.

E. PHASE IV: FINAL FMP/AMENDMENT REVIEW AND APPROVAL; PROPOSED REGULATIONS AND FINAL RULEMAKING

Background

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 are:

(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 is published;

(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 the Council;

(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 (b).

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 regulations.

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.

Event Schedules

IV-1. Fishery Management Plan or Amendment

IV-1(1). Council transmits package to Region. The number of copies needed for HQ is included in parentheses; each Region determines its own needs.

a. Final FMP/amendment (50).

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 any (4).

IV-1(2). 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 FR.

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 RFA.

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 applicable.

IV-2(7). Publication of the proposed rule initiates a comment period, that is generally 45 days, but may range from 15-69 days.

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 by F.

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.

Regulatory Streamlining - Operational Guidelines