107. Regional Fishery Management Councils.

[MSFCMA section 302]


a. Establishment.

Summary:

Congress moved the Secretary's authority over Atlantic highly migratory species from section 304(f)(3) to section 302(a)(3). This section adds two seats for North Carolina to the Mid-Atlantic Council. It also adds a representative of Indian tribes with Federally recognized fishing rights to the Pacific Council.

Legislative history:

The rationale for adding North Carolina to the Mid-Atlantic Council is the effect of the Council's actions on numerous North Carolina fishermen.

Issues:

One issue NMFS has already faced is whether to wait for the normal appointment cycle to add the public member from North Carolina. NMFS decided to proceed as quickly as possible to get at least three nominees from the Governor and make the appointment. To get the new member's term into the normal cycle, it will end on August 11, 1999 (about two and a half years).

b. Voting members.

Summary:

The first revision adds the new Indian representative to appropriate subsections. A new subsection (302(b)(5)) sets out the procedure for appointing the Indian representative. The tribal governments are to submit a list of at least three individuals, pursuant to regulations to be promulgated by the Secretary. Representation is to be rotated among the tribes. The Secretary may use a previous nomination list to fill a vacancy within a term. Next, Congress again modifies the three-consecutive-term limit by excluding a term in which a member was appointed to replace someone leaving office during the term. Finally, the subsection on removal for cause is revised, so that the Secretary, without a Council recommendation but after notice and an opportunity for hearing, may remove a member found to have violated section 307(1)(O). The violation is to knowingly and willfully fail to disclose, or falsely disclose, any financial interest, or to knowingly vote on a Council decision from which the member should have been recused. The violation is also punishable with a civil penalty.

Legislative history:

Cong. Don Young's floor statement suggests a narrower definition of a Federally recognized fishing right. He defines it as a "treaty fishing right that has been finally approved by the courts under the process defined in section 19(g) of the final court order under United States versus Washington, and the approval is not subject to further appeal." He is probably referring to paragraph G of the "Order for Program to Implement Interim Plan" in U.S. v. Washington, found at 459 F. Supp. 1035, 1037 (W.D. Wash. 1978), which sets forth a procedure for parties in that case to establish treaty entitlement to non-anadromous fish. (This procedure is currently the subject of litigation in the Northwest regarding Pacific groundfish.) This interpretation does not fit well with the actual language used in the statute for three reasons. First, Paragraph G only applies in U.S. v. Washington (in which tribes in the State of Washington are the only tribal parties whose fishing rights are adjudicated). Therefore, no tribe located in Oregon, California, or Idaho would be considered a tribe with "Federally recognized fishing rights" as defined by Cong. Young. This directly conflicts with the statutory language that specifically includes tribes from the other States. Second, the statute refers to tribes with "Federally recognized fishing rights." It is clear from other applicable law, see Parravano v. Babbitt and Brown and U.S. v. Oregon, that there are tribes with Federally protected fishing rights that are not covered by Paragraph G in U.S. v. Washington. These include the treaty tribes that are parties to U.S. v. Oregon, and the Hoopa and Yurok tribes in California. Finally, if the Judge in U.S. v. Washington has held that a tribe has a Federally protected fishing right, and has not stayed implementation of that right, the law is binding on the United States, even if that issue is on appeal. NMFS provoked the change to the three-consecutive-term limit by specifying in regulations that any part of a term counted against the limit. Congress has now clarified that only full terms are to be counted (if a member replaced someone leaving office during the term). NOAA wondered whether nominations might be manipulated to result in terms of two years, eleven months; Congress responded with the present formulation.

Issues:

The regulations governing the nomination process for the Indian representative will require that we identify the correct tribes and then come up with a process for soliciting a list of nominees. F/NWR is working with the Bureau of Indian Affairs and tribal fishery organizations to develop the procedural rules. Note that the partial term served by the new North Carolina member of the Mid-Atlantic Council will count toward the three-consecutive-term limit, because he is not replacing someone leaving office.

c. Compensation and expenses.

Summary:

This section removes authority to pay a principal State official or designee. Previously, such an official who was not an employee of the State may have received Federal compensation for service on the Council (although the House report says that would have been contrary to statutory intent). Now only those appointed by the Secretary may receive such pay. The compensation is changed from the GS-16 level (which no longer exists in the Federal system) to the equivalent daily rate for GS-15, step 7.

Legislative history:

H.R. 39 would have reduced the daily rate to GS-15, step 1.

Issues:

This does not change the practice that members who are appointed by the Secretary and who are also State employees (such as State university faculty) may receive Federal compensation.

d. Transaction of business.

Summary:

Any member may request a roll call vote, which must be recorded in the minutes. H3> e. Committees and panels.

Summary:

The Secretary is to establish advisory panels for each highly migratory species FMP, consisting of at least seven individuals each. The panels are exempt from the Federal Advisory Committee Act (FACA) (see  107(h)).

Legislative history:

The Senate Committee anticipates that the Secretary will consult with the ICCAT commissioners and give "full consideration" to current members of the ICCAT advisory committee and species working groups. The aim is a "transparent public process" comparable to the Council process.

f. Functions.

Summary:

There is a change in section 302(h)(1) on the necessity for an FMP amendment when management measures in another fishery affect the FMP fishery. Under 302(h)(2), Councils may comment on applications from foreign vessels for transshipment permits.

