Procedures for Review of Fishery Management Council Financial Disclosures and Recusal Determinations

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Department of Commerce · National Oceanic & Atmospheric Administration · National Marine Fisheries Service

NATIONAL MARINE FISHERIES SERVICE PROCEDURE 01-116-01
Effective on: October 4, 2021
To be reviewed on: October 4, 2026

Fisheries Management
Fishery Management Council Financial Disclosures and Recusal, NMFSPD 01-116-01
PROCEDURES FOR REVIEW OF FISHERY MANAGEMENT COUNCIL
FINANCIAL DISCLOSURES AND RECUSAL DETERMINATIONS
NOTICE: This publication is available at: https://www.fisheries.noaa.gov/national/lawsand-policies/fisheries-management-policy-directives
Author name: Morgan Corey
Office: F/SF3

Certified by: Kelly Denit
Office: F/SF

Type of Issuance: Revision
SUMMARY OF REVISIONS:
NMFS 01-116-01, initially effective on September 25, 2014, is revised to provide additional
guidance on preparing recusal determinations and the development of regional recusal
determination procedure handbooks.
signed by
DENIT.KELLY.L.1365 Digitally
DENIT.KELLY.L.1365842074
842074
Date: 2021.10.05 13:01:44 -04'00'
Signed ___________________________________
Kelly Denit
Date
Director, Office of Sustainable Fisheries

I.

Introduction
As outlined in Policy Directive 01-116, it is the policy of the National Oceanic and
Atmospheric Administration’s (NOAA’s) National Marine Fisheries Service (NMFS) to
provide an effective and transparent process to carry out the responsibilities of the
Secretary pursuant to Section 302(j) of the Magnuson-Stevens Fishery Conservation and
Management Act (MSA) and implementing regulations at 50 CFR 600.235. Section
302(j) (16 U.S.C. 1852(j)) and implementing regulations require nominees and appointed
Fishery Management Council (Council) members to disclose any financial interest in
harvesting, processing, lobbying, advocacy, or marketing activity that is being, or will be,
undertaken within any fishery over which the Council concerned has jurisdiction.
Section 302(j) and implementing regulations also require the voting recusal of an
appointed Council member when a Council decision would have a significant and

NMFS Procedure 01-116-01, Effective Date (October 4, 2021)
predictable effect on the member’s financial interests. This procedural directive provides
the guidance necessary to:
(1) ensure a successful and thorough vetting process to review the completeness and
accuracy of information in financial disclosure forms submitted by Council nominees
and members;
(2) provide formulas for partially attributing fishing activity in the calculation of a
Council member’s financial interests relative to the regulatory thresholds for recusal;
and
(3) establish a process for issuing and modifying regional recusal determination
procedure handbooks.
This procedural directive initially was prepared in consideration of the Department of
Commerce (DOC) Office of Inspector General (OIG) January 16, 2013, audit report (OIG
report). The OIG report, in part, provided three recommendations for NOAA that would
assist in strengthening agency guidance on financial disclosures by Council voting
members, with an emphasis on how NOAA intends to handle specific consequences for
conflicts of interest or potential conflicts of interest it identifies. The OIG report
recommended that NOAA:
(1) strengthen policy guidance on financial disclosure by Council voting members;
(2) strengthen processes for formal reviews of financial interest disclosures; and
(3) strengthen criteria for identifying conflicts of interest and processes to follow up
on any conflicts that are identified.
NMFS, in consultation with the NOAA Office of General Counsel (GC), the Council
Coordination Committee (16 U.S.C. 1852(l)), and the DOC General Counsel (GC) Ethics
Law and Programs Division, reviewed its existing policies and procedures regarding
financial disclosure by nominees and Council members and recusal of Council members
due to a conflict of interest in light of the OIG’s recommendations. To address the OIG
report’s recommendations, NMFS revised NOAA’s Statement of Financial Interest Form
(NOAA Form 88-195) to more closely follow the regulatory disclosure requirements and
to provide a question and answer format to assist Council members in identifying all of
the financial interests that must be disclosed. NMFS also developed this procedural
directive, initially issued in September 2014, to strengthen processes for formal reviews
of financial disclosures, increase the transparency provided by financial disclosures, and
assist Council members in avoiding conflicts between their personal financial interests
and the official work of the Councils.
In August 2015, the Councils requested that NMFS provide additional guidance on the
process followed by the agency in preparing and issuing recusal determinations,
including guidance on how the agency calculates financial interests for comparison with
the regulatory recusal thresholds. NMFS agreed and modified regulations at 50 CFR
600.235 to address various aspects of recusal determinations, thereby increasing the
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NMFS Procedure 01-116-01, Effective Date (October 4, 2021)
predictability and transparency of the recusal determination process and further
advancing the OIG report’s third recommendation. The final rule implementing the new
regulations was published in the Federal Register on September 11, 2020 (85 Fed. Reg.
56,177). Section III of this procedural directive has been modified to include formulas
for partially attributing fishing activity and additional guidance on the process for issuing
and modifying regional recusal determination procedure handbooks.
II.

