OPERATIONAL GUIDELINES - Phase II

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PHASE II: PREPARATION OF DRAFT DOCUMENTS

Background

This phase involves the preparation of the draft FMP or amendment, the draft NEPA documents (including appropriate ESA analysis), DRIR, IRFA (if needed), estimate of burden hours for reporting requirements, and draft proposed regulations. The responsibility for preparation of these documents, except for ESA consultations and biological opinions, lies primarily with the Councils, with assistance from NMFS, as requested and available.

The amount of time taken by Councils to prepare the documents is discretionary, but once submitted for public and informal agency review (Phase III) and formal Secretarial review (Phase IV), fixed schedules come into play (as dictated by other applicable laws, hearing and public comment schedules, and the

Magnuson-Stevens Act requirements). No event schedule for Phase II is provided; the timing and procedures for this phase are individual to the Councils and the fisheries under consideration. Close cooperation between the Councils and NMFS during Phases II and III is essential to reduce the risk of disapproval or partial approval during Phase IV.

A central theme common to E.O. 12866, RFA, PRA, and NEPA is the requirement to analyze the direct and indirect effects of regulations, to demonstrate that regulations will result in net benefits to society, and to explain that a chosen regulatory measure is superior to other alternatives. Likewise, a foundation for FMP decision making is an analysis of the alternative fishery management measures that have been proposed to meet the FMP objectives. The FMP is expected to set forth and analyze the short- and long-term effects of the preferred actions upon the total relevant human environment--political, ecological, economic, and social. In addition, since fishery management includes consideration of all aspects of the productivity of a fishery--the productivity of stocks, as well as control of the harvest--Councils should examine and address relevant habitat requirements to determine the best course of action and make appropriate recommendations. A Council's choice of a particular OY should be based on an analysis of these considerations, and must be carefully defined and documented.

It follows that checklists, such as those for the contents of FMPs and any accompanying documents under other applicable laws, are necessary and useful as organizers of information and as reminders of the universe that must be considered--but checklists are only the beginning. The information called for is being gathered as the basis for examining the effects of the various alternative management measures and determining the preferred actions that are consistent with the national standards of the Magnuson-Stevens Act.

Detailed guidance for the preparation phase may be found as follows:

o Magnuson-Stevens Act Provisions--50 CFR part 600.

o PRA (including determination of need for OMB approval of state-collected data)--Appendix 2.f.

o RIR--E.O. 12866-- Appendix 2.c.; RFA--Appendix 2.d.

o NEPA--NAO 216-6--Appendix 2.e.

o ESA--Interagency Cooperation--Endangered Species Act,

50 CFR part 402, Appendix 2.b.

o CZMA consistency--Appendix 2.a.

o NMFS Habitat Conservation Policy and general guidance for its implementation--Appendix 1.

o Framework measures--Phase V.

o Guidance for Social Impact Assessment--Appendix 2.g.

o Guidance for drafting regulations and notices--OFR Document Drafting Handbook (January 1997 Revision).

o Preparation of Federal Register Documents--F/SF5

Format of Fishery Management Plans

The Magnuson-Stevens Act requires that FMPs be consistent with the national standards and other applicable laws, several of which require analysis of alternatives. The contents of an FMP may be arranged in either of two broad forms. The first considers only the management system selected by a Council for the fishery in the body of the FMP and provides the analyses that justify that selection (EISs, RIRs, etc.) in separate or attached documentation. The second form integrates the analyses into the FMP.

While either route is acceptable, the second approach may prove preferable for several reasons. Good management and the specific demands of NEPA, RFA, and E.O. 12866 all require a comparison of the alternatives considered to justify that the course taken by a Council was rationally based, and a series of parallel analyses is clearly duplicative. An integrated format can provide all pertinent information and analyses to the Council prior to its identification of a preferred course of action and reduces the duplication of information. Also, it can bring together in one relatively short part of the FMP the whole basis for a Council's action. In a few pages, the public can find problems and objectives identified, alternatives identified and described, advantages and disadvantages of each alternative management regime discussed, and the logic of the Council's choice among the alternatives presented. Those who wish to examine further or question the validity of the conclusions may then turn to the supporting technical analysis in a separate section of the FMP.

The checklist set forth below can, by appropriate rearrangement, be used in either approaches described below. The list includes the analyses required under other applicable laws--to facilitate identifying the common and distinctive elements of each--and is intended as an overview of all the elements required by law or common sense practice for a logical, understandable, and legally defensible FMP. The Council has flexibility in deciding which format best suits its purpose; there are no format requirements--location of the material is discretionary.

The following points may be helpful:

o Each document type (FMP, RIR, IRFA, EIS or EA, etc.) will be reviewed by NMFS/NOAA for compliance with appropriate content requirements. The format used should identify where these requirements are met, since not all reviewers will necessarily examine the same documents (see the Operational Guidelines Overview Checklist of responsibilities under other applicable laws--Section C(5.O)). The various analysis sections of the draft and final package should be clearly identified through a detailed table of contents, cross referencing, and/or by physical or visual separation. Repetition of material should be avoided whenever possible.

o NAO 216-6 provides guidance on the relationship between the FMP and the EIS, including format issues. Any consolidated FMP and EIS must be filed with EPA and distributed by the Council according to its reviewers list as for a separate EIS. EPA requires that identified source or supplemental documents supporting the EIS (but not references listed in the bibliography) be filed and made available to the public with the EIS. NAO 216-6 requires that environmental documents accompany other decision documents in the NMFS decision process.

o The FMP documents should be structured to be readable, useful, and informative to reviewers and the affected public. For example, the introductory summary could be self-contained enough to be separable and useful for other purposes--such as background handouts to the media or segments of the interested public who might find the complete FMP more than is needed.

o The format chosen should illustrate what conclusions and recommendations are based upon, and how they are related to supporting technical analyses. It might be effective, as suggested above, to present a comprehensive summary of the objectives, problems to be solved, impacts of alternative management solutions, and justification for measures proposed. Depending on the scope of the individual fishery problems being addressed, much of the required data and descriptive material upon which any analyses or conclusions are based could be presented in full in the supporting material at the end of the FMP, but abstracted for the main body. Criteria for placement could include such questions as whether the information has significant impact on the management regime or is more contextual in nature.

o For the above reasons, some subject headings in the Table of Contents appear more than once to allow for maximum flexibility in organizing an FMP. Section 4.0, Supporting Material, is designed to list the legal supporting documentation (along with any separate source material.) Councils may wish to place this material either in full within the FMP, or in an appendix from which the information may be abstracted or cross-referenced in the FMP. Likewise, the full ecological, economic, and social analyses are listed separately, although their conclusions, rationale, and net benefits summaries are listed in an appropriate order within the core FMP.

EXAMPLE



Table of Contents

 

0.0 Foreword.

0.1 Required provisions (section 303(a) of the Magnuson-Stevens Act).

0.2 Discretionary provisions (section 303(b) of the Magnuson-Stevens Act).

1.0 Introductory material.

1.1 Cover sheet.

1.2 Summary.

1.3 Table of contents.

1.4 Introduction.

2.0 Fishery management program.

2.1 Problems for resolution.

2.2 Management objectives.

2.3 Management unit.

2.4 Habitat preservation, protection, and restoration. 2.5 Management alternatives.

2.6 Development of fishery resources.

2.7 Summary of beneficial and adverse impacts of each potential management option.

2.8 Measures recommended to attain management objectives.

2.8.1 Specification of OY.

2.8.2 Preferred management measures.

2.8.3 Reporting and recordkeeping requirements.

2.9 Rationale and net benefit discussion.

2.10 Relationship of the recommended measures to existing applicable laws and policies.

2.10.1 Fishery management plans.

2.10.2 Treaties or international agreements.

2.10.3 Federal law and policies.

2.10.4 State, local, and other applicable laws and policies.

2.11 Council review and monitoring of the FMP.

3.0 Analysis of the beneficial and adverse impacts of potential management options.

3.1 Ecological.

3.2 Economic.

3.3 Social.

4.0 Supporting material.

4.1 Description of the stock(s) comprising the management unit.

4.1.1 Species or group of species and theirdistribution.

4.1.2 Abundance and present condition.

4.1.3 Definition of overfishing.

4.1.4 Ecological relationships.

4.1.5 Estimate of MSY.

4.1.6 Probable future condition.

4.2Description of habitat of the stock(s) comprising the management unit.

