|
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National Marine Fisheries Service
Silver Spring, Maryland 20910
REVISED MAY 1, 1997
TABLE OF CONTENTS
| A.
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Introduction |
A-1
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| |
Names,
Abbreviations, and Acronyms |
A-3
|
| |
Overview
- How to Use the Guidelines: Organization-Word usage--Content--Schedule
- General Roles and Responsibilities: Role of F/SF3--
Role of NMFS Regions and Centers--Role of GC
- Other Applicable Laws: APA -- ESA -- PRA -- E.O. 12630
-- CZMA -- MMPAM - RFA -- E.O. 12866 -- NEPA -- E.O.
12612
- Overview Checklist of Responsibilities under Certain
Other Applicable Laws
- Overview Event Schedule
|
A-4 |
| B. |
Phase I: Planning
- Background: Identifying an FMU-- Scoping-- Determining
which NEPA document will be prepared--Initiating necessary
corollary actions
- Event Schedule
|
B-1 |
| C. |
Phase II: Preparation of Draft Documents
|
C-1 |
| D. |
Phase III: Public Review and Council Adoption
|
D-1 |
| E. |
Phase IV: Final FMP/Amendment Review and Approval;
Proposed Regulations and Final Rulemaking
- Background
- Event Schedule
|
E-1 |
| F. |
Phase V: Continuing and Contingency Fishery Management
|
F-1 |
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1. Continuing Fishery Management
--Framework Concept--Framework Process--Contents of Framework
Measures-- Routine Management Adjustments Event Schedule--Regulatory
Amendments-- Technical Amendments- Corrections
|
F-1 |
| |
2. Emergency Provisions of the Magnuson-Stevens Act
Event schedule
Effect of Other Applicable Laws on Emergency Rules
|
F-7 |
| |
3. Disapproval/Partial Approval of FMP/Amendment or Proposed
Regulations
Background
Event Schedule
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F-12 |
| |
4. Secretarial FMP/Amendments |
F-13 |
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5. Rebuilding Overfished Fisheries |
F-14 |
| G.. |
Appendices
1. NMFS Habitat Conservation
Policy
2. Other Applicable Laws: Interagency Guidance:
a. CZMA (revised May 11,
1998)
b. ESA section 7 Regulations
c. Procedures for Development
of Regulations (revised April 15, 1998)
d. Guidelines
For Regulatory Analysis of Fishery Management Actions
(revised August 16, 2000)
e. NEPA: NAO 216-6
(issued June 3, 1999)
f. Paperwork Reduction Act
(revised May 11, 1998)
g. Guidance for
Social Impact Assessment (revised March 19, 2001)
3. Highly Migratory Species Procedures
(published September 24, 1993)
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OPERATIONAL GUIDELINES
FISHERY MANAGEMENT PLAN PROCESS
A. INTRODUCTION.
This document is NOAA's "Operational Guidelines for the Fishery
Management Plan Process," originally issued in September 1979
and revised in 1983, 1988, 1992, and again in 1997 to include
procedures necessary under the Magnuson-Stevens Fishery Conservation
and Management Act (Magnuson-Stevens Act). It brings together
the efforts of many individuals and governmental entities over
the years to assist in the development, review, and implementation
of fishery management plans (FMPs). These efforts reflect passage
of Pub. L. 97-453, Pub. L. 99-659, Pub. L. 101-627, and, in
1996, Pub. L. 104-297, which amended the Magnuson-Stevens Act
to alter the process substantially. These actions have added
impetus to improving the quality of FMPs, to producing a clearer
understanding of the laws affecting the FMP process, and to
simplifying and speeding the flow of work directed to the final
implementation of an FMP.
In addition, legislative and administrative actions taken to
improve public decision making, increase informed public participation,
and reduce regulatory burdens continue to affect the quality,
timeliness, and documentation of FMPs significantly. Accordingly,
the requirements of the following have been integrated into
the Operational Guidelines: Administrative Procedure Act, National
Environmental Policy Act, Regulatory Flexibility Act, Paperwork
Reduction Act, and Executive Orders 12612, 12630, and 12866.
Guidelines have been issued, based on the national standards
of the Magnuson-Stevens Act, to assist in the preparation, review,
and implementation of FMPs (50 FR part 600, subpart D). Other
statutes related to natural resource management also influence
the FMP process to varying degrees: Coastal Zone Management
Act, Endangered Species Act, and Marine Mammal Protection Act.
Each Act or E.O. has been implemented separately by other agency
guidelines or regulations; policies relevant to the FMP process
have been included in this document.
In describing the more formal aspects of the process, there
is no intention to preclude the continuation of successful informal
relationships among Regional Fishery Management Council (Council),
Region, Center, and Headquarters staffs of NMFS. Such cooperation
is essential for the effective and efficient operation of a
rapid review and implementation procedure. While the Magnuson-Stevens
Act places certain time requirements on the review and implementation
of FMPs/amendments once they have been submitted for Secretarial
review, and the guidelines suggest timeframes for agency advance
review of draft package, there is no limitation placed upon
the time that might be needed for the careful preparation of
FMPs, their amendments, and all related documents. Time is available
for dedicated and thorough work at the draft stage, and is absolutely
necessary for a successful review and implementation process.
