E. PHASE IV: FINAL
FMP/AMENDMENT REVIEW AND APPROVAL; PROPOSED REGULATIONS AND
This phase involves Secretarial
review of the FMP/amendment, supporting documentation, publication
of proposed regulations, and issuance of the final rule. The
authority for these actions has been delegated from the Secretary
of Commerce to the Assistant Administrator of Fisheries (NMFS).
This phase encompasses the review, approval, and publication
schedule mandated by the Magnuson-Stevens Act within which are
several controlling deadlines for specific actions (sections
303(c)(1), 304(a) and (b)). The most critical of these deadlines
(1) The "transmittal" date,
which establishes the benchmark for all other dates, which is
determined by the RA when all of the necessary documentation
is determined to be complete;
(2) publication of a notice
of availability within 5 days of the transmittal date, which
initiates a 60-day public comment period on the FMP/amendment;
(3) the publication of the proposed regulations in the Federal
Register after evaluation by NMFS for consistency with the FMP/amendment,
the Magnuson-Stevens Act, and other applicable laws (which has
no statutory deadline);
(4) conclusion of the public
comment on the proposed rule, which will generally be 45 days,
but may range from 15-60 days;
(5) conclusion of the 60-day
public comment period on the FMP/amendment; (6) the decision
by NMFS, on behalf of the Secretary, within 30 days of the end
of the comment period on the FMP/amendment, when the Council
is notified of the approval, disapproval, or partial approval
of the FMP/amendment by the RA, with the concurrence of F; and
(7) the publication of the final rule in the Federal Register
within 30 days of the end of the comment period on the proposed
rule. This time-critical schedule demands innovation and flexibility
on the part of planners and reviewers. A successful Secretarial
review depends on the careful planning, analysis, and communication
that preceded it. Communication between the RA and HQ must occur,
when necessary, to clarify or discuss issues, and resolve differences;
it is anticipated that communications between the Regional and
HQ staffs will regularly occur for each FMP/amendment processed.
Although the schedule created
for each FMP/amendment sets dates on which action is required
or expected, it is necessary that preparation of documents (decision
memoranda, response to comments, etc.) begin prior to the times
indicated to avoid late submissions and to facilitate efficient
processing of regulatory actions. The following is a listing
of the major events that affect the schedule of activities.
1. Transmittal Date - The Magnuson-Stevens Act specifies a benchmark
date, the "transmittal" date, from which all other dates will
be calculated. This date is determined by the RA when all of
the required documents have been received and adjudged to be
adequate to begin review. Consultation among Regional and HQ
fishery management and legal staffs is strongly encouraged prior
to the declaration of the transmittal date, such that there
is general agreement on the completeness and adequacy of the
Council's FMP/amendment to make the statutory evaluation and
determinations under the Magnuson-Stevens Act and other applicable
laws. Once the transmittal date has been determined by the RA,
Secretarial review begins and required documents must be provided
to HQ immediately (i.e., on the transmittal date).
2. Review of FMPs/Amendments and Regulations:
a. Review of FMPs/Amendments
- Section 304(a) of the Magnuson-Stevens Act specifies that,
upon submission by a Council, NMFS must:
(1) Immediately commence
a review of the FMP/amendment to determine whether it is consistent
with the national standards, other provisions of the Magnuson-Stevens
Act and other applicable laws;
(2) Immediately (defined
in the Magnuson-Stevens Act as meaning within 5 days) publish
in the Federal Register a notice stating that the FMP/amendment
is available and the written information, views, or comments
of interested persons on the FMP/amendment may be submitted
during the 60-day period beginning the day after the notice
(3) Approve, disapprove,
or partially approve an FMP/amendment within 30 days of the
end of the comment period on the FMP/amendment, in writing to
(4) If an FMP/amendment
is disapproved or partially approved, the RA must specify in
writing to the Council the inconsistencies of the FMP/amendment
with the Magnuson-Stevens Act and/or other applicable laws,
the nature of inconsistencies, and recommendations for actions
to make the FMP/amendment conform to applicable laws.
If the Council is not notified
within 30 days of the end of the comment period on the FMP/amendment
of the approval, disapproval, or partial approval, such FMP/amendment
shall take effect as if approved. If an FMP/amendment is disapproved
or partially approved, the Council may resubmit a revised FMP/amendment
and revised proposed rule, where applicable. There is no required
schedule for the resubmission by a Council of a disapproved
or partially approved FMP/amendment. Such resubmission would
be subject to the same schedule as a newly submitted FMP/amendment.
b. Review of Regulations
- Section 304(b) of the Magnuson-Stevens Act specifies that,
upon transmittal by the Council of proposed regulations that
the Council deems necessary and appropriate for carrying out
an FMP/amendment, NMFS must immediately (defined in the Magnuson-Stevens
Act as within 5 days) initiate an evaluation of the proposed
regulations to determine whether they are consistent with the
FMP/amendment, the Magnuson-Stevens Act, and other applicable
laws and, within 15 days, make a determination.
