10 



During that process, the council received hundreds of written 

 public comments on this issue and listened to many hours of public 

 testimony. This analysis and testimony left some unanswered ques- 

 tions, and the council had to rely on its judgment to determine the 

 best use of the whiting resource. The council took final action in 

 November 1992 and forwarded its recommendation and analysis to 

 National Marine Fisheries in December. 



The March 18, 1993, notice of proposed rulemaking differed from 

 the council's recommendation, but retained most of the council's 

 intent. The Commerce Department's final decision, as expressed in 

 the final rule, differed substantially from both the council's recom- 

 mendation and the proposed rule. The decision was announced on 

 April 15, the day the whiting season opened, and 1 week after the 

 council's April meeting. Thus, the council had no opportunity to re- 

 consider the issue. 



The Magnuson Act clearly intended the decision to be made at 

 the regional level, providing opportunity for effective citizens to 

 participate directly in the management process. This was the same 

 theme of the administration's recent forest conference in Portland. 

 Citizen support and participation will occur only if there's reasona- 

 ble certainty that these regional decisions will be developed or 

 adopted as the law of the land, assuming they are consistent with 

 applicable laws. 



Numerous individuals invested their time, money, and energy to 

 participate in the council process. Now there is a risk that they 

 will not continue to do so if they feel the major policy decisions will 

 be made in Washington, DC. In 1982, Congress made clear on the 

 record that the Secretary of Commerce was not to substitute his 

 judgment for that of the council's. The committee on Merchant 

 Marine and Fisheries, in its oversight report of March 2, 1982, said 

 the decisions of each council with respect to a fishery management 

 plan are, therefore, subject to a very limited review by the Secre- 

 tary. 



The fact that the Secretary would have reached a different con- 

 clusion on how to manage a fishery does not justify the Secretary 

 in substituting his judgment for that of the council and disapprov- 

 ing the plan. The councils, not the Secretary, are to manage fisher- 

 ies within the respective areas. Only if it is established that the 

 council has acted in a manner that is either one, in clear disregard 

 for national standards, or two, clear violation of the law, can the 

 Secretary disapprove a fishery management plan or an amendment 

 to a plan proposed by a council. 



In the case of the Pacific Council's Whiting Allocation decision, 

 the Secretary should have clearly identified the legal deficiency in 

 our proposal and sent it back for reconsideration. However, this did 

 not occur, and the council believes the way this was handled seri- 

 ously jeopardized the regional fishery management process. Rather 

 than specifying any legal problems with the council's recommenda- 

 tion. Commerce stated its judgment that the data did not justify 

 the recommendation. In addition, the decision was delayed to a 

 point that the council had no opportunity to reconsider its recom- 

 mendation. We believe there must be a universal endorsement of 

 the established management process and commitment to rely on 

 that process. 



