28876 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules

Issued on May 21, 2001.

Stephen R. Kratzke,

Associate Administrator for Safety

Performance Standards.

[FR Doc. 01–13184 Filed 5–24–01; 8:45 am]

BILLING CODE 4910–59–U

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 600

[Docket No. 010–427105–1105–01; I.D.

011001F]

RIN 0648–AJ82

Magnuson-Stevens Act Provisions;

Update of Regulations Governing

Council Operations

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule, request for

comments.

SUMMARY: NMFS proposes to update

regulations governing the operation of

Regional Fishery Management Councils

(Councils) under the Magnuson-Stevens

Fishery Conservation and Management

Act (Magnuson-Stevens Act). This

proposed rule would make amendments

by codifying recent administrative and

policy changes, and by making editorial

changes for readability, clarity, and

uniformity. The intent of this proposed

rule is to update Council regulations to

reflect current policies and procedures.

DATES: Comments must be received on

or before June 25, 2001.

ADDRESSES: Comments should be sent to

William T. Hogarth, Acting Assistant

Administrator, NMFS, 1315 East–West

Highway, Silver Spring, MD 20910.

Comments on this document will not be

accepted if submitted via email or the

Internet.

FOR FURTHER INFORMATION CONTACT:

Richard Surdi, F/SF5, NMFS, 301–713–

2337. This Federal Register document is

also accessible via the Internet at the

Office of the Federal Register website at

http://www.access.gpo.gov/su—docs/

aces/aces 140.tml.

SUPPLEMENTARY INFORMATION:

Background

Currently, regulations pertaining to

general provisions of the MagnusonStevens Act related to Council

operations are contained in title 50 of

the Code of Federal Regulations (CFR).

NMFS is proposing to update part 600

(Regional Fishery Management

Councils, subpart B, and Council

Membership, subpart C), to codify

important provisions of the recently

withdrawn Council Operations and

Administration Handbook (Handbook),

which was a reference guide that

compiled various requirements of the

Magnuson-Stevens Act and other

applicable law, as well as policy

guidance. Some of the guidance

contained in the Handbook consisted of

regulations that were removed from title

50 of the CFR at the time the Handbook

was developed. NMFS is proposing to

reinstate some of those former

regulations because they are not

contained elsewhere and they are

necessary for the Councils to function.

Other proposed additions and revisions

reflect necessary policy changes that

were not contained in the Handbook,

and were not previously in regulation.

Proposal

1. The topic of compensation for

Council staff (not Council members)

would be added at § 600.120, noting that

Council pay rates must be consistent

with the pay rates established for

General Schedule Federal employees or

the alternative personnel management

system for the U.S. Department of

Commerce (62 FR 67434; December 24,

1997). The Councils have the discretion

to adjust pay rates and pay increases for

cost of living (COLA) and other

adjustments, but no pay adjustment may

exceed the applicable percentage of

salary for COLA and locality pay

available to Federal employees in the

same geographic area. In addition, the

regulations would prohibit salary

increases funded in lieu of life and

medical/dental policies, a former

regulation that was contained in the

Handbook. Other additions at § 600.120

that reinstate former regulations include

fair hiring practices and the hiring of an

independent legal counsel.

2. The topic of payment for unused

sick and annual leave would be added

at § 600.120. It would provide that

unused sick leave may be accumulated

to a maximum as established by the

Council. It also provides for the

distribution of accumulated funds for

unused sick leave to the employee upon

his or her retirement, or their estate

upon his or her death, as established in

the Council’s Statement of Organization,

Practices, and Procedures (SOPP). Each

Council may pay for unused annual

leave upon separation, retirement, or

death of an employee.

3. A requirement would be added

under § 600.125 regarding agreements,

including grants, contracts, or

cooperative agreements. Councils may

not independently enter into agreements

in which they will receive funds, and all

such agreements must be approved and

entered into by NOAA on behalf of the

Council. A policy that was contained in

the Handbook regarding the receipt of

gifts or contributions would also be

added at § 600.125.

4. Policies in the Handbook regarding

meeting notification, meeting closures,

and voting procedures that were also

former regulations would be added at

§ 600.135.

5. A policy that was contained in the

Handbook regarding the disposition of

records that was also a former regulation

would be added at § 600.150.

6. A policy contained in the

Handbook regarding responding to

Freedom of Information Act requests

that was also a former regulation would

be added at § 600.155.

