minimum course content is specified in the
Magnuson-Stevens Act and not addressed in this regulation. The course would be made available, not only to new Council members, but also to existing Council members, Council staff, and NMFS staff. The course may also be made available to Council committee and advisory panel members.
Technical Changes
In addition to implementing amendments to the Magnuson-Stevens Act, the proposed rule would make several technical changes and corrections to 50 CFR part 600 subparts A, B, and C. In Sec. 600.105,
``intercouncil boundaries,'' the latitude of the seaward boundary between Virginia and North Carolina would be corrected. In Sec. 600.125, citations to two documents that direct a Council's financial management would be updated. Section 600.10 would be revised to clarify that one full year must have elapsed after the completion of a member's third consecutive term before that person may take a seat on the same
Council. The text of an oath of office would be reinserted in Sec. 600.220. This oath was removed during the regulations consolidation in 1996, however it is still in use by the Councils and it requested by them and others, particularly when new members are about to be sworn in. The oath acknowledges and affirms the members' commitment to the conservation and management of living marine resources. Section 600.240 would be clarified by requiring that background checks be acceptable rather than just completed. Several additional minor corrections and clarifications reflecting changes already discussed would be made throughout the subparts.
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 which implement 2007 amendments to the
Magnuson-Stevens Act, respond to emerging Council issues, and make minor changes and technical corrections to the Council regulations.
The proposed rule includes: 1. Requirements relative to the Council Coordination Committee
(CCC) consisting of Council chairs, executive directors, and others, to work on issues of common concern; 2. Requirements relative to the Scientific and Statistical
Committee (SSC) in the regulations and requirements for financial interest reporting by the SSC; 3. Update meeting announcement requirements for the Councils, their committees, advisory panels (AP), Fishing Industry Advisory
Committees (FIAC), and the CCC, consistent with the Magnuson-Stevens
Act; 4. Requirement for Councils to establish a procedure for proposed regulations submitted to the Secretary; 5. Designation of an alternate for the Indian tribal representative of the Pacific Fishery Management Council; 6. Requirements for nominating individuals to the Gulf of Mexico
Fishery Management Council; 7. Revisions to the process and deadline for governors to submit
Council member nominations to the Secretary; 8. Restrictions on direct or indirect lobbying of legislators by
Council members, Council staff, and contractors. 9. Addition of lobbying and advocacy as types of financial interest activities that must be reported by affected individuals; 10. Specifying that SSC members be treated as ``affected individuals'' as regards certain financial interest reporting requirements, consistent with the Magnuson-Stevens Act; 11. Requirement that financial disclosures made by appointed
Council members to be posted on the internet, consistent with the
Magnuson-Stevens Act; and 12. Requirement that new Council members to attend a training course developed by the Secretary, consistent with the Magnuson-
Stevens Act.
Additionally, the proposed rule would make several technical changes and minor corrections to the existing regulations. For example, in the section on inter-council boundaries, the latitude of the seaward boundary between Virginia and North Carolina is corrected; citations to two documents that direct the Councils' financial management are updated; and the text of an oath of office is added to the regulations. Several additional minor corrections have been made throughout the subparts.
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 David_Rostker@omb.eop.gov 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.
Page 13390
Dated: March 23, 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. 600.10, add definitions for ``Advisory panel (AP)'' and
``Fishing industry advisory committee (FIAC)'' in alphabetical order; and revise the definitions for ``Region'', ``Regional Administrator'', and ``Science and Research Director'' to read as follows:
Sec. 600.10 Definitions.
* * * * *
Advisory panel (AP) means a standing committee formed and selected by a regional fishery management council, under the authority of
Magnuson-Stevens Act section 302(g)(2), to assist it in carrying out its functions. An AP may include individuals who are not members of the council.
* * * * *
Fishing industry advisory committee (FIAC) means an advisory group formed and selected by a regional fishery management council under the authority of the Magnuson-Stevens Act section 302(g)(3)(A). A FIAC is not an ``advisory panel'' as defined under this section.
* * * * *
Region means one of six NMFS Regional Offices responsible for administering the management and development of marine resources in the
United States in their respective geographical regions.
Regional Administrator means the Administrator of one of the six
NMFS Regions described in Table 1 to Sec. 600.502, or a designee.
Formerly known as Regional Director.
* * * * *
Science and Research Director means the Director of one of the six
NMFS Fisheries Science Centers described in Table 1 to Sec. 600.502, or a designee, also known as Center Director.
