OPERATIONAL GUIDELINES - Phase I

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B. PHASE I: PLANNING

Background

This phase comprises the actions required prior to the preparation of an FMP or amendment. It involves (1) preliminary identification of the fishery management unit (FMU), (2) conduct of the scoping process, (3) determination of which NEPA document will be prepared, and (4) initiation of actions having schedules independent of those established under the Magnuson-Stevens Act. Although required by different individual statutory or administrative mandates, each of these actions is closely interconnected, sharing the common purpose of gaining agreement on objectives and an early overview and understanding of what is involved in achieving them. Integrating the several identified required actions as fully as possible is desirable, and is the most efficient approach to accomplishing the steps in this phase.

Identifying an FMU

Section 302(h) of the Magnuson-Stevens Act provides that a Council is not required to prepare an FMP for every fishery-- only for "each fishery under its authority that requires conservation and management." Identification of an FMU may be assisted by reference to the guidelines for national standard 3 (50 CFR 600.320), which provide a definition of management unit, its relationship to the management objectives of the FMP, and some perspectives around which an FMU may be organized. In addition, national standard 7 requires that management measures, where practicable, minimize costs and avoid unnecessary duplication. GC has interpreted national standard 7 to apply to the whole FMP, as well as to individual management measures; thus the national standard 7 guidelines (50 CFR 600.340) suggesting criteria for determining whether a fishery needs management also relate to defining the FMU.

Scoping

Scoping, under NEPA, is "an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed action"

(40 CFR l501.7). NEPA scoping is similar to early public notice requirements of the Magnuson-Stevens Act. The information resulting from scoping may be used in determining the need for an EIS, but is most often used after an initial decision is made to prepare an EIS. As part of the scoping process, regulatory analysis and information collection requirements are examined, and preliminary estimates may be made of the costs and benefits of regulations. Consideration of potential impacts relating to the ESA, CZMA, and MMPA and social impacts of the FMP also begin. ESA considerations should be addressed to the extent that potential significant impacts, which trigger an EIS, can be identified. (See Overview, Phase IV, and Appendices 2.a., 2.b., and 2.g.) Scoping and public involvement may be satisfied by many mechanisms, including planning meetings, public hearings, and solicitations for comments on discussion papers and other versions of decision and background documents. Scoping should begin with FR publication of a notice of intent (NOI) to prepare an EIS, whether or not the final decision to prepare an EIS has been made; notice of intent means "intent," and not "obligation." (HQ will publish the NOI and its retraction, if a decision is made not to prepare an EIS.) Scoping should inform interested parties of the proposed action and alternatives and serve as a way to receive early public reaction and solicit additional information and alternatives. Written and verbal comments must be accepted after publication of the NOI and be considered in the environmental analysis process. Further guidance on scoping is given in NAO 216-6 (Appendix 2.e.).

Determining which NEPA document will be prepared and the scope of the NEPA analysis

A Council may determine that a proposed FMP/amendment will have significant impacts on the human environment, and may proceed directly with preparation of the EIS required by NEPA.

Significant impacts may be beneficial or adverse. Alternatively, the Council (or RA) may prepare an EA as a means of determining whether significant issues/environmental impacts are likely to result from a proposed action. If the action is determined by F not to be significant, the EA and resulting FONSI would be the final environmental documents required by NEPA. NAO 216-6 provides specific guidance for making this determination for FMPs and amendments (the Responsible Program Manager, who has primary responsibility to ensure preparation of environmental documents, is F). An EIS or SEIS must be prepared if the proposed action may be reasonably expected to (1) jeopardize the productive capability of the target resource species or any related stocks that may be affected by the action, (2) allow substantial damage to the ocean and coastal habitats, (3) have a substantial adverse impact on public health or safety, (4) affect an endangered or threatened species or a marine mammal population adversely, or (5) result in cumulative effects that could have a substantial adverse effect on the target resource species or any related stocks that may be affected by the action.

The scope of NEPA analysis should include the broad impacts of the fishery as a whole, as managed under the proposed action. Have the impacts of the fishery on the human environment been previously analyzed? If not, can the EIS be supplemented, or is a new EIS needed? (Note: If there is no new information on the physical environment from that discussed in a previous EIS, it is not necessary to repeat the information already presented in the earlier EIS; however, any indirect economic and social effects of the proposed action must be considered.)

NAO 216-6 provides for a third type of NEPA determination, called a categorical exclusion (CE), for use under limited circumstances. A CE is used for a category of actions that experience has indicated do not have individual or cumulative significant effects. No new FMP may receive a CE. Amendments to an FMP that are within the scope of alternatives addressed in a previous EA or EIS do not require preparation of an additional environmental document, if the analysis in the initial document is determined to be valid and complete. If a CE is determined to be appropriate, a memorandum should be prepared for the files with a copy to NOAA and F/SF3. Examples of the use of a CE are (1) an extension of the effective time of an FMP when the extension would not change the consequences addressed at the time of its original implementation, and (2) minor technical additions or changes to existing FMPs.

Initiating necessary corollary actions

In order to fulfill the Magnuson-Stevens Act requirements within the compressed review schedule, it is necessary to initiate or consider some of the provisions of the CZMA, ESA, PRA, MMPA, and E.O. 12866 at the first possible opportunity, usually at the scoping meeting. Failure to integrate and complete the various analyses early in the process could result in actions being returned to a Council for more comprehensive analyses. (More information about these requirements may be found in Appendices 2.a., 2.b., and 2.f., and Section 5.0.)

Federal agencies are required under section 102(2)(D) of NEPA to cooperate with state agencies, which have state-wide jurisdiction, to reduce duplication and avoid delays that may occur due to conflicting Federal and state requirements. Many states have adopted environmental regulations, usually requiring public hearings and comment periods similar to Federal requirements. Examples of cooperative activities are joint planning, joint environmental research, joint public hearings, and joint environmental assessments.

Event Schedule

I-1. Council identifies a fishery that requires conservation and management or needs a change in existing management.

I-2. Council conducts scoping, which is a process to determine the scope of the issues to be addressed. The Council prepares a NOI to prepare a draft EIS or (S)EIS and transmits the NOI to F/SF3 for publication in the FR. Scoping meeting(s) may be held in conjunction with a regularly scheduled Council meeting(s), provided the public has been given adequate notice in accordance with CEQ's NEPA regulations and NAO 216-6. Council determines whether management or management changes are warranted, and preliminarily identifies the FMU.

I-3. Council works with the Region on issues (e.g., possible effect on ESA, MMPA, PRA, CZMA, cooperation with state agencies), identifies problems, and attempts to resolve differences, if any. A preliminary determination under the ESA is necessary.

I-4. Council determines the appropriate environmental document.

a. If the Council decides that the FMP/amendment could be a major Federal action, which will significantly affect the human environment, it initiates preparation of a report on the need for the action, alternatives, the affected environment, environmental consequences of the proposed action, and other reasonable alternatives

b. If the Council decides that an EIS is not required, it prepares a draft EA or other necessary environmental documents. If sufficient evidence is obtained during preparation of the EA that the proposed action will have a significant environmental effect, an EIS or (S)EIS is required.

 

 

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Regulatory Streamlining - Operational Guidelines