Applicability of Executive Order No. 12674 to Personnel of Regional Fishery Management Councils

Applicability o f Executive Order No. 12674 to Personnel of
Regional Fishery Management Councils

The ap p ointed m em bers o f Regional Fishery M anagem ent C ouncils established under the M agnuson
Fishery C onservation and M anagem ent A ct and other personnel of those C ouncils are not executive
branch em ployees for purposes of E xecutive O rder No. 12674 and its im plem enting regulations,
and thus are not subject to that Order.

D ecem ber 9, 1993

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
D epa rtm en t o f C o m m er c e

This memorandum responds to your request1 for our opinion whether Executive
Order No. 12674, 3 C.F.R. 215 (1990) (“Order”), and the regulations implement­
ing it apply to officials of the Regional Fishery Management Councils (“Councils”)
established under the Magnuson Fishery Conservation and Management Act, 16
U.S.C. §§ 1801-1882 (“Magnuson Act” or “FCMA”).2 The officials in question
are the Council members appointed by the Secretary of Commerce (“Secretary”)
and the Councils’ executive directors and administrative employees. We conclude
that, under the unusual statutory scheme of the Magnuson Act, appointed Council
members and the other Council personnel under consideration are not executive
branch “employees” subject to the Order.

I.

The Magnuson Act created eight Councils from regional groupings of coastal
States and gave them certain authority concerning ocean fisheries to the seaward of
their member States. See 16 U.S.C. § 1852(a). The Secretary appoints a majority
of the voting membership for three-year terms. Id. § 1852(a)-(b). The remaining
members, voting and nonvoting, are State and Federal officials who serve ex offi­
cio. Id § 1852(b)-(c).3 The appointed Council members may be removed by the
Secretary only “for cause . . . if the Council concerned first recommends removal

1 S e e L etter fo r T im o th y E. Flanigan, A ssistan t A ttorney G eneral, O ffice o f Legal C ounsel, D epartm ent of
Ju stic e , from D epartm ent o f C om m erce (Ju ly 17, 1992) (“C om m erce L etter’ ).
2 T he O rd e r w as am en d ed by Exec O rd e r No. 12731, 3 C F.R 306 (1991), in respects not pertinent to
this discu ssio n . T h e O ffice o f G overnm ent E th ic s ’ regulations im plem enting the O rder took effect on F ebru­
ary 3, 1993. S ee 57 Fed. Reg. 35,006 (1 9 9 2 ) (to be co d ified at 5 C .F R. pt. 2635).
1 T he Pacific C ouncil also h a s one n o n v o tin g m em ber appointed by, and serving at the pleasure of, the
G o v ern o r o f A laska 16 U S.C. § 1852(c)(2). W e understand from discussions w ith your staff that the term
“ m em b ers," as used in the C om m erce L etter, is lim ited to m em b ers of a C ouncil appointed by the Secretary.
C o n seq u en tly , w e have focused our analysis on this category. W e use the term “appointed” C ouncil m em ­
bers to d istin g u ish such m em b ers from th o se w h o serve ex officio'.

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by not less than two-thirds of the members who are voting members.” Id.
§ 1852(b)(5).
Each Council has the authority to appoint an executive director and such other
administrative employees as the Secretary deems necessary. Id. § 1852(f)(1)- The
Secretary pays appointed Council members “the daily rate for GS-16 of the Gen­
eral Schedule, when [such member is] engaged in the actual performance of duties
for [a] Council.” Id. § 1852(d).4 The Secretary also pays “appropriate compensa­
tion” to the executive director and administrative employees. Id. § 1852(0(7).
The Administrator of General Services furnishes the Councils with such offices
and office supplies as any agency would receive. Id. § 1852(f)(4).
The Councils advise the Secretary in formulating fishery management plans
within their respective geographical areas. Id. § 1852(h). The management plans
must conform to national standards, id. § 1851, with respect to which the Secretary
has promulgated implementing guidelines. See 50 C.F.R. pt. 602 (1993). The
Councils generally are required to open their proceedings to the public and must
hold hearings to consider comments from interested persons during the develop­
ment of management plans. 16 U.S.C. § 1852(h)(3). After a management plan is
prepared by a Council, it is submitted to the Secretary, who reviews it and either
approves, disapproves, or partially disapproves it. Id. § 1854(a), (b). If a Council
fails to develop and submit a management plan, or fails to change a plan that the
Secretary has partially or completely disapproved, the Secretary may prepare a
management plan for that region. Id. § 1854(c). However, “the Secretary may not
include in any fishery management plan, or any amendment to any such plan, pre­
pared by him, a provision establishing a limited access system [with respect to a
fishery] . . . unless such system is first approved by a majority of the voting mem­
bers, present and voting, of each appropriate Council.” Id. § 1854(c)(3). After a
management plan has been prepared or approved by the Secretary, the Secretary
promulgates implementing regulations. Id. § 1855(a). The Secretary is responsi­
ble for the enforcement of the FCMA and implementing regulations. See id.
§§ 1858,1861.
In the words of the FCMA’s principal sponsor, Senator Warren G. Magnuson,
the Councils