Objective
This procedural directive outlines specific guidance for NMFS and relevant parties in the
Council process to comply with financial disclosure and recusal requirements. It is the
policy of NMFS, in order to carry out the responsibilities of the Secretary pursuant to
Sections 302(g) and (j) of the MSA and implementing regulations, to provide an effective
and transparent process for submission and review of financial disclosure forms and for
identifying and resolving any conflicts of interest by Council members. The process
should ensure Council appointments are made using complete and accurate financial
information from nominees, and financial disclosure forms submitted by SSC and
Council members are complete and available to the public. The process also should
ensure Council members and the public are aware of the information and methods used in
determining whether recusal of a Council member is required due to a conflict of interest,
and the procedures followed in issuing recusal determinations. In accordance with the
MSA and 50 CFR 600.235(i), it is unlawful for an affected individual to knowingly and
willfully fail to disclose, or to falsely disclose, any financial interest as required by the
MSA, or to knowingly vote on a Council decision in violation of the MSA.

III.

Guidance
NMFS has established a vetting process to review the completeness and accuracy of
information in Council nominees’ and members’ financial disclosure forms. The
procedures outlined in the Recusal Determinations and Regional Recusal Determination
Procedure Handbooks sections serve to document the vetting process and ensure
consistency in the process for each NMFS Region and Council.

Financial Disclosure Form Vetting for Nominees for Council Membership
•

Regulations at 50 CFR 600.235 require each nominee for Council membership (including
current members nominated for re-appointment) to submit a completed financial disclosure
form with the NMFS Assistant Administrator by April 15 or, if nominated after March 15,
within one month after nomination by a Governor.

•

NMFS Office of Sustainable Fisheries (OSF) will perform an initial review of the submitted
forms for completeness as a part of the nomination process. NMFS OSF will provide NMFS
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NMFS Procedure 01-116-01, Effective Date (October 4, 2021)
Regional Offices with copies of the submitted forms for all nominees under their jurisdiction
and NMFS Regional Offices will have the opportunity to review these forms and provide
comments on the submitted forms to NMFS OSF. During its review, NMFS OSF may ask
nominees to revise and re-submit their financial disclosure forms.
•

After completing its review, NMFS OSF will forward the submitted forms from nominees
with reported financial interests to the NMFS Office of Law Enforcement (OLE) for review,
to determine and verify any connections to fishing vessels or other interests (per 50 CFR 600
et. seq.). During this review, nominees may be asked to revise and re-submit their financial
disclosure forms.

•

When the submitted forms have been vetted by NMFS OSF and NMFS OLE, they will be
considered properly reviewed. No further revisions to information in the forms will be
required unless the nominee notifies NMFS of a change in his or her financial interests.

•

For each nominee appointed by the Secretary to serve as a Council member, NMFS OSF will
forward the vetted financial disclosure form to the Executive Director of the corresponding
Council.

