F. PHASE V: CONTINUING
AND CONTINGENCY FISHERY MANAGEMENT
This phase involves aspects
of operational fishery management: (1) Continuing management
after the FMP (or amendment) is in place, (2) emergency provisions
of the Magnuson-Stevens Act, (3) disapproval/partial approval
of an FMP/amendment, (4) Secretarial FMP/amendment, and (5)
rebuilding overfished fisheries.
1. Continuing Fishery Management
The Framework Concept
The activities involved in continuing fishery management include
monitoring, evaluation, adjustment, and revision. Ease of continuing
management depends almost entirely on the foresight exercised
in preparing the FMP, and on identification of continuing research
and data needs to monitor the changing conditions in the fishery.
These guidelines focus on the "adjustment" features of continuing
management; they summarize and slightly modify the informal
guidelines issued by NMFS in May 1982 on framework measures.
The essence of the framework
concept is the adjustment of management measures within the
scope and criteria established by the FMP and implementing regulations.
This is distinguished from revision of a management program
by FMP amendment. Framework measures are intended to describe
future management actions, which would be implemented within
a range as defined and analyzed in the FMP and associated analyses.
If a proposed regulatory action under a framework measure is
outside the scope of the FMP and its implementing regulations,
the FMP must be amended before the action can be implemented.
The Magnuson-Stevens Act Secretarial review schedule (see Phase
IV) is too long for practical management of certain aspects
of many fisheries. The purpose of a framework measure is to
make it possible to manage fisheries more responsively under
conditions requiring "real time" management.
The framework concept is
not intended to circumvent the FMP amendment process that must
take place when circumstances in the fishery change substantially
or when a Council adopts a different management philosophy and
objectives, triggering significant changes in the management
regime. Nor are framework measures intended to avoid statutory
requirements of the Magnuson-Stevens Act, other applicable laws,
and Executive Orders. These other applicable laws direct agencies
to give special attention to certain national values in the
decisionmaking process and/or require a process for assessing
and analyzing various impacts of proposed regulatory actions.
OMB must still review requests for collections of information
under the PRA and significant rules under E.O. 12866. Every
framework measure must be analyzed and be available to the public
for comment at some time prior to implementation. The analysis
may be provided at the same time the framework is added to the
FMP, or it may be provided subsequently when the framework action
is actually taken. Public notification and opportunity for comment
must be provided, either when the framework measure is established,
or later, when the framework action is taken under the framework
process in the FMP and/or its implementing regulations. The
extent of analysis and notification and comment required will
depend on the specificity and analysis when the framework was
measures may be in effect for more than a fishing year (i.e.,
12 months), under certain circumstances, but the effective dates
must be explicit. Codified regulations appearing in the CFR
can be amended only by final rule documents, and not by non-codified
Traditional or "Closed"
A "closed" framework describes with great specificity the circumstances
under which a particular management action is to be taken. The
action is ministerial, and virtually without discretion by the
RA, or F/SF for Atlantic highly migratory species. The action's
ecological, economic, and social impacts have already been described
in the analyses prepared when the framework measure was adopted.
An example of one of the simplest, quickest types of inseason
adjustment that can be made under a framework is the closure
of a fishery based on projection of attainment of a quota. Other
examples include adjustment of trip limits or hours of fishing,
based on actual effort; alteration of a closed season based
on biological data; and adjustment of quotas, based on computational
errors or late reporting.
These actions are taken
by "rule-related notices" that are cleared by GCRA and GCF,
signed by F/SF, and sent from F/SF to the OFR for publication
in the Rules and Regulations section of the FR. Closed-framework
actions are exempt from review by OMB under NMFS' long-standing
arrangement with that office, because there is no need for prior
public comment and the basis for the actions has already been
analyzed under E.O. 12866 (or predecessor orders. Routine inseason
actions have been signed by F/SF and sent to the OFR within
1 day after the RA decided to take the action, provided that
the necessary Regional clearances have been submitted and the
documents have been properly prepared. For routine measures,
advance clearance by GCF and F/SF3 can be obtained, allowing
quick response when the RA determines that an action must be
taken (e.g., the quota has been reached).
a. Region notifies F/SF3 at earliest opportunity of intended
b. Region prepares notification
document and information memo to F/SF, GCRA clears, and RA signs
memo. Region transmits to F/SF3 and identifies a Regional contact
c. F/SF3 logs, tracks, reviews, and clears FR document; sends
to GCF for clearance.
d. F/SF3 receives GCF clearance, sends to F/SF for signature.
e. F/SF signs and F/SF5 sends to the OFR.