are unique among institutions that manage natural resources. They
are neither state nor federal in character, although they possess
qualities of each. Their powers are derived from the constitutional
authority of the federal government, yet the Councils are self­
determinant in their own affairs. Enforcement and administration of
the Councils’ plans and regulations are carried out by the responsi­
ble federal agencies.

4 The G S-16 level in the G eneral Schedule no longer exists See Exec. O rder N o 12786, 3 C F R 376,
378 (1992).

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* * *

Although the Councils are to be relatively independent, each Coun­
cil must operate within the uniform standards promulgated by the
Secretary of Commerce that govern the administration of the Act.
The principal function of the Councils is to formulate fishery man­
agement plans upon which management and conservation regula­
tions are to be based.

Warren G. Magnuson, The Fishery Conservation and Management Act o f 1976:
First Step Toward Improved Management o f Marine Fisheries, 52 Wash. L. Rev.
427,436-37 (1977).

II.

The Order’s preamble recites that it is intended to set forth “standards of ethical
conduct for all executive branch employees.”5 The term “employee” is defined
only as follows: “any officer or employee of an agency, including a special Gov­
ernment employee.” Id. § 503(b).6 An “agency” means any “executive department
. . ., Government corporation . . ., or an independent establishment in the executive
branch,” as those terms are defined in 5 U.S.C. §§ 101, 103, and 104. Id. § 503(c).
A “Special Government employee” is “as defined in 18 U.S.C. 202(a).” Id.
§ 503(e).7
The Commerce Letter concludes that the Order and its implementing regulations
do not apply to appointed Council members and staff. It reasons that because the
authority for prescribing regulations governing standards of conduct is derived
from 5 U.S.C. § 7301,8 the definitions of “officer” and “employee” in title 5 should
determine whether the Order applies to the Councils.9 The Commerce Letter fur­

3 T h e O rd e r su p ersed es E xec. O rder No 11222 S ee 56 Fed. R eg 3 3 ,7 7 8 ,3 3 ,7 7 8 (1 9 9 1 )
6 A s the C o m m erce L etter notes, the term s ' ‘o fficer” and “‘e m p loyee” do not receive any further definition,
thus m aking the O rd e r s d efin itio n o f “e m p lo y ee” partly circular
7 S ection 202(a) o f title 18 defines a ' “sp ecial G overnm ent em p loyee” in part as any.
o ffice r or em p lo y ee o f the executive . . . branch w ho is retained, designated, appointed, or
em p lo y ed to p erform , w ith or without co m p en satio n , fo r not to exceed one hundred and thirty
days d u rin g any period o f three hundred and sixty-five co n secutive days, tem porary duties either
o n a full-tim e o r in term itten t basis.
8 5 U S C. § 7301 p rovides that “(t]he P resid en t m ay prescribe regulations for the conduct of e m ployees in
the e x ecu tiv e b ran ch .”
9 A n ‘‘o ffice r” under 5 U .S C § 2104 is:
[A ]n individual w ho is —
(1) required by law to be appointed m the civil service by one o f the following acting in an o ffi­
cial cap a c ity —
(A ) the President;
(B ) a court o f the U nited States;
(C ) the head o f an Executive ag en cy , or
(D ) the Secretary o f a military d ep artm en t,

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ther argues, in reliance on a 1976 opinion of the Acting General Counsel of the
former United States Civil Service Commission,10 that “Council staffs and mem­
bers are not Federal employees for the purposes of 5 U.S.C. § 2105 because al­
though the public members of the Councils are appointed by a Federal official
(namely the Secretary of Commerce) and Council members perform a Federal
function authorized by statute (e.g., preparing fishery management plans), there [is]
no supervisory relationship between the Secretary of Commerce and the Councils
within the meaning of section 2105(a)(3).” Commerce Letter at 5."