Legislative history:

The change in 302(h)(1) probably stems from concern about shifts in effort from a fishery where restrictive measures have been imposed (e.g., Northeast multispecies) to a neighboring fishery. The revision does not mandate any particular response, but rather requires Councils to be aware of the "big picture" and make adjustments they consider appropriate.

g. Fishery habitat concerns.

Summary:

This section is deleted, to be replaced by the essential fish habitat provisions in  110.

h. Procedural matters.

Summary:

All advisory committees and panels, whether established by the Councils or the Secretary, are exempt from FACA but must follow the procedures in this subsection. Agendas for Council meetings may not be modified without public notice or within 14 days of the meeting, except to address an emergency situation. All written information submitted to a Council must include a statement of the source and date of such information. Oral and written statements must include the background and interests of the person making the statement. Detailed minutes of meetings, except for closed sessions, are to be kept, certified by the Chairman, and submitted to the Secretary.

Legislative history:

The Senate report says that modification means adding significant items, such as those requiring final Council action. The complaint seems to have been last-minute additions of important issues, too late for those interested to arrange to attend the meeting. Cong. Young said in his floor statement that the documentation provision is not intended to preclude persons from providing information based on their own experience. Cong. Furse said the provision attempts to limit public participation, that a fisherman writing a letter to a Council without complete documentation could be subject to a $100,000 fine. This latter comment is without foundation; failure to comply with the documentation and identification provisions is not a violation of the Act.

Issues:

The new provision on modification of agendas does not prohibit adjustment of the order of discussions, nor require continuation of a meeting to cover all agenda items. Records of closed sessions must still be kept, but need not be detailed minutes as required for open portions of meetings.

i. Disclosure of financial interest and recusal.

Summary:

This section revises, but does not reform, the section redesignated as 302(j) on conflicts of interest. First, the "affected individuals" now exclude Council executive directors, but include the new Indian representative if s/he is not subject to disclosure and recusal requirements under tribal law. Financial disclosure forms will be kept on file by the Secretary as well as by the Councils. The most elaborate revision is the addition of a new subsection 302(j)(7), which requires an "affected individual," after the effective date of regulations issued by the Secretary, not to vote on a Council decision "which would have a significant and predictable effect" on the member's financial interests in harvesting, processing, or marketing activities. That effect exists if "there is a close causal link between the Council decision and an expected and substantially disproportionate benefit to the financial interest of the affected individual relative to the financial interests of other participants in the same gear type or sector of the fishery." The Secretary is to promulgate regulations by October 11, 1997. A recused member may participate in Council deliberations (but may not vote) after notifying the Council of the recusal. The Secretary is to name a "designated official" to attend Council meetings and make determinations, at the request of an affected individual or on his/her own initiative, whether a Council decision would have a significant and predictable effect on a financial interest. Any member may appeal such a determination to the Secretary within ten days; the review is to be completed within 30 days of receipt. A recused member may state for the record how s/he would have voted, but a Council decision taken before the Secretary's review of a determination may not be invalidated because the Secretary finds the recusal ungrounded.

Legislative history:

This was one of the most contentious issues in the Magnuson Act reauthorization, dating back to the inshore/ offshore controversy in Alaska. NOAA had proposed that members be recused from participating in a Council decision if that decision would significantly affect their financial interests. Congress felt it needed to address "perceived" conflicts of interest, but did not want to substantially revise the Council system by disqualifying industry representatives who were active fishery participants. H.R. 39 contained a formulation where a member's recusal depended on whether his/her financial interest was shared by a majority (no recusal) or minority (recusal) of the sector or gear type. NOAA objected that the amendment did not resolve the conflict issue, and would require enormous resources to administer (to determine whether a member's interest coincided with the majority or minority of participants). The Senate originally adopted the House language, but was finally persuaded by NOAA's arguments to drop the majority/minority criterion. The President's signing statement indicates displeasure with this provision. His comment that it "will not be consistent with other Government-wide conflict laws" did not originate with NOAA, however. The Office of Government Ethics campaigned to have Council members subjected to the criminal conflict-of-interest laws, but then given waivers to participate, a position with which NOAA did not agree. One unclear provision is clarified by the Senate report: the "affected individual" who may request a determination on recusal is the Council member whose financial interest may be affected, not some other Council member. On the question of reconsideration, the Senate Committee "anticipates that a Council could choose to vote again at a subsequent meeting if the Secretary's reversal [of a recusal decision] would change the outcome of a vote. However, in some cases a Council might choose not to vote again on the matter, if the process would cause delays or disruptions which could adversely affect conservation and management of the fishery involved." Issues: GCF and DOC/OGC believe the new standard differs little from the former one articulated in the part 600 regulations: "No Council member may participate...in a particular matter primarily of individual concern, such as a contract, in which he or she has a financial interest...." The new standard is another way of saying that the matter is one "primarily of individual concern." Congressional staffers were aware of our interpretation. The new procedure does give a recused member more participatory rights than the former one, in that voting is the only prohibited action. The former procedure banned participation "through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise." Note that the recusal requirement does not take effect until the regulations are promulgated. Preparation of the regulations should be coordinated with the DOC/GC lawyers who deal with ethics issues. Council members have expressed interest in providing comments before the proposed rules are published. We expect the Regional Attorneys will be named as the "designated officials."
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