7. The constituent states of the eight

Regional Fishery Management Councils

are represented by ‘‘principal state

officials’’ designated by their Governors.

Each principal state official under

section 302(b) of the Magnuson-Stevens

Act is currently required to be

employed, on a full-time basis, in a

position related to the development of

fisheries management policies for that

state. The proposed rule would amend

the language at § 600.205 so that a

designee of that official would not have

to be a full-time employee of the state,

with the aforementioned

responsibilities, but must be a resident

of the state and knowledgeable and

experienced in the fishery resources of

the geographic area of concern to the

Council. This would grant greater

flexibility to the principal state official

in selecting a designee, who may have

the expertise and ability to serve, but

might not be a full-time state employee.

8. Section 302(d) of the MagnusonStevens Act establishes GS-15, step 7

General Schedule as a Council

member’s daily pay rate. This proposed

rule would remove § 600.245(a) which

is inconsistent with the statutory

provision.

Classification

This action has been determined to be

not significant for purposes of E.O.

12866.

The Chief Counsel for Legislation and

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 in the fishing

industry. This proposed rule does not

affect any small entities. Rather, it

establishes procedures or guidelines for

Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules 28877

the administration of the Councils. The

Councils are established under the

Magnuson-Stevens Act and are not a

small business, small organization, or a

small government jurisdiction, as these

terms are defined in the Regulatory

Flexibility Act, 5 U.S.C 601 et seq.

NMFS has analyzed this proposed

rule in accordance with the criteria of

the National Environmental Policy Act

(NEPA). This proposed rule does not

constitute a major Federal action

significantly affecting the quality of the

human environment because it only

provides notice and comment on agency

procedure or practice (i.e., procedures

and guidelines for the administration of

Councils). NMFS has determined that

issuance of this policy qualifies for a

categorical exclusion as defined by

NOAA 216-6 Administrative Order,

Environmental Review Procedures

This rule contains no collection-ofinformation requirements subject to the

Paperwork Reduction Act.

List of Subjects in 50 CFR Part 600

Fisheries, Fishing.

Dated: May 22, 2001.

William T. Hogarth,

Acting Assistant Administrator for Fisheries,

National Marine Fisheries Service.

For the reasons set out in the

preamble, 50 CFR part 600 subparts B

and C are proposed to be amended 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.

1801et seq.

2. Section 600.120 of subpart B is

revised to read as follows:

§ 600.120 Employment practices.

(a) Council staff positions must be

filled solely on the basis of merit, fitness

for duty, competence, and

qualifications. Employment actions

must be free from discrimination based

on race, religion, color, national origin,

sex, age, disability, reprisal, sexual

orientation, status as a parent, or on any

additional bases protected by applicable

Federal, state, or local law.

(b) The annual pay rates for Council

staff positions shall be consistent with

the pay rates established for General

Schedule Federal employees as set forth

in 5 U.S.C. 5332, and the Alternative

Personnel Management System for the

U.S. Department of Commerce (62 FR

67434). The Councils have the

discretion to adjust pay rates and pay

increases based on cost of living (COLA)

differentials in their geographic

locations. COLA adjustments in pay

rates and pay increases may be provided

for staff members whose post of duty is

located in Alaska, Hawaii, Guam, the

U.S. Virgin Islands, the Northern

Mariana Islands, and Puerto Rico.

(1) No pay adjustment based on

geographic location shall exceed the

COLA and locality pay adjustments

available to Federal employees in the

same geographic area.

(2) [Reserved]

(c) Salary increases funded in lieu of

life and medical/dental policies are not

permitted.

(d) Unused sick leave may be

accumulated without limit, or up to a

maximum number of days and

contribution per day, as specified by the

Council in its SOPP. Distributions of

accumulated funds for unused sick

leave may be made to the employee

upon his or her retirement, or his or her

estate upon his or her death, as

established by the Council in its SOPP.

(e) Each Council may pay for unused

annual leave upon separation,

retirement, or death of an employee.

(f) One or more accounts shall be

maintained to pay for unused sick or

annual leave as authorized under (d)

and (e), and will be funded from the

Council’s annual operating allowances.

Councils have the option to deposit

funds into these account(s) at the end of

the budget period if unobligated

balances remain. Interest earned on

these account(s) will be maintained in

the account(s), along with the principal,

for the purpose of payment of unused

annual and sick leave only. These

account(s), including interest, may be

carried over from year to year.

