[Federal Register Volume 62, Number 175 (Wednesday, September 10, 1997)]
[Rules and Regulations]
[Pages 47584-47587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23940]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 970527125-7219-02; I.D. 032797B]
RIN 0648-AJ95
Magnuson Act Provisions; Appointment of Regional Fishery
Management Council Members
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS issues this final rule to amend the regulations governing
the nomination and appointment of members of regional fishery
management councils to establish the procedures applicable to the
nomination and appointment to the Pacific Fishery Management Council of
a representative of an Indian tribe with federally recognized fishing
rights from California, Oregon, Washington, or Idaho. The purpose of
this rule is to implement certain sections of the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act) as
amended by the Sustainable Fisheries Act (SFA) which require such an
appointment.
EFFECTIVE DATE: September 5, 1997.
ADDRESSES: Comments on the collection of information aspects of this
rule should be sent to Mr. William Stelle, Jr., Administrator,
Northwest Region, NMFS, 76000 Sand Point Way, BIN C15700, Seattle, WA
98115-0070; or to Mr. William Hogarth, Acting Administrator, Southwest
Region, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA
90802-4213.
FOR FURTHER INFORMATION CONTACT: William L. Robinson at 206-526-6142 or
Rodney McInnis at 562-980-4040.
SUPPLEMENTARY INFORMATION: On October 11, 1996, President Clinton
signed into law the Sustainable Fisheries Act, which, in pertinent
part, amended the Magnuson-Stevens Act to add a seat on the Pacific
Fishery Management Council (Pacific Council) exclusively for a
representative of an Indian tribe with federally recognized fishing
rights:
The Secretary shall appoint to the Pacific Council one
representative of an Indian tribe with Federally recognized fishing
rights from California, Oregon, Washington, or Idaho from a list of
not less than 3 individuals submitted by the tribal governments. The
Secretary, in consultation with the Secretary of the Interior and
tribal governments, shall establish by regulation the procedure for
submitting a list under this subparagraph (section 302(b)(5)(A)).
Sections 302(b)(5)(B)(i), (ii), and (iii) of the Magnuson-Stevens
Act require that representation be rotated among the tribes taking into
consideration the qualifications of the individuals on the list, the
various rights of the Indian tribes involved and judicial cases that
set out how those rights are to be exercised, and the geographic area
in which the tribe of the representative is located.
NMFS published a proposed rule to implement these provisions of the
Magnuson-Stevens Act with a 30-day comment period on July 1, 1997 (62
FR 35468). The comment period was subsequently extended through August
11, 1997, at the request of the Quileute Tribal Council.
As in the proposed rule, the final rule requires the Secretary of
Commerce (Secretary) to consult with the Bureau of Indian Affairs
(BIA), Department of the Interior, to determine from which Indian
tribes to solicit nominations for the Council seat. By statute, NMFS
must solicit nominees from those Indian tribes with federally
recognized fishing rights from California, Oregon, Washington, or
Idaho. The rule requires the Secretary to solicit written nominations
from each tribal government and produce a list of not less than three
individuals who are
[[Page 47585]]
knowledgeable and experienced regarding the fishery resources affected
by the recommendations of the Pacific Council. The Secretary will
appoint one individual from this list to the Pacific Council for a term
of 3 years. Under the rule, prior service on the Council in a different
capacity will not disqualify a nominee proposed by a tribal government.
Also, if any tribal representative appointed to the Council vacates the
Council seat prior to the expiration of any term, the Secretary may
appoint a replacement for the remainder of the vacant term from the
original list of nominees or may solicit a new set of nominees
following the process described above. Under the rule, no tribal
representative may serve more than three consecutive terms in the
Indian tribal seat.
The rule requires the Secretary to rotate the appointment of a
tribal representative to the Pacific Council among the tribes, taking
into consideration the qualifications of the individuals nominated, the
various rights of the Indian tribes involved and judicial cases that
set out how those rights are to be exercised, and the geographic area
in which the tribe of the representative is located.