* * * * * 3. In Sec. 600.15: a. Redesignate paragraphs (a)(9) through (a)(15) as paragraphs
(a)(11) through (a)(17), respectively. b. Redesignate paragraphs (a)(5) through (a)(8) as paragraphs
(a)(6) through (a)(9), respectively. c. Add new paragraphs (a)(5) and (a)(10) to read as follows:
Sec. 600.15 Other acronyms.
(a) * * *
(5) CCC Council coordination committee
* * * * *
(10) FIAC Fishing industry advisory committee
* * * * * 4. In Sec. 600.105, revise paragraph (b) to read as follows:
Sec. 600.105 Intercouncil boundaries.
* * * * *
(b) Mid-Atlantic and South Atlantic Councils. The boundary begins at the seaward boundary between the States of Virginia and North
Carolina (36 33'01.0'' N. lat), and proceeds due east to the point of intersection with the outward boundary of the EEZ as specified in the
Magnuson-Stevens Act.
* * * * * 5. In Sec. 600.115, revise paragraph (b) to read as follows:
Sec. 600.115 Statement of organization, practices, and procedures
(SOPP).
* * * * *
(b) Amendments to current SOPPs must be consistent with the guidelines in this section, subpart C of this part, the terms and conditions of the cooperative agreement (the funding agreement between the Council and NOAA that establishes Council funding and mandates specific requirements regarding the use of those funds), the statutory requirements of the Magnuson-Stevens Act, and other applicable law.
Upon approval of a Council's SOPP amendment by the Secretary, a notice of availability must be published in the Federal Register that includes an internet address from which the amended SOPP may be read and downloaded and a mailing address to which the public may write to request copies.
* * * * * 6. Section 600.117 is added to subpart B to read as follows:
Sec. 600.117 Council coordination committee (CCC).
(a) The Councils may establish a Council coordination committee
(CCC) consisting of the chairs, vice chairs, and executive directors of each of the eight Councils or other Council members or staff, in order to discuss issues of relevance to all Councils.
(b) The CCC is not subject to the requirements of the Federal
Advisory Committee Act (5 U.S.C. App. 2). Procedures for announcing and conducting open and closed meetings of the CCC shall be in accordance with Sec. 600.135. 7. In Sec. 600.125, revise paragraph (a) to read as follows:
Sec. 600.125 Budgeting, funding, and accounting.
(a) Council grant activities are governed by 15 CFR part 14
(Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals, and other Non-Profit and
Commercial Organizations), 2 CFR part 230 (Cost Principles for Non-
Profit Organizations), 15 CFR part 14 (Audit Requirements for
Institutions of Higher Education and Other Non-Profit Organizations), and the terms and conditions of the cooperative agreement.
* * * * * 8. Section 600.133 is added to subpart B to read as follows:
Sec. 600.133 Scientific and Statistical Committee (SSC).
(a) Establishment of an SSC. (1) Each Council shall establish, maintain, and appoint the members of an SSC to assist it in the development, collection, evaluation, and peer review of such statistical, biological, economic, social, and other scientific information as is relevant to such Council's development and amendment of any fishery management plan.
(2) Each SSC shall provide its Council ongoing scientific advice for fishery management decisions, including recommendations for acceptable biological catch, preventing overfishing, maximum sustainable yield, and achieving rebuilding targets, and reports on stock status and health, bycatch, habitat status, social and economic impacts of management measures, and sustainability of fishing practices.
(3) Members appointed by the Councils to the SSCs shall be Federal employees, State employees, academicians, or independent experts and shall have strong scientific or technical credentials and experience.
(4) An SSC shall hold its meetings in conjunction with the meetings of the Council, to the extent practicable.
(b) [Reserved]
(c) [Reserved] 9. In Sec. 600.135, paragraphs (a), (b), (c), (d), and (e) are revised to read as follows:
Sec. 600.135 Meeting procedures.
(a) Regular meetings. Public notice of regular meetings of each
Council, CCC, SSC, and AP, including the meeting agenda, must be published in the Federal Register at least 14 calendar days prior to the meeting date.
Page 13391
Appropriate notice by any means that will result in wide publicity in the major fishing ports of the region (and in other major fishing ports having a direct interest in the affected fishery) must be given. E-mail notification and website postings alone are not sufficient. The published agenda of a 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 calendar days prior to the meeting date, unless such modification is necessary 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 received by 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) Emergency meetings. Drafts of emergency public notices must be transmitted to the NMFS headquarters 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 any means that will result in wide publicity in the major fishing ports of the region. E-mail notification and website postings alone are not sufficient.