III.

We accept the premise of the Commerce Letter that the terms “officer” and
“employee,” as used in § 503(b) of the Order, are identical in scope and meaning
with the terms “officer” and “employee” as used in 5 U.S.C. §§ 2104 and 2105.
We further believe that, as those terms are used in 5 U.S.C. §§ 2104 and 2105, they
do not reach the appointed Council members.

A.

Three considerations point to the conclusion that the terms “officer” and
“employee” in the Order have the same meaning as those terms in 5 U.S.C. §§
2104 and 2105. First, in the absence of any definition of “employee” in the crimi­
nal conflict-of-interest statutes applicable to Federal employees in title 18, we have
generally assumed that the term “was no doubt intended to contemplate an em-
ployer-employee relationship as that term is understood in other areas of the law,”

(2) engaged in the perform ance o f a Federal function under authority o f law or an Executive act,
and
(3) subject to the supervision o f an authority nam ed by paragraph ( i ) o f this section, or the J u d i­
cial C onference o f the U nited States, w hile engaged in the perform ance o f the duties o f his office
An “em ployee" u n d er 5 U S.C § 2105 is
[A ]n officer an d an individual w ho is —
(1) appointed in the civil service by one o f the follow ing acting in an official capacity—
(A ) the President,
(B) a M em ber or M em bers o f C ongress, or the C ongress,
(C) a m em ber o f a uniform ed service,
(D ) an individual w ho is an em ployee under this section;
(E) the head o f a G overnm ent controlled corporation, or
(F ) an adjutant general designated by the Secretary concerned under section 709(c) o f title
32,
(2) engaged in the perform ance o f a Federal function under authority o f law or an E xecutive act,
and
(3) subject to the supervision o f an individual nam ed by paragraph (1) o f this subsection w hile
engaged in the perform ance o f the duties o f his position.
10 L etter for Joseph E K asputys, A ssistant Secretary for A dm inistration, D epartm ent o f C om m erce, from
Joseph B Scott, A cting G eneral C ounsel, C ivil Service C om m ission (A ug 3, 1976) ( '‘C SC O pinion” )
1 The C om m erce Letter does not specifically address the possibility that appointed C ouncil m em bers
might be w ithin title 5 ’s definition o f an “officer.” H ow ever, § 2 105’s definition o f an “e m ployee” explicitly
extends to “o fficers." In contending that appointed C ouncil m em bers are not “em ployees,” th erefore, the
C om m erce Letter im pliedly excludes their being “officers ”

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and in particular have turned to 5 U.S.C. § 2105 as providing “the most obvious
source of a definition” for title 18 purposes. See Conflict o f Interest — Status o f an
Informal Presidential A dvisor as a “Special Government E m ployee” 1 Op. O.L.C.
20, 20 (1977).12 Because the objectives of the Order and its implementing regula­
tions are closely related to those of the conflicts statutes, we think it reasonable to
look to title 5’s definition of “employee” when elucidating the Order. Cf. North-
cross v. Board ofE duc., 412 U.S. 427, 428 (1973) (similarity of language and pur­
pose in different statutes suggests that they be construed similarly).13
Second, although the Order does not expressly adopt title 5 ’s definition of an
“employee,” it does adopt that title’s definition of an “agency.” See Order § 503(c)
(“‘Agency’ means any executive agency as defined in 5 U.S.C. 105 . . . .”). We
think it unlikely that the Order was intended to cover personnel who were em­
ployed by “agencies” within the meaning of title 5 but who were not themselves
“employees” within the same title.
Third, although the Order’s preamble locates the President’s authority to issue
the Order in “the Constitution and laws of the United States” without specifying
any particular statutory provision, we agree with the Commerce Letter that the
most obvious statutory source of authority for the Order is 5 U.S.C. § 7301. That
section states that the President “may prescribe regulations for the conduct of em­
ployees in the executive branch,” 5 U.S.C. § 7301, and is a general statutory source
of authority for Presidential regulation of executive branch personnel. See N a t’l
A ss’n o f Letter Carriers v. Austin, 418 U.S. 264, 273 n.5 (1974); Crandon v.
United States, 494 U.S. 152, 183 (1990) (Scalia, J., concurring in the judgment)
(Executive Order No. 11222 was issued “under the President’s authority and pur­
suant to 5 U.S.C. § 7301”). Because the section occurs in title 5, its interpretation
is governed by the definition of an “employee” in § 2105 of the same title.14 To
the extent that the Order rests upon § 7301, therefore, its coverage must be limited
to the class of employees within § 2105.