Comments and Responses
NMFS received five letters from tribal organizations commenting on
the proposed rule. Two letters were received from the Quileute Tribal
Council and one letter each from the Hoh Tribe, the Quinault Indian
Nation and the Columbia River Inter-Tribal Fish Commission (CRITFC)
representing the four Columbia River Treaty Tribes (Yakama, Warm
Springs, Umatilla and Nez Perce). These comments and NMFS' responses
are summarized below.
Comment 1: NMFS did not adequately consult with tribal governments,
as required by the Magnuson-Stevens Act, before preparing the proposed
rule. The CRITFC suggested that final regulations not be implemented
until that deficiency is cured by NMFS.
Response: NMFS needed to act quickly to implement procedures to
appoint a tribal member to the Council in order to have a tribal
representative appointed and seated on the Council for the very
important September and November 1997 Council meetings. At these
Council meetings, decisions will be made regarding harvestable amounts
of Pacific groundfish that will directly affect tribal harvests. NMFS
staff consulted informally with the staffs of the CRITFC, Northwest
Indian Fisheries Commission (NWIFC), and the Yurok and Hoopa Valley
Tribes prior to publication of the proposed rule. NMFS did not formally
send the proposed rule to each individual tribal government until after
the rule was published for public comment. After the rule was
published, it was sent to each individual tribal government to solicit
comment during the comment period. At the request of the Quileute
Tribe, the comment period was extended until August 11, 1997, to
provide additional time for tribal governments to comment. NMFS is
publishing the final rule without further delay in order to implement
the new provisions for the appointment of a tribal member to the
Council before the September Pacific Council meeting.
Comment 2: Both the CRITFC and Quileute Tribal Council commented
that the appointment of a tribal member to the Council should be
rotated among the three tribal regions (U.S. v. Washington tribes, the
Columbia River-U.S. v. Oregon and Idaho tribes, and the California
tribes). The Quileute stated that the Secretary ``shall'' rotate the
appointment every three years, and proposed that no tribal
representative may serve more than one term. CRITFC commented only that
it was their expectation that the ``appointments would rotate among the
three Regions.'' The Quinault opposed the required rotation among the
three areas every three years and the one-term limit.
Response: The Magnuson-Stevens Act, section 302(b)(5)(B), states
only that ``Representation shall be rotated among the tribes taking
into consideration--(i) the qualifications of the individuals on the
list referred to in subparagraph (A), (ii) the various rights of the
Indian tribes involved and judicial cases that set forth how those
rights are to be exercised, and (iii) the geographic area in which the
tribe of the representative is located.'' Although not specifically
identifying the areas/regions or tribes among which the appointment
shall be rotated, the statute provides the Secretary with the
discretion to rotate the appointment among the three regions identified
by the two commentators. In addition, as pointed out by the Quinault
Indian Nation, requiring rotation of the Council seat each 3 years and
limiting the tribal representative to one term appears inconsistent
with the provision of the Act that limits the number of times a single
individual can hold a Council seat to three consecutive terms. The
three term limitation implicitly recognizes the value of experience
gained by longer term service. In addition, the statute lists two
additional criteria the Secretary must take into account when rotating
the seat: The qualifications of the nominees and the rights of the
tribes. Therefore, the regulations use the plain language of the
statute in the belief that Congress wanted the Secretary to have some
discretion in rotating the appointments consistent with the guidance
contained in the statute. If Congress had intended the appointment to
rotate among three specific regions without exception, the statutory
language would have been more specific. Comment 3: Both the CRITFC and
the Quileute Tribal Council proposed modification of the NMFS-proposed
process for appointing a tribal member to the Council. This
modification would add an additional step to the process where, after
NMFS has solicited initial nominations from each individual tribal
government, NMFS would send the list of nominees back to each tribal
government so that the tribes could select a preferred nominee from
each of the three regions. The Quileute proposal suggested that each
tribe would vote for one of the nominees in its area. The Secretary
would be required to make the Council appointment from a list of the
three nominees with the most votes from each area. The nominees with
the most votes from the other two areas would serve as alternates. The
CRITFC proposal was similar to the Quileute proposal but not as
detailed. CRITFC suggested the same process by which NMFS would return
the list of nominees to the tribal governments for them to choose a
preferred nominee from each area, but CRITFC would expect the Secretary
to ``defer to the tribes in each respective area where there is a
consensus on their nominee.'' CRITFC also suggested that the BIA should
provide to the NMFS a list of tribes with federally recognized rights
and contacts at that tribe, and that the list be provided to each tribe
on the list.