Budgeting for accrued leave will be

identified in the ‘‘Other’’ object class

categories section of the SF-424A.

(g) A Council must notify the NOAA

Office of General Counsel before seeking

outside legal advice, which may be for

technical assistance not available from

NOAA. If the Council is seeking legal

services in connection with an

employment practices question, the

Council must first notify the Department

of Commerce’s Office of the Assistant

General Counsel for Administration,

Employment and Labor Law Division. A

Council may not contract for the

provision of legal services on a

continuing basis.

3. Section 600.125 of subpart B is

revised to read as follows:

§ 600.125 Budgeting, funding, and

accounting.

(a) Each Council’s grant activities are

governed by OMB Circular A-110

(Uniform Administrative Requirements

for Grants and Agreements with

Institutions of Higher Education,

Hospitals, and other Non-Profit

Organizations), OMB Circular A-122

(Cost Principles for Non-Profit

Organizations), 15 CFR Part 29b (Audit

Requirements for Institutions of Higher

Education and other Nonprofit

Organizations), and the terms and

conditions of the cooperative agreement.

(See 5 CFR 1310.3 for availability of

OMB Circulars.)

(b) Councils may not independently

enter into agreements, including grants,

contracts, or cooperative agreements,

whereby they will receive funds for

services rendered. All such agreements

must be approved and entered into by

NOAA on behalf of the Councils.

(c) Councils are not authorized to

accept gifts or contributions directly. All

such donations must be directed to the

NMFS Regional Administrator in

accordance with applicable Department

of Commerce regulations.

4. Section 600.135 is added to subpart

B to read as follows:

§ 600.135 Meeting procedures.

(a) Public notice of regular meetings

of the Council, scientific statistical

committee or advisory panels, including

the agenda, must be published in the

Federal Register on a timely basis, and

appropriate news media notice must be

given. The published agenda of any

regular meeting may not be modified to

include additional matters for Council

action without public notice, or such

notice must be given at least 14 days

prior to the meeting date, unless such

modification is to address an emergency

under section 305(c) of the MagnusonStevens Act, in which case public notice

shall be given immediately. Drafts of all

regular public meeting notices must be

transmitted to the NMFS Headquarters

Office at least 23 calendar days before

the first day of the regular meeting.

Councils must ensure that all public

meetings are accessible to persons with

disabilities, and that the public can

make timely requests for language

interpreters or other auxiliary aids at

public meetings.

(b) Drafts of emergency public notices

must be transmitted to the NMFS

Washington Office; recommended at

least 5 working days prior to the first

day of the emergency meeting. Although

notices of, and agendas for, emergency

meetings are not required to be

published in the Federal Register,

notices of emergency meetings must be

promptly announced through the

appropriate news media.

(c) After notifying local newspapers in

the major fishing ports within its region,

including in the notification the time

28878 Federal Register / Vol. 66, No. 102 / Friday, May 25, 2001 / Proposed Rules

and place of the meeting, as well as the

reason for closing any meeting or

portion thereof:

(1) A Council, SSC, AP, or FIAC shall

close any meeting, or portion thereof,

that concerns information bearing on a

national security classification.

(2) A Council, SSC, AP, or FIAC may

close any meeting, or portion thereof,

that concerns matters or information

pertaining to national security,

employment matters, or briefings on

litigation in which the Council is

interested.

(3) A Council, SSC, AP, or FIAC may

close any meeting, or portion thereof,

that concerns internal administrative

matters other than employment.

Examples of other internal

administrative matters include

candidates for appointment to AP, SSC,

and other subsidiary bodies; and public

decorum or medical conditions of

members of a Council or its subsidiary

bodies. In deciding whether to close a

portion of a meeting to discuss internal

administrative matters, a Council or

subsidiary body should take into

consideration the privacy interests of

individuals whose conduct or

qualifications may be discussed, but

also the interest of the public in being

informed of Council operations and

actions.

(d) Without the notice required by

paragraph (c) of this section, a Council,

SSC, AP, or FIAC may briefly close a

portion of a meeting to discuss

employment or other internal

administrative matters. The closed

portion of a meeting closed without

notice may not exceed two hours.