4.2.1 Habitat condition.

4.2.2 Habitat threats.

4.2.3 Habitat information needs.

4.2.4 Habitat conservation programs.

4.2.5 Habitat recommendations.

4.3 Description of fishing activities affecting the stock(s) comprising the management unit.

4.3.1 History of exploitation.

4.3.2 Domestic activities.

4.3.3 Foreign fishing activities.

4.3.4 Interactions between domestic and foreign participants in the fishery.

4.4 Description of economic characteristics.

4.4.1 Harvesting sector.

4.4.2 Domestic and joint venture processing.

4.4.3 International trade.

4.4.4 Foreign fishing.

4.4.5 Business and markets.

4.5 Description of the socioeconomic aspects of the commercial and recreational domestic fishing industries and communities.

4.5.1 Employment opportunities and unemployment rates.

4.5.2 Economic dependence of communities on commercial or recreational fishing and related activities.

4.5.3 Distribution of income within the fishing communities.

4.5.4 Fishing industry and market capacity, and resource use trends.

4.5.5 Labor force characteristics.

4.6 Description of social and cultural framework of domestic commercial and recreational fishermen and their communities.

4.6.1 Ethnic character, family structure, and community organization.

4.6.2 Demographic characteristics of the fishery.

4.6.3 Organizations associated with the fishery.

4.7 Safety considerations.

4.7.1 Fishery access and weather-related vessel safety.

4.7.2 USCG evaluation.

4.7.3 Flexibility.

4.7.4 Procedures.

4.7.5 Other safety issues.

4.8 Existing fishery management jurisdictions, law, and policies.

4.8.1 Management institutions.

4.8.2 Treaties or international agreements.

4.8.3 Federal laws, regulations, and policies.

4.8.4 State laws, regulations, and policies.

4.8.5 Local and other applicable laws, regulations, and policies.

5.0 Other applicable laws.

5.1 Environmental Assessment (EA).

5.2 Environmental Impact Statement (EIS).

5.3 Draft RIR.

5.4 Initial RFA.

5.5 Paperwork Reduction Act (PRA).

5.6 Coastal Zone Management (CZM).

5.7 Endangered Species Act (ESA).

5.8 Marine Mammal Protection Act (MMPA).

5.9 Proposed regulations.

6.0 References.

6.1 Bibliography.

6.2 Sources of data and methodology.

6.3 List of public meetings and summary of proceedings.

 

Contents of Fishery Management Plans

This section offers, as the agency view of an orderly process, a basic reference checklist--one that does not prescribe, in and of itself, legal or regulatory requirements, except as provided for in the Magnuson-Stevens Act and other applicable laws. It includes, as an aid to making decisions, descriptions of the essential elements to be considered in preparing any FMP or amendment.

Relevant legal and policy documents are referenced and appended.

Sections 303(a) and (b) of the Magnuson-Stevens Act are presented in checklist form below as a Foreword, with relevant legal citations and annotations. The Foreword section is for use as a legal reference only; it presents the language of primary authorization for the guidance in Phase II.

0.0 Foreword.

0.1 Required provisions (section 303(a) of the Magnuson-Stevens Act).

0.1.1 Conservation and management measures, applicable to U.S. and foreign vessels that are necessary and appropriate to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery, consistent with the national standards, other provisions of the Magnuson-Stevens Act, regulations implementing recommendations by international organizations in which the United States participates (including, but not limited to, closed areas, quotas, and size limits), and any other applicable laws.

0.1.2 Description of the fishery, including, but not limited to, the number of vessels, type and quantity of fishing gear used, species of fish and their location.

0.1.3 Costs likely to be incurred in management of the fishery.

0.1.4 Actual and potential revenues from the fishery.

0.1.5 Any recreational interest in the fishery.

0.1.6 Nature and extent of foreign fishing.

0.1.7 Indian treaty fishing rights, if any.

0.1.8 Assessment and specification of the present and probable future condition of the fishery.

0.1.9 Assessment and specification of the MSY from the fishery.

0.1.10 Assessment and specification of the OY from the fishery.

0.1.11 Summary of information used in making OY and MSY specifications, including the social, economic, and ecological considerations used for these assessments and specifications.

0.1.12 Assessment and specification of the annual capacity and estimated extent to which U.S. fishing vessels will harvest the OY.

0.1.13 Assessment and specification of the portion of OY that U.S. vessels will not harvest annually, and that can be made available for foreign fishing.

0.1.14 Assessment and specification of the capacity and extent to which U.S. processors will annually process that portion of OY harvested by U.S. vessels.

0.1.15 Specification of pertinent data to be collected by or submitted to the Secretary, with respect to commercial, recreational, and charter fishing in the fishery, including, but not limited to, type and quantity of fishing gear used, catch by species (number and weight), areas and time of fishing, number of hauls, estimated processing capacity of U.S. processors, and actual processing capacity used by U.S. processors.

0.1.16 Consideration and provisions for temporary adjustments, after consultation with the USCG and persons utilizing the fishery, regarding access to the fishery for vessels otherwise prevented from harvesting, because of weather or other ocean conditions affecting the safe conduct of the fishery, except that the adjustment shall not adversely affect conservation efforts in other fisheries or discriminate among participants in the affected fishery.

0.1.17 Discription and identification of essential fish habitat for the fishery based upon the guidelines established under section 305(b)(1)(A) of the Magnuson-Stevens Act. The FMP must minimize, to the extent practicable, adverse effects on such habitat caused by fishing and identify other actions to encourage the conservation and enhancement of the fishery.

0.1.18 Assessment and specification of the nature and extent of scientific data needed for effective implementation of the FMP.

0.1.19 A fishery impact statement that assesses, specifies, and describes the likely effects, if any, of the conservation and management measures on (A) participants in the fisheries and fishing communities affected by the FMP; and (B) participants in the fisheries conducted in adjacent areas under the authority of another Council, after consultation with such Council and representatives of those participants.

0.1.20 Objective and measurable criteria for identifying when the fishery to which the FMP applies is overfished (with an analysis of how the criteria were determined and the relationship of the criteria to the reproductive potential of stocks of fish in that fishery). In the case of a fishery that has been determined to be approaching an overfished condition or is overfished, the FMP must contain conservation and management measures to prevent overfishing or end overfishing and rebuild the fishery.

0.1.21 Standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, including conservation and management measures that, to the extent practicable and in the following priority, (A) minimize bycatch and (B) minimize the mortality of bycatch that cannot be avoided.

0.1.22 Assessment of the type and amount of fish caught and released alive during recreational fishing under catch and release fishery management programs and the mortality of such fish. Include conservation and management measures that, to the extent practicable, minimize mortality and ensure the extended survival of such fish.

0.1.23 A description of the commercial, recreational, and charter fishing sectors that participate in the fishery and, to the extent practicable, quantify trends in landings of the managed fishery resource by the commercial, recreational, and charter fishing sectors.

0.1.24 To the extent that rebuilding plans or other conservation and management measures that reduce the overall harvest in a fishery are necessary, allocate any harvest restrictions or recovery benefits fairly and equitably among the commercial, recreational, and charter fishing sectors in the fishery.

0.2 Discretionary provisions (section 303(b) of the Magnuson-Stevens Act).

0.2.1 An FMP may require a permit to be obtained from, and fees to be paid to, the Secretary with respect to: Any fishing vessel of the United States fishing, or wishing to fish, in the EEZ [or special areas], or for anadromous species or continental shelf fishery resources beyond such zone [or areas]; the operator of any such vessel; or any U.S. fish processor who first receives fish that are subject to the FMP.