"Open" Framework Measures
Not every management adjustment can be forecast and described
with the specificity of closed framework actions. A wide range
of numbers for TAC might be identified in an FMP, but the annual
determination of TAC might be based on so many factors that
the Council would want to make its own recommendation and to
provide for public comment on the proposed level of harvest.
This sort of framework is called "open," because there is more
latitude in choosing the specification or management measure,
in response to a less well defined set of circumstances. Its
effects are less susceptible to thorough prior analysis than
those of a closed framework; if the RIR/RFA did not adequately
treat the impacts of the proposed action, additional analysis
must be done. Because the parameters are broader than for a
closed framework action, public comment on the original framework
mechanism is less likely to satisfy the APA requirements for
notice and comment on the eventual management action. NMFS'
arrangement with OMB provides for an exemption of open framework
proposals from review by OMB.
A common example of an
open framework is the annual specification of OY, DAH, TALFF,
JVP, DAP, and other amounts that act as limitations or guidelines
for different harvesting and processing sectors. FMPs with this
type of framework generally provide for Council recommendations
to the RA at a designated time of year, the RA's acceptance
or rejection of the Council's recommendation, publication of
initial specifications in the Proposed Rules section of the
FR, a public comment period, and publication of final specifications
in the Rules and Regulations section of the FR. Other open frameworks
involve adjustment of area boundaries to respond to shifting
fish populations, changes in size limits to reduce discards,
prohibitions against use of certain gear to ameliorate gear
conflicts, and the collection of additional data. Open framework
actions may be inseason or annual and may last no longer than
the fishing season, or they may be intended to be effective
indefinitely. The extent of analyses depends on whether, and
to what extent, the impacts were analyzed when the framework
measure was established.
Some Councils have chosen to combine the attractive attributes
of closed frameworks (notice action, short timetable, no additional
analysis) and those of open frameworks (less specificity, more
flexibility, Council input). A Council may be unable to describe
in any detail the future problems that might occur or the responses
that might be made, but want the action to be implemented very
quickly. An example of this type of rulemaking is Measures for
the Northeast Multispecies Fishery
(50 CFR 649.90), which authorizes
use of supporting rationale, analysis of management measures,
if any, and informed public testimony at the Council level as
the "good cause" for waiving the usual notice and comment procedure
under the APA. Thus, if the RA concurs, the measures may be
issued as a final rule.
Also see Part 660-Fisheries
Off West Coast and Western Pacific States, subpart G-West Coast
Fisheries, section 660.321, Specifications and Management Measures.
Regulatory amendments amend
regulations, not an FMP. Section 303(c)(2) of the Magnuson-Stevens
Act provides that a Council shall submit proposed regulations
the Council deems necessary or appropriate to modify regulations
implementing an FMP/amendment at any time after the FMP/amendment
is approved. A regulatory amendment is used to clarify Council
intent or to interpret broad terms contained in approved FMPs;
it may be used to implement a portion of an approved FMP/amendment
that was reserved and the Council now desires NMFS to implement.
Regulatory amendments can
be used when a Council believes a specific problem may occur
in the fishery that would require addition to or amendment of
the original regulations, but the exact nature of the event
or the remedial action cannot be foreseen at the time the FMP
is being prepared. An example is the concern that, with the
growth of a fishery, a gear conflict might arise that could
lead to serious disruption. In such cases, a Council may not
be able to predict the nature, location, or magnitude of the
event with sufficient certainty to describe the measures needed
to address the problem, the effects of the regulatory change,
or the criteria to be used with sufficient precision to use
abbreviated rulemaking procedure. Nevertheless, there may be
a need to act more rapidly than is possible through the FMP
amendment process. The mechanism to use under these circumstances
is a regulatory amendment, if the authority is provided for
in the FMP.