Financial Disclosure Form Vetting for Appointed Council Members
•

Regulations at 50 C.F.R. 600.235 require appointed Council members to submit a completed
financial disclosure form with their Council Executive Directors: (1) within 45 days of taking
office (including re-appointed members); (2) within 30 days of the time any such financial
interest is acquired or substantially changed; and (3) by February 1 of each year regardless of
whether any financial information has changed.

•

For the annual financial disclosure requirement, Council Executive Directors should
distribute new financial disclosure forms to Council members and collect completed forms in
a timely manner.

•

Council Executive Directors should review annual and supplemental financial disclosure
forms submitted by Council members to ensure each form is fully completed, and is signed
and dated, following up with the member as necessary. During this review, Council members
may be asked to revise and re-submit their financial disclosure forms.

•

Council Executive Directors will then forward the submitted forms to the appropriate NMFS
Regional Office, copying NMFS OSF.

•

Upon receipt, NMFS Regional Offices should review and verify the information on the
submitted forms against readily available information, checking back with the Council
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NMFS Procedure 01-116-01, Effective Date (October 4, 2021)
Executive Director and member as necessary to confirm the information. The NMFS
Regional Office should consult with its NOAA GC Regional Section on any legal questions
that may arise with a submitted form. During this review, Council members may be asked to
revise and re-submit their financial disclosure forms.
•

When the submitted forms have been vetted by the NMFS Regional Office, they will be
considered properly reviewed. The NMFS Regional Office should notify its corresponding
Council Executive Director(s) that it has completed the vetting process, coordinate with
Council Executive Directors on any financial information changes or clarifications made
during the vetting process, and ensure that the Council has copies of the submitted forms that
have been vetted.

•

Each Council Executive Director will make the appointed Council members’ forms publicly
available and post them to the corresponding Council’s website in a prominent manner.

•

NMFS Regional Offices are to: (1) maintain a file of submitted financial disclosure forms
for the region’s Council(s), keeping each form for a Council member in accordance with the
regulations at 50 CFR 600.235(b)(5) and (2) make the forms available to the Regional
Administrator and NOAA GC to aid in any conflict of interest or recusal determination.