The "processor who first receives fish" means the first person who receives or intends to receive fish subject to the FMP for processing on a vessel or on land. The amount of fees charged domestic fishermen is to be established by NMFS. NMFS may enter into a cooperative agreement with the states concerned under which the states administer the permit system, and the agreement may provide that all or part of the fees collected under the system will accrue to the states. The level of fees charged must not exceed the administrative costs incurred in issuing the permits and are calculated according to Chapter 9 (April 23, 1990) of the NOAA Finance Handbook (NAO 203-102). (See section 304(d) of the Magnuson-Stevens Act, which sets forth provisions governing establishment of fees.).

0.2.2 An FMP may designate zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quantities of fishing gear.

0.2.3 An FMP may establish specified limitations that are necessary and appropriate for the conservation and management of the fishery, on the (A) catch of fish (based on area, species, size, number, weight, sex, incidental catch, total biomass, or other factors); (B) sale of fish caught during commercial, recreational, or charter fishing, consistent with any applicable Federal and state safety and quality requirements; and (C) transshipment or transportation of fish or fish products under permits issued pursuant to section 204 of the Magnuson-Stevens Act.

0.2.4 An FMP may prohibit, limit, condition, or require the use of specified types and quantities of fishing gear, fishing vessels, or equipment for such vessels, including devices that may be required to facilitate enforcement of the provisions of the Magnuson-Stevens Act.

0.2.5 An FMP may incorporate (consistent with the national standards, other provisions of the Magnuson-Stevens Act, and any other applicable laws) the relevant fishery conservation and management measures of the coastal states (or local government or other entity) nearest to the fishery.

0.2.6 An FMP may establish a system for limiting access to the fishery in order to achieve OY, if, in developing such a system, the Council and the Secretary take into account:

(A) Present participation in the fishery;

(B) Historical fishing practices in, and dependence on, the fishery;

(C) Economics of the fishery;

(D) Capability of fishing vessels used in the fishery to engage in other fisheries or other pursuits;

(E) Cultural and social framework relevant to the fishery and any affected fishing communities; and

(F) Any other relevant considerations, such as existing state conservation and management measures.

Any system of limited access must be for the purpose of conservation and management, and economic allocation may not be its sole purpose. (See 50 CFR 600.325(c)(3), national standard 4--Allocations, and ' 600.330(c), national standard 5--Efficiency, which set forth guidelines on the establishment of limited access systems.).

0.2.7 An FMP may require fish processors who first receive fish that are subject to the FMP to submit data (other than economic data) that are necessary for conservation and management.

"Economic data" means financial information representing costs and returns to the processing firm.

0.2.8 An FMP may require that one or more observers be carried on board a U.S. vessel engaged in fishing for species that are subject to the FMP, for the purpose of collecting data necessary for the conservation and management of the fishery; except that such a vessel shall not be required to carry an observer on board if the facilities of the vessel for quartering an observer, or for carrying out observer functions, are so inadequate or unsafe that the health or safety of the observer or the safe operation of the vessel would be jeopardized.

An FMP mandating observers must justify the requirement and identify expected costs and benefits. A Council that requires observers may prepare, in consultation with NMFS, an Observer Plan that specifies the basis for determining the adequacy and safety of vessel facilities, whether the safe operation of a vessel would be jeopardized, and qualifications of an observer.

0.2.9 An FMP may assess and specify the effect that its conservation and management measures will have on the stocks of naturally spawning anadromous fish in the region.

0.2.10 An FMP may include, consistent with other provisions of the Magnuson-Stevens Act, conservation and management measures that provide harvest incentives for participants within each gear group to employ fishing practices that result in lower levels of bycatch or in lower levels of the mortality of bycatch.

0.2.11 An FMP may reserve a portion of the allowable biological catch of the fishery for use in scientific research.

0.2.12 An FMP may prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery.

 

1.0 Introductory material.

1.1 Cover sheet. Provide a cover sheet for the purpose of ready identification of the FMP, the subject fishery, its geographic location, the responsible Council(s), and date of Council(s) approval. Add other appropriate information such as whether the FMP is jointly prepared, combined with an EIS or RIR or IRFA, whether the version is draft or final, date of the document, etc.

1.2 Summary. Give a concise summary covering the essence of the following: Problems addressed; management objectives; areas of controversy; management unit; management institutions and their jurisdictions; management measures; alternatives; description of ecological, economic, and social impacts; feasibility for implementation; specifications--range of MSY, OY, DAH, TALFF, DAP, and JVP, and whatever other matters are judged relevant to the objectives and their effects.

1.3 Table of contents. List all major headings and subtopics, cross-indexing where necessary. Indicate sections in which specific requirements of NEPA, E.O. 12866, and RFA are met, if the document is integrated with analyses under these or other applicable laws.

1.4 Introduction. Briefly describe the management unit and its basis (see guidelines for national standard 3, 50 CFR 600.320(d)), and the overall management objectives. Briefly describe the jurisdictional context, including, if relevant, reference to the history of management. Describe, in general terms, the source and quality of scientific information used. Include a list of preparers, as appropriate.

 

2.0 Fishery management program.

2.1 Problems for resolution. Describe and substantiate the nature of the problems that require resolution through management, for example: Problems in the habitat, harvest, or productivity of the resource; overfishing and rebuilding of the resource; conflicts among user groups; or regulatory failures, such as compliance, safety, or enforcement weaknesses. Information needed includes a brief history of the problem, its extent in relation to others, constraints against past solutions, and damages or costs incurred by the group affected. An estimate of the dollar magnitude of the problem is necessary.

2.2 Management objectives. Specify the objectives to be attained. The objectives should relate to the problems identified and should provide a basis through which the various alternatives can be compared to determine their effectiveness. (See 50 CFR 600.305(b), national standard guidelines, General.)

2.3 Management unit. Describe the management unit. The choice of a management unit depends on the focus of the FMP's objectives, and may be organized around geographic, economic, technical, social, or ecological perspectives. (See 50 CFR 600.320(d), national standard guidelines for standard 3.)

2.4 Habitat preservation, protection, and restoration. An FMP may include measures designed to control harmful fishing practices to protect specific fish habitat using the best readily available information. An FMP may describe and identify essential fish habitat, adverse impacts on that habitat, and actions to ensure the conservation and enhancement of that habitat. An FMP may also address and comment on activities of any Federal or state agency that may affect essential fishery habitat. Explicit actions may be recommended to preserve, enhance, protect, and restore habitat identified as necessary to support the normal life functions of the stock(s) and their food base. Appropriate authorities-- state, Federal, or international--should be informed by the Councils of the findings and the recommendations. (See sections 303(a)(7) and 305(b) of the Magnuson-Stevens Act.)

2.5 Management alternatives. Identify and describe the most feasible alternatives that could reasonably be expected to resolve the stated problems. In addition, the list must include the "no action" alternative as a baseline for comparative purposes. If the status quo is a measure with a specific termination date, the "no action" alternative must account for the termination of the measure and the effect on management of the fishery without that measure. There is no particular required number of alternatives; however, alternative actions should be formulated and considered on the basis of completeness, effectiveness, efficiency, and viability. If this section will be incorporated as the alternatives analyzed in the appropriate NEPA document, the requirements of 40 CFR 1502.14 must be satisfied.

2.6 Development of fishery resources. An FMP may identify other fishery resources associated with the stock(s) that are underutilized or not utilized by U.S. fishermen and, if appropriate, may include a description of development goals for these fisheries in the area(s) covered by the FMP. Such information may be useful in encouraging the development of such fisheries. (See section 2(b)(6) of the Magnuson-Stevens Act.)

2.7 Summary of beneficial and adverse impacts of each potential management option. Summarize the advantages and disadvantages of each alternative. (See section 3.0 for a discussion of the analysis of the beneficial and adverse impacts of potential management options.)