(e) Before closing a meeting or portion

thereof, a Council or subsidiary body

should consult with the NOAA General

Counsel Office to ensure that the

matters to be discussed fall within the

exceptions to the requirement to hold

public meetings described in section (c).

(f) Actions that affect the public,

although based on discussions in closed

meetings, must be taken in public. For

example, appointments to an AP must

be made in the public part of the

meeting; however, a decision to take

disciplinary action against a Council

employee need not be announced to the

public.

(g) A majority of the voting members

of any Council constitutes a quorum for

Council meetings, but one or more such

members designated by the Council may

hold hearings.

(h) Decisions of any Council are by

majority vote of the voting members

present and voting (except for a vote to

propose removal of a Council member,

see 50 CFR 600.230). Voting by proxy is

permitted only pursuant to 50 CFR

600.205(b). An abstention does not

affect the unanimity of a vote.

(i) Voting members of the Council

who disagree with the majority on any

issue to be submitted to the Secretary,

including principal state officials raising

federalism issues, may submit a written

statement of their reasons for dissent. If

any Council member elects to file such

a statement, it should be submitted to

the Secretary at the same time as the

majority report.

5. Section 600.150 is added to subpart

B to read as follows:

§ 600.150 Disposition of records.

(a) Council records must be handled

in accordance with NOAA records

management office procedures. All

records and documents created or

received by Council employees while in

active duty status belong to the Federal

Government. When employees leave the

Council, they may not take the original

or file copies of records with them.

(b) [Reserved]

6. Section 600.155 is added to subpart

B to read as follows:

§ 600.155 Freedom of Information Act

(FOIA) requests.

(a) FOIA requests received by a

Council should be coordinated

promptly with the appropriate NMFS

Regional Office. The Region will

forward the request to the NMFS FOIA

Official to secure a FOIA number and

log into the FOIA system. The Region

will also obtain clearance from the

NOAA General Counsel’s Office

concerning initial determination for

denial of requested information.

(b) FOIA requests will be controlled

and documented in the Region. The

requests should be forwarded to the

NMFS FOIA Officer who will prepare

the Form CD-244, ‘‘FOIA Request and

Action Record,’’ with the official FOIA

number and due date. In the event the

Region determines that the requested

information is exempt from disclosure,

in whole or in part, under the FOIA, the

denial letter prepared for the Assistant

Administrator’s signature, along with

the ‘‘Foreseeable Harm’’ Memo and list

of documents to be withheld, must be

cleared through the NMFS FOIA Officer.

Upon completion, a copy of the signed

CD-244 and cover letter transmitting the

information, should be provided to the

NMFS FOIA Officer and the NOAA

FOIA Officer.

7. Section 600.205 of subpart C is

revised to read as follows:

§ 600.205 Principal state officials and their

designees.

(a) Only a full-time state employee of

the state agency responsible for marine

and/or anadromous fisheries shall be

appointed by a constituent state

Governor as the principal state official

for purposes of section 302(b) of the

Magnuson-Stevens Act.

(b) A principal state official may name

his/her designee(s) to act on his/her

behalf at Council meetings. Individuals

designated to serve as designees of a

principal state official on a Council,

pursuant to section 302(b)(1)(A) of the

Magnuson-Stevens Act, must be a

resident of the state, and be

knowledgeable and experienced, by

reason of his or her occupational or

other experience, scientific expertise, or

training, in the fishery resources of the

geographic area of concern to the

Council.

(c) New or revised appointments by

state Governors of principal state

officials, and new or revised

designations by principal state officials

of their designees(s), must be delivered

in writing to the appropriate NMFS

Regional Administrator and the Council

chair at least 48 hours before the

individual may vote on any issue before

the Council. A designee may not name

another designee. Written appointment

of the principal state official must

indicate his or her employment status,

how the official is employed by the state

fisheries agency, and whether the

official’s full salary is paid by the state.

Written designation(s) by the principal

state official must indicate how the

designee is knowledgeable and

experienced in fishery resources of the

geographic area of concern to the

Council, the County in which the

designee resides, and whether the

designee’s salary is paid by the state.

§ 600.245 [Amended]

8. In § 600.245 of subpart C, paragraph

(a) is removed, and paragraphs (b), (c),

and (d) are redesignated as paragraphs

(a), (b), and (c), respectively.

[FR Doc. 01–13287 Filed 5–24–01; 8:45 am]

BILLING CODE 3510–22–S