62 FR 23669, May 1, 1997, unless otherwise noted.
Consensus means unanimous concurrence among the members on a Fishery Negotiation Panel established under this rule, unless such Panel:
(1) Agrees to define such term to mean a general but not unanimous concurrence; or
(2) agrees upon another specified definition.
Fishery negotiation panel (FNP) means an advisory committee established by one or more Councils or the Secretary in accordance with these regulations to assist in the development of fishery conservation and management measures.
Interest means, with respect to an issue or matter, multiple parties that have a similar point of view or that are likely to be affected in a similar manner.
Report means a document submitted by an FNP in accordance with the Magnuson-Stevens Act.
[62 FR 23669, May 1, 1997, as amended at 63 FR 7075, Feb. 12, 1998]
A Council or NMFS may establish an FNP to assist in the development of specific fishery conservation and management measures. In determining whether to establish an FNP, NMFS or the Council, as appropriate, shall consider whether:
(a) There is a need for specific fishery conservation and management measures.
(b) There are a limited number of identifiable interests that will be significantly affected by the conservation and management measure.
(c) There is a reasonable likelihood that an FNP can be convened with a balanced representation of persons who:
(1) Can adequately represent the interests identified under paragraph (b) of this section.
(2) Are willing to negotiate in good faith to reach a consensus on a report regarding the issues presented.
(d) There is a reasonable likelihood that an FNP will reach a consensus on a report regarding the issues presented within 1 year from date of establishment of the FNP.
(e) The use of an FNP will not unreasonably delay Council or NMFS fishery management plan development or rulemaking procedures.
(f) The costs of establishment and operation of an FNP are reasonable when compared to fishery management plan development or rulemaking procedures that do not use FNP procedures.
(g) The Council or NMFS has adequate resources and is willing to commit such resources, including technical assistance, to an FNP.
(h) The use of an FNP is in the public interest.
(a) Purposes of conveners. A Council or NMFS may use the services of a trained convener to assist the Council or NMFS in:
(1) Conducting discussions to identify the issues of concern, and to ascertain whether the establishment of an FNP regarding such matter is feasible and appropriate.
(2) Identifying persons who will be significantly affected by the issues presented in paragraph (a)(1) of this section.
(b) Duties of conveners. The convener shall report findings under paragraph (a)(2) of this section and shall make recommendations to the Council or NMFS. Upon request of the Council or NMFS, the convener shall ascertain the names of persons who are willing and qualified to represent interests that will be significantly affected by the potential conservation and management measures relevant to the issues to be negotiated. The report and any recommendations of the convener shall be made available to the public upon request.
(c) Selection of facilitator. Notwithstanding section 10(e) of the Federal Advisory Committee Act (FACA), a Council or NMFS may nominate a person trained in facilitation either from the Federal Government or from outside the Federal Government to serve as an impartial, neutral facilitator for the negotiations of the FNP, subject to the approval of the FNP, by consensus. The facilitator may be the same person as the convener used under paragraph (a) of this section. If the FNP does not approve the nominee of the Council or NMFS for facilitator, the FNP shall submit a substitute nomination. If an FNP does not approve any nominee of the Council or NMFS for facilitator, the FNP shall select, by consensus, a person to serve as facilitator. A person designated to represent the Council or NMFS in substantive issues may not serve as facilitator or otherwise chair the FNP.
(d) Roles and duties of facilitator. A facilitator shall:
(1) Chair the meetings of the FNP in an impartial manner.
(2) Impartially assist the members of the FNP in conducting discussions and negotiations.
(3) Manage the keeping of minutes and records as required under section 10(b) and (c) of FACA.
(a) Publication of notice. If, after considering the report of a convener or conducting its own assessment, a Council or NMFS decides to establish an FNP, NMFS shall publish in the Federal Register and, as appropriate, in trade or other specialized publications, a document that shall include:
(1) An announcement that the Council or NMFS intends to establish an FNP to negotiate and develop a report concerning specific conservation and management measures.
(2) A description of the subject and scope of the conservation and management measure, and the issues to be considered.
(3) A list of the interests that are likely to be significantly affected by the conservation and management measure.
(4) A list of the persons proposed to represent such interests and the person or persons proposed to represent the Council or NMFS.
(5) A proposed agenda and schedule for completing the work of the FNP.
(6) A description of administrative support for the FNP to be provided by the Council or NMFS, including technical assistance.
(7) A solicitation for comments on the proposal to establish the FNP, and the proposed membership of the FNP.
(8) An explanation of how a person may apply or nominate another person for membership on the FNP, as provided under paragraph (b) of this section.
(b) Nomination of members and public comment. Persons who may be significantly affected by the development of conservation and management measure and who believe that their interests will not be adequately represented by any person specified in a document under paragraph (a)(4) of this section may apply for, or nominate another person for, membership on the FNP to represent such interests. Each application or nomination shall include:
(1) The name of the applicant or nominee and a description of the interests such person shall represent.