(c) Closed meetings. After proper notification by any means that will result in wide publicity in the major fishing ports within the region, having included in the notification the time and place of the meeting and the reason for closing any meeting or portion thereof to the public:
(1) A Council, CCC, SSC, AP, or FIAC must close any meeting, or portion thereof, that concerns information bearing a national security classification.
(2) A Council, CCC, 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, CCC, 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, FIAC, 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, the
CCC, 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, CCC, 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 two hours.
(e) Before closing a meeting or portion thereof, the CCC, 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.
* * * * * 10. Section 600.140 is added to subpart B to read as follows:
Sec. 600.140 Procedure for proposed regulations.
(a) Each Council must establish a written procedure for proposed regulations consistent with section 303(c) of the Magnuson-Stevens Act.
The procedure must describe how the Council deems proposed regulations necessary or appropriate for the purposes of implementing a fishery management plan or a plan amendment, or making modifications to regulations implementing a fishery management plan or plan amendment.
In addition, the procedure must describe how the Council submits proposed regulations to the Secretary.
(b) The Councils must include the procedure for proposed regulations in its SOPP, see Sec. 600.115, or other written documentation that is available to the public. 11. Section 600.207 is added to subpart C to read as follows:
Sec. 600.207 Pacific Fishery Management Council Tribal Indian representation and alternate.
(a) The tribal Indian representative to the Pacific Fishery
Management Council may designate an alternate during the period of the representative's term. The designee must be knowledgeable concerning tribal rights, tribal law, and the fishery resources of the geographical area concerned.
(b) New or revised designations of an alternate by the tribal
Indian representative must be delivered in writing to the appropriate
NMFS Regional Administrator and the Council chair at least 48 hours before the designee may vote on any issue before the Council. In that written document, the tribal Indian representative must indicate how the designee meets the knowledge requirements under paragraph (a) of this section. 12. In Sec. 600.210 revise paragraph (c) to read as follows:
Sec. 600.210 Terms of Council members.
* * * * *
(c) A member who has completed three consecutive terms will be eligible for appointment to another term one full year after completion of the third consecutive term. 13. In Sec. 600.215, redesignate paragraphs (c), (d), and (e) as paragraphs (d), (e), and (f), respectively; add new paragraph (c); and revise the newly redesignated paragraph (e) to read as follows:
Sec. 600.215 Council nomination and appointment procedures.
* * * * *
(c) Nominees to the Gulf of Mexico Fishery Management Council. (1)
The Governors of States submitting nominees to the Secretary for appointment to the Gulf of Mexico Fishery Management Council shall include:
(i) At least one nominee each from the commercial, recreational, and charter fishing sectors, except that an individual who owns or operates a fish farm outside the United States shall not be considered to be a representative of the commercial or recreational sector; and
(ii) At least one other individual who is knowledgeable regarding the conservation and management of fisheries resources in the jurisdiction of the Council.
(2) Notwithstanding the requirements of paragraphs (a) and (b) of this section, if the Secretary determines that the list of names submitted by the Governor does not meet the requirements of paragraph
(c)(1) of this section, the Secretary shall:
(i) Publish a notice in the Federal Register asking the residents of that State to submit the names and pertinent biographical data of individuals who would meet the requirements of this section that were not met for appointment to the Council; and
(ii) Add the name of any qualified individual submitted by the public who
Page 13392
meets the requirements of this section that were not met to the list of names submitted by the Governor.
(3) The requirements of this paragraph (c) shall expire at the end of fiscal year 2012, meaning through September 30, 2012.
* * * * *
(e) Nomination deadlines. Nomination packages (governors' letters and completed nomination kits) should be forwarded by express mail under a single mailing to the address specified by the Assistant
Administrator by March 15. For appointments outside the normal cycle, the Secretary will provide a deadline for receipt of nominations to the affected Council and state governors.
(1) Obligatory seats. (i) The Governor of the state for which the term of an obligatory seat is expiring should submit the names of at least three qualified individuals to fill that seat by the March 15 deadline. The Secretary will appoint to the Pacific Fishery Management
Council a representative of an Indian tribe from a list of no fewer than three individuals submitted by the tribal Indian governments.