12 S e e a lso M em o ran d u m for Irving P. M arg u lies, D eputy G eneral C ounsel, D epartm ent of C om m erce,
from T h eo d o re B. O lson, A ssistant Attorney G eneral, O ffice o f Legal C ounsel, Re: P re sid e n t's P rivate S e c ­
to r S u r v e y on C o st C o n tro l at 10 (Dec 15, 1982) (“the Title 5 definition o f em ployee is frequently used as a
starting p o in t for any analysis o f whether th e conflict o f in terest laws apply to a p articular individual . .
alth o u g h the T itle [5] d efin itio n is not necessarily conclusive fo r conflicts purposes” ).
13 T h e O rd e r ex p ressly covers both regular and special G o v ern m ent em ployees o f an agency See O rder §
5 0 3 (b ) A n in d iv id u a l’s status as a special (a s distinct from re g u la r) G overnm ent em ployee turns on w hether
the app o in tm en t is fo r no m ore than 130 d a y s out o f any c o n secu tive 365 days. See R estrictions on a F ed­
e ra l A p p o in te e 's C o n tin u ed Em ploym ent b y a P rivate Law F irm , 7 O p O L.C. 123, 126 (1983). W e have
ap p lied the e lem en ts o f title 5 ’s definition o f “ e m p lo y ee” lo b o th regular and special G overnm ent em ployees.
S e e 1 O p. O L C at 21, F ed era l Advisory C o m m ittee A c t (5 U .S C. App. I) — U nited S ta tes-Japan C onsulta­
tiv e G ro u p on E c o n o m ic R elations, 3 Op O .L C 321, 322-23 (1979).
14 S ectio n 2105 sp ecifies that its definition applies g enerally in title 5, “except as otherw ise provided by
this sec tio n o r w hen sp ecifically modified.*’ Section 7301 d o es not undertake to m odify § 2 1 0 5 ’s definition
o f an “e m p lo y e e,” and thus does not fall w ith in this exception

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B.

Assuming then that the Order applies only to “employees” within the meaning
of § 2105, an appointed Council member would have to meet each of the three
tests in § 2105 to be deemed a covered “employee.” He or she would have to be
(1) “appointed” by an appropriate official, (2) engaged in the performance of a
Federal function, and (3) subject to the supervision of an appropriate Federal offi­
cer or employee. See Horner v. Acosta, 803 F.2d 687, 691-92 (Fed. Cir. 1986)
(collecting cases); Costner v. United States , 665 F.2d 1016, 1019-20 (Ct. Cl.
1981).
It is not disputed that appointed Council members satisfy the first two of these
tests. The Commerce Letter contends, however, that the third test is not met. In its
view, because these Council members are not subject to the supervision of the Sec­
retary, they are not “employees” within § 2105 or the Order. We agree that the
third test is not met.
We begin by considering the text of the Magnuson Act. As we have observed,
“[t]he FCMA ‘adopts a somewhat convoluted scheme to achieve its purposes of
conservation and management of fishery resources.’” Litigating Authority o f the
Regional Fishery Management Councils, 4B Op. O.L.C. 778, 778 (1980) (quoting
Washington Trollers Ass'n v. Kreps, 466 F. Supp. 309, 311 (W.D. Wash. 1979),
rev ’d on other grounds, 645 F.2d 684 (9th Cir. 1981)) (“Litigating Authority”).15
Two features of the Act in particular demonstrate that Congress did not intend ap­
pointed Council members to be “subject to the supervision o f ’ the Secretary within
the meaning of § 2105. First, the Secretary’s removal power as to an appointed
Council member cannot be exercised except upon the prior recommendation of
two-thirds of a Council. See 16 U.S.C. § 1852(b)(5). This provision severely lim­
its the Secretary’s removal power and is designed to constrain narrowly the Secre­
tary’s ability to supervise and control the Council members he appoints. See
Morrison v. Olson, 487 U.S. 654, 694, 696 (1988) (power to remove officials pro­
vides ability to supervise and control them); M eyer v. Bush, 981 F.2d 1288, 1295
(D.C. Cir. 1993) (same).16