Recusal Determinations
Section 302(j) of the MSA prohibits an appointed Council member from voting on a Council
decision that would have a significant and predictable effect on the Council member’s financial
interests. Regulations implementing this recusal requirement are located at 50 CFR 600.235.
Many aspects of recusal determinations are now addressed in the regulations (see 85 FR 56177;
September 11, 2020).
NMFS and NOAA GC determined that additional guidance on the formulas for partially
attributing fishing activity and vessel ownership, and the process for issuing and modifying
regional recusal determination procedure handbooks is necessary to ensure consistent application
across the regions and Councils. The Recusal Determinations Section sets forth guidance on the
formulas for partially attributing fishing activity and vessel ownership for directly and indirectly
owned financial interests. The Regional Recusal Determination Procedure Handbooks Section
provides guidance on the process for issuing and modifying regional recusal determination
procedure handbooks.
NMFS policy directive 01-116, this procedural directive, and the Regional Recusal
Determination Procedure Handbooks supplement the recusal regulations at 50 CFR 600.235. The
recusal regulations at 50 CFR 600.235, together with the guidance in the policy and procedural
directives and the Regional Recusal Determination Procedure Handbooks, will provide NMFS,
NOAA GC, the Councils, and the public with a thorough understanding of, and process for, the
preparation and issuance of recusal determinations, thereby improving the transparency and
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NMFS Procedure 01-116-01, Effective Date (October 4, 2021)
predictability of recusal determinations.
Guidance on Partially Attributing Financial Interests
For certain financial interests, regulations at 50 CFR 600.235(c)(6) require designated officials to
attribute to an appointed Council member fishery harvesting, processing, and marketing activity,
and vessel ownership, commensurate with the percentage of ownership of the financial interest.
This attribution is necessary to determine whether the appointed Council member has a
significant financial interest in the fishery or sector of the fishery affected by the Council
decision. Designated officials will attribute all financial interests of an appointed Council
member.
The following hypothetical situations demonstrate how financial interests are to be partially
attributed:
In 2021, a Regional Fishery Management Council is considering an action that
would change the regulations governing a commercial fishery managed by the
Council. In 2020, thirty vessels participated in this commercial fishery and the
total harvest was 100,000 pounds of fish. Given these facts and applying the
regulations at 50 CFR 600.235, harvest greater than 10,000 pounds represents a
significant financial interest and recusal would be required. Additionally, vessel
ownership greater than 3 vessels represents a significant financial interest and
recusal would be required.
Situation #1: Council member Jones owns 75% of Fishing Company A, which
owns and operates three catcher vessels in the commercial fishery under
consideration. In 2020, Fishing Company A’s vessels together harvested a
combined 7% of the total harvest (7,000 pounds).
Situation #2: Same as #1, but additionally, Fishing Company A owns 50% of
Fishing Company B, a fishing company that owns and operates two catcher
vessels in the same commercial fishery. In 2020, Fishing Company B’s vessels
together harvested a combined 5% of the total harvest (5,000 pounds).
Situation #3: Same as #2, but additionally, Fishing Company B owns 60% of
Fishing Company C, a fishing company that owns and operates one catcher vessel
in the same commercial fishery. In 2020, Fishing Company C’s vessel harvested
8% of the total harvest (8,000 pounds).
In all of these Situations, Council member Jones has direct ownership of Fishing
Company A; in Situations #2 and #3, Council member Jones also has indirect ownership
of both Fishing Company B and C.
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NMFS Procedure 01-116-01, Effective Date (October 4, 2021)
Partially Attributing Fishing Activity
In Situation #1, a total of 5,250 pounds of fish would be attributed to Council member
Jones as follows:
75% x 7,000 pounds = 5,250 pounds attributable to Council member Jones

In Situation #2, a total of 7,125 pounds of fish would be attributable to Council member
Jones as follows:

50% x 5,000 pounds = 2,500 pounds of Fishing Company B harvest attributable to Fishing Company A
2,500 pounds + 7,000 pounds = 9,500 pounds of harvest attributable to Fishing Company A
75% x 9,500 pounds = 7,125 pounds attributable to Council member Jones

In Situation #3, a total of 8,925 pounds of fish would be attributable to Council member
Jones as follows:

60% x 8,000 pounds = 4,800 pounds of Fishing Company C harvest attributable to Fishing Company B
4,800 pounds + 5,000 pounds = 9,800 pounds of harvest attributable to Fishing Company B
50% x 9,800 pounds = 4,900 pounds of Fishing Company B harvest attributable to Fishing Company A
4,900 pounds + 7,000 pounds = 11,900 pounds of harvest attributable to Fishing Company A
75% x 11,900 pounds = 8,925 pounds attributable to Council member Jones

Council member Jones would not be required to recuse herself in any Situation based on
the harvest threshold because the amount of the total harvest attributable to her is not
greater than 10,000 pounds and; therefore, does not represent a significant financial
interest.
Partially Attributing Fishing Vessels
In Situation #1, a total of 2.25 vessels would be attributed to Council member Jones as
follows:
0.75 vessel (75% x Fishing Company A vessel #1)
0.75 vessel (75% x Fishing Company A vessel #2)
+ 0.75 vessel (75% x Fishing Company A vessel #3)
2.25 vessels attributable to Council member Jones

In Situation #2, a total of 3 vessels would be attributable to Council member Jones as
follows:
0.75 vessel (75% of Fishing Company A vessel #1)
0.75 vessel (75% of Fishing Company A vessel #2)
0.75 vessel (75% of Fishing Company A vessel #3)
0.375 vessel (75% of 50% (or 37.5%) of Fishing Company B vessel #1)
+ 0.375 vessel (75% of 50% (or 37.5%) of Fishing Company B vessel #2)
3.00 vessels attributable to Council member Jones