Response: NMFS believes the idea of providing the list of nominees
to the affected Indian tribes is worth further consideration and
intends to consult further with the tribes regarding a process by which
all of the affected Indian tribes might have an opportunity to comment
on the list of nominees. NMFS notes, however, that the tribes have the
ability to consult among themselves primarily through the Inter-Tribal
fish commissions (Northwest Indian Fish Commission and CRITFC) at the
time that nominations are initially solicited. Thus, the tribes from
each area initially could coordinate the nomination of a single
individual without the need for coordination through NMFS. While NMFS
believes this is a suggestion worth exploring for the long term, its
consideration should not hold up the promulgation of a final
[[Page 47586]]
rule governing the appointment for the upcoming term while NMFS further
explores this proposal. Consequently, NMFS is adopting the process as
proposed in the proposed rule but will formally consult with each
Indian tribe with federally recognized fishing rights, from which
nominations were initially solicited, regarding the consultation
process proposed by the Quileute and CRITFC. If, after consultation
with all of the tribes, NMFS determines that a different process should
be adopted for the future, NMFS will amend this regulation. Regardless
of what process is selected for consulting with the tribes, NMFS cannot
adopt a rule whereby the Secretary would be bound by a vote among the
tribes, as suggested by the Quileute comments. Such a rule would
eliminate the Secretary's discretion in making appointments and the
Secretary's ability to take into account the statutory criteria
discussed above in response to comment 2. The Secretary will, however,
take into account the breadth of support from other tribes when
selecting the tribal Council member.
Comment 4: The Quileute, the Hoh, and CRITFC all suggested that the
regulations should provide for regional ``alternates'' or
``designees.'' The designees would be allowed to occupy the Council
seat and vote on matters primarily affecting the region that they
represent. The Quinault agreed this was a good idea, but acknowledged
the statute probably does not permit this.
Response: The Magnuson-Stevens Act includes as voting members of
Council the state director or designee and the NMFS Regional Director
or designee. For all other council members, the statute does not
authorize voting by designees. Without statutory authorization NMFS
cannot provide the ability for ``designees'' to vote.
Comment 5: The Quileute Tribe commented that prior service by a
tribal member who has served three consecutive terms on the Council, in
a position where the tribal member was nominated by a State Governor to
fill one of the State Council seats, should disqualify the individual
for appointment to the Tribal Council seat. The Quinault Indian Nation
commented that the three-term prohibition applies to three terms in the
same Council seat and that the proposed rule correctly interprets the
SFA.
Response: NMFS agrees with the Quinault Indian Nation comment. In
the proposed rule NMFS states that prior service will not disqualify a
nominee proposed by a tribal government from serving in the newly-
created tribal seat. Thus, the three-term consecutive limit prohibition
applies to service time in the new Council seat that Congress
established specifically to represent tribal governments. Prior service
in a state governor-nominated Council seat does not disqualify a tribal
government's nominee for the newly established tribal Council seat.
Classification
Since this rule is procedural or interpretative in its entirety,
under 5 U.S.C. 553(d) it is not subject to a 30-day delay in
effectiveness date.
This final rule has been determined to be not significant for
purposes of E.O. 12866.
Because prior notice and opportunity for public comment is not
required for this rule by 5 U.S.C. 553 or by any other law, under 5
U.S.C. 603(a) and 604(a) this rule is not subject to the analytical
requirements of the Regulatory Flexibility Act.