15 In enacting the M agnuson Act, C ongress “creat[ed] really a unique anim al in these m anagem ent coun­
cils, som ething that had not existed before W e tr[ied] to create som ething unique, and w e d id in the
regional m anagem ent councils We did not m ake them regular Federal em ployees, because we did not want
them to be regular Federal em ployees.” See F ishery C onservation a nd M anagem ent A c f H earings Before
the Subcom m on Fisheries and WiUlhje C onservation a n d the E nvironm ent oj the H ouse C om m on M er­
chant M arine a n d Fisheries, 96th C ong 4 4 8 -4 9 (1979) (“ 1979 H earings” ) (rem arks o f Rep Studds)
16 C onsistent w ith that intent, the H ouse R eport on the 1983 am endm ents to the M agnuson Act stated that
the C ouncils '‘en jo y some degree o f independence from the Secretary ’ See H R Rep No 97-549, at 15
(1982), rep rin ted in 1982 U S .C C A N 4320, 4328 (“ 1982 H ouse R eport” ) (accom panying H R 5002 e n ­
acted as Pub L. N o 97-453, 96 Stat 2481 (1 9 8 3 )) R epresentative Studds w ent further in em p h asizin g the
C ouncils' autonom y:
I w ould have been outraged looking at that statem ent “The councils enjoy som e degree of in d e ­
pendence from the Secretary ” That w as backw ards, absolutely inside-out and backw ard In
som e lim ited ways, the councils have som e responsibilities w hich involve the Secretary T hey are

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Second, any fishery management plan drafted by the Secretary may not limit ac­
cess to a fishery unless a majority of the voting membership of each affected
Council approves. See 16 U.S.C. § 1854(c)(3). Thus, the statute empowers the
Councils to prevent certain regulatory actions by the Secretary and, in effect, puts
the Councils on a footing with the Secretary in regulating access to regional fish­
eries. In view of both the powerful constraints on the Secretary’s removal author­
ity and the Councils’ apparent “veto” power over some of the Secretary’s
initiatives, it cannot be said that the Council members are subject to the Secretary’s
supervision.
Legislative history (albeit history relating to amendments to the original Magnu­
son Act) supports this reading of the statute. The House Report on the 1983
amendments to the Magnuson Act stated that “Council members and administrative
staffs are not Federal employees in the sense of 5 USC 2105 because they are not
appointed by, or subject to the supervision of Federal officials in their day-to-day
activities.” 1982 House Report at 15.17 Moreover, the Commerce Department
itself denies (and has long denied) that the Secretary of Commerce exercises su­
pervisory authority over the Councils. The Commerce Department’s position is
buttressed by the 1976 CSC Opinion. See Commerce Letter at 6.
Consequently, we conclude that appointed Council members are not
“employees” subject to the Order. In addition, the executive directors and admin­
istrative employees of the Councils also are not “employees” because they are ap­
pointed and supervised by the Councils, see 16 U.S.C. § 1852(0(1), a majority of
whose members are not federal employees, so that the requirements of 5 U.S.C. §
2105 again are not met. Accord 1982 House Report at 15.18
In reaching these conclusions, we do not suggest that the existence of statutory
limitations on removal is generally inconsistent with the retention of supervisory
power in the person who can exercise the power to remove. On the contrary, the
case law clearly supports the view that “for cause” limitations on removal power
can be compatible with the continuing power and duty to supervise.19 In the case
of the Councils, however, the statute does not restrict the Secretary’s removal

