Magnuson-Stevens Act Provisions; Environmental Review Process for Fishery Management Actions, 27998-28023 [E8-10271]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 73, Number 94 (Wednesday, May 14, 2008)]
[Proposed Rules]
[Pages 27998-28023]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10271]



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Part VI





Department of Commerce





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National Oceanic and Atmospheric Administration



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50 CFR Part 700



Magnuson-Stevens Act Provisions; Environmental Review Process for 
Fishery Management Actions; Proposed Rule

Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / 
Proposed Rules

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 700

[Docket No. 070824479-8107-02]
RIN 0648-AV53


Magnuson-Stevens Act Provisions; Environmental Review Process for 
Fishery Management Actions

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed rule would revise and update the NMFS procedures 
for complying with the National Environmental Policy Act (NEPA) in the 
context of fishery management actions developed pursuant to the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA). These 
regulations are modeled on the Council of Environmental Quality (CEQ) 
regulations implementing the procedural provisions of NEPA, 40 CFR 
parts 1500-1508, with specific revisions to the existing NMFS 
procedures made pursuant to the Magnuson-Stevens Fishery Conservation 
and Management Reauthorization Act (MSRA). The procedures are designed 
to conform to the timelines for review and approval of fishery 
management plans and plan amendments developed pursuant to the MSA. 
Further, these procedures are intended to integrate applicable 
environmental analytical procedures, including the timeframes for 
public input, with the procedure for the preparation and dissemination 
of fishery management plans, plan amendments, and other actions taken 
or approved pursuant to the MSA in order to provide for timely, clear, 
and concise analysis that is useful to decisionmakers and the public, 
reduce extraneous paperwork, and effectively involve the public.

DATES: Comments must be received by 5 p.m., EST, on August 12, 2008.

ADDRESSES: You may submit comments on this proposed rule or the 
associated Regulatory Impact Review (RIR), identified by 0648-AV53, by 
any of the following methods:
     Mail: Alan Risenhoover, Director, Office of Sustainable 
Fisheries, NMFS, 1315 East-West Highway, SSMC 3, Silver Spring, MD 
20910.
     Fax: (301) 713-0596.
     E-mail: NEPAprocedures@noaa.gov. Include in the subject 
line of the e-mail the following document identifier: ``MSA 
Environmental Review Procedures''
     Federal e Rulemaking portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    All comments received are a part of the public record and will 
generally be posted to https://www.regulations.gov without change. All 
Personal Identifying Information (e.g., name, address) voluntarily 
submitted by the commenter may be publicly accessible. Do not submit 
confidential business information or otherwise sensitive or protected 
information.
    Copies of the Regulatory Impact Review (RIR) prepared for this 
action may be obtained from Alan Risenhoover at the address above. 
Requests should indicate whether paper copies or electronic copies on 
CD-ROM are preferred. This document is also available at the following 
Web site: https://www.nmfs.noaa.gov/msa2007/implementation.htm.

FOR FURTHER INFORMATION CONTACT: Marian Macpherson at 251-751-0650, e-
mail: Marian.Macpherson@noaa.gov.

SUPPLEMENTARY INFORMATION:

Background

    The National Marine Fisheries Service (NMFS) proposes new 
regulations to establish procedures by which NMFS and the regional 
Fishery Management Councils (FMCs), established under the Magnuson-
Stevens Fishery Conservation and Management Act (MSA), will comply with 
the National Environmental Policy Act (NEPA) when preparing fishery 
management actions pursuant to the MSA. NMFS issues this proposed rule 
to comply with the requirements of section 107 of the Magnuson-Stevens 
Fishery Conservation and Management Reauthorization Act (MSRA), Pub. L. 
109-479. NMFS proposes specific provisions in the following areas.
    1. Form of documentation: The proposed rule would retain the use of 
Environmental Assessments (EAs), Findings of No Significant Impact 
(FONSIs), and Categorical Exclusions (CEs) where appropriate, and would 
establish two new forms of documentation for actions with potentially 
significant environmental impacts: the Integrated Fishery Environmental 
Management Statement (IFEMS) and the Memorandum of Framework 
Compliance.
    2. Roles and Responsibilities: This proposed rule would clarify the 
roles of the FMCs and NMFS in the development and approval of fishery 
management measures and actions.
    3. Timelines and Flow of Process: The proposed rule would build 
flexibility into the timelines for complying with NEPA in order to 
allow for compliance with NEPA within an MSA context.
    4. Alternatives to be Analyzed: This proposed rule would clarify 
what ``reasonable alternative'' and ``no action'' alternative mean in 
the context of fishery management.
    5. Exempted Fishing Permits (EFPs): This proposed rule would 
establish a new CE for certain types of EFPs where impacts have been 
analyzed within an overarching analysis.
    6. Incomplete or unavailable information: This proposed rule would 
clarify how NEPA's requirements concerning incomplete and unavailable 
information and conflicts of interest are applicable to MSA actions.
    7. Emergency or interim rules: This proposed rule would allow for 
programmatic arrangement with the Council on Environmental Quality 
(CEQ) to address page limits of IFEMS and NEPA requirements for 
emergency and interim rules.