Modifications and refinements of these guidelines will be forthcoming
as circumstances and experience indicate the need.
NAMES,
ABBREVIATIONS, AND ACRONYMS.
Entities
A Under Secretary for Oceans
and Atmosphere, NOAA
AS Assistant Secretary for Oceans
and Atmosphere, NOAA
AGC/L&R Assistant General
Counsel for Legislation and Regulation, DOC Center. One of five
Fishery Science Centers research centers, NMFS, which report
to the Regional Administrators, which oversee the operations
of approximately 25 laboratories throughout the United States
CEQ Council on Environmental
Quality
Council Regional Fishery Management
Council
DOC Department of Commerce
DOI Department of the Interior
DOS Department of State
EPA Environmental Protection
Agency
F Assistant Administrator for
Fisheries, NOAA
F/SF Office of Sustainable Fisheries
F/SF1 Highly Migratory Species
Management Division, F/SF
F/SF3 Domestic Fisheries Division,
F/SF
F/SF4 International Fisheries
Division, F/SF
F/SF5 Regulatory Services Division,
F/SF
F/HC Office of Habitat Conservation
F/OM Office of Operations, Management,
and Information
F/PR Office of Protected Resources
F/ST Office of Science and Technology
F/ST1 Fisheries Statistics and
Economics Division, F/ST
FWS Fish and Wildlife Service,
DOI
GC General Counsel, NOAA
GCF Assistant General Counsel
for Fisheries, NOAA
GCRA Regional Attorney, NOAA
HQ Headquarters Office, NMFS,
Silver Spring, Maryland
N/ORM3 Office of Ocean and Coastal
Resource Management, NOS
NMFS National Marine Fisheries
Service
NOAA National Oceanic and Atmospheric
Administration
NOS National Ocean Service, NOAA
OA1x1 Information Resources Management,
NOAA
OFR Office of the Federal Register
OIRA Office of Information and
Regulatory Affairs, OMB
OMB Office of Management and
Budget
OMO Office of Management and
Organization, DOC
PSP Office of Policy and Strategic
Planning, NEPA Coordinator, NOAA
RA Regional Administrator, NMFS
Region One of five regional offices, NMFS, which report to the
Deputy Assistant Administrator for Fisheries, responsible for
administering the management and development of marine resources
in the United States
Secretary Secretary of Commerce,
DOC
SBA Small Business Administration
USCG U.S. Coast Guard
Documents
CE Categorical Exclusion, NEPA
EA Environmental Assessment,
NEPA
EIS Environmental Impact Statement,
NEPA; DEIS is draft document, FEIS is final document, SEIS is
supplemental document
E.O. Executive Order
FRFA Final Regulatory Flexibility
Analysis, RFA
FMP Fishery Management Plan;
DFMP is draft document
FONSI Finding of No Significant
Impact, NEPA
FR Federal Register; the publication
for Federal regulations
IRFA Initial Regulatory Flexibility
Analysis, RFA
NAO 216-6 Environmental Review
Procedures
NOI Notice of Intent to prepare
an EIS, NEPA
RIA Regulatory Impact Analysis
(E.O. 12866)
RIR Regulatory Impact Review;
DRIR is draft document
SF 83-I Standard form for PRA
submission of request for approval of collection of information
Fishery management
terms
ABC Acceptable biological catch
DAH Domestic annual harvest
DAP Domestic annual processing
EEZ Exclusive Economic Zone
FMU Fishery management unit
JVP Joint venture processing
MSY Maximum sustainable yield
OY Optimum yield
TAC Total allowable catch
TALFF Total allowable level of
foreign fishing
Legislation
APA Administrative Procedure Act
CZMA Coastal Zone Management
Act
ESA Endangered Species Act
MSFCMA Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act)
MMPA Marine Mammal Protection
Act
NEPA National Environmental Policy
Act
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
OVERVIEW.
How to Use the Guidelines
Organization
The FMP process is described in five phases: Phase
I--Planning; Phase II--Preparation of Draft Documents; Phase
III--Public Review and Council Adoption; Phase IV--Final FMP/Amendment
Review and Approval; Proposed Regulations and Final Rulemaking;
and Phase V--Continuing and Contingency Fishery Management,
which includes various actions related to the framework concept,
types of amendments to regulations, the use of the emergency
provisions of the Magnuson-Stevens Act, and Secretarial FMP/amendments.
Each phase is introduced by a brief rationale, description of
the actions involved or supplemental information, followed by
an event schedule of these actions, if appropriate. Actions
are numbered sequentially for reference purposes; however, some
actions may occur simultaneously. The Appendices include supplemental
material on the requirements of other applicable laws (including
NAO 216-6) and NMFS policy guidelines. Other material will be
added to future revisions as it becomes available.
Word Usage
Briefing memo--means a memo to F/NOAA/DOC, usually prepared
by F/SF3, to provide information at an early stage regarding
the public issues in an FMP/amendment or emergency action.
Comment memo--usually means a memo from F/SF to the RA providing
F/SF3 comments on significant concerns and technical and editorial
suggestions regarding a document (FMP or memo) submitted by
a Council or Region. The comment memo may provide the basis
for a dissent memo if disagreements remain unresolved at a later
stage.
Critical, substantive, and other--used in Phase III to describe
types of issues that are examined by reviewers at the informal
review stage. Critical issues are those that affect approvability
such as-- inadequate record, conformance with the national standards,
other provisions of the Magnuson-Stevens Act, and other applicable
laws. Substantive issues are those that affect the quality of
the document--accuracy of facts, adequacy of analysis, precision
of language, consistency of argument or facts, and justification
for conclusions. Other issues include editorial and technical
considerations that affect the quality of the document.
Decision memo--means a memo requesting that the addressee do
what the memo recommends or specifies.
Dissent memo--means a memo from F/SF3 or GCF to F/SF, or from
F/SF to F, that states disagreement (with reasons therefore)
with the RA's recommended decision; it may be based on an earlier
comment memo, and must reflect significant policy or legal differences
that should be called to the attention of F/SF or F.
F/SF--F/SF advises F on fishery management matters; may represent
NMFS before NOAA, DOC, OMB, and other agencies; and acts on
inseason actions and permits (e.g., experimental fishing). F/SF
provides FMP/amendments, regulations, and other actions associated
with Atlantic highly migratory species (F/SF1).
F/SF3--the Domestic Fisheries Division of the Office of Sustainable
Fisheries. F/SF3 has the primary HQ responsibility for reviewing
and processing FMPs and management actions under the Magnuson-Stevens
Act.
F/SF4--the International Fisheries Division of the Office of
Sustainable Fisheries. F/SF4 coordinates NMFS' activities relating
to: the review of foreign developments having an impact on living
marine resources, other than those assigned to F/PR; the development
of policy in reaction to such developments; and the implementation
of that policy, including questions of access by foreign fishing
interests to U.S. waters, access by U.S. fishing interests to
foreign jurisdictions, and the licensing of U.S. vessels fishing
on the high seas.
F/SF5--the Regulatory Services Division of the Office of Sustainable
Fisheries. F/SF5 has the primary HQ responsibility for editing
and processing regulations for submission to the OFR, processing
requests for collection of information under the PRA, and providing
administrative services for the Councils.
Framework--refers to framework measures in an FMP (defined in
Phase V).
Information memorandum--means a memo providing information to
the addressee.
Issues letter--means a letter prepared by the
RA for a Council at the Phase III stage, describing the critical
and substantive issues; used in draft as the basis for Region/F/SF3/GCRA/GCF
conference call or meeting, and in final as the summary of agency
position on the draft package.
Letter to Government Agencies and Public Groups--refers to the
letter accompanying the draft EIS or final EIS/EA, signed by
PSP and addressed to the reviewers, indicating the appropriate
NMFS responsible official, address, and deadlines for public
comment.
Metric measurements--Section 5164(c) of the Omnibus Trade and
Competitiveness Act of 1988 (Pub. L. 100-418) makes the metric
system of measurement the preferred system of weights and measures
for U.S. trade and commerce and requires each agency of the
Federal Government to use the metric system of measurement in
its procurements, grants, and other business-related activities,
except to the extent that such use is impractical or likely
to cause significant inefficiencies or loss of markets to U.S.
firms. The metric conversion policy for Federal agencies (15
CFR part 19) was updated on January 2, 1991 (56 FR 160), and
strongly encourages metrification. E.O. 12770, July 25, 1991,
declares a national policy to implement the metric system as
the preferred system of weights and measures for the United
States. In accordance with this policy, NOAA prepared a Metric
Transition Plan, September 1992, that describes activities to
replace the English system of measurements with the metric system.
NMFS requires that all regulations or regulatory amendments
issued include, at a minimum, the metric equivalent for any
English measurement.
Record of decision--means a concise statement required by CEQ
to verify compliance with NEPA; may be a determination made
in a decision memo, but cannot be signed until 30 days after
the FEIS is available to bhe public.
Transmittal--for documents beginning Secretarial review implies
transmittal from the RA and receipt in HQ on the same day. In
such cases, transmission of the documents by electronic mail,
fax, or other high-speed means is necessary.
Schedule--meeting statutory review, approval, and implementation
deadlines is dependent upon the many government entities involved
in the process responding in the spirit of cooperation within
the time described. Should delays occur, F/SF has the responsibility
for making the necessary short-notice decisions regarding how
best to proceed in compliance with the statutory schedule, after
consulting with the RA and GCF, as necessary.
General Roles
and Responsibilities
Role of F/SF3
The role of F/SF3 varies according to the stage
of the process. It conducts reviews, in parallel with the Region,
of advance, draft, and final FMPs/amendments, concentrating
on national and approvability issues; coordinates reviews within
DOC/NOAA/NMFS and with Washington, D.C., reviewers (e.g., USCG,
DOS, Marine Mammal Commission); and provides guidance to, and
works with, the Councils, Regions, and other NMFS and NOAA offices
to improve existing national policies and procedures for review
and implementation of FMPs and amendments. F/SF3 provides staff
advice to the Regions and F/SF on the approvability of FMPs
and other documents. F/SF3 reviews, distributes, and recommends
decisions on regulations and associated regulatory documents
(e.g., DRIRs, IRFAs, etc.); provides information on management
actions to NOAA Offices of Public Affairs and Congressional
Affairs; and coordinates the comments of NOAA, DOC, and other
agencies with the Regions. F/SF3 maintains part of the administrative
record system, and provides information to F/SF5 for the semiannual
regulatory agenda.
Role of F/SF5
F/SF5 provides editing, formatting, and processing services
for NMFS regulations; submits regulations to the OFR for publication;
provides filing and publication data to reviewers; coordinates
the submission of regulatory information for the semiannual
regulatory agenda; and provides administrative services for
Councils.
Role of NMFS Regions and Centers
RAs have been delegated the authority to approve, disapprove,
or partially approve FMPs and amendments with the concurrence
of F; the authority to approve regulations and associated analytical
documents (e.g., NEPA, RFA) is retained by F and higher NOAA/DOC
level officials, who must make certain nondelegated, rule-related
determinations. RA approval normally requires GCRA and Center
concurrence of appropriate legal and scientific elements. However,
if substantive disagreement on these matters cannot be resolved,
GCRA or the Center may attach a documented dissent, rather than
create a delay.
The Regions review FMPs/amendments to determine
consistency with the Magnuson-Stevens Act and other applicable
laws. The Regions are the principal NMFS contacts with the Councils,
and may provide guidance and assistance to the Councils in preparing
FMPs, regulations, or other documents. The Regions also have
the responsibility for preparing all decision documents (e.g.,
decision memos, transmittals associated with regulatory action);
for ensuring that the Councils are aware of the requirements
for the submission package and satisfactory regulatory and environmental
analyses (i.e., RIR, IRFA, EA/EIS); and for certifying that
all documents are adequate before approving any FMP or amendment.
The Region is responsible for the preparation of any supporting
statement for collection of information under PRA, but consults
with the appropriate Center as necessary. The Center certifies
definitions of overfishing required under 50 CFR part 600.310.
Regions and Centers maintain part of the rulemaking record.
Role of GC
The role of GC (GCF, GCEL, and GCRA) is to provide legal comments
to the RA and the Councils; RA approval normally includes clearance
by GCRA, as noted above. GCF works with HQ staff during the
review process, reviews, and clears FMPs, amendments, regulations,
and related documents. Although GCF is available for consultation
during the review process and reviews all documents, it is expected
that GCRA will have satisfactorily resolved legal issues through
early consultation with GCF before Secretarial review begins.
GCF may send comments directly to GC and AGC/L&R.
Other Applicable
Laws
The following sections briefly describe the purpose
of the various statutes and E.O.s and how they affect the FMP
process. The list provides some insights into the complex and
sometimes competing goals and schedules of the system. More
detailed sections (referenced below) as to how each specifically
affects the FMPs, amendments, and regulations--and what to do
about it--appear later in this document.
a. APA. Sections 551-553 of the APA establish procedural requirements
applicable to informal rulemaking by Federal agencies. The purpose
is to ensure public access to the Federal rulemaking process,
and to give the public notice and an opportunity to comment
before the agency promulgates a final rule.
Effect on FMP process: The APA requires public
comment on most actions, but does not specify the length of
the comment period; a 30-day delay in effectiveness date is
required for most final rules. Exceptions are provided for waiving,
for good cause, the public comment period and/or delayed effectiveness
period. The Magnuson-Stevens Act provides for a public comment
period for proposed regulations of 15 to 60 days. NMFS policy
is that a 45-day comment period is standard for proposed rules
that would implement an FMP/amendment and a 30-day comment period
is standard for proposed rules for regulatory amendments.
b. CZMA. The principal objective of the CZMA
is to encourage and assist states in developing coastal management
programs, to coordinate state activities, and to safeguard regional
and national interests in the coastal zone. Section 307(c) of
the CZMA requires that any Federal activity affecting the land
or water uses or natural resources of a state's coastal zone
be consistent with that state's approved coastal management
program, to the maximum extent practicable.
Effect on FMP process: Requires a determination
that an FMP/amendment or regulating action has no effect on
the land or water uses or natural resources of the coastal zone,
or is consistent to the maximum extent practicable with an affected
state's approved coastal management program. The consistency
determination must be provided to state agencies at least 90
days prior to final approval of the Federal action, unless NMFS
and the state agency agree to an alternative notification schedule
(See Appendix 2.a.)
c. E.O. 12866. This E.O. applies to the issuance of new rules
and the review of existing rules. While a variety of regulatory
policy considerations are covered, the benefits and costs of
regulatory actions are a prominent concern. The E.O. requires
that OMB review proposed regulatory programs that are considered
to be "significant." A significant rule is one that is likely
(1) to have an annual effect on the economy of $100 million
or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or state, local, or tribal
governments or communities; (2) to create a serious inconsistency
or otherwise interfere with an action taken or planned by another
agency; (3) to materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations
of recipients thereof; and (4) to raise novel legal or policy
issues arising out of legal mandates, the President's priorities,
or the principles set forth in the Order.
Effect on FMP process: Requires that an early
determination be made as to the significance of each regulatory
action, which must be concurred in by OMB, and requires that
each significant regulatory action be reviewed by OMB. The Regulatory
Impact Review addresses many of the items in the regulatory
philosophy and principles in this Order. (See Appendix 2.d.)
d. ESA. The ESA provides for the protection and
conservation of endangered and threatened species of fish, wildlife,
and plants. The program is administered jointly by DOI (terrestrial
and freshwater species) and DOC (most marine species).
Effect on FMP process: NMFS (and FWS, if applicable)
should provide a list of endangered and threatened species,
critical habitat(s), and species proposed for listing to Councils
so that Councils can assess whether fisheries, as they are managed
under FMPs, may affect listed species or critical habitat and
in some cases, species or habitat proposed for listing or for
designation. NMFS should assist in assessing the impacts (if
any) on protected species and critical habitat. Councils will
include an impact assessment in draft FMPs and amendments or
in the EA/EIS, that may serve as the biological assessment for
consultation. If NMFS determines, based on the impact assessment
or other documentation, that the fishery may affect listed species
or critical habitat, NMFS (or FWS) will determine whether formal
consultation under the ESA is necessary. (See Phase II, Section
5.7.; Appendix 2.b.) Measures to minimize adverse impacts should
be included in FMPs or amendments.
e. MMPA. The MMPA establishes a moratorium on
the taking and importing of marine mammals and marine mammal
products, with certain exceptions. Responsibility is divided
between DOC (whales, porpoises, seals, and sea lions) and DOI
(other marine mammals) to authorize takings under limited circumstances,
including incidental takings during commercial fishing.
Effect on FMP process: If the fishery affects
marine mammal population(s), the potential impacts must be analyzed
in the EA/EIS. Councils may also be requested to consider actions
to mitigate adverse impacts. (See Phase II, Section 5.8.)
f. NEPA. The NEPA requires that the effects of
major Federal activities on the human environment be assessed.
Federal activities include not only approval of FMPs, but also
issuing permits and licenses. Activities conducted by private
individuals that Federal agencies authorize are de facto Federal
activities. NEPA's basic purpose is to insure that Federal officials
weigh and give appropriate consideration to environmental values
in policy formulation, decision making, and administrative actions,
and that the public is provided adequate opportunity to review
and comment on the major Federal actions. NEPA requires preparation
of an EIS for major Federal actions that significantly affect
the quality of the human environment and documents that finding
for public consideration and comment before a decision. An EA
is prepared for an action that will not significantly affect
the human environment.
Effect on FMP process: If a draft EIS must be
prepared, the notice of availability of a final EIS must be
published 30 days before an Agency decision is made on the FMP/amendment;
or, if an EA is prepared, a finding of no significant impact
(FONSI) must be made at the time of the Agency decision. NEPA
and Magnuson-Stevens Act requirements for schedule, format,
and public participation are compatible and they enable one
activity or document to fulfill both obligations. (See Appendix
2.e.--NAO 216-6, and Phase II, Section 5.2.)
g. PRA. The PRA requires agencies to consider
and minimize recordkeeping and reporting burdens when collecting
information from the public.
Effect on FMP process: If the FMP/amendment requires
any form of information collection, proposed rules must be accompanied
by a request for OMB approval to collect information (83-I)
and such a request must be cleared by NOAA and DOC before the
proposed rule can be published. Final rules implementing information
collection requirements must be accompanied by one of the following:
(1) A revised 83-I and supporting statement (if OMB filed comments
on the information collection at the proposed rule stage); (2)
the insertion of the OMB control number in the appropriate section
of the final rule text and secondary instructions to add the
control number to 15 CFR part 902, if appropriate (if provided
by OMB during the proposed rule stage); (3) a complete 83-I
package, if OMB took neither of the above discretionary actions
during the proposed rule stage; or (4) if OMB approval is not
received, the final rule is published without the OMB number
and, when approval is received, an FR document is published
to make the information collection effective. (See Appendices
2.c and 2.f, and Phase II, Section 5.5.)
h. RFA. The RFA requires agencies to consider the economic impact
of their rulemakings on small entities, including small businesses.
For each proposed rule that is subject to the notice-and-comment
provisions of the APA or other law, an agency must prepare an
initial regulatory flexibility analysis (IRFA), unless the agency
can certify that the proposed rule will not have a significant
economic impact on a substantial number of small entities.
Effect on FMP process: Like E.O. 12866, the RFA
requires an analysis of costs, benefits, and effective alternatives.
RFA also requires an agency to minimize the impact of its rule
on small entities. It does this through the requirement to prepare
a Regulatory Flexibility Analysis for rules that will or may
have a significant economic impact on a substantial number of
small entities. The IRFA is reviewed by SBA during the comment
period on the proposed rule. If the rule has no significant
effect on a substantial number of small entities, AGC/L&R
must so certify to SBA and no IRFA is prepared. (See Appendix
2.d; Phase II, Section 5.4; and Phase IV, Section IV-2.)
i. E.O. 12612. The E.O. on federalism, which became effective
on October 26, 1987, establishes nine fundamental federalism
principles to which Executive agencies must adhere in formulating
and implementing policies having federalism implications. The
E.O. also lists a series of federalism policymaking criteria
to which agencies must adhere (to the extent permitted by law)
when formulating and implementing policies that have federalism
implications. It also directs agencies to construe narrowly
Federal statutes preempting state law or authorizing preemption
of state law by Federal regulation, and to restrict preemption
of state law to the minimum level necessary. Proposed policies
having sufficient federalism implications must be accompanied
by a "Federalism Assessment" certifying agency compliance with
the requirements of the E.O.
Effect on FMP process: Because state officials
are voting members of Councils, most FMPs/amendments have state
support and their implementing regulations would not contain
policies with federalism implications sufficient to warrant
preparation of a federalism assessment. Generally, a federalism
assessment is necessary if a state official opposes an action
because of federalism concerns. The document is prepared by
the RA, in consultation with the Council, and submitted by F
to DOC for certification of compliance. Any principal state
official opposed to adoption of an FMP/amendment may file a
dissenting report explaining the nature of the state's objection
and its relation to the policies of the E.O.
j. E.O. 12630. The E.O. on Government Actions and Interference
With Constitutionally Protected Property Rights, which became
effective March 18, 1988, requires that each Federal agency
prepare a Takings Implication Assessment for any of its administrative,
regulatory, and legislative policies and actions that affect,
or may affect, the use of any real or personal property.
Effect on FMP process: Management measures limiting
fishing seasons, areas, quotas, fish size limits, and bag limits
do not appear to have any taking implications and thus no takings
implication assessment is required to be prepared. (See Department
of Commerce Guidelines for the Evaluation and Risk Avoidance
of Unanticipated Takings, May 1990.) There is the potential
for takings if a fishing gear is prohibited, because fishermen
who desire to leave a fishery might be unable to sell their
investment, or if a fisherman is prohibited by Federal action
from exercising property rights granted by a state. Clearance
of a regulatory action must include a takings statement and,
if appropriate, a Takings Implication Assessment prepared by
GCRA.
Overview
of Responsibilities
Under Certain
Other Applicable Laws
Paperwork Reduction Act
Phase I
. As part of the scoping process, information needs should be
examined.
. Preliminary estimates of burden hours should
be made for the Information Collection Budget.
Phase II
Council develops a draft PRA supporting statement for any proposed
new or revised recordkeeping/reporting requirements, with Regional
assistance, as needed.
. Region solicits comments on the draft recordkeeping/reporting
requirements from Center and F/SF5.
. Council submits revised recordkeeping/reporting
requirements for informal agency review as part of the draft
FMP/amendment package.
Phase III
. Region, F/SF3, and F/SF5 review draft recordkeeping/reporting
requirements, including estimates of burden hours and costs,
for critical/substantive issues and adequacy (when the preferred
alternative includes a request for a new collection of information).
. Region distributes draft recordkeeping/reporting
requirements for review to appropriate field offices; F/SF3
distributes them to HQ reviewers and appropriate agencies; F/SF5
determines whether NOAA/DOC review is warranted and, if so,
transmits the draft to OA1x1 for NOAA/DOC comments.
. F/SF3 receives, analyzes, transmits comments
to the Region, which prepares a draft issues letter to the Council
(includes PRA issues, if any).
. Region writes/sends the final issues letter
to the Council.
. Council revises recordkeeping/reporting requirements,
per NMFS and public comments, adopts and submits the 83-I and
supporting statement as part of the final FMP/amendment package
for Secretarial review. Early submission of the request to collect
information is strongly recommended.
Phase IV
Council submits the FMP/amendment package to the
RA, with the transmittal date determined by the RA.
. Begin the Magnuson-Stevens Act Secretarial review
period. If not already submitted, RA sends the SF83-I and supporting
statement to F/SF5. F/SF5 distributes the SF83-I and supporting
statements to reviewers and appropriate agencies, including
F/SF3.
. F/SF5 prepares the transmittal for F signature;
sends SF83-I, supporting statement, and proposed rule to OA1x1
(NOAA) for formal review; and notifies F/SF3.
. NOAA completes its review and sends the paperwork
package to OMO (DOC).
. F/SF5 checks the consistency of any revisions
to the SF83-I and supporting statement, and sends the package
to OA1x1.
. DOC completes its review of the SF83-I, sends
it to OMB, and issues a docket number to F/SF3 to publish the
proposed rule.
. F signs the proposed rule, which is published
for a 45-day comment period for a rule that would implement
an FMP/amendment.
. At the end of the public comment period on the
proposed rule, a decision meeting (conference call) may be held
to resolve any approvability issues (including SF83-I), if necessary.
Region modifies the SF83-I, if necessary.
. If information collection requirements change
per public comment, the RA includes the revised 83-I with the
decision package, so noting in the accompanying decision memo.
. F/SF5 notifies F/SF3 of OMB approval or disapproval
of the PRA request (OMB has 30 days to approve/disapprove).
. OMB approves and issues a control number, disapproves,
or provides comments on the SF83-I to DOC. If necessary, the
Council, with Region and F/SF5 assistance, revises the SF83-I.
. If OMB provided comments, DOC completes its
review of the revised SF83-I, and sends it to OMB.
. RA approves the FMP/amendment; F concurs.
. Final rule is filed with the OFR. If the SF83-I
was approved by OMB, the final rule will contain the approved
information collection requirements and the OMB control number.
If not yet approved, the information collection measures will
not be effective until OMB approval is obtained and the OMB
control numbers are published in the FR. A currently valid OMB
control number must be displayed on all collections of information.
If disapproved, the information collection measures must be
withdrawn by notification in the FR.
National
Environmental Policy Act
Phase I
. Council initiates the scoping process to determine the scope
and significance of ecological, economic, and social issues
to be addressed, including consideration of ESA issues.
. Council holds scoping meeting(s) that may be
in conjunction with scheduled meetings of the Council or its
advisory groups.
. Council decides whether an (S)EIS or EA should
be prepared, if sufficient information is available to make
this determination.
If an EIS is to be prepared, the Council prepares
a notice of intent, which F/SF3 processes for FR publication.
. Council begins preparation of the appropriate
environmental document in consultation with the RA (including
ESA issues).
Phase II
. Council prepares the draft environmental document, incorporating
relevant public comments received during scoping process, which
discusses the effect of the fishery on the human environment
of the preferred and other reasonable alternatives.
. Council submits the D(S)EIS/EA for informal
agency review, including ESA issues, as part of the draft package.
Phase III
. Region, F/SF3, and GCRA/GCF review the NEPA document for CEQ
and NAO 216-6 compliance.
. DEIS must be acceptable for filing before full
review of the rest of draft package begins.
. F/SF3 prepares transmittal letters for filing
(including a letter to All Interested Governmental Agencies
and Public Groups), obtains PSP clearance, and files the DEIS
with EPA.
. EPA publishes a Notice of Availability of DEIS
in the FR; 45-day public comment period begins.
. Council distributes the DEIS (with letter to
All Interested Governmental Agencies and Public Groups) to the
public.
. If hearings on the DEIS are held, notice of
scheduled hearings is published in the FR; hearings may be in
conjunction with scheduled meetings of the Council.
. Region and F/SF3 review the D(S)EIS or EA for
critical and substantive issues; F/SF advises the Region of
NMFS HQ position.
. Region prepares a draft issues letter to the
Council (includes ESA issues).
. Region writes/sends the final issues letter
to the Council.
. Council prepares the NEPA document to reflect
FMP/amendment changes and NMFS and public comments.
. Council adopts the (S)EIS) or EA and submits
it to the RA for review under NEPA. If it is changed substantially,
a (S)EIS may need to be placed available for public comment
as a D(S)EIS for a 45-day comment period.
Phase IV
. Council submits the FMP/amendment package to RA, transmittal
date determined by RA.
. Begin Magnuson-Stevens Act Secretarial review
period.
. If an EA is included, the Region and F/SF3 distribute
the EA to reviewers and appropriate agencies, including PSP.
. If there is an (S)EIS, the final (S)EIS must
be filed with EPA to ensure that the Notice of the F(S)EIS is
published in the FR 30 days prior to the decision on the action.
Consultation by the RA, F/SF, and GCF/GCRA must occur prior
to this date to determine the adequacy of the final (S)EIS.
. F/SF3 prepares the necessary transmittal letters
for filing and distribution, obtains NOAA clearance, and files
the (S)EIS with EPA. Council/Region make the F(S)EIS and PSP
letter available.
. After the end of the public comment period on
the FMP/amendment, a decision meeting (conference call) is held,
if necessary, to resolve any approvability issues, including
NEPA. Region considers NMFS comments on the EA. RA begins preparation
of the draft decision memo, including the preliminary determination
of NEPA compliance.
. If Region and HQ disagreements on NEPA compliance
are unresolved, F/SF3 and/or GCF may write a dissent memo; F/SF
confers with the RA and F/SF3 to resolve any remaining differences.
. RA verifies and makes the preliminary determination
of NEPA compliance, when applicable, and makes a recommendation
in the decision memo accompanying the final action package.
. RA approves/disapproves/partially approves the
FMP/amendment and transmits it to F.
. F signs the FONSI, when applicable, and transmits
it to PSP for clearance. When PSP approves and returns the FONSI,
F/SF3 provides it to the RA, or returns it to the applicable
Council, for distribution to the public, upon request.
E.O. 12866,
E.O. 12612, E.O. 12630, and RFA
Phase I
. As part of the scoping process, regulatory analysis requirements
are examined and preliminary estimates may be made of costs
and benefits.
Phase II
. Council develops a draft RIR, and an IRFA if the preferred
alternative is likely to have a significant economic impact
on a substantial number of small entities.
. Council submits the DRIR/IRFA for informal agency
review as part of the draft FMP/amendment package.
Phase III
. Region, F/SF3, and GCRA/GCF review the DRIR/IRFA for critical
and substantive issues and adequacy.
. Region distributes the DRIR/IRFA for review
to appropriate field offices; F/SF3 distributes to HQ reviewers
and appropriate agencies.
. F/SF3 receives, analyzes, and transmits comments
to the Region, which prepares a draft issues letter to Council
(includes DRIR/IRFA issues).
. F/SF advises the Region of NMFS HQ position.
. Region writes/sends the final issues letter
to the Council.
. Council revises the DRIR/IRFA, as appropriate
and adopts and submits it for formal Secretarial review as part
of the final FMP/amendment package.
. An E.O. 12866 listing document, stating the
initial determination of significance under the E.O., must be
drafted by the Region and forwarded to GCF (copied to F/SF3)
for review and forwarding to DOC for consideration by OIRA.
Phase IV
Council submits the FMP/amendment package to the
RA, with the transmittal date determined by the RA.
. Begin Magnuson-Stevens Act Secretarial review
period.
. Region and F/SF3 distribute to reviewers and
appropriate agencies: the DRIR/IRFA, including sending the IRFA
to SBA by F/SF, if regulations would or may have a significant
economic impact on a substantial number of small entities; draft
federalism assessment, if there are significant federalism implications;
and consideration of takings implications, if applicable.
. F transmits the "no significant impact" certification
memo to AGC/L&R (DOC to SBA), if applicable.
. RA receives and considers NMFS/NOAA/DOC/SBA
comments on the DRIR/IRFA (if not certified significant under
RFA).
. End Magnuson-Stevens Act public comment period
on the FMP/amendment; decision meeting (conference call), if
necessary, is held to resolve any approvability issues (including
DRIR/IRFA). Region/Council begins preparation of the FRFA.
. RA certifies adequacy of the RIR/FRFA and makes
determinations reflected in the determinations section of the
decision memo accompanying the final action package. RA transmits
the federalism assessment and Takings Implication Assessment,
if applicable.
. F/SF confers with RA, GCF, and F/SF3, if necessary,
to resolve differences.
. RA approves/disapproves/partially approves the
FMP/amendment and transmits it to F for concurrence.
. For nonsignificant actions, AGC/L&R sends
a certification to SBA, if it was not previously sent. For a
significant action, F/SF sends the FRFA to SBA, if not previously
sent.
Endangered
Species Act
Phase I
. As part of the scoping process, consider and make a preliminary
assessment of possible effects on endangered and threatened
species and critical habitat. It is recommended that this include
species and habitat proposed for listing and designation, although
this is required only where the action is likely to jeopardize
species or adversely modify proposed critical habitat.
Phase II
. In the appropriate NEPA document, preferably, or in a separate
document, include an analysis of possible effects on endangered
and threatened species and critical habitat. For preferred and
other alternatives, conclude whether or not the alternative
would be likely to adversely affect such species or habitat.
If no endangered or threatened species or critical habitat may
be affected, document this in the EA/EIS.
Phase III
. Region, F/SF3, GCRA/GCF, and F/PR review documents for ESA
issues.
. If endangered or threatened species or critical
habitat may be affected, NMFS will determine whether a formal
consultation is necessary, and if so, will initiate consultation
and, as appropriate, request formal consultation with FWS.
. If formal consultations are not required, the
RA will provide for the record an informal consultation concurrence
letter.
. If formal consultations are required, the RA
will initiate consultation with NMFS and request formal consultation
with FWS, if appropriate.
. Council adopts FMP/amendment documenting ESA
determinations and incorporating measures identified in the
biological opinion and incidental take statement.
Phase IV
. Council submits the FMP/amendment to the RA; the transmittal
date is determined by RA.
. Begin Magnuson-Stevens Act Secretarial review
period.
. Region and F/SF3 distribute documents (including
ESA consultations), to reviewers and appropriate agencies (e.g.,
F/PR, Marine Mammal Commission).
. Public comment period begins on the FMP/amendment
and proposed rule.
. Decision meeting (conference call) is held,
if necessary, to resolve any approvability issues, including
ESA.
. RA approves/disapproves/partially approves the
FMP/amendment and transmits to F for concurrence.
. F concurs in RA's decision on the FMP/amendment.
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