OPERATIONAL GUIDELINES - Phase V

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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 established.

Non-codified framework 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 framework actions.

Traditional or "Closed" Framework Measures

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).

Event Schedule

a. Region notifies F/SF3 at earliest opportunity of intended action.

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 point.

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.

Abbreviated Rulemaking

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

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 good cause.

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.

Technical Amendments

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. 12866.

Corrections

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 Act

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 action.
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 Magnuson-Stevens Act.

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 to F/SF3.

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 of non-significance.

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 action.

(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 public comment.

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 policies.

3. Disapproval/partial Approval of FMP/Amendment or Proposed Regulations.

Background

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 regulations.

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 United States.

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 adequate progress.

 

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Regulatory Streamlining - Operational Guidelines