(ii) If the Governor or tribal Indian governments fail to provide a nomination letter and at least three complete nomination kits by March 15, the obligatory seat will remain vacant until all required information has been received and processed and the Secretary has made the appointment.
(2) At-large seats. (i) If a Governor chooses to submit nominations for an at-large seat, he/she should submit lists that contain at least three qualified nominees for each vacant seat. A nomination letter and a nomination kit for each qualified nominee should be forwarded by express mail under a single mailing to the address specified by the
Assistant Administrator by March 15.
(ii) Nomination packages that are not substantially complete by
March 31 will be returned to the nominating Governor and will be processed no further. At-large members will be appointed from among the nominations submitted by the governors who complied with the nomination requirements.
* * * * * 14. Section 600.220 is revised to read as follows:
Sec. 600.220 Oath of office.
As trustees of the nation's fishery resources, all voting members must take an oath specified by the Secretary as follows: ``I, [name of the person taking oath], as a duly appointed member of a Regional
Fishery Management Council established under the Magnuson-Stevens
Fishery Conservation and Management Act, hereby promise to conserve and manage the living marine resources of the United States of America by carrying out the business of the Council for the greatest overall benefit of the Nation. I recognize my responsibility to serve as a knowledgeable and experienced trustee of the Nation's marine fisheries resources, being careful to balance competing private or regional interests, and always aware and protective of the public interest in those resources. I commit myself to uphold the provisions, standards, and requirements of the Magnuson-Stevens Fishery Conservation and
Management Act and other applicable law, and shall conduct myself at all times according to the rules of conduct prescribed by the Secretary of Commerce. This oath is given freely and without mental reservation or purpose of evasion.'' 15. In Sec. 600.225 redesignate paragraphs (b)(2) through (b)(8) as paragraphs (b)(3) through (b)(9) respectively; and add a new paragraph (b)(2) to read as follows:
Sec. 600.225 Rules of conduct.
* * * * *
(b) * * *
(2) Council members, employees, and contractors must comply with the Federal Cost Principles Applicable to Regional Fishery Management
Council Grants and Cooperative Agreements, especially with regard to lobbying, and other restrictions with regard to lobbying as specified in Sec. 600.227 of this part.
* * * * * 16. Section 600.227 is added to subpart C to read as follows:
Sec. 600.227 Lobbying.
(a) Council members, employees and contractors must comply with the requirements of 31 U.S.C. 1352 and Department of Commerce implementing regulations published at 15 CFR 28, ``New Restrictions on Lobbying.''
These provisions generally prohibit the use of Federal funds for lobbying the Executive or Legislative Branches of the Federal
Government in connection with the award. Because the Councils receive in excess of $100,000 in Federal funding, the regulations mandate that the Councils must complete Form SF-LLL, ``Disclosure of Lobbying
Activities,'' regarding the use of non Federal funds for lobbying. The
Form SF-LLL shall be submitted within 30 days following the end of the calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed. The recipient must submit the Forms SF-LLL, including those received from subrecipients, contractors, and subcontractors, to the Grants Officer.
(b) Council members, employees, and contractors must comply with the Federal Cost Principles Applicable to Regional Fishery Management
Council Grants and Cooperative Agreements summarized as follows:
(1) Title 2 CFR part 230 - Cost Principles for Nonprofit
Organizations (OMB CircularA-122) is applicable to the Federal assistance awards issued to the Councils.
(2) The purpose of the cost principles at 2 CFR part 230 is to define what costs can be paid on Federal awards issued to non-profit organizations. The regulation establishes both general principles and detailed items of costs.
(3) Under 2 CFR part 230, costs for certain lobbying activities are unallowable as charges to Federal awards. These activities would include any attempts to influence:
(i) The introduction of Federal or state legislation;
(ii) The enactment or modification of any pending legislation by preparing, distributing, or using publicity or propaganda, or by urging members of the general public to contribute to or to participate in any demonstration, march, rally, fundraising drive, lobbying campaign, or letter writing or telephone campaign.
(4) Generally, costs associated with providing a technical and factual presentation directly related to the performance of a grant, through hearing testimony, statements, or letters to Congress or a state legislature are allowable if made in response to a documented request.
