Although I believe many of the amendments made by the Marine Sanctuaries Amendments will improve the procedures for designating marine sanctuaries, I have been advised by the Department of Justice that the method Congress has chosen in this title for preparing proposed regulations governing fishing within the United States Fishery Conservation Zone will raise fundamental constitutional questions unless the act is given a careful narrowing construction. Under the bill, these regulations are to be drafted initially by Regional Fishery Management Councils, which include members chosen by State governments. See 16 U.S.C. 1852. When a Council prepares a draft regulation, the Secretary of Commerce is directed to issue it as a proposed regulation ``unless [he] finds the Council's action fails to fulfill the purposes and policies of this title and the goals and objectives of the proposed designation.'' See sec. 304(a)(5) of the Marine Protection, Research, and Sanctuaries Act of 1972, as enacted by the bill. The Department of Justice has advised me that the promulgation of regulations by persons, such as Council members, who are not appointed by the President, would violate the appointments clause, Art. II, sec. 2, cl. 2, of the Constitution. See Buckley v. Valeo, 424 U.S. 1, 126 (1976). For this reason, I am signing this legislation based on my understanding that the Councils will only make recommendations with respect to proposed regulations. It is the Secretary, not the Councils who must make the final decisions on the appropriate final action to be taken in response to recommendations transmitted by the Councils.

I fully support the important environmental goals that this legislation seeks to further. Nevertheless, this valid and worthy objective must be carried out consistent with the appointments clause.

Note: As enacted, S. 1102 is Public Law 98 - 498, approved October 19.