(1) If the determination
is affirmative, NMFS will publish the proposed regulations in
the Federal Register, with such technical changes as may be
necessary for clarity and an explanation of those changes, for
a public comment period of 15 to 60 days (normally this will
be 45 days for a proposed rule implementing an FMP/amendment,
and 30 days for a regulatory amendment); or
(2) If the determination
is negative, NMFS must notify the Council in writing of the
inconsistencies and recommend revisions.
Upon being notified of
inconsistencies in proposed regulations, the Council may revise
the proposed regulations and resubmit them under the above schedule
Final regulations must
be published in the Federal Register within 30 days after the
end of the comment period on the proposed rule; the Council
must be consulted before making any revisions to the proposed
3. Secretarial Review of
a Revised FMP/amendment
If NMFS disapproves or partially approves an FMP/amendment,
the Council may submit a revised FMP/amendment under section
304(a)(1) of the Magnuson-Stevens Act.
Management Plan or Amendment
Council transmits package to Region. The number of copies needed
for HQ is included in parentheses; each Region determines its
a. Final FMP/amendment
b. FEIS/EA, if needed (50).
c. DRIR (may be clarified
or supplemented per public comment) including IRFA, if necessary
(50, when separate document).
d. Proposed regulations
and preamble, if the FMP/amendment is to be implemented through
proposed regulations (10).
e. Request for information
collection (OMB 83-I and justification), if needed (6).
f. CZM consistency determination
(positive or negative), if separate from the FMP (4):
1. Letter from Council/RA
to appropriate states; and
2. Copies of responses
from any states.
g. ESA section 7 consultation
requirements, if needed:
1. Informal consultation
documents (6); or
2. Biological opinion resulting
from formal consultation (6).
h. Notice of Availability
for FMP/amendment (1).
i. Source documents, if
Because the transmittal date may occur on any day of the week,
key events may fall on any day of the week, including weekends
or holidays. If a calculated decision day falls on a weekend
or Federal holiday, the decision must be made no later than
on the preceding Federal working day. If a calculated comment
period would end on a weekend or Federal holiday, it will be
extended to end on the next Federal workday. Upon the identification
of the transmittal date by the RA, a schedule is produced and
made available by F/SF5. F/SF3 coordinates the review of the
FMP/amendment and associated documents in HQ, and with NOAA
and other agencies, as required.
IV-1(3). Begin Secretarial Review F/SF3 reviews
the Notice of Availability and sends to GCF for legal clearance.
IV-1(4). F/SF3 submits the Notice of Availability
to the Office Director for signature, to be published in the
IV-1(5). Within 5 days after the transmittal
date, the Notice of Availability is published in the FR (this
requires the notice to be submitted to the OFR 3 working days
before it is published). Public comments will be due within
60 days, beginning with the day after the date of publication
of the Notice of Availability.
IV-1(6). RA, F/SF3, and GCF begin review of
the FMP/amendment, associated documents, and the proposed preamble
and regulatory text.
IV-1(7). RA and F/SF3 distribute the FEIS(EA)/FMP/amendment,
proposed regulations, RIR, and other documentation to reviewers,
including, among others, F/SF4, F/ST, F/PR, F/HC, F/OM, GCF,
USCG, and N/ORM3. Copies of the documents, in addition to a
review schedule, are sent from F/SF3 to GC and AGC/L&R.
F/SF sends the IRFA to SBA, if the FMP/amendment and/or its
implementing regulations are determined to be significant under
IV-1(8). If there is an EIS or SEIS for the
FMP/amendment, the Notice of Availability of a final EIS or
SEIS must be published by EPA such that there is a 30-day period
before Decision Day. (CEQ requires the 30-day period to ensure
that the documents and supporting record are complete prior
to the decision.) EPA requires the notice to be delivered on
or before a Friday to be published the following Friday.
IV-1(9). Public comment period on the FMP/amendment
ends. RA begins preparation of the decision memo on the FMP/amendment
(RA to F), including final determinations for applicable laws.
Public comments on the FMP/amendment and the proposed rule received
through the end of the comment period on the FMP/amendment must
be summarized and responded to in the final rule. If the action
is significant under the RFA, a FRFA is prepared (IRFA is modified;
Council provides supplement to the RIR/RFA, as necessary) that
will be made available to the public (see PHASE II, 5.4). Appropriate
elements of the package must be cleared by GCRA and Center.
The RA must consult with F regarding the RA's intended decision,
prior to that decision being finalized. The RA's decision memo
on the FMP/amendment must reflect a full discussion of key issues,
including disagreements, if any.
IV-1(10). The RA approves, disapproves, or
partially approves the FMP/amendment, based on consistency with
the Magnuson-Stevens Act and other applicable laws; after verifying
that the supporting documents (EA, RIR, FRFA, etc.) are adequate,
makes final recommendations of economic impact under the RFA;
and signs the RA's decision memo on the FMP/amendment. If, as
a result of public comment, reporting requirements have been
changed from those proposed in the proposed rule, the Region
will provide a revised 83-I and supporting statement to F/SF5,
with a copy to F/SF3. The RA transmits to F/SF the decision
memo (RA to F), RIR/FRFA, final rule, draft transmittal memos
(F to AGC/L&R and AS) and draft letter to the Council approving,
disapproving, or partially approving the FMP/amendment.
IV-1(11). F/SF consults with the RA, if necessary;
and may brief F on the pending decision.
IV-1(12). F concurs in the decision of the
RA to approve, disapprove, or partially approve the FMP/amendment,
and the Region notifies the Council in writing of that decision.
(Note: Concurrence with
the decision to approve, disapprove, or partially disapprove
must occur on or before the 30th day after the end of the public
comment period on the NOA.)
IV-2 Review of Regulations implementing FMP/Amendment
IV-2(1) Upon transmittal of the proposed rule,
NMFS must initiate a review of the proposed regulations within
5 days to determine whether they are consistent with the FMP,
amendment, Magnuson-Stevens Act, and other applicable laws.
IV-2(2) Proposed rules are reviewed for appropriate
legal text, required publication format, and consistency with
FMP/amendment management measures and other applicable laws.
F/SF reviews the action from a national perspective. If the
reporting burden is changed, F/SF5 reviews the paperwork budget
and supporting statement prior to transmitting the 83-I to NOAA,
along with the proposed rule as received from the Council, and
PRA supporting statements. F forwards the PRA package to OA1x1
for formal NOAA review.
IV-2(3). Within 15 days of initiating evaluation
of the proposed regulations, F makes a determination whether
the proposed regulations are sufficiently consistent with the
FMP/amendment, the Magnuson-Stevens Act, and other applicable
laws to publish the proposed rule for public comment.
If F's determination is
affirmative, F transmits the proposed regulations to AGC/L&R
and to AS for clearance to publish the proposed rule.
If F's determination is
negative, F returns the proposed rule to RA with recommendations
for revisions. The RA notifies the Council in writing of the
inconsistencies and recommended revisions to the proposed rule.
Regardless of F's determination on the proposed rule, Secretarial
review on the FMP/amendment continues, and the decision to approve,
disapprove, or partially approve must be made within the statutory
timeframe established by the date of publication of the NOA.
IV-2(4). NOAA forwards the PRA package to OMO
for formal DOC review, if applicable.
IV-2(5). AGC/L&R reviews the regulatory
package and clears publication of proposed regulations by providing
a docket number to F/SF3; transmits regulatory package to OMB,
if the action is significant under E.O. 12866; and transmits
the PRA request to OMB, if applicable.
IV-2(6). F signs and F/SF5 sends the proposed
rule to OFR. This should occur within 5 working days after F
has cleared the proposed rule (see IV-2(3)). AGC/L&R transmits
the certification of nonsignificance under the RFA to SBA, if
IV-2(7). Publication of the proposed rule initiates
a comment period, that is generally 45 days, but may range from
IV-2(8). OMB comments on the proposed rule
and RIR, if the action is significant under E.O. 12866, and
AGC/L&R transmits these and its own comments to GCF; NOAA
transmits its comments to F/SF3; F/SF transmits public comments
and other OMB, DOC, NOAA, and NMFS comments received on the
FMP/amendment and the proposed rule to the RA.
IV-2(9). RA prepares final rule and associated
documents; addresses public comments in the final rule.
IV-2(10). F/SF3 prepares the final rule for
clearance and submits the RA's decision memo with transmittals
(F to AGC/L&R and AS) and the final EA with transmittals
(F to PSP and public). F/SF3 forwards the decision package to
GCF and F/SF for clearance.
IV-2(11). F signs the memo transmitting the
final rule to AGC/L&R and AS and signs the FONSI for the
EA, if applicable. F/SF3 notifies the Region of concurrence
IV-2(12). AGC/L&R provides a docket number
for the final rule to F/SF3. AGC/L&R transmits the certification
of nonsignificance to SBA, if applicable and not previously
done at the proposed rule stage.
IV-2(13). F signs the final rule. F/SF5 sends
the final rule to the OFR.
IV-2(14). Final rule is published by the OFR.
APA 30-day delayed effectiveness period begins, except when
all or part of that period is waived for good cause (which must
be explained in the Determinations section of the RA's decision
memo and the Classification section of the final rule).
IV-2(15). End of APA 30-day delayed effectiveness
period. Final regulations become effective, unless otherwise
specified. OMB has 60 days from the date of publication of the
final rule to approve, disapprove, or modify a collection of
information contained in the final rule. The regulations become
effective at end of the APA 30-day delayed effectiveness period,
or earlier if delayed effectiveness is waived. Data collection
cannot legally take place and someone cannot be prosecuted for
failing to provide information before OMB issues a control number,
the control number is added to the regulations, and the public
is notified of approval.