This rule contains a collection-of-information requirement subject
to the Paperwork Reduction Act (PRA). The reporting burden for Indian
tribal government nominations for the Council appointments is estimated
to average 120 hours 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.
Notwithstanding any other provision of the law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection-of-information subject to the
PRA, unless that collection-of-information displays a currently valid
OMB control number. The collection of this information has been
approved by the OMB under Control Number 0648-0314. Send comments on
the collection of information aspects of this rule to the NMFS
Northwest or Southwest Regional Administrators (see ADDRESSES) or to
OMB at the Office of Information and Regulatory Affairs, Office of
Management and Budget, Washington, DC 20503 (Attention: NOAA Desk
Officer).
List of Subjects in 50 CFR Part 600
Administrative practice and procedure, Fisheries, Fishing,
Intergovernmental relations.
Dated: September 4, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, 50 CFR part 600 is amended
as follows:
PART 600--MAGNUSON ACT PROVISIONS
1. The authority citation for part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
2. In Sec. 600.215, the introductory text is removed, paragraphs
(a) through (g) are redesignated as paragraphs (a)(1) through (a)(7)
respectively, paragraphs (c)(1) through (c)(6) are redesignated as
paragraphs (a)(3)(i) through (a)(3)(vi) respectively, paragraphs (f)(1)
and (f)(2) are redesignated (a)(6)(i) and (a)(6)(ii) respectively,
paragraphs (g)(1) through (g)(6) are redesignated (a)(7)(i) through
(a)(7)(vi) respectively, and paragraphs (a) introductory text and (b)
are added to read as follows:
Sec. 600.215 Appointments.
(a) Members appointed from Governors' lists. This paragraph applies
to council members selected by the Secretary from lists submitted by
Governors pursuant to section 302(b)(2)(C) of the Magnuson-Stevens Act.
* * * * *
(b) Tribal Member. This paragraph applies to the selection of the
Pacific Fishery Management Council's tribal member as required by
section 302(b)(5) of the Magnuson-Stevens Act.
(1) The Secretary shall appoint to the Pacific Fishery Management
Council one representative of an Indian tribe with federally recognized
fishing rights from California, Oregon, Washington, or Idaho from a
list of not less than three individuals submitted by the tribal
Governments.
(2) The Secretary shall solicit nominations of individuals for the
list referred to in paragraph (b)(1) of this section only from those
Indian tribes with federally recognized fishing rights from California,
Oregon, Washington, or Idaho. The Secretary will consult with the
Bureau of Indian Affairs, Department of the Interior, to determine
which Indian tribes may submit nominations.
(3) To assist in assessing the qualifications of each nominee, each
tribal government must furnish to the NMFS Office of Sustainable
Fisheries a current resume, or equivalent, describing the nominee's
qualifications with emphasis on knowledge and experience related to the
fishery resources affected by recommendations of the Pacific Council.
Prior service on the Council in a different capacity will not
disqualify nominees proposed by tribal governments.
(4) Nominations must be provided to NMFS by March 15 of the year in
which
[[Page 47587]]
the term of the current tribal member expires.
(5) The Secretary shall rotate the appointment among the tribes
taking into consideration:
(i) The qualifications of the individuals on the list referred to
in paragraph (b)(1) of this section.
(ii) The various rights of the Indian tribes involved and judicial
cases that set out how those rights are to be exercised.
(iii) The geographic area in which the tribe of the representative
is located.
(iv) No tribal representative shall serve more than three
consecutive terms in the Indian tribal seat.
(6) Any vacancy occurring prior to the expiration of any term shall
be filled in the same manner as described above except that the
Secretary may use the list referred to in paragraph (b)(1) of this
section from which the vacating member was chosen.
* * * * *
[FR Doc. 97-23940 Filed 9-5-97; 10:40 am]
BILLING CODE 3510-22-F