(5) Costs associated with lobbying to influence state legislation in order to reduce the cost or to avoid material impairment of the organization's authority to perform the grant are also allowable. 17. In Sec. 600.235: a. In paragraph (a), add paragraph (3) to the definition of
``Affected individual'', remove the definition of ``Financial interest in harvesting, processing, or marketing'', and add definitions for
``Financial Interest Form'' and ``Financial interest in harvesting, processing, lobbying, advocacy, or marketing'' in alphabetical order. b. Revise paragraph (b). c. Revise paragraph (c)(2) and add paragraph (c)(4). d. Revise paragraphs (h) and (i).
The revisions and additions read as follows:
Page 13393
Sec. 600.235 Financial disclosure.
(a) * * *
Affected individual * * *
(3) A member of an SSC shall be treated as an affected individual for the purposes of paragraphs (b)(1), (b)(5) through (b)(7), and (i) of this section.
* * * * *
Financial Interest Form means NOAA Form 88-195, ``STATEMENT OF
FINANCIAL INTERESTS For Use By Voting Members of, and Nominees to, the
Regional Fishery Management Councils, and Members of the Scientific and
Statistical Committee (SSC)'' or such other form as the Secretary may prescribe.
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 engaging in any harvesting, processing, lobbying, advocacy, 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, lobbying, advocacy, 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 any harvesting, processing, lobbying, advocacy, or marketing activity 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, lobbying, advocacy, 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;
(2) Does not include stock, equity, or other ownership interests in, or employment with, an entity engaging 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, lobbying, advocacy, 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 the Financial Interest Form (as defined in paragraph (a) of this section), or such other form as the Secretary may prescribe.
(2) The Financial Interest Form must be filed by each nominee for
Secretarial appointment to the Council with the Assistant Administrator by April 15 or, if nominated after March 15, one 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 and updates to the Financial Interest Forms of appointed Council members to the NMFS Regional Administrator, the Regional Attorney who advises the Council, the Department of Commerce Assistant General
Counsel for Administration, and the NMFS Office of Sustainable
Fisheries. These completed Financial Interest Forms shall be kept on file in the office of the NMFS Regional Administrator and at the
Council offices, and shall be made available for public inspection at such offices during normal office hours. In addition, the forms shall be made available at each Council meeting or hearing and shall be posted for download from the internet on the Council's website.
(4) Councils must retain the Financial Interest Form for a Council member for at least 5 years after the expiration of that individual's last term.
(5) An individual being considered for appointment to an SSC must file the Financial Interest Form with the Regional Administrator for the geographic area concerned within 45 days prior to appointment. A member of the SSC must file an update of his or her statement with the
Regional Administrator for the geographic area concerned within 30 days of the time any such financial interest is acquired or substantially changed by the SSC member or the SSC member'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 Regional Administrator by February 1 of each year.
(6) An individual who serves as an SSC member to more than one
Council shall file Financial Interest Forms with each Regional
Administrator for the geographic areas concerned.
(7) The Regional Administrator shall maintain on file the Financial
Interest Forms of all SSC members for at least five years after the expiration of that individual's term on the SSC. Such Forms are not subject to sections 302(j)(5)(B) and (C) of the Magnuson-Stevens Act.
(c) * * *
(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, lobbying, advocacy, 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.
* * * * *
(4) A member of an SSC is not subject to the restrictions on voting under this section.
* * * * *
(h) The provisions of 18 U.S.C. 208 regarding conflicts of interest do not
Page 13394
apply to an affected individual who is a voting member of a Council appointed by the Secretary, as described under section 302(j)(1)(A)(ii) of the Magnuson-Stevens Act, and who is in compliance with the requirements of this section for filing a financial disclosure report.
The provisions of 18 U.S.C. 208 do not apply to a member of an SSC, unless that individual is an officer or employee of the United States or is otherwise covered by the requirements of 18 U.S.C. 208.
(i) 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 or SSC membership. 18. 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 nominees and members following completion of acceptable background checks. 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.
* * * * * 19. Section 600.250 is added to subpart C to read as follows:
Sec. 600.250 Council member training.
(a) The Secretary shall provide a training course covering a variety of topics relevant to matters before the Councils and shall make the training course available to all Council members and staff and staff from NMFS regional offices and science centers. To the extent resources allow, the Secretary will make the training available to
Council committee and advisory panel members.
(b) Council members appointed after January 12, 2007, shall, within one year of appointment, complete the training course developed by the
Secretary. Any Council member who completed such a training course within 24 months of January 12, 2007, is considered to have met the training requirement of this section.
FR Doc. E9-6896 Filed 3-26-09; 8:45 am
BILLING CODE 3510-22-S