2.8 Measures recommended to attain management objectives.

2.8.1 Specification of OY. Each FMP must assess and specify the OY determined to be the amount of fish, with respect to the yield from the fishery, that will provide the greatest overall benefit to the Nation (see section 3(28) of the Magnuson-Stevens Act). Comprehensive guidance on assessing and specifying OY is found in the national standard guidelines for standard 1 (50 CFR 600.301). It includes discussion of MSY, all the factors to be considered in determining OY, with examples, and specific suggestions for the analysis. The discussion under section 3.0 of this document may also be helpful.

2.8.2 Specification of preferred management measures. Describe the management measures chosen to attain the objectives of the FMP.

2.8.3 Reporting and recordkeeping requirements. Specification and sources of pertinent fishery data to be submitted to NMFS.

2.8.3.1 General. The FMP must specify pertinent data that the Council recommends to be submitted to NMFS by participants in the fishery. Specifications of data may take into account the effort necessary to collect such data. Effort can be minimized through careful selection and standardization of data elements, the periodicity of collection, recordkeeping, and reporting. An explanation of why the data are needed should be included. Regulations with regard to the confidentiality of these statistics are set forth in 50 CFR 600 subpart E. Guidance with regard to information collection from states, contractors, or other agencies may be found in Appendix 2.f of this document.

2.8.3.2 Domestic and foreign fishermen. The data specified may include, but are not limited to, information as to type and quantity of gear, catch by species in numbers of fish or weight, fishing effort, fishing areas, time of fishing, number of hauls, and other data considered pertinent.

2.8.3.3 Processors. An FMP may specify the data that must be submitted by fish buyers, processors, etc., who purchase, transport, and process the catch of the stock(s).

2.9 Rationale and net benefit discussion. Compare the alternatives for management of a national fishery resource according to net benefits and other considerations. Discuss the rationale for the preferred alternative and present the sum of the benefits expected if the preferred alternative is implemented. Show how monetized benefits and costs, distributional impacts, and nonquantifiable considerations for each alternative influenced the decision. The section should describe whether the alternative chosen maximizes net benefits and involves the least net cost to society in ecological, economic, and social terms. If the preferred alternative does not maximize net benefits, an explanation for its selection should be presented. This section should also summarize whether the proposed action would impose any significant impacts on small entities or communities, and whether adverse impacts have been reduced to a minimum. (See 50 CFR 600.340, national standard guidelines for standard 7; and Section 1, Statement of Regulatory Philosophy and Principles, E.O. 12866.)

2.10 Relationship of the recommended measures to existing applicable laws and policies.

2.10.1 Fishery management plans. Identify and discuss the relationship of the recommended measures for the fishery to other approved FMPs for other fisheries prepared by a Council, the Secretary, or other governmental entity.

2.10.2 Treaties or international agreements. Identify and discuss the relationship of the recommended measures for the fishery to any treaties with foreign nations or international fishery agreements that affect the stock(s) or fishing thereon.

2.10.3 Federal law and policies. Identify and discuss existing applicable Federal laws and policies, including ESA and MMPA, that affect implementation of the recommended measures and provision of specified fishery data.

2.10.4 State, local, and other applicable laws and policies. Identify and discuss existing applicable laws and policies that affect implementation of the recommended measures and provision of specified fishery data. A recommended measure may not abrogate any Indian treaty fishing rights embodied in treaties, case law, or other agreements. (See 50 CFR 600.320, guidelines for national standard 3.)

2.11 Council review and monitoring of the FMP. Discuss generally the procedures the Council and its advisory groups will use to review and revise the FMP. Data in the Stock Assessment and Fishery Evaluation (SAFE) document(s) is to be reviewed on an annual basis and updated, as necessary. Monitoring is particularly critical for fisheries identified as approaching, or rebuilding from, overfishing; and for FMPs with framework measures, which allow flexibility through periodic adjustments. (See 50 CFR 600.315, national standard 2; and Operational Guidelines, Phase V.)

3.0 Analysis of the beneficial and adverse impacts of potential management options. The analysis of impacts should begin as early as the scoping process, and should consider the ecological, economic, and social consequences of the fishery as a whole, as managed under all the alternative management measures. Each of these areas may have varying levels of importance, depending on the action contemplated. The structure for economic or social analysis of regulatory impacts consists of estimating the benefits and costs--in monetary or qualitative terms--of each regulatory alternative. The cost-benefit analysis should show the costs associated with each regulatory proposal against the benefits derived from the action. At a minimum, the analysis should describe the advantages and disadvantages of each of the alternatives, defining a baseline against which the incremental benefits and costs of alternate action can be compared. The "no action" alternative should be discussed. The alternatives chosen should treat the causes of the problem and relate to the objectives of the FMP. They should focus on gaining maximum effectiveness at minimum costs, not on a predetermined regulatory approach. (See 50 CFR 600.340, guidelines for national standard 7.) If circumstances allow, the same time series for data bases should be used to analyze each alternative. (If this section will be incorporated as the environmental impacts analyzed in the appropriate NEPA document, the requirements of 40 CFR 1502.16 (CEQ Regulations) must be satisfied.) An amendment to an FMP also is required to assess the impacts of management on the fishery generally, as well as the impacts of the specific amendment alternatives.

3.1 Ecological. Evaluate the ecological effects of the fishery, under the proposed management measures, on the fish or shellfish stocks and their habitat comprising the management unit, and effects on species that are associated in the ecosystem or that are dependent on the same habitat, including, specifically, marine mammals and endangered and threatened species. The evaluation should focus on the effects of fishing (as allowed under the management measures) on present and future abundance, short- and long-term biological productivity, distribution of the affected resources, spawning success, population structure and stability, and species diversity. Effects of fishing operations on the environment should be examined. Attention should also be given to the vulnerability of incidental or unregulated species in mixed species fisheries, predator-prey or competitive interactions, and dependence of marine mammals and birds or endangered/threatened species on the regulated species. If different fishing patterns are permitted (as described in 50 CFR 600.310(c)(3)), the analysis must assess the risk of the species reaching an "overfished," "threatened," or "endangered" status. (See NAO 216-6, guidelines under NEPA; ESA and MMPA; Operational Guidelines; and 50 CFR 600.310, guidelines for national standard 1.)

3.2 Economic. Evaluate the economic effects of the management measures on each user group by considering changes, relative to the status quo, for factors such as prices, production, revenue, profit, employment, occupational health and safety, balance of trade, productivity, distribution of gains and losses, and competition. This evaluation should include an analysis of the economic dependence of fishermen on recreational and commercial fishing and of employees in the processing sector or support industries, changes in the economic value of recreational fishing, an analysis of potential changes in the sources and distribution of income on those in the fishing community, effects on private property rights and reasonable investment-backed decisions, and the varying degree of impacts on individuals or entities according to the relative size of the operation. Attention should be given to the effect on the competitive position of small entities, on their cash flow and liquidity, and their ability to remain in the market.

3.3 Social. Evaluate the principal social effects of the management measures on each user group by considering changes, relative to the status quo, for employment in, or enjoyment of, the fishery. Within this context, consider alternative employment opportunities and practices in the fishery or related industries, and the current unemployment rates in the geographical area; consider the impact on seasonal employment in fishing and fish processing relative to other non-fishery employment opportunities and to established fishing patterns for other fisheries. Identify any impacts on Native American or subsistence fisheries. Consider whether the management measures are likely to result in any significant changes in the conduct or practices of fishing that would affect vessel and crew safety or result in community dislocation or changes in patterns of social and cultural activity in the fisheries. Identify the changes management measures might cause in fishing methods, and consider the social impact of these changes and the likelihood of their acceptance by fishermen, and thus enforceability. If significant social impacts on communities or segments of the commercial or recreational fisheries are identified, the social costs of unemployment, effects on health, and community viability should be evaluated. (See Appendix 2.g.)