Regulatory amendments must go through the normal rulemaking
procedure, including determination of significance under E.O.
12866; time saved is derived from the fact that the change was
anticipated within the scope of the FMP/amendment (thus obviating
the necessity for the full FMP amendment process), and the comment
period is normally 15 to 30 days, instead of the 60-day period
set forth by the Magnuson-Stevens Act for FMP/amendments. However,
a regulatory amendment submitted by a Council under section
303(c)(2) of the Magnuson-Stevens Act must be reviewed by NMFS
according to statutory deadlines: 5 days to initiate evaluation
of the proposed rule, 15 days for F to make a consistency determination
and clear the proposed rule, a standard 30-day public comment
period, and publication of the final rule within 30 days after
the close of the comment period on the proposed rule. An interim
final rule may be used when a measure must be made effective
immediately and, when justified, the advance period of public
notice and comment and APA delayed effectiveness can be waived;
however, public comment is requested upon publication of the
interim final rule. A final rule, which responds to public comments,
implements the final rule on a permanent basis, if still found
necessary and appropriate.
The FMP and associated
documents should define and analyze as completely as possible
the problems foreseen; the kinds of actions that may be taken
to overcome them; any criteria for action that may be foreseen;
the economic, social, and environmental effects that may occur
as a result; and the procedures that are to be used for taking
the action. The implementing procedures should compensate for
the fact that appropriate analysis and opportunity for public
comment on the action may have been limited in the original
FMP. A suggested procedure follows:
a. The monitoring team (or plan maintenance team) established
by the Council, upon becoming aware of a problem in the fishery
covered by an approved FMP, identifies it; shows how regulatory
changes can occur that are within the FMP scope and objectives;
proposes alternatives to overcome it; analyzes the ecological,
economic, and social effects of these alternatives; and presents
the package to the Council. If the problem is outside the scope
of the FMP, an FMP amendment is the appropriate response.
b. The Council reviews alternative management regimes and determines
the alternative that is most appropriate to meet the objectives
of the FMP, least burdensome to those affected, and most likely
to correct the problem.
c. The Council's proposed
regulatory action, the analysis, and reasons for selection,
is made available by the Council for public review and comment.
d. The Council may hold a hearing to take public comment, after
which it prepares analyses of ecological, economic, and social
effects of various alternatives and a final recommendation.
e. The RA, in consultation with GCRA, reviews the action to
determine if it falls inside the scope and objectives of the
FMP (requiring a regulatory amendment) or outside (requiring
an FMP amendment). If it is a regulatory amendment, the RA advises
F of the intention to submit the necessary regulatory changes
and analyses for processing through NMFS/NOAA/DOC to the OFR.
Such regulations, if determined to be not significant under
E.O. 12866, would not be further reviewed by OMB. Part or all
of the APA delayed effectiveness period could be waived for
Section 305(d) authorizes NMFS, on behalf of the Secretary,
to promulgate regulations, and amend regulations, as may be
necessary to carry out provisions of the Magnuson-Stevens Act,
without specific FMP authority. Part or all of the APA delayed
effectiveness period, or the advance notice and public comment,
could be waived for good cause.
Some amendments to regulations are categorized as final rules
under the APA, without the requirement for notice and opportunity
for public comment. To distinguish these from normal final rules,
the action caption "final rule; technical amendment(s)" is used.
Examples of technical amendments include simple housekeeping
changes to existing regulations, updating to cross-reference
other effective rules or laws that are no longer clearly or
accurately presented in fishery regulations, and clarifications
or corrections of implemented rules that did not appropriately
express the intent of the FMP or the amendment. Technical amendments
are also used to correct codified text after it has been incorporated
into the bound version of the CFR (i.e., October 1 of each year,
for Title 50). Such actions are exempt from review under E.O.
All documents sent to the
OFR should be proofed against a copy of the original document
to discover any errors that may have occurred in publication.
