29 



11558 Federal Regiatw t Vol. 59, No. 48 / Friday. Mardi 11. 1994 / Rules and Regulations 



Council membon, (2) autagoncy 

 rulemakings. (3) requirements to 

 balancs the memberAip of the North 

 PadEc Fishery Management Council 

 between different fishing interests. and 

 (4) general procedures for Secretarial 

 review of fifiieiy management plans 

 (FMPs) and regulatory amendments. 

 NMFS published a notice of receipt of 

 the petition for lulanuking and a 

 request for comments on April 15, 1991 

 (56 FR 15072). 

 Commenls and RaspoDses 



Three comments naie received on the 

 petition for nilemalditg. These were 

 from Williams. Kastner and Gifabs 

 (representing tltf petitioners), American 

 Factory Trawler Association, and Royal 

 Seafoods, Inc. All three commenters 

 supported the petition and, in some 

 cases, expanded oo the rationale for 

 adoption of the proposed provisions. 

 One commenter had an additional 

 comment concerning unconstrained 

 conflicts of interest among Council 

 members. This commenter indicated 

 that there is a fine line between the need 

 for industry expertiso and conflicts of 

 interesL The current system, which 

 allows Council members to vote on 

 issues where they have a direct financial 

 interest, crosses over the line of 

 accepubility. Qting E.0. 12674, 

 commenters suggested that NMFS 

 develop a comprehensive set of rules 

 governing Council member conduct on 

 issues in which they have a direct 

 financial interest 



Because E.0. 12674 is specific in that 

 it can apply only to Federal employees, 

 it cannot be used as a basis fox 

 regulations governing Council members, 

 who are not Federal employees. 

 Furthermore. Congress provided for 

 industry members to participate in and 

 vote on issues inj^hich they have a 

 financial interest Paragraph (A) of 

 section 302(b) of the Magnuson Act (16 

 U.S.C 1852(b)(2)) provides for the 

 appointment of members based on their 

 occupational experierxs. and paragraph 

 (B) requires a fair and balanced 

 apportionment of the active participants 

 in the conmiercial and recreational 

 fisheries under a Council's junsdiction 

 when TT>«Ving appointments to that 

 Council. Furfiiermore, guidance for the 

 conduct of Council members 

 specifically, and members of any 

 deliberative body, in general, already 

 exists. _ ^^ 



Discussioa 



NMFS has consideied the petition^ 

 public comments, and other reialsd 

 issues, and decided to proceed with 

 several of the rulemaking sugjjHtkius 

 proposed in the petition. The foUowing 



paragraphs list the suggestions 

 contained in thr petition for 

 rulemaking, provide an explanation as 

 to why NMFS has decided lo accept or 

 reject the suggested rulemaking, and 

 describe the changes to be made. 



1. Adopt a regulation that provides for 

 meaningful disclosure of the financial 

 interests of Council members. 



The petitioners requested six 

 additional areas of information be added 

 to the finnnHal form for rtllinril 

 members, including fisheries 

 participated in, product types produced, 

 gear type used, revenue generated, 

 identity of primary buyers, and financial 

 interest of stockholdefs in a privately 

 held corporation in which the Council 

 member is a stockholder. NMFS has 

 determined that NOAA Form 88-195, 

 "Statement of Financial Interests for Use 

 by Voting Members. Nominees and 

 Executive Directors of Regional Fishery 

 Management Councils," should be 

 amended to include information 

 concerning the fisheries participated in, 

 the product type produced, and the gear 

 type utilized. This information will 

 better identify the nature of a Coimcil 

 member's financial interest. Additional 

 revisions not noted in tiie petition are 

 made to delete Part 1 of the form, which 

 presently Is completed by the Agency 

 but is no longer useful, and to add a 

 statement to the General Provisions 

 section concerning penalties for false or 

 incomplete information. 



The petitioners also requested that the 

 form be updated every 6 months, on 

 January 15 and June IS. Section 601.37 

 of title 50 CFR is amended to require 

 that Council members update the form 

 annually, beginning February 1. 1995, in 

 addition to updating the form when a 

 financial interest is acquired or 

 substantially changed, as is now 

 required. NMFS finds that requiring 

 updates only as interests are acquired or 

 substantially changed does not provide 

 for disclosure of modest, but important, 

 changes in financial interests and 

 divestitures of interests. Requiring an 

 aimual uptiate will bring into focus a 

 member's need to update the current 

 status of his/her interests, particularly 

 in terms of fishery participation, gear 

 utilized, or product types produced. 



NMFS al»> beUeves it appitjpriate to 

 make financial disclosure forms more 

 readily available to the public. Section 

 601.37 accordingly is amended to 

 reqtilre Rnan Hnl disclosure forms be 

 available at all Council meetings, and 

 that their availabiUty be so noted on the 

 ■ agenda for each meeting. This provision 

 is in addition to the requirement of 

 having the tonm k^ oo file and 

 available to the public at die CouDCii 

 offices. 



2. Adopt a rule that prohibits 

 biological reasons from being used to 

 support an emergency rule unless a 

 Council's Scientific and Statistical 

 Committee (SSC) concurs that a 

 biological justification exists. 



NMFS rejected this provision because 

 the Secretary does not have the 

 authority to condition a 

 recommendation for emergency action 

 by the Council on the approval of an 

 advisory body, such as the SSC. NMFS 

 notes, however, that a Council may 

 establish such a condition as part of an 

 FMP. 



3. Adopt a rule that requires the 

 Secretary to balance the governor- 

 nominated voting membership of the 

 North Pacific Fishery Management 

 Council (NPFMC) between the at-sea 

 processing fleet and the onshore 

 processing fleet. 



NMFS rejected this provision because 

 its enactment would be redundant to an 

 existing provision of the Magnuson Act. 

 Section 302(b) of the Magnuson Act (see 

 also interpretive poUcy published May 

 24. 1991, at 56 FR 23856) provides that 

 the Secretary '• • * • shall, to the 

 extent practicable, ensure a fair and 

 balanced apportionment, on a rotating 

 or other basis, of the active participants 

 (or their representatives) in the 

 conunercial and recreational fisheries 

 imder the jurisdiction of the Council." 

 Congress established a limited number 

 of seats on the Regional Fishery 

 Management Councils to which the 

 Secretary appoints voting members. 

 Only seven such seats are established on 

 the NPFMC. Considering the broad 

 range of industry sectors, gear types, 

 and other interests that might wish 

 representation on the NPFMC and other 

 Councils, it would be impossible to 

 have every interest represented. NMFS 

 further finds that there are numerous 

 alternatives for having ideas and 

 concerns considered by the Councils 

 and their panels, including participation 

 in committee and panel meetings, 

 testifying at Council meetings, and 

 providing the Coimcil with written 

 testimony, suggestions, conmients, or 

 data. 



4. Adopt a rule that sets forth dearly 

 the proc«luies far Secretarial review of 

 regulations and amendments that have 

 been recommended to the Secretary for 

 implementation by a Council. 



'The petitianecs requested rulemaking 

 that wmild: (1) Set forth the review 

 process followed by the Secretary when 

 reviewing a regulation or amendment, 

 and (2) require all final ruks 

 promulga^d by thaSaczeUiT to sal 

 forth the procoiure toUownl in 

 reviewing the regulation, or ame ndment . 

 These proposals are rejected. Detailed 



78-917 0-94-2 