4.0 Supporting material. Actual location of descriptive information in an FMP is discretionary, and should be based on the scope of the fishery problem being addressed and whether the information has a specific relationship to the management programs under study. The following section includes a detailed list of information that may not necessarily be available at a given time for a given fishery. It is designed to provide assistance in identifying data gaps and to make it possible to reduce extraneous contextual material in the core FMP by allowing for abstracting and cross-indexing of information relevant to particular analyses or discussions. Together with any separate source document or required analyses under the law, it should provide the legal documentation necessary to support the management rationale. Subject headings will duplicate previous sections, depending on how the FMP is organized.

4.1 Description of the stock(s) comprising the management unit.

4.1.1 Species or group of species and their distribution. Provide a biological description and the geographical distribution of the major and incidental species or group of species comprising the management unit as identified by the Council.

4.1.2 Abundance and present condition. Assess and specify the present abundance and biological condition of the stock(s).

4.1.3 Definition of overfishing. Overfishing definitions must be based on the best scientific information available, and be defined in a way to enable the Council and NMFS to monitor and evaluate the condition of the stock or stock complex relative to the definition. The Center that supports the FMP must certify the definition of overfishing. (See 50 CFR 600.310(b)(4), guidelines for national standard 1.)

4.1.4 Ecological relationships. Describe the relationship of the stock(s) to other species, including food chain and predator-prey relationships, and dependance upon essential fish habitat.

4.1.5 Estimate of MSY. Specify the MSY of the stock(s) based upon the best scientific information available. Summarize the information used in making the specification.

Because MSY is a long-term average, specification of MSY is not required for each amendment; however, new scientific information would require consideration of the rationale for the current specification of MSY.

4.1.6 Probable future condition. Specify the probable future condition of the stock(s) and essential fish habitat, if present conditions and trends continue.

4.2 Description of habitat of the stock(s) comprising the management unit. This section supports, and must be consistent with, the Habitat Conservation Policy and Implementation Strategy 3. (See Operational Guidelines, Appendix 1.)

 

4.2.1 Habitat condition.

4.2.1.1 Identify and describe the habitats and habitat requirements of stock(s) comprising the management unit. Note essential habitat of particular concern due to life cycle requirements, such as spawning grounds, nurseries, or migratory routes.

4.2.1.2 Describe the relationship of habitat quality to the ability to harvest and market the species.

4.2.2 Habitat threats. Identify essential fish habitat and other habitat areas that are threatened with alteration, degradation, or destruction, and the causes and the potential effects on the fishery.

4.2.3 Habitat information needs. Specify information needed, highlighting data gaps, to establish a baseline for proper evaluation of the effects of habitat modification on the species and associated fisheries.

4.2.4 Habitat conservation programs. Describe existing government programs and authorities, and private sector entities, concerned with protecting, conserving, restoring, and enhancing the habitat of the stock(s).

4.2.5 Habitat recommendations. Describe Council actions and recommendations regarding the preservation, protection, and restoration or enhancement of essential fish habitat.

Specific measures controlling fishing under the FMP that affect habitat should be prepared and discussed in terms of how they contribute to attaining FMP objectives and the economic and social costs and benefits to the affected industries.

FMPs must identify activities that have potential adverse effects on essential fish habitat quantity and quality. Broad categories of non-fishing related activities may include, but are not limited to: Dredging, fill, excavation, mining, impoundment, discharge, water diversions, thermal additions, runoff, placement of contaminated material, introduction of exotic species, and the conversion of aquatic habitat that may eliminate, diminish, or disrupt the functions of essential fish habitat. If known, an FMP should describe the essential fish habitat most likely to be affected by these activities. The coordination and consultation requirements of sections 305(b)(1)(d) and 305(b)(2-4) of the Magnuson-Stevens Act provide that: Federal agencies must consult with the Secretary on all actions, or proposed actions, authorized, funded, or undertaken by the agency that may adversely affect essential fish habitat; and the Secretary and the Councils provide recommendations to conserve essential fish habitat to Federal or state agencies. Conservation recommendations are measures recommended by the Councils or NMFS to a Federal or state agency to conserve essential fish habitat.

(See Appendix 1, NMFS Habitat Conservation Policy, guidelines for essential fish habitat.)

4.3 Description of fishing activities affecting the stock(s) comprising the management unit.

4.3.1 History of exploitation. Summarize the historical fishing practices, both foreign and domestic. Identify past user groups, vessel and gear types and quantities, and fishing areas.

4.3.2 Domestic activities. Describe current domestic fishing activities involving the management unit, including commercial, recreational, subsistence, and Treaty Indian fishing, and, where applicable:

o Participating user groups;

o Vessels and fishing gear;

o Employment in recreational and commercial sectors;

o Fishing and landing areas used throughout the range of the stock;

o Conflicts among domestic fishermen involving competition for fishing areas, gear damage, etc.; Amount of landings/catches;

o Assessment and specification of the U.S. harvesting capacity;

o Assessment and specification of the portion of OY that operators of U.S. vessels will not harvest annually, and that can be made available for foreign fishing (detailed tables may be included in the Appendix of the FMP); and

o Assessment and specification of the capacity and extent to which U.S. processors will annually process that portion of OY harvested by operators of U.S. vessels. (See 50 CFR 600.310(h)(2)(iii) for discussion of JVP.)

4.3.3 Foreign fishing activities. Describe current foreign fishing activities, including, where applicable:

o Participating nations;

o Vessels, harvesting and support, and fishing gear;

o Fishing areas; and

o An enumeration of catches and value as distributed among the stock(s) comprising the management unit.

4.3.4 Interactions between domestic and foreign participants in the fishery. Describe the interactions between domestic and foreign fishermen using the stock(s), including gear or other conflicts. Identify any problems caused by foreign fishermen taking as incidental catch a target species of a domestic fishery. Describe any existing or potential joint ventures.

4.4 Description of economic characteristics.

4.4.1 Harvesting sector. Describe the catch and value for both the commercial and recreational sectors, citing the method of valuation. For the commercial fleet, describe existing and required investment, revenues, costs, measurements of effort, measurement of efficiency and measurement of productivity. For recreational fishing, describe the direct fishing activity, sales of support industries (fishermen expenditures), capital expenditures, and non-market value estimates (willingness to pay/economic surplus).

4.4.2 Domestic and joint venture processing sector. Describe the processed products and their value. Specify the capacity of the domestic processing sector, the costs and earnings of different size firms, productivity of those firms, and existing and required investment.

4.4.3 International trade. Describe domestic imports and exports, and trade among foreign nations where applicable. Describe and discuss existing and proposed international business arrangements, tariffs, quotas, and other trade barriers that affect market access and fair trade.

4.4.4 Foreign fishing. Describe world catch by country. Where appropriate, describe fleet capacities, cost and earning, and the relationship of catches in U.S. waters to catches off other countries.

4.4.5 Business and markets. Describe market sales by species; prices at the exvessel, wholesale, and retail levels; and the seasonality and elasticity of prices. Describe the number of markets and extent of sales for recreational fishing activities.

4.5 Description of the socioeconomic aspects of the commercial and recreational domestic fishing industries and communities. These aspects are part of both the economic and social analyses; the data bases are shared, and impacts can be described in both economic and social terms.

4.5.1 Employment opportunities and unemployment rates. Identify and describe, to the extent that information is available, the changes management measures will produce in employment opportunities and practices within the fishery's harvesting, processing, and service sectors; on employment in other fisheries; and in non-fishery related work in the communities involved in the fishery, including seasonal employment.

4.5.2 Economic dependence of communities on commercial or recreational fishing and related activities. Describe the economic dependence of fishermen and others on commercial and/or marine recreational fishing and related activities, and identify impacts of proposed management measures.

4.5.3 Distribution of income within the fishing communities. Identify direct and indirect changes the management measures will cause in the sources and distribution of income within fishing communities using the resource.

4.5.4 Fishing industry and market capacity, and resource use trends. Identify changes the management measures will cause on infrastructure capacity and resource use, and upon communities.

4.5.5 Labor force characteristics. Identify any changes the management measures will cause in labor force characteristics in fishing communities and regions.