(2) Evidence that the applicant or nominee is authorized to represent parties related to the interests the person proposes to represent.
(3) A written commitment that the applicant or nominee shall actively participate in good faith in the development of the conservation and management measure under consideration.
(4) The reasons that the persons specified in the document under paragraph (a)(4) of this section do not adequately represent the interests of the person submitting the application or nomination.
(c) Public comment. The Council or NMFS shall provide at least 30 calendar days for the submission of comments and applications under this section.
(a) Determination to establish an FNP. If, after considering comments and applications submitted under § 600.753, the Council or NMFS determines that an FNP can adequately represent the interests that will be significantly affected and that it is feasible and appropriate in the particular case, the Council or NMFS may establish an FNP.
(b) Determination not to establish FNP. If, after considering such comments and applications, the Council or NMFS decides not to establish an FNP, the Council or NMFS shall promptly publish notification of such decision and the reasons therefor in the Federal Register and, as appropriate, in trade or other specialized publications, a copy of which shall be sent to any person who applied for, or nominated another person for membership on the FNP to represent such interests with respect to the issues of concern.
(a) General authority.
(1) A Council may establish an FNP to assist in the development of specific conservation and management measures for a fishery under its authority.
(2) NMFS may establish an FNP to assist in the development of specific conservation and management measures required for:
(i) A fishery for which the Secretary has authority under section 304(e)(5) of the Magnuson-Stevens Act, regarding rebuilding of overfished fisheries;
(ii) A fishery for which the Secretary has authority under 16 U.S.C. section 304(g), regarding highly migratory species; or
(iii) Any fishery with the approval of the appropriate Council.
(b) Federal Advisory Committee Act (FACA) In establishing and administering such an FNP, the Council or NMFS shall comply with the FACA with respect to such FNP.
(c) Balance. Each potentially affected organization or individual does not necessarily have to have its own representative, but each interest must be adequately represented. The intent is to have a group that as a whole reflects a proper balance and mix of interests. Representatives must agree, in writing, to negotiate in good faith.
(d) Membership. The Council or NMFS shall limit membership on an FNP to no more than 25 members, unless the Council or NMFS determines that a greater number of members is necessary for the functioning of the FNP or to achieve balanced membership. Each FNP shall include at least one person representing the Council in addition to at least one person representing NMFS.
(a) Roles and duties of an FNP. Each FNP shall consider the issue proposed by the Council or NMFS for consideration and shall attempt to reach a consensus concerning a report to assist in the development of a conservation and management measure with respect to such matter and any other matter the FNP determines is relevant to the development of a conservation and management measure. An FNP may adopt procedures for the operation of the FNP.
(b) Roles and duties of representative of the council or NMFS. The person or persons representing the Council or NMFS on an FNP shall participate in the deliberations and activities of the FNP with the same rights and responsibilities as other members of the FNP, and shall be authorized to fully represent the Council or NMFS in the discussions and negotiations of the FNP.
(a) Services of conveners and facilitators. A Council or NMFS may employ or enter into contracts for the services of an individual or organization to serve as a convener or facilitator for an FNP established under § 600.755, or may use the services of a government employee to act as a convener or a facilitator for such an FNP.
(b) Councils. For an FNP proposed and established by one or more Councils approved expenses shall be paid out of the Council's operating budget.
(c) Expenses of FNP members. Members of an FNP shall be responsible for their own expenses of participation in such an FNP, except that NMFS or the Council may, in accordance with section 7(d) of FACA, pay for a member's reasonable travel and per diem expenses, and a reasonable rate of compensation, if:
(1) Such member certifies a lack of adequate financial resources to participate in the FNP.
(2) The Council or NMFS determines that such member's participation in the FNP is necessary to assure an adequate representation of the member's interest.
(d) Administrative support. The Council or NMFS shall provide appropriate administrative support to an FNP including technical assistance.
(a) At the conclusion of the negotiations, an FNP may submit a report. Such report shall specify:
(1) All the areas where consensus was reached by the FNP, including, if appropriate, proposed conservation and management measures.
(2) Any other information submitted by members of the FNP.
(b) Upon receipt of the report, the Council or NMFS shall publish such report in the Federal Register for public comment.
A Council or NMFS may, at its discretion, use all or a part of a report prepared in accordance with § 600.758 in the development of conservation and management measures. Neither a Council nor NMFS, whichever is appropriate, is required to use such report.
(a) An FNP shall terminate upon either:
(1) Submission of a report prepared in accordance with § 600.758; or
(2) Submission of a written statement from the FNP to the Council or NMFS that no consensus can be reached.
(b) In no event shall an FNP exist for longer than 1 year from the date of establishment unless granted an extension. Upon written request by the FNP to the Council or NMFS, and written authorization from the Council or NMFS (whichever is appropriate), the Secretary may authorize an extension for a period not to exceed 6 months. No more than one extension may be granted per FNP.