107. Regional Fishery Management Councils.
[MSFCMA section 302]
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
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
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.
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
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
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
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
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