4.6 Description of social and cultural framework of domestic commercial and recreational fishermen and their communities.

4.6.1 Ethnic character, family structure, and community organization. Describe to the extent such information is available.

4.6.1.1 Identify the size, number, and the characteristic fishing activities of members of ethnic cultures and sub-cultures, including Native Americans and participants in subsistence fishing, and the importance of these activities to cultural traditions.

4.6.1.2 Describe the involvement of small businesses, family-units, and communities in harvesting and processing the resource, their relative dependence upon these activities as a source of employment and income, and the relationship of family and kinship groups to past fishing and processing practices.

4.6.1.3 Describe the social and cultural importance of the resource to fishing communities, historical patterns of community participation in the fishery, traditional community patterns of resource allocation and management, and the impact of resource seasonality upon community life.

4.6.2 Demographic characteristics of the fishery. Describe the demographic characteristics of fishermen, fish processors, and service sector employees, insofar as they are relevant to understanding social and cultural aspects of the harvesting and use of the resource.

4.6.3 Organizations associated with the fishery.

4.6.3.1 Fishing cooperatives and associations. Identify the fishing cooperatives, associations, or other organized groups (recreational or commercial) involved in the fishery. Describe their activities and effect on the fishery.

4.6.3.2 Labor organizations. Describe the working conditions in the fishery. Identify labor organizations involved in the harvesting and processing sectors, and describe their activities.

4.7 Safety considerations. Consideration of management adjustments for fishery access for vessels otherwise prevented from harvesting because of weather or other ocean conditions affecting the operational safety of the vessels.

4.7.1 Fishery access and weather-related vessel safety. Identify any fishery conditions or management measures or regulations that may result in the loss of harvesting opportunity because of the crew and vessel safety effects of adverse weather or ocean conditions. Consider any concerns raised by the USCG and persons using the fishery related to proposed or existing management measures that directly or indirectly pose a hazard to crew or vessel safety under adverse weather or ocean conditions. Particular consideration should be given to fisheries regulated by season, in-season time or area closures or other restrictions, or trip tonnage or frequency limits. Such measures particularly may affect, or have the potential to affect, the operation of fishing vessels and safety risks taken by vessel operators under adverse weather or ocean conditions.

4.7.1.1 If vessel safety is not identified as a relevant or significant issue in the fishery or in the proposed preferred and alternative management measures, so indicate. If safety issues are raised or identified, describe how and to what extent the FMP/amendment measures have been revised to accommodate such safety concerns, and if not, why not.

4.7.1.2 Describe any procedures for consideration of or making management adjustments (either annually, seasonally, or in-season) on behalf of those persons precluded from a fair or equitable harvesting opportunity by the management regulations or fishery circumstances, including procedures for obtaining the views of fishery users and for consultation with the USCG.

 4.7.2 USCG evaluation. Provide, either within or attached to the FMP, the USCG evaluation of vessel safety issues, whether pertinent to fishery access and weather-related vessel safety or to other significant and relevant safety issues in the fishery. The primary contact for such an evaluation is the USCG representative on the Council; however, the USCG District Commander may comment to NMFS in response to an FMP/amendment.

4.7.3 Flexibility. Provide flexibility to adjust such measures for safety concerns to the degree possible (e.g., add weather and ocean conditions as factors to consider in framework measures when making in-season adjustments).

4.7.4 Procedures. Describe any procedure (e.g., use of advisory sub-panel) proposed to monitor, evaluate, and report on effect of management measures on vessel or crew safety, particularly under adverse weather or ocean conditions.

4.7.5 Other safety issues. All significant and relevant safety issues raised by the fishery users, other public, or the USCG should be discussed and addressed in the FMP (amendment). While dealing with all safety issues is broader than the specific requirements of section 303(a) and (b) of the Magnuson-Stevens Act, as a matter of administrative law, significant, relevant safety issues that are raised must be addressed in the administrative record. The need for a consideration of safety issues broader than those concerning fishery access and weather-related vessel safety will depend upon the fishery circumstances and the nature of proposed management measures. Where significant safety concerns are identified or raised, the social and economic implications will need evaluation (see sections 3.2 and 3.3).

4.8 Existing fishery management jurisdictions, law, and policies.

4.8.1 Management institutions. Identify and describe the institutions that have fishery management authority over the stock(s) throughout its range.

4.8.2 Treaties or international agreements. Identify and describe applicable treaties with foreign nations or international fishery agreements that affect the management unit, either directly by control of fishing or indirectly by control of fishing for a related stock (e.g., a predator or prey of the subject stock(s)).

4.8.3 Federal laws, regulations, and policies. Identify and describe the impact of any applicable Federal laws, regulations, and policies upon the management unit or fishing thereon (e.g., E.O. 12866 and 12612).

4.8.4 State laws, regulations, and policies. Identify and describe the impact of any applicable state laws, regulations, and policies upon the management unit or fishing thereon.

4.8.5 Local and other applicable laws, regulations, and policies. Identify and describe the impact of any local and other applicable laws, regulations, and policies upon the management unit or fishing thereon. This includes, where applicable, Indian Treaty fishing rights embodied in treaties, case law, or other agreements.

5.0 Other applicable laws. Absence of a required FMP element, or failure to meet the procedural or analytical requirements of the Magnuson-Stevens Act or other applicable laws will result in disapproval. Thus, to be ready for formal Secretarial review, the package must contain the elements listed below, as applicable. In addition, proposed regulations not conforming to the OFR Document Drafting Handbook will be delayed in processing and, if not corrected, will not be filed by the OFR.

5.1 Environmental Assessment (EA). An EA is an environmental document usually prepared by the Council (although it may be prepared by the RA) that presents a brief analysis of the environmental impacts of the fishery as proposed in the FMP/ amendment and its alternatives. (See Overview Checklist,

p. A-13.) The discussion must include the impacts of the fishery, the preferred alternative and other alternatives on the environment generally, and on protected species specifically (Memorandum, William W. Fox, Jr., April 22, 1991). It must include sufficient information or evidence and analysis to determine whether (1) the action is significant under NEPA and an EIS is required; or (2) a FONSI can be made. An EA must contain the following elements:

5.1.1 Discussion of the need for the FMP, amendment, or regulations.

5.1.2 Discussion of the proposed action and reasonable alternatives (including no action) and their environmental impacts in response to the needs identified above. The scope of environmental analysis should provide the basis for determining whether the action is significant. Accordingly, the EA must (1) address the factors listed in NAO 216-6, section 6.10c. for assessing the context and intensity of environmental impacts, and (2) consider whether the proposed action meets any of the five criteria for "significance" established for FMPs and amendments in section 6.11. The five criteria consider whether the proposed action may be reasonably expected to (1) jeopardize the long-term productivity of any stocks, (2) allow substantial damage to the ocean and coastal habitats, (3) have a substantial adverse impact on public health or safety, (4) affect adversely an endangered species or a marine mammal population, or (5) result in cumulative adverse effects that could have a substantial effect on target resources or related stocks. An EA will evaluate the impacts of fishing on the environment generally, the impacts of the alternatives, and on protected species specifically.

5.1.3 List of agencies (e.g., local, state, Federal) and persons consulted in formulating the proposed action, considering alternatives, and preparing the EA.

5.1.4 Flood plains, wetlands, trails, and rivers. Where relevant, assess whether the action significantly and adversely affects flood plains or wetlands (see section 6.04d. of NAO 216-6) and trails and rivers listed, or eligible for listing on the National Trails and Nationwide Inventory of Rivers (Presidential Directive, August 2, 1979).

5.1.5 Finding of no significant impact (FONSI). A FONSI declares, after consideration of comments received during a public comment period, if one is provided, that an action will not significantly affect the human environment and does not require preparation of an EIS. The FONSI should provide for the signature of the Assistant Administrator. (The FONSI language, signature line, and space for date of signing should be included in the FMP/amendment, when an EA is included with that document.)

5.2 Environmental Impact Statement (EIS). An EIS, or supplemental(S) EIS should be prepared according to CEQ's NEPA regulations (40 CFR 1502.10 - 1502.18) and NAO 216-6, which indicate required contents and provide guidance on format. A draft EIS or supplemental (S) EIS must identify and analyze the preferred alternative, as well as the other reasonable alternatives (40 CFR 1502.14). (See Overview Checklist, p. A-13.) The EIS elements that must be present in an FEIS are those required for filing with EPA.

"Significant" means a measure of the intensity and the context of beneficial or adverse effects of a major Federal action on, or the importance of that action to, the human environment. Significant is a function of the short-term, long-term, and the cumulative impacts of the action on that environment. (See NAO 216-6, Appendix 2.e.)

"Effects" include (1) direct effects, which are caused by the proposed action at the same time and place; and (2) indirect effects, which are caused by the proposed action, and can reasonably be expected to occur later in time or further removed in distance. (Reference 40 CFR 1508.7.)

"Human environment" is interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. This means that economic or social effects are not intended, by themselves, to require preparation of an EIS. When an EIS is prepared and economic or social effects are interrelated, then the EIS should discuss all of the effects. (Reference 40 CFR 1508.14.)

5.2.1 Cover sheet, which includes: (1) Responsible agency and cooperating agencies; (2) title of the proposed action and location of the action; and (3) designation of the statement as a draft, final, or draft/final supplement.

5.2.2 Summary of the EIS that includes: (1) Major conclusions, (2) controversial areas, and (3) issues for resolution (including choice among alternatives).

5.2.3 Statement of purpose and need to which the agency is responding. Why is the FMP/amendment needed?

5.2.4 Examination/evaluation of all reasonable alternatives, including "no action", identification of the preferred alternative; a comparison and ranking of the alternatives from an environmental perspective; and identification of the proposed action.

5.2.5 Affected environment. Description of environment of area(s) affected by alternatives is necessary to understand the significance of an action in the context of the unique characteristics of the geographic area.

5.2.6 Environmental consequences. Discussion and analysis of:

o Environmental impacts of alternatives, including proposed action;

o Unavoidable adverse effects;

o Short-term use of environment related to long-term productivity;

o Irreversible or irretrievable commitment of resources (refer to 40 CFR 1502.16 of the CEQ regulations for required discussion subjects; see section 5.8 below for required MMPA information);

o Impacts of fishing on the environment generally, and on endangered and protected species and critical habitat specifically under MMPA and ESA (Memorandum, William W. Fox, Jr., April 22, 1991) and;

o The basis of the specific direct and indirect impacts of the alternatives.

5.2.7 Mitigation measures.

 5.2.8 List of preparers. Names and qualifications of persons primarily responsible for preparing the EIS.

5.2.9 EIS copies. List of agencies, organizations, and persons to whom copies of the EIS are sent.

5.2.10 Response to comments. A final EIS or SEIS include comments received during the public comment period of the draft, and a response to those comments.

5.3 Draft RIR. The draft RIR must provide a sufficient basis for the determinations of significance under E.O. 12866 and the RFA. An initial regulatory flexibility analysis under the RFA may be combined with the draft RIR. These guidelines do not contain item-by-item instructions describing what should be contained in an RIR or RFA; rather a checklist of general areas of concern is provided as an aid to the preparers in evaluating the completeness of an analysis of alternative regulatory actions. (See Appendix 2.c.)

5.3.1 Statement of problem. Describe and substantiate its nature. Is there sufficient information to understand what the problems are that need to be solved? Are the objectives discussed?

5.3.2 Analysis of impacts of each alternative. Are the economic and social consequences of the regulatory or policy change analyzed, including the "no action" alternative (i.e., economic and social consequences of continuing the statusquo without the alternative measures)? Is there sufficient information to determine whether the rule is a significant action (see section 3(f) of E.O. 12866)? Is there sufficient information to determine whether the benefits justify the costs?

o Benefits. Is there an analysis of incremental benefits (quantifiable and unquantifiable)? Does it indicate who will receive the benefits and when?

o Costs. Is there an analysis of incremental costs (quantifiable and unquantifiable), including social impacts and economic and compliance costs? Does it indicate who will incur the costs and when? Is there an adequate discussion of the impacts on private property rights?

o Net benefits. Is there enough information to determine whether the benefits justify the costs for each alternative and to select the approach that achieves the objective in the most cost effective manner, and if not, why not?

 5.3.3 Rationale for Council choice of proposed regulatory action. Does the document present the reasons for selecting the preferred alternative, including how monetized benefits/costs, distributional effects, and unquantifiable considerations influenced the decision? Where there are potentially important differences between those who stand to lose and those who stand to gain, does the document identify these groups and indicate the nature of differential effects? If the preferred alternative does not achieve the objective in the most cost-effective manner, the reasons should be presented. (Include this section only if the RIR is a separate document, otherwise the material is contained in Section 2.9.)

5.4 Regulatory Flexibility Analysis. An initial regulatory flexibility analysis (IRFA) must be prepared unless the agency can certify that the proposed rule, if adopted, would not likely have a significant economic impact on a substantial number of small entities. The IRFA may be combined with the draft RIR.

5.4.1 Statement of problem. Describe and substantiate its nature. Is there sufficient information to understand what it is that needs to be solved?

5.4.2 Alternative approaches. Is the "no action" alternative included?

5.4.3 Analysis of impacts of each alternative. Are the economic consequences of the regulatory or policy change analyzed, including benefits and costs? Information required in the IRFA is the following (in addition to that contained in the DRIR):

o Description and estimate of the number of small entities and total number of entities in a particular affected sector, and total number of small entities affected; and

o Analysis of economic impact on small entities, including direct and indirect compliance costs, burden of completing paperwork or recordkeeping requirements, effect on the competitive position of small entities, effect on the small entity's cash flow and liquidity, and ability of small entities to remain in the market.

5.4.4 Rationale for Council choosing the proposed regulatory action. Does the document present the reasons for selecting the preferred alternative and a discussion of how the selected alternative minimizes the economic burden on small entities? (Include this section only if the IRFA is a separate document, otherwise the material is contained in section 2.9.)

5.4.5 Final Regulatory Flexibility Analysis (FRFA). Each FRFA must contain the following:

o A succinct statement of the need for, and objectives of the rule.

o A summary of significant issues raised by the public comments in response to the IFRA, the agency's response to those comments, and a statement of any changes made to the rule as a result of the comments.

o A description and estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available.

o A description of the reporting, recordkeeping, or other compliance requirements of the rule; and

o A description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of factual, policy, and legal reasons for selecting the alterative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency, which affect the impact on small entities, was rejected.

5.5 Paperwork Reduction Act (PRA). When the Agency intends to collect information from 10 or more persons or through a rule of general application, an 83-I form is required, requesting OMB review under the PRA. The form and instructions are available from the individual in the Region who is responsible for preparing the information collection budget, or from F/SF5. Parts 1 and 3 of the form must be filled out if there is an information collection or recordkeeping requirement in the FMP/amendment. The instructions for the 83-I provide detailed guidance on how to do this, and how to prepare the supporting statement that must accompany the 83-I. Additional helpful information and guidance is included in Appendix 2.f. To fulfill PRA requirements, the package must include the following:

o An 83-I;

o A supporting statement prepared in accordance with the format described in the instructions, containing all information specified; and

o A copy of the proposed regulations.

5.6 Coastal Zone Management (CZM) consistency. Prior to submission of a final FMP/amendment for Secretarial review, the Council or RA must send a copy of the FMP/amendment and a consistency determination to the state coastal management agency in every state with a Federally approved coastal management program whose coastal zone is affected by the FMP/amendment. If the Council or RA determines the activity will affect the land or water uses or natural resources of a state's coastal zone, the State agency must be notified, briefly setting forth the reasons for the Council's (or RA's) determination that the action will be consistent to the maximum extent practicable with the state program. (See Appendix 2.a. for further guidance.) The statement should:

o Be based upon an evaluation of the relevant provisions of the approved state program and a detailed description of the coastal zone effects of the FMP/amendment;

o Explain how the FMP/amendment was determined by the Council or RA to be consistent to the maximum extent practicable;

o Address known issues of controversy; and

o Request that the state agency inform the Council or RA of its agreement or disagreement.

5.7 Endangered Species Act (ESA). Section 7(a)(1) of the ESA requires Federal agencies to use their authorities to conserve endangered and threatened species. "Conservation" is broadly defined under the ESA. Section 7(a)(2) of the ESA requires Federal agencies to insure that any action authorized, funded, or carried out by such agencies is not likely to jeopardize or result in the destruction or adverse modification of critical habitat. The regulations implementing section 7(a)(2) at 50 CFR part 402, provide that each agency must consult on any action that "may affect" endangered or threatened species or designated critical habitat. In the FMP/amendment and related documents, the Councils, in coordination with NMFS, must assess the potential impacts of the action on endangered and threatened species and critical habitat. However, NMFS is the Federal agency with which consultation must occur. Fishing conducted under the FMP/amendment must be considered for its effects, rather than just the effects of specific management measures (Memorandum, William W. Fox, Jr., October 18, 1990). Councils may contact staff in NMFS Regions and Centers for information on possible effects of proposed FMP/amendments. Any required consultation with NMFS should be completed during Phase III, but must be completed prior to submission of the FMP/amendment for Secretarial review (Phase IV). Also see 50 CFR part 402 (Appendix 2.b.).

5.7.1 Conference. A Federal agency shall initiate a conference with NMFS consisting of informal discussions on any action regarding the continued existence of species proposed for listing or that would result in the destruction or adverse modification of proposed critical habitat. The conference is designed to assist the Federal agency and any applicant in identifying and resolving potential conflicts at an early stage in the planning process. The conclusions reached during the conference and any recommendations shall be documented by NMFS and provided to the Federal agency and any applicant. See also 50 CFR 402.10 (Appendix 2.b).

5.7.2 No consultation required. If NMFS determines that the action (FMP and associated fishing) "will not affect" endangered or threatened species or critical habitat, then consultation is not required. This determination should be documented in the FMP and related documents.

5.7.3 Informal consultation. If the action (FMP and associated fishing) "may affect" endangered or threatened species or critical habitat, consultation is required. Typically, consultation begins with informal consultation by NMFS with NMFS' or FWS' regional office, as appropriate depending on the endangered or threatened species involved. If the informal consultation concludes that the action "is not likely to adversely affect" endangered and threatened species or critical habitat, the consultation requirements are satisfied and formal consultation is not required. The appropriate RA is authorized to sign informal consultations. The conclusion of an informal consultation should be documented in the FMP and related documents.

5.7.4 Formal consultation. If NMFS determines that the action (fishing as it is expected to occur under the FMP and its amendment) "is likely to adversely affect" endangered or threatened species or critical habitat, then formal consultation is required. Formal consultation may be requested on actions that "may affect" endangered or threatened species and critical habitat. Formal consultation will be initiated and conducted by NMFS (or between NMFS and FWS, if any species under FWS jurisdiction are involved), and the resulting biological opinion will be issued to NMFS as the "action agency" under the ESA. NMFS is the action agency because it is responsible for implementing fishery management regulations to carry out approved FMPs or amendments. Councils may be invited to participate in the compilation, review, and analysis of data used in the consultation. The impact analysis presented in the Council's FMP or amendment, or its EA/EIS, will provide a basis for assessing the impacts on endangered and threatened species and critical habitat. However, the determination of whether the action (i.e., the fishery) "is likely to jeopardize the continued existence of" endangered or threatened species or to result in the destruction or modification of critical habitat is the responsibility of NMFS (or FWS). If appropriate, an incidental take statement will also be issued, which may include reasonable and prudent measures, as well as terms and conditions, that are required to minimize or mitigate take of endangered and threatened species. Formal NMFS biological opinions are signed by the Director of F/PR, except for those delegated to the RAs of the Northwest and Southwest Regions. The appropriate RA will advise the Council of actions that should or must be taken relative to the fishery management program to be in compliance with the biological opinion. The biological opinion is part of the administrative record for the ultimate management decisions for the fishery.

5.8 Marine Mammal Protection Act (MMPA). The 1994 Amendments to the MMPA replaced the incidental take provisions of the 1988 Amendments. Section 101(a)(5)(E) established permitting requirements for vessels taking endangered and threatened marine mammals incidental to fishing operations. The general taking of marine mammals incidental to fishing operations, other than in the Eastern Tropical Pacific yellowfin tuna fishery, is covered under section 118, which replaced section 114. Section 118 requires fishermen to reduce incidental mortality to insignificant levels approaching zero within 7 years. This section also utilizes a three-category method of listing fisheries, based on their levels of take.

5.8.1 Authorization Program. Regulations governing the marine mammal authorization program are contained in 50 CFR part 229, which exempts most fisheries from the MMPA's moratorium on the taking of marine mammals, provided that certain conditions are met. Fisheries have been placed in one of three categories based on whether there is a frequent (category I), occasional (category II), or remote likelihood or no known (category III) incidental take of marine mammals. Category I and II vessel owners must annually obtain an Authorization Certificate and regularly compile and report to NMFS their fishing effort and interactions with marine mammals. Category I and II fishermen must carry observers when requested to do so by NMFS. Category I, II, and III vessel owners must report any injury or lethal take of a marine mammal. Authorization Certificates or emergency regulations may include additional requirements. The FMP should summarize the appropriate MMPA incidental take requirements.

5.8.2 Council Responsibilities. The 1988 and 1994 Amendments to the MMPA place a greater burden on Councils to consider the impacts on marine mammals in managing fisheries.

Council representatives are members of Take Reduction Teams required by the 1994 MMPA Amendments. The teams are directed to formulate Take Reduction Plans for strategic marine mammal stocks and other marine mammals having high incidental take rates. Take Reduction Plans may recommend restricting commercial fisheries by time, area, fishing technique, and/or gear. Councils may be requested to recommend action to mitigate adverse impacts on marine mammals and will be consulted as part of the Take Reduction Plan process. The FMP package should include a discussion of the Take Reduction Plan requirements and what measures could be taken under the Magnuson-Stevens Act to avoid or mitigate adverse impacts of the fishery on marine mammals.

 5.9 Proposed regulations. The OFR's Document Drafting Handbook gives detailed guidance on format and content requirements of all Federal regulations. Proposed regulations not conforming to the OFR Handbook will not be filed. Proposed regulations must contain a preamble, signature line, and regulatory text. Regulations must be typed double-spaced and be separable from other documents in order to be acceptable to the OFR for publication. The regulations must coincide or fall within the scope of the FMP management measures. A proposed rule for an FMP/amendment must be reviewed by GCRA before submission to HQ, unless an alternative legal review is provided. The preamble must include:

o A summary of the action proposed that answers the questions: What the action does, why is it needed, and what its intended effect is;

o All dates relevant to public knowledge of the proceeding, such as comment deadlines, public hearing dates, etc.;

o Relevant addresses for requesting documents or submitting comments, etc.;

o Person to contact for more information;

o Supplementary background information and discussion of major issues;

o Classification sections under E.O. 12866, RFA, PRA, and other applicable laws; and

o List of index subjects, required by OFR.

 6.0 References.

6.1 Bibliography. List the scientific references cited in the FMP in a bibliography.

6.2 Sources of data and methodology. Identify the sources of data presented in summary form in the FMP. To the extent appropriate, discuss the quality of the data. Detailed data, tables, analyses, and methodology may be included.

6.3 List of public meetings and summary of proceedings. List the public meetings held in the preparation of the FMP, with each meeting identified by location, date, number of the public attending, and a summary of comments received. List any other appropriate public record information (e.g., FR citations).

 

 

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Regulatory Streamlining - Operational Guidelines