In Situation #3, a total of 3.225 vessels would be attributable to Council member Jones as
follows:
0.75 vessel (75% of Fishing Company A vessel #1)
0.75 vessel (75% of Fishing Company A vessel #2)
0.75 vessel (75% of Fishing Company A vessel #3)
0.375 vessel (75% of 50% (or 37.5%) of Fishing Company B vessel #1)
0.375 vessel (75% of 50% (or 37.5%) of Fishing Company B vessel #2)
+ 0.225 vessel (75% of 50% of 60% (or 22.5%) of Fishing Company C vessel #1)

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NMFS Procedure 01-116-01, Effective Date (October 4, 2021)
3.225 vessels attributable to Council member Jones

In Situations #1 and #2, Council member Jones would not be required to recuse herself
based on the vessel ownership threshold because the number of vessels attributable to her
is not greater than 3 vessels and therefore does not represent a significant financial
interest. However, in Situation #3, Council member Jones would be required to recuse
herself based on the vessel ownership threshold because the number of vessels
attributable to her is greater than 3 vessels and; therefore, does represent a significant
financial interest.
Regional Recusal Determination Procedure Handbooks
Regulations at 50 CFR 600.235(f) require each NMFS Regional Office, in conjunction with the
NOAA General Counsel Regional Section, to develop a Regional Recusal Determination
Procedure Handbook(s). Regional Recusal Determination Procedure Handbooks explain the
process and procedure typically followed by the region in preparing and issuing recusal
determinations. The regulations at 50 CFR 600.235(f) state what must be included in the
Handbook(s), but this procedural directive provides the process to be followed for issuing and
modifying the Handbooks.
Issuance of Regional Recusal Determination Procedure Handbooks
•

After the NMFS Regional Office and the NOAA GC Regional Section develop a proposed
Regional Recusal Determination Procedure Handbook in accordance with 50 CFR
600.235(f), each NOAA GC Regional Section should provide NMFS OSF and NOAA GC
Fisheries and Protected Resources Section with an opportunity to review and comment on the
proposed Regional Recusal Determination Procedure Handbook. Agency review should be
completed before the proposed Regional Recusal Determination Procedure Handbooks are
provided to the Council(s) for review.

•

Proposed Regional Recusal Determinations Procedure Handbooks should be ready for
Council review within two years from the effective date of this procedural directive and as
soon as possible during this period of time.

•

When the proposed Regional Recusal Determination Procedure Handbook is ready for
Council review, each NOAA GC Regional Section should provide a copy of the proposed
Regional Recusal Determination Procedure Handbook to the Executive Director(s) of the
Council(s) in the region for Council review and comment. The period of time provided to a
Council to review and comment on the proposed Regional Recusal Determination Procedure
Handbook should include at least one Council meeting at which discussion of the proposed
Regional Recusal Determination Procedure Handbook could be included on the Council’s
agenda.

•

After providing the Council(s) in the region with a reasonable period of time to review and
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NMFS Procedure 01-116-01, Effective Date (October 4, 2021)
comment on the proposed Regional Recusal Determination Procedure Handbook, the NOAA
GC Regional Section, NMFS Regional Office, and NMFS OSF should consider the
comments received from the Council(s) and prepare the final Regional Recusal
Determination Procedure Handbook.
•

When finalized, each NOAA GC Regional Section will provide NMFS OSF, the NMFS
Regional Office, NOAA GC Fisheries and Protected Resources Section, and the Executive
Director(s) of the Council(s) with copies of the final Regional Recusal Determination
Procedure Handbook(s).

Modifications to Regional Recusal Determination Procedure Handbooks
•

Regional Recusal Determination Procedure Handbooks should be modified as necessary to
stay current with the process and procedures that are typically followed by the region in
preparing and issuing recusal determinations.

•

Each NOAA GC Regional Section should provide NMFS OSF, its NMFS Regional Office,
and NOAA GC Fisheries and Protected Resources Section with an opportunity to review and
comment on all proposed modifications to the Regional Recusal Determination Procedure
Handbook before the proposed modifications are provided to the Council(s).

•

When agency review of the proposed modifications is completed, each NOAA GC Regional
Section should provide a copy of the Regional Recusal Determination Procedure Handbook
with the proposed modifications clearly identified to the Executive Director(s) of the
Council(s) in the region for Council review and comment. The period of time provided to a
Council to review and comment on proposed modifications should include at least one
Council meeting at which discussion of the proposed modifications could be included on the
Council’s agenda.

•

After providing the Council(s) in the region with a reasonable period of time to review and
comment on the proposed modifications, the NOAA GC Regional Section, NMFS Regional
Office, and NMFS OSF should consider the comments received from the Council(s).

•

If, based on comments from the Council(s) or further agency review, the agency determines
that the proposed modifications are not necessary, the NOAA GC Regional Section will
notify the Council(s) that no modifications will be made to the Regional Recusal
Determination Procedure Handbook. Otherwise, each NOAA GC Regional Section will
provide the NMFS OSF, NMFS Regional Office, NOAA GC Fisheries and Protected
Resources Section, and Executive Director(s) of the Council(s) with copies of the final
Regional Recusal Determination Procedure Handbook as modified.

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NMFS Procedure 01-116-01, Effective Date (October 4, 2021)
Post-Council Meeting Action
•

Council Executive Directors should record incidences of recusals or discussions surrounding
conflicts of interest by members, as required for inclusion in NMFS’ annual Report to
Congress, subsequent to each Council meeting. Council Executive Directors should submit
these records to NMFS Regional Offices in a timely manner.

•

Council Executive Directors and the NMFS Regional Offices are required to compile this
data by the end of the calendar year for inclusion in the annual Report to Congress on the
Disclosure of Financial Interest and Recusal Requirements for Councils and Scientific and
Statistical Committees.

Briefing of Councils on Financial Disclosure and Recusal Requirements
Both NMFS and the Councils want to ensure that Council members are well aware of their
responsibilities for financial disclosure and recusal, and that disclosure of their financial interests
allows them to fully participate in Council activities unless recused. For these reasons, and in the
interest of transparency and public understanding, NMFS and NOAA GC will continue to
communicate the existing policies and procedures concerning financial disclosure and recusal to
all NMFS employees, Council members, Council staff, and the public. Consistent with this,
NOAA GC will conduct an annual briefing for the Councils on financial disclosure and recusal
requirements. Any briefings or trainings, either coordinated by NOAA GC or OSF, will address
completing financial disclosure forms, the recusal process, and discuss penalties.
Public Online Access to Regional Recusal Determination Procedure Handbooks and
Recusal Determinations
In coordination with each NOAA GC Regional Section, each NMFS Regional Office will create
a place on the NMFS Regional Office webpage where the public can access the region’s
Regional Recusal Determination Procedure Handbook(s), any written recusal determinations,
and any appeals of recusal determinations. Following the effective date of this procedural
directive, each NOAA GC Regional Section should provide its NMFS Regional Office web
administrator with all written recusal determinations and appeal decisions, and electronic copies
of the Regional Recusal Determination Procedure Handbook(s), as they become available. As
time and resources permit, any written recusal determinations and appeal decisions issued prior
to the effective date of this procedural directive should be added to the NMFS Regional Office
webpage. All written recusal determinations and appeal decisions made publicly available will
protect from disclosure all confidential and protected information. NMFS OSF will maintain a
place on its webpage that provides links to all of the NMFS Regional Office webpages and
serves as a central source for locating all Regional Recusal Determination Procedure Handbooks,
any written recusal determinations, and any appeal decisions.
Supplemental Information

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NMFS Procedure 01-116-01, Effective Date (October 4, 2021)
The current Statement of Financial Interests form 88-195 (OMB No. 0648-0192) is available at:
https://www.fisheries.noaa.gov/national/partners/financial-disclosure-statements.

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