[Federal Register: December 7, 2009 (Volume 74, Number 233)]
[Proposed Rules]
[Page 64042-64044]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07de09-867]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 080102007-91368-02]
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: Supplementary proposed rule; request for comments.
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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 clarify which Council
documents should be available to the public, clarify Council member
nomination procedures, clarify financial disclosure requirements for
Council members, and revise the security assurance procedures for
nominees to and members of the Councils.
DATES: Written comments must be received no later than 5 p.m. e.d.t.
on January 6, 2010.
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. On March 27, 2009 at 74 FR 13386, NMFS published a proposed
rule affecting these regulations. Subsequent to the publication of that
proposed rule, several issues regarding Council operations and
appointments to the Councils have demonstrated a need for additional
proposed changes to the regulations. These proposed changes are all
administrative in nature and would increase the transparency of the
Council process to the public or improve the efficiency of the Council
member appointments process. A discussion of the specific proposed
changes follows.
Government Accounting Office (GAO) report recommendations.
On May 20, 2009, the GAO submitted a report on the Western Pacific
Fishery Management Council (GAO-09-508R Fisheries Management) that
provided several recommendations to improve the transparency of the
Council's operations. NMFS' considers two of those recommendations
appropriate for all Councils. The first recommendation was for the
Council to maintain current and archived copies of documents available
for public inspection, such as the Council's meeting minutes and
briefing book materials, on the Council's Web site. The second
recommendation was for the Council to adopt procedures that require
Council meeting minutes to include not only a Council member's
statement of recusal from voting, but also the nature of the financial
interest that would be affected.
Some of the Councils already maintain many of their documents on
their web sites. Among documents that may be available are current
drafts of fishery management plan (FMP) amendments the Council is
developing, proposed regulatory amendments to FMPs, and analysis for
those actions. Documentation (briefing book documents) for upcoming
Council meetings may also be posted, as are meeting summaries. In some
cases, transcripts of past meetings may also be available. Some
Councils have their FMPs and amendments posted, along with current
regulations or links to them. Other archival documents such as
histories of the FMPs and synopses of FMPs are often available.
Posting of information is limited by the size of the server
supporting the Council's Web site and the staff time and expertise in
posting and maintaining documents on the server. In some cases,
documents are so large that posting them on the Web site is
impracticable, so they are made available for retrieval through a file
sharing protocol (FTP) site. Because of variations among the Councils,
NMFS proposes that Councils post their documents ``to the extent
practicable.'' Current documents and information related to current and
recent meetings are of a higher priority than documents related to past
actions. However, both are of interest to the public. Posting them on
the Internet or making them readily available through an FTP site or
other technology improves the transparency of the Council process to
the public and reduces the amount of staff time needed in responding to
inquiries from the public. For documents too large to maintain on the
Web site, not available electronically, or seldom requested, the
Council must provide copies of the documents for viewing at the Council
office during regular business hours or may provide the documents
thorough the mail.
In response the GAO's recommendation, NMFS proposes that a Council
member's statement of recusal from voting would also include the nature
of the financial interest that would be affected and to require that
Council meeting minutes include that information. Under the current
regulations at Sec. 600.235(e), Council members are already required
to identify the financial interest that would be affected if they
wanted to participate in the deliberations on an issue for which they
have recused themselves. This proposal would go a step further in
requiring them to identify the financial interest any time they recuse
themselves. This identification would make the reason behind the
recusal and the interests at stake more transparent to the other
members of the Council and to the public.
[[Page 64043]]
Obligatory/at large issue for Council member nominations.
Sec. 600.215 (b)(5) contains confusing language regarding
nominations for non-concurrent expiration of obligatory and at-large
seats. It is uncertain whether this situation has ever arisen. Due to
the standard expiration date of appointments (August 10), this
particular situation may never arise. In the unlikely event that a
Council seat would be vacated near to the time of the annual
appointment process, the Secretary has the authority to either include
that seat in the general solicitation for nominees or require a
separate nomination process.
Financial disclosure and corporate connections.
Current guidance, either in the regulations at Sec. 600.235(a) or
on the financial disclosure form, do not specify disclosing corporate
connections of companies for which a nominee works. This has become a
concern, particularly if the company in question is solely owned by
another corporation, meaning that there can be conflict of interest
that is not necessarily obvious or disclosed. The financial disclosure
regulations are proposed to be expanded to cover this situation.
Further, NMFS plans to substantially update the financial disclosure
form to better accommodate the revised requirements of the law and the
fact that some Council members are neither actively fishing nor do they
directly own fisheries related businesses.
In addition, NMFS is proposing to amend the regulations at Sec.
660.235(b)(2) to clarify that Council members must update their
financial disclosure forms annually and file the updated form with the
Executive Director of the Council by February 1 of each year,
regardless of whether any information has changed on that form.
Security assurances
Sec. 600.240(a) currently requires a background check (NACI) for
all nominees and members. This check can take in excess of three months
to complete, especially when a large number of checks are requested
simultaneously, as for Council member nominees. In order to reduce the
large glut of work caused by the nomination process, as well as the
extra work done by the nominees that are not appointed, NMFS proposes
that only those nominees selected be required to submit the forms
necessary to begin a background investigation. Further, NMFS proposes
that appointments be made conditional upon a favorable background
investigation. Otherwise, under current regulations, it would take a 2/
3 vote of the Council to remove a member.
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 that respond to emerging Council issues.
The proposed rule includes:
1. Requirement for Councils to maintain publically available
documents on its Internet site to the extent practicable;
2. Removing confusing language regarding the non simultaneous
appointment of obligatory and at large seats;
3. Requirement for Councils members to identify whether
organizations they are associated with are subsidiaries of companies
having interests in the fisheries;
4. Requirement for Council members to identify the financial
interest affected when recusing themselves from votes; and
5. Removing a requirement for nominees for membership to Fishery
Management Council to submit forms for a background check and make
other minor changes to conform to current security practice.
6. Clarifies that Council members must update their financial
disclosure forms annually and file the updated form with the
Executive Director of the Council by February 1 of each year,
regardless of whether any information has changed on that form.
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.
Dated: December 1, 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. 600.150, add paragraph (b) to read as follows:
Sec. 600.150 Disposition of records.
* * * * *
(b) Each Council is required, to the extent practicable, to
maintain documents generally available to the public on its Internet
site. Documents for posting must include: fishery management plans and
their amendments for the fisheries for which the Council is
responsible, drafts of fishery management plan amendments under
consideration, analysis of actions the Council has under review,
minutes of past meetings of the Council its committees, materials
provided to Council members in preparation for meetings, and other
Council documents of interest to the public. For documents too large to
maintain on the Web site, not available electronically, or seldom
requested, the Council must provide copies of the documents for viewing
at the Council office during regular business hours or may provide the
documents thorough the mail.
3. In Sec. 600.215, revise (b)(5) to read as follows:
[[Page 64044]]
Sec. 600.215 Council nomination and appointment procedures.
* * * * *
(b) * * *
(5) When the terms of both an obligatory member and an at-large
member expire concurrently, the Governor of the state holding the
expiring obligatory seat may indicate that the nominees who were not
selected for appointment to the obligatory seat may be considered for
appointment to an at-large seat, provided that the resulting total
number of nominees submitted by that governor for the expiring at-large
seat is no fewer than three different nominees.
* * * * *
4. In Sec. 600.235, revise paragraph the definition of Financial
interest in harvesting processing lobbying, advocacy, or marketing in
paragraph (a) and paragraphs (b)(2) and (d) to read as follows:
Sec. 600.235 Financial disclosure.
(a) * * *
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 or any
subsidiary of such entities engaging in any harvesting, processing, 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 or any subsidiary of such entities
that provides equipment or other services essential to harvesting,
processing, 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 harvesting, processing, or marketing
activities, or companies or other entities providing services essential
to harvesting, processing, or marketing activities in any fishery under
the jurisdiction of the Council concerned; and
(iv) Employment with an entity or any subsidiaries of such entity
providing consulting, legal, or representational services to any entity
engaging in, or providing equipment or services essential to,
harvesting, processing, 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;
* * * * *
(b) * * *
(2) The Financial Interest Form must be filed by each nominee for
Secretarial appointment with the Assistant Administrator by April 15
or, if nominated after March 15, 1 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, regardless of whether
any information has changed on that form.
* * * * *
(d) Voluntary recusal. An affected individual who believes that a
Council decision would have a significant and predictable effect on
that individual's financial interest disclosed under paragraph (b) of
this section may, at any time before a vote is taken, announce to the
Council an intent not to vote on the decision and identifying the
financial interest that would be affected.
* * * * *
5. 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 members following completion of favorable background
investigations. A Council member's appointment is conditional until
such time as the background investigation has been favorably
adjudicated. The Secretary will revoke the member's appointment if that
member receives an unfavorable background investigation. 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.
* * * * *
[FR Doc. E9-29062 Filed 12-7-09; 8:45 am]
BILLING CODE 3510-22-S