I. Statutory Overview

A. The Magnuson-Stevens Fishery Conservation and Management Act

    The MSA, 16 U.S.C. 1801 et seq., established a national program to 
manage and conserve the marine fisheries of the United States. Under 
this system, the United States exercises sovereign rights and exclusive 
fishery management authority as provided in 16 U.S.C. 1811. 
Specifically, the Secretary of Commerce (Secretary), acting through the 
NMFS, oversees and manages our nation's domestic fisheries through the 
development and implementation of fishery management plans and actions 
(e.g., fishery management plans (FMPs), amendments, frameworks, annual 
specifications, regulations, etc.). For most domestic fisheries, the 
MSA requires management decisions to be based on recommendations from 
unique advisory bodies, the FMCs. In certain circumstances, NMFS may 
develop management measures or actions on its own.
    The MSA management system is unique insofar as Congress has 
authorized the FMCs to develop and recommend fishery management 
measures and actions to NMFS. Comprised of Federal, state, and 
territorial fishery management officials, participants in commercial 
and recreational fisheries, and other individuals with scientific 
experience or training in fishery conservation and

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management, the FMCs' primary responsibility is to develop and 
recommend fishery management measures and actions for any fishery under 
their jurisdiction that is in need of conservation and management. 
Specifically, MSA section 302(h)(1) (16 U.S.C. 1852(h)(1)) requires 
FMCs to prepare and submit to NMFS FMPs for fisheries in need of 
conservation and management. Section 303(c) of the MSA requires FMCs to 
submit to NMFS regulations that the FMCs deem necessary and appropriate 
to implement the FMP. The MSA mandates an open, public process for the 
development of fishery management measures and actions through the FMC 
system.
    The MSA establishes strict timelines and limited discretion for 
Secretarial review of FMC-recommended measures and actions. For FMPs 
and FMP amendments, upon receipt of an FMC's complete submission, NMFS 
must immediately commence a review of the recommendation to determine 
whether it is consistent with the national standards, other provisions 
of the MSA, and other applicable law. NMFS is also required immediately 
(within 5 days) to publish a notice in the Federal Register informing 
the public that the FMP or FMP amendment is available for a 60-day 
public review and comment period. Thereafter, NMFS evaluates the public 
comments received during the comment period. NMFS must also complete 
any necessary consultations with other federal agencies prior to the 
MSA's deadline for a final decision. If, after undertaking the 
requisite review, NMFS determines that the recommended FMP or FMP 
amendment complies with the standards and provisions of the MSA and is 
consistent with other applicable law, including NEPA, NMFS must approve 
it on behalf of the Secretary. If the recommendation does not comply 
with these requirements, NMFS must disapprove or partially approve it 
and provide the FMC with recommendations for actions the FMC could take 
to conform the FMP or FMP amendment to the applicable requirements. The 
MSA does not allow NMFS to substitute a different management 
alternative for that recommended by the FMC. If NMFS fails to notify 
the FMC within 30 days of the end of the comment period of the 
recommendation's approval, disapproval, or partial approval, the plan 
or amendment takes effect as if approved.
    For proposed regulations recommended by an FMC to implement an FMP 
or FMP amendment, the MSA provides NMFS 15 days to review proposed 
regulations to determine consistency with the underlying FMP or FMP 
amendment before publishing the proposed regulations for a 15-60 day 
comment period. A final rule must be promulgated within 30 days of the 
close of the comment period on the proposed rule.
    In certain situations, the MSA allows NMFS to develop fishery 
management measures and actions outside of the FMC process, subject to 
separate procedural requirements. For example, section 304(c) 
authorizes NMFS to prepare a Secretarial FMP or FMP amendment if: (1) A 
fishery is in need of conservation and management and the appropriate 
FMC fails to develop and submit, after a reasonable time, an FMP or FMP 
amendment; (2) NMFS disapproves or partially disapproves an FMP or FMP 
amendment, or disapproves a revised FMP or FMP amendment, and the FMC 
involved fails to submit a revised or further revised FMP or FMP 
amendment; or (3) NMFS is given authority to prepare an FMP or FMP 
amendment under section 304 of the MSA, such as FMPs or FMP amendments 
pertaining to any highly migratory species (HMS) fishery to which 
section 302(a)(3) of the MSA applies. Procedures for these types of 
``Secretarial'' actions, which are specified in MSA section 304(c), (e) 
and (g), provide for public and FMC input into their development. 
Section 305(d) provides additional authority for NMFS, on behalf of the 
Secretary, to promulgate regulations necessary to carry out its 
responsibilities under the MSA.
    In this proposed rule, the term ``fishery management measure'' 
refers to management strategies contained in FMPs, FMP amendments and 
regulations, including but not limited to closed areas, quotas, and 
size limits as contemplated in MSA section 303(a)(1) (16 U.S.C. 
1853(a)(1)). The term ``fishery management action'' refers to actions 
NMFS takes to implement the measures contained in an FMP, including but 
not limited to the promulgation of regulations and the establishment of 
dates of closures as contemplated in MSA section 305(f) (16 U.S.C. 
1855(f)). In developing and recommending an FMP, FMP amendment or 
regulation, FMCs may consider and include both measures and actions. 
The NEPA provisions described in this proposed rule are intended to 
cover all such recommendations.