fu n d am en tally independent from the S ecretary They do not enjoy som e degree o f independence
from the S ecretary, they are basically, fundam entally and critically independent o f the Secretary.
1979 H earin g s at 4 4 9 -5 0
17 W e note that the H ouse R eport is in e rro r insofar as it slates broadly that C ouncil m em bers are not
appoin ted by Federal officials. The Secretary appoints the C ouncil m em bers w hose status is in question
here
18 H ow ev er, Federal em p lo y ees detailed to the C ouncils pu rsu ant to 16 U.S C § 1852(0(2) w ould retain
their statu s as “em p lo y e es” w ithin the m eaning o f 5 U S C § 2105.
19 See, e.g ., M o rriso n v. O lson, 487 U S at 692 (“good cause*’ lim itation on the A ttorney G eneral’s pow er
to rem ove in d ep en d en t co u n sel did not p rev en t A ttorney G eneral from exercising sufficient supervisory
authority to assu re that co u n sel perform ed co m p eten tly and in accordance w ith statutory m andate), B ow sher
v Svna r, 4 7 8 U.S 714, 72 6 , 7 2 8 -2 9 (1986) (C o n g re ss’s pow er to rem ove the C om ptroller G eneral for causes
in cludin g “in efficien cy , * “n eglect of duty,’* and “ m alfeasance’* enabled it to control execution o f law s by
C o m p tro lle r G eneral). Indeed, the very a b ility to rem ove for “cause*’ presupposes that the officer or body
that has the rem o v al p o w er m ust supervise the subordinate o ffic e r at least to the extent needed to determ ine
w hether “cause** for rem o v al exists

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power merely by requiring that “cause” for removal exist. It also demands that,
before a Council member can be removed, two-thirds of the Council’s voting
membership recommend such removal. In effect, the statutory scheme not only
circumscribes the removal power, but also vests that power jointly in the Secretary
and the Councils themselves. This unusual feature of the Magnuson Act distin­
guishes it from more traditional legislation in which some form of “cause” is all
that is required before removal can occur. As a result, the Councils possess greater
autonomy than that enjoyed, for example, by typical “independent” agencies.20
We also do not suggest that the Secretary utterly lacks any supervisory authority
with regard to the Councils. On the contrary, it is clear that under this unusual
statutory scheme, Congress intended the Secretary to exert substantial control over
basic aspects of the Councils’ activities. Thus, as we have pointed out:

However independent the Councils may be in their day-to-day op­
erations, ultimate authority over a majority of their membership,
budgets, and their major area of concern — the fishery management
plans — remains with the Secretary or other federal agencies. The
Councils perform the basic research, hold hearings, draft the plan
for their area, and propose regulations. It is the Secretary, however,
to whom the drafts and proposals are submitted and it is the Secre­
tary who either approves the management plan or amends it to his
satisfaction. It is also the Secretary who reviews the regulations to
insure their legality and who implements them.

Litigating Authority, 4B Op. O.L.C. at 782 (footnotes and citations omitted).21
In our judgment, however, the Secretary’s powers with respect to the Councils
do not suffice to render appointed Council members “employees” subject to the
Secretary’s supervision. As Senator Magnuson put it, “the Councils are self­
determinant in their own affairs.” Magnuson, supra at 436. The unusually severe
constraints on the Secretary’s removal power, coupled with the Councils’ ability to
“veto” the Secretary’s draft fishery management plan if the plan limits access to a
fishery, are incompatible with the ordinary meaning of supervision. Consequently,

20 C om pare 16 U S C § 1852(b)(5) (prior recom m endation o f tw o-thirds o f C ouncil needed before Sec-
retary may rem ove m em ber for “cause” ) with, e g , 1 5 U S C . § 41 (P resident may rem ove m em ber o f Fed­
eral Trade C om m ission for “inefficiency, neglect o f duty, o r m alfeasance in office” ) W e have found only
one other statute, 16 U S C § 4009, establishing certain seafood m arketing councils, that limits the rem oval
pow er in a fashion com parable to 16 U S.C § 1852(b)(5).
21 See also C hristopher L. K och, C om m ent, J udicial R eview o j F ishery M anagem ent Regulations U nder
the F is h e n ’ C onservation a n d M anagem ent A c t o f 1976, 52 W ash L. Rev. 599, 616, 6 20 (1977) (S ecretary
is final arbiter in prom ulgation o f fishery m anagem ent m easures and is responsible for ensuring that m an­
agem ent schem es com port w ith legislative standards, fact that Secretary m ust review C o u n cils' decisions
perm its scrutiny o f m anagem ent plans for self-serving m easures that C ouncils dom inated by fishing industry
m ight put forw ard).

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we conclude that appointed Council members are not employees covered by the
Order.

Conclusion

As a matter of statutory construction, and on the basis of the specific features of
the Magnuson Act, we conclude that Executive Order No. 12674, as amended by
Executive Order No. 12731, and the implementing regulations relating to that Or­
der, do not apply to appointed members, executive directors, or administrative em­
ployees of the Regional Fishery Management Councils.

WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel

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