If an error was made in the publication process, F/SF5 should
be notified. F/SF5 will notify the OFR and the OFR will prepare
and publish, at its expense, a correction document that reflects
the content of the original document. If the error was made
in the original document submitted to the OFR, the agency must
publish in the FR a signed document with the action caption
"Proposed rule; correction," "Final rule; correction," or "Emergency
interim rule; correction," as appropriate, to correct the error.
Error corrections may be made to the regulatory text, preamble,
or tabular material. However, a correction to Title 50 of the
CFR must be submitted to the OFR before October 1 of each year
to prevent the error from being printed in the CFR annual publication.
If the error is undetected and becomes codified in the published
CFR volume, it must be corrected through a technical amendment.
2. Emergency Provisions of the Magnuson-Stevens
The emergency provisions
of section 305(c) of the Magnuson-Stevens Act should be used
only in extreme circumstances. The emergency authority should
address unanticipated events or problems that require immediate
attention. If the Secretary finds that an emergency or overfishing
exists or that interim measures are needed to reduce overfishing
for any fishery, the Secretary may promulgate emergency regulations
or interim measures necessary to address the emergency or overfishing,
without regard to whether an FMP exists for such fishery. A
recommended emergency action that does not conform to the NMFS
policy regarding the use of emergency rules will not be supported
by NMFS. (See Policy Guidelines for the Use of Emergency Rules,
57 FR 875, January 6, 1992.)
The Secretary's authority
to take action under this section is delegated to NMFS, subject
to being informed in advance of controversial emergencies. The
NMFS/NOAA/DOC review of an emergency rule can ordinarily be
completed within 23 to 30 days of the date of receipt in HQ
of the complete package from a Region, subject to a number of
variables. Every effort is made to expedite an emergency rule
by placing a high priority on these actions. Section 305(c)
does not relieve the Secretary from the requirements of NEPA,
ESA, E.O. 12866, PRA, CZMA, and APA, although exemptions, waivers,
and special arrangements are possible under certain circumstances
(see section below on "Effect of other applicable laws on emergency
rules"). Processing an emergency action could disrupt the flow
of documents already going forward under the statutory schedule
for FMP/amendments and regulatory actions.
Under section 305(c)(2)(A)
of the Magnuson-Stevens Act, the Secretary is required to promulgate
emergency regulations if a Council finds that an emergency or
overfishing exists or interim measures are needed to reduce
overfishing involving any fishery within its area of authority
and requests the Secretary to do so by unanimous vote of the
voting members. The NOAA Office of General Counsel has defined
the phrase "unanimous vote" to mean the unanimous vote of a
quorum of the voting members of the Council only. An abstention
has no effect on the unanimity of the quorum vote (i.e., an
abstention is not considered a negative vote).
Under section 305(c)(2)(B)
of the Magnuson-Stevens Act, the Secretary may promulgate emergency
regulations or interim measures to address an emergency or overfishing
if the Council, by less than a unanimous vote, requests such
Under section 305(a) of the Magnuson-Stevens Act, the Secretary
is required to publish a list of fisheries under the authority
of each Council and all fishing gear used in such fisheries.
A Council may request the Secretary to promulgate emergency
regulations under section 305(c) to prohibit any persons or
vessels from using an unlisted gear or engaging in an unlisted
fishery if the appropriate Council, or the Secretary (NMFS)
in the case of Atlantic highly migratory species, determines
that unlisted gear or an unlisted fishery would compromise the
effectiveness of conservation and management efforts under the
An emergency rule is effective
for no more than 180 days from the date of publication, with
one extension for up to an additional 180 days, provided that
the affected Council agrees, the public has an opportunity to
comment, and, in the case of a Council recommendation, the Council
is actively preparing a FMP, or FMP amendment, or proposed regulations
to address the emergency or overfishing on a permanent basis.
Early termination of an emergency recommended by a Council may
be made only upon agreement of the Secretary and the Council
concerned. An exception to the 180-day limitation is provided
for an emergency that responds to a public health emergency
or oil spill, which may remain in effect until the circumstances
that created the emergency no longer exist.
An emergency rule is published
in the Rules and Regulations section of the FR.
The emergency rule package must include:
a. Emergency interim rule;
b. Decision memo from the RA, or F/SF for an Atlantic highly
migratory species emergency, to F, information memo from F to
AS, or, if controversial, a Secretary's information memo from
A to the Secretary;
c. EA or request for alternative arrangements with CEQ; and
d. Other supporting documents providing required analyses under
other applicable laws (e.g., ESA section 7 biological opinion
or informal consultation by NMFS/FWS or, if appropriate, determination
that consultation is not required), or the appropriate waivers
(see explanations below).
Provisional Event Schedule
a. As soon as emergency
action is initiated by a Council, the Council Chairman and the
RA must prepare a joint memorandum and transmit it to F, giving
advance notice that an emergency rule is forthcoming, describing
the action and public issues, noting potentially controversial
aspects, if any, and estimating the date for action.
b. Day 1: Receipt of the emergency package from the RA, described
above. F/SF3 begins review of the rule and associated documents.
c. Day 2: F/SF3 sends the reviewed rule to GCF for review. If
the regulation would change paperwork burden, F/SF5 reviews
the SF 83-I with supporting statement for information collection
and emergency rule, and prepares the request for expedited review.
d. Day 5: GCF and the Region send review comments to F/SF3.
If the paperwork burden is changed, F transmits the regulations
and supporting PRA documents to NOAA for review and immediate
transmission to DOC; F/SF5 notifies F/SF3 of the transmission
of the request for collection of information.
e. Day 9-13: F/SF3 clears the emergency interim rule, transmittal
memos, and the Secretary's decision memo, if controversial,
with consolidated comments through GCF and appropriate offices.
f. Day 14: F/SF3 transmits the cleared rule and the Secretary's
decision memo, if controversial, and transmittal memos to F/SF
for review and comment.
g. Day 16: F/SF consults with the RA, if necessary, clears the
memos, and sends to F.
h. Day 19: F approves the action, signs the information memo
to AS, or the Secretary's decision memo to A, if controversial,
and transmittal of rule to AGC/L&R. F signs EA, if applicable,
and transmits it to PSP for clearance.
i. Day 23: AS informs F that he has been advised or A sends
Secretary the information memo to advise of a controversial
emergency. (Note: an acknowledgement of the information memo
by the Secretary is not required.)
j. Day 25: AGC/L&R provides the docket number for the rule
k. Day 26: F signs the emergency rule. F/SF5 submits the rule
to the OFR. F/SF5 informs the Region and F/SF3 of filing. The
Region informs the appropriate Council(s).
Effect of "Other Applicable
Laws" on Emergency Rules
a. APA: Section 553(b) of the APA provides that notice and comment
may be waived for "good cause," if such notice would be impracticable,
unnecessary, or contrary to the public interest. Section 553(d)
of the APA states that most informal rulemaking must have a
delayed effectiveness period. This allows time for those affected
by a regulation to make any necessary preparations. If F finds
"good cause," a rule may be promulgated without prior notice
and comment with an effective date less than 30 days after publication.
The determinations section of the RA's decision memo and the
Classification section of the final rule should explain the
"good cause" reasons.
The APA also provides that
the 30-day delayed effectiveness provision may be waived, if
the rule is a substantive one (i.e., that is not merely procedural)
that "relieves a restriction." The determinations section should
also explain the basis of this waiver, if applicable.
b. CZMA: Federal agencies are required to notify states with
approved coastal management (CZM) programs of any Federal action
that will affect the land or water uses or natural resources
of a state's coastal zone, and to provide a consistency determination.
The consistency determination should provide information demonstrating
the consistency of the action, to the maximum extent practicable,
with the state's approved management program. A finding that
the action has no effect requires a negative determination to
the affected states. There are no general waivers or exceptions
allowed under CZMA. The affected states are advised by letter
of the determination.
c. Executive Order 12866: An emergency rule is subject to a
determination of significance for purposes of E.O. 12866. As
soon as the Council or the Region has found that an emergency
is necessary and consistent with NMFS Policy Guidelines, F/SF3
is informed. Concurrently, the office preparing the rule transmits
an E.O. 12866 listing document for the pending emergency action
through GCF and AGC/L&R to OIRA for concurrence on the determination
d. NEPA: The NEPA requirements for preparing environmental documents
are the same for emergency actions as for non-emergencies. However,
when emergency circumstances make it necessary to take an action
without observing CEQ's NEPA regulations, CEQ may grant alternative
arrangements for meeting NEPA requirements. Further, a Categorical
Exclusion (CE) from the preparation of an environmental document
may be available, if the action meets specific criteria set
forth in NAO 216-6 (Appendix 2.e.). The following provides general
guidance for meeting NEPA requirements for an emergency action
(See Appendix 2.e. for detailed guidance.)
(1). If the emergency action is significant under NEPA, then
an EIS should be prepared, as would be required for a non-emergency
(2). If the action has
been determined to have no significant environmental impacts,
an EA must be prepared that provides the formal basis for a
finding of no significant impact on the human environment. In
the determinations section of the decision memo, the RA recommends
that F make the FONSI.
(3). In special circumstances,
F may request from CEQ, through PSP, alternative arrangements
for meeting NEPA requirements. This request and the response
become part of the administrative record. The types of special
arrangements CEQ may grant include: (1) The requirement for
preparation of an environmental document is waived altogether;
(2) preparation is delayed; (3) the 45-day public review period
may be shortened; and (4) the 30-day NEPA period of delayed
effectiveness is shortened/waived. These arrangements are not
lightly granted by CEQ, must be sufficiently justified, and
are to be used as infrequently as possible.
(4). NAO 216-6 provides
for a programmatic determination by the responsible program
manager that certain types of actions do not pose significant
impacts on the human environment, and are exempted (CE) from
further environmental analysis and requirements to prepare environmental
documents. The determination that an action qualifies for a
CE is based upon criteria set forth in NAO 216-6. A CE is not
allowed when a new FMP will be implemented. FMP amendments may
qualify for a CE if the amendment is within the scope of alternatives
addressed in a previous EIS or EA, and the analysis in the original
document is determined to be valid and complete. Emergency regulations
without an FMP or amendment must meet the requirements of NAO
216-6 to qualify for a CE. The determinations section of the
RA's decision memo provides the basis and rationale for a CE.
e. PRA: Most emergency
rules will not involve an information collection requirement;
therefore, the PRA would not apply.
An emergency rule may involve
a collection of information requirement that is not new and
that has been approved under a previously established OMB control
number. In that situation, the OMB Control Number is identified
in the determinations section of the RA's decision memorandum.
In those rare instances when an emergency rule involves a collection-of-information
that has not been previously approved, the PRA does apply. Under
an emergency circumstance, DOC may request OMB to do an expedited
review of the collection-of-information request. The determinations
section of the RA's decision memo provides the justification
and rationale for the collection of information, indicates the
PRA package has been prepared, and requests expedited review
(through NOAA, OMO, and OMB). The information may not be collected
without OMB approval.
f. RFA: An emergency regulation is exempt from the procedures
of the RFA because it is issued without opportunity for prior
g. E.O. 12606, E.O. 12612, E.O. 12630, E.O. 12898, and E.O 12988:
An emergency rule is subject to these orders and is considered
for adherence to the criteria for formulating and implementing
3. Disapproval/partial Approval of FMP/Amendment
or Proposed Regulations.
a. Review of FMP/Amendment.
Under section 304(a)(3) of the Magnuson-Stevens Act, the RA,
with the concurrence of F, may disapprove or partially approve
an FMP/amendment after a finding that the FMP/amendment is not
consistent with the national standards, other provisions of
the Magnuson-Stevens Act, or other applicable laws. The Council
involved must be notified of the disapproval or partial approval
in writing on or before the close of the 30th day after the
end of the comment period on the FMP/amendment, otherwise the
FMP/amendment is approved automatically and must be implemented.
The written notification to the Council must specify (1) the
law with which the FMP/amendment is inconsistent; (2) the nature
or substance of such inconsistencies; and (3) recommendations
concerning the actions that the Council could take to bring
the disapproved or partially approved FMP/amendment into conformance
with the law.
The basis for disapproving
or partially approving the FMP/amendment may involve a failure
of the supporting documents to meet other applicable laws (e.g.,
the RIR does not fulfill E.O. 12866 requirements). In this event,
the Council will be notified of the inadequacies of supporting
analyses, as well as suggestions for resolving them.
If a Council decides to
revise a disapproved FMP/amendment or the disapproved portion
of a partially approved FMP/amendment, it should carefully evaluate
the need to revise the supporting documents (e.g., EIS/EA, RIR/IRFA).
Such documents will need revision if the type, context, or intensity
of economic, social, and environmental impacts of the revised
FMP/amendment are not addressed by the Council's first submission.
The RA will provide guidance and assistance, as requested, concerning
the need for, and type of, changes to supporting documents.
Such changes are essential for the Council to ensure that the
revised FMP/amendment is consistent with all applicable laws.
b. Review of Proposed regulations.
Under section 304(b) of the Magnuson-Stevens Act, the RA, with
the concurrence of F, may determine that a proposed regulation
is not consistent with the FMP/amendment, the Magnuson-Stevens
Act, or other applicable laws. If an inconsistency determination
is made, the Council involved must be notified in writing of
the inconsistencies and provided recommendations for making
the proposed regulation consistent. After being notified of
an inconsistency determination, a Council may revise and resubmit
the proposed regulations.
4. Secretarial FMP/amendment
Preparation and review
of Secretarial plans.
In certain cases the Secretary
(or a designee) may prepare an FMP or an FMP amendment. Section
304(c) of the Magnuson-Stevens Act specifies that the Secretary
may prepare an FMP or amendment if: (1) A fishery requires conservation
or management, but the Council has not submitted the necessary
FMP or amendment "after a reasonable period of time;" (2) when
a Council's FMP/amendment has been disapproved, or partially
approved, and the Council has not submitted a revised FMP/amendment;
or (3) the Secretary is given authority under section 304 (i.e.,
for Atlantic highly migratory species, and overfished fisheries
for which the appropriate Council has not submitted a rebuilding
plan within the statutory timeframe). Like any Council FMP/amendment,
such Secretarial amendments must be consistent with the national
standards, other provisions of the Magnuson-Stevens Act, and
other applicable laws. A majority of the voting members of each
appropriate Council must approve any Secretarial action establishing
a limited access system, including any individual fishing quota
system, within that Council's area of authority.
The authority to issue Secretarial
FMPs/amendments has been delegated to NOAA and F with the standard
reservation that the Secretary must be advised in particular
cases before final action is taken. This has generally been
exercised only where FMP approval/disapproval was particularly
controversial. The authority to issue Secretarial actions has
not been delegated to the RAs; it is retained in F. However,
it is expected that in most cases the RA will prepare the Secretarial
amendment for F's approval.
During Secretarial FMP/amendment preparation, F will consult
with the USCG with respect to enforcement at sea and DOS with
respect to foreign fishing, and prepare any necessary or appropriate
proposed regulations to carry out the Secretarial action. As
in the case of a Council-prepared FMP, there are no legislated
deadlines for PHASES I-III, which allows time for thorough preparation
and informal advance review by the Council. Public hearings
shall be conducted, at appropriate times and places in the geographic
areas concerned, so as to allow interested persons an opportunity
to be heard in the preparation of the FMP/amendment and implementing
When the Secretarial action
and proposed regulations have been prepared, F declares a transmit
date and, within 5 days, sends the documents and supporting
analyses to the appropriate Council for comment, publishes a
Notice of Availability of the FMP/amendment in the FR, and asks
for public comments for 60 days. Within 15 days after submission
to the concerned Council(s), F will clear the proposed rule
and transmit it to NOAA and AGC/L&R; if significant under
RFA, the IFRA is submitted to the SBA. When a docket number
is issued by AGC/L&R, F signs the proposed rule. F/SF5 sends
the proposed regulations to the OFR for publication for a 60-day
public comment period. The Council must submit any comments
on or before Day 60 of the comment period on the Secretarial
FMP/amendment. After taking into account any Council and public
comments received during the 60-day period, F may approve the
Secretarial FMP/amendment and associated documents (i.e., EA,
FRFA, if applicable). NOAA is advised of the action and the
final regulations are submitted to AGC/L&R for clearance.
When a docket number is provided, F signs the final rule. Final
regulations implementing the Secretarial FMP/amendment shall
be published in the FR within 30 days after the end of the comment
period on the proposed rule.
5. Rebuilding Overfished Fisheries
a. The Secretary shall
report annually to the Congress and to the Councils on the status
of fisheries within each Council's geographical area of authority
and identify those fisheries that are overfished or are approaching
a condition of being overfished. For those fisheries managed
under an FMP or international agreement, the status shall be
determined using the criteria for overfishing specified in such
FMP or agreement. A fishery shall be classified as approaching
a condition of being overfished if, based on trends in fishing
effort, fishery resource size, and other appropriate factors,
the Secretary estimates that the fishery will become overfished
within 2 years.
b. If the Secretary determines
at any time that a fishery is overfished, NMFS shall immediately
notify the appropriate Council and request that action be taken
to end overfishing in the fishery and to implement conservation
and management measures to rebuild affected stocks of fish.
NMFS shall publish each such notice in the Federal Register.
c. Within 1 year of an identification of overfishing under (a)
above or notification under (b) above or (g) (below), the appropriate
Council, or Secretary, in the case of Atlantic highly migratory
species fisheries, shall prepare an FMP/amendment and/or proposed
regulations for the fishery so identified to:
(1) End overfishing in the
fishery and to rebuild affected stocks of fish; or (2) prevent
overfishing from occurring in the fishery, whenever such fishery
is identified as approaching an overfished condition.
d. For a fishery that is overfished, any FMP/amendment, or proposed
regulations prepared pursuant to (c) above, or (e) (below) for
such fishery shall--
(1) Specify a time period
for ending overfishing and rebuilding the fishery that shall:
(A) Be as short as possible, taking into account the status
and biology of any overfished stocks of fish, the needs of fishing
communities, recommendations by international organizations
in which the United States participates, and the interaction
of the overfished stock of fish within the marine ecosystem;
and (B) not exceed 10 years, except in cases where the biology
of the stock of fish, other environmental conditions, or management
measures under an international agreement in which the United
States participates dictate otherwise;
(2) Allocate both overfishing
restrictions and recovery benefits fairly and equitable among
sectors of the fishery; and
(3) For fisheries managed
under an international agreement, reflect traditional participation
in the fishery, relative to other nations, by fishermen of the
e. If, within the 1-year period beginning on the date of identification
or notification that a fishery is overfished, the Council does
not submit to the Secretary an FMP/amendment, and/or proposed
regulations required under (c)(1) above, the Secretary shall
prepare an FMP/amendment and any implementing regulations to
stop overfishing and rebuild affected stocks of fish within
9 months (see PHASE V. 4. Secretarial FMP/amendment).
f. During the development of an FMP/amendment, or proposed regulations
required under this authority of the Magnuson-Stevens Act, the
Council may request the Secretary to implement interim measures
to reduce overfishing under the emergency authority of the Magnuson-Stevens
Act (see PHASE V. 2. Emergency Provisions) until such measures
can be replaced by such FMP/amendment, or regulations. Such
measure, if otherwise in compliance with the Magnuson-Stevens
Act, may be implemented even though they are not sufficient
by themselves to stop overfishing of a fishery.
g. The Secretary shall review any FMP/amendment or regulations
required by this authority to rebuild overfished fisheries at
routine intervals that may not exceed 2 years. If the Secretary
finds as a result of the review that such FMP/amendment or regulations
have not resulted in adequate progress toward ending overfishing
and rebuilding affected fish stocks, the Secretary shall:
(1) In the case of Atlantic
highly migratory fisheries, immediately make revisions necessary
to achieve adequate progress; or
(2) For all other fisheries,
immediately notify the appropriate Council. Such notification
shall recommend further conservation and management measures
that the Council should consider under (c) above to achieve