B. NEPA's Relationship to the MSA Process

    NEPA is the fundamental national charter for environmental 
protection. As the Supreme Court has noted, NEPA Section 102 (42 U.S.C. 
4332) requires Federal agencies to examine the environmental effects of 
proposed Federal actions and to inform the public of the environmental 
impacts considered in an agency's decision-making process. See, e.g., 
DOT v. Public Citizen, 541 U.S. 752, 768 (2004). NEPA does not mandate 
a particular substantive outcome; rather, NEPA is a procedural statute, 
the purpose of which is to protect the environment by requiring Federal 
agencies to carefully weigh environmental considerations in their 
decision-making processes, including alternatives to their proposed 
actions, before taking final action. An essential element of the NEPA 
process, as highlighted in CEQ's regulations, is the requirement to 
make relevant environmental information available to the public and 
afford the public an opportunity to participate in the agency's 
decision-making process. Ultimately, NEPA is designed to ensure that 
Federal agencies utilize a sound and public process in making decisions 
that affect the environment, and to ensure that agencies consider the 
environmental impacts of, and alternatives to, their proposed actions.
    Through these proposed regulations, NMFS seeks to better integrate 
NEPA into the unique FMC process established by the MSA. For MSA 
actions, the scope of NMFS's authority to modify FMC-recommended 
fishery management plans and plan amendments is narrow: NMFS may 
approve, disapprove, or partially approve a proposed FMP or FMP 
amendment recommended by the FMC, and the sole basis for disapproval of 
any such recommendation is that it is not consistent with applicable 
law, including NEPA, the MSA and its national standards. Applying NEPA 
solely to the Secretary's limited discretion under the MSA cannot 
foster the type of informed consideration of the effects of the action 
in light of reasonable alternatives that NEPA envisions. Because policy 
recommendations are developed and alternatives narrowed through the 
public forum of FMC meetings, it is important to integrate the analysis 
of alternatives and impacts for the NEPA analysis with the FMC's 
development of recommended management measures and actions. For this 
reason, NMFS addresses several key issues in this proposed rule: (1) 
The different roles of FMCs and NMFS under the MSA, as advisory bodies 
and decision-maker respectively, as those roles relate to NEPA's 
requirements; (2) the integration of statutory and regulatory timelines 
to provide for timely responses to fishery resource management needs; 
and (3) the

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complexities of defining the appropriate range of alternatives for 
analysis.

C. MSRA Requires Revised and Updated Agency Procedures to Comply With 
NEPA

    In December 2006, the U.S. Congress acted to amend the MSA through 
the MSRA, which was subsequently signed into law by the President on 
January 12, 2007. Pub. L. 109-479. The MSRA addresses a number of 
fisheries issues, but pertinent to this rulemaking is section 107, 
which imposes a requirement that NMFS better integrate and more closely 
align applicable environmental analytical procedures with the MSA's 
fishery management process.
    Congress directed the Secretary, acting through NMFS, and in 
consultation with the FMCs and CEQ, to revise and update agency 
procedures to comply with NEPA. Congress stated that the procedures 
shall:

    (A) conform to the [MSA's] time lines for review and approval of 
fishery management plans and amendments under this section; and
    (B) integrate applicable environmental analytical procedures, 
including the time frames for public input, with the procedure for 
the preparation and dissemination of fishery management plans, plan 
amendments, and other actions taken or approved pursuant to this Act 
in order to provide for timely, clear and concise analysis that is 
useful to decision makers and the public, reduce extraneous 
paperwork and effectively involving the public.

16 U.S.C. 1854(i)(1)(A) and (B).

    Moreover, Congress stated that the revised and updated procedures 
are to be the sole environmental impact assessment procedures for 
fishery management actions (e.g., FMPs, FMP amendments, or other 
actions taken or approved pursuant to the MSA) used by the FMCs or 
NMFS. 16 U.S.C. 1854(i)(2). Finally, Congress authorized and directed 
NMFS, in cooperation with CEQ and the FMCs, to involve the affected 
public in the development of the revised procedures.
    The MSRA's legislative history reveals Congress' interest in 
gaining efficiencies in the MSA's environmental review process. 
Specifically, the Senate Report accompanying the MSRA contained the 
following language: ``[t]he intent is not to exempt the Magnuson-
Stevens Act from NEPA or any of its substantive environmental 
protections, including those in existing regulation, but to establish 
one consistent, timely, and predictable regulatory process for fishery 
management decisions * * * [t]he Committee intends section 107 to 
streamline this environmental review process in the context of fishery 
management.'' S. Rept. 109-229, at 8.

II. NMFS' Implementation Efforts

A. Consultations and Public Outreach

    As required by the MSRA, NMFS has consulted with CEQ and the FMCs, 
and has initiated public involvement in the development of the revised 
procedures. In the spring of 2007, NMFS and the FMCs conducted two 
separate forms of outreach. NMFS posted a series of trigger questions 
on the Internet, soliciting public input on how the process should be 
revised. At about the same time, the FMCs' Council Coordinating 
Committee (CCC) developed a strawman proposal for revised procedures. 
Both the CCC strawman and NMFS' questions were posted on the agency's 
Web site for a 60-day public comment period. Moreover, each of the 
eight FMCs held public listening sessions at their respective FMC 
meetings between February and April 2007.
    NMFS received a total of 1,660 comments, all but 8 of which were 
form letters that expressed general disapproval of the CCC strawman. 
The remaining eight comments were submitted by a variety of 
environmental and fishery-related organizations and reflected a wide 
range of opinions on the new procedures in general, the CCC strawman, 
and the trigger questions. The main topics addressed by the commenters 
were:
    1. Need for/Authority to Change Regulations/Guidance. There is 
disagreement about the legislative intent of the MSRA with regard to 
revision of the agency's NEPA procedures, the need for changes to the 
NEPA procedures, the timeframes for public review of NEPA documents, 
and the adequacy of the existing process to meet NEPA requirements and 
fishery management needs.
    2. Roles of FMCs and NMFS. There are opposing opinions about 
whether FMCs or NMFS should have the lead on conducting the NEPA 
process. One environmental organization proposed a specific alternative 
approach to that set forth in the CCC strawman.
    3. Using the FMC Process to comply with NEPA. There is disagreement 
about the appropriateness of using the FMC process to comply with NEPA. 
A major concern is whether the public would be adequately included. 
Many suggestions were provided on how to make the FMC process more 
accessible.
    4. Reasonable Alternatives. There is consensus that reasonable 
alternatives must be able to achieve the objectives of the management 
action. In addition, several specific suggestions were offered as to 
how to further define ``reasonable alternatives.''
    5. Tiering/Scaling the Level of Analysis. There is agreement that 
not every action merits the same level of detail and length in its 
analysis and that some form of scaling is appropriate, but disagreement 
as to how to determine the appropriate level of analysis. Some 
commenters felt that the existing EA/EIS distinction adequately allows 
for determining the appropriate level of analysis based on an action's 
degree of significance. Other commenters suggested alternative 
approaches. Two commenters opposed applying specific criteria to 
determine the level and detail of analysis and indicated that the 
circumstances around each action would dictate what level of analysis 
is appropriate.
    6. Eliminating the EA/EIS Distinction. Many commenters support 
keeping this distinction, although one commenter identified a potential 
benefit of avoiding litigation over which type of analysis should have 
been prepared.
    7. Reducing the Length of the Comment Period to 30 days. There is 
disagreement as to whether longer or shorter comment periods are 
desirable, as well as on the effects of any change on streamlining and 
process.
    8. Scientific Research and Experimental Fishing. The need to 
improve NEPA's application to scientific research and experimental 
fishing was pointed out.
    At its May 2007 meeting the CCC decided to recommend its strawman 
to NMFS as the basic approach for the new process and made several 
additional comments and suggestions. Since May 2007, NMFS has consulted 
with CEQ and the CCC subcommittee to develop the environmental review 
procedures proposed in this rule.

B. Alternatives Considered by NMFS

    In addition to conducting public outreach, NMFS engaged in an 
internal scoping process to consider the most appropriate means to 
revise and update the NEPA procedures to better integrate NEPA and MSA. 
NMFS examined a number of important issues during this process, which 
included, but were not limited to: NEPA's role in the fishery 
management context; ways to integrate the NEPA and MSA process to 
ensure successful implementation of MSA actions; mechanisms for 
improving public participation; whether NMFS, the FMCs, or both should 
prepare environmental analyses; and the type of environmental document 
and level of analysis applicable to a specific fishery management 
measure or action. As a

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result, and after careful consideration of public comments on NMFS' 
trigger questions, the CCC subcommittee Strawman proposal and public 
input received at each of the Council listening sessions, NMFS 
developed an array of alternatives intended to achieve the following 
goals: (1) Ensure compliance with NEPA when developing and implementing 
fishery management measures and actions under the MSA; (2) Adhere to 
the principles of public involvement and agency accountability (i.e., 
requirements that agencies consider and respond to public comment) set 
forth in the existing CEQ regulations; (3) Integrate NEPA's 
requirements into the MSA public processes for developing and approving 
fishery management measures and actions; (4) To the extent appropriate, 
build on recommendations in the CCC Strawman document; (5) 
Appropriately align public participation in the NEPA process to reflect 
differences in the roles of the Regional Fishery Management Councils 
(FMCs) and NMFS in the development and approval of fishery management 
measures and actions and conducting the NEPA analysis; and (6) Conform 
the MSA and NEPA timelines to achieve greater efficiencies in fisheries 
management and allow rapid response to fishery management needs, while 
providing the public meaningful opportunity to influence policy 
decisions.
    In developing these proposed procedures, NMFS attempted to 
determine where fishery-specific improvements could be gained while 
supplementing the key elements of the CEQ regulations that ensure 
opportunities for public participation and agency accountability. Some 
of the key features of the CEQ regulations centered around the early 
public scoping process, the opportunity for public comment on a draft 
analytical document, a revised final document that addresses public 
comment, a cooling-off period prior to the final decision, and a Record 
of Decision (ROD) documenting the agency's final decision. NMFS then 
considered whether the procedural aspects of these elements (such as 
timing, sequencing, and feedback mechanisms) could be implemented to 
provide more appropriate opportunities for public participation in the 
process for developing MSA measures and actions. Specifically, NMFS 
sought an approach that would: (1) Integrate NEPA's public 
participation opportunities with the FMC development of analyses and 
alternatives and NMFS' decisionmaking under the MSA; and (2) allow the 
MSA decision-making process to proceed in a timely manner to address 
real time fishery management needs.
    NMFS identified alternatives for possible fisheries-specific 
improvements in several general categories: form of documentation; 
roles and responsibilities; timing and flow of process; and other 
elements (experimental fishing, emergencies, page limits, and the range 
of alternatives to be analyzed).
1. