OPERATIONAL GUIDELINES: Introduction and Contents

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National Marine Fisheries Service
Silver Spring, Maryland 20910


REVISED MAY 1, 1997



TABLE OF CONTENTS
A. Introduction A-1
  Names, Abbreviations, and Acronyms A-3
  Overview
  1. How to Use the Guidelines: Organization-Word usage--Content--Schedule
  2. General Roles and Responsibilities: Role of F/SF3-- Role of NMFS Regions and Centers--Role of GC
  3. Other Applicable Laws: APA -- ESA -- PRA -- E.O. 12630 -- CZMA -- MMPAM - RFA -- E.O. 12866 -- NEPA -- E.O. 12612
  4. Overview Checklist of Responsibilities under Certain Other Applicable Laws
  5. Overview Event Schedule
A-4
B. Phase I: Planning

  1. Background: Identifying an FMU-- Scoping-- Determining which NEPA document will be prepared--Initiating necessary corollary actions
  2. 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

  1. Background
  2. Event Schedule
E-1
F. Phase V: Continuing and Contingency Fishery Management F-1
  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

F-12
  4. Secretarial FMP/Amendments F-13
  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)

 


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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Regulatory Streamlining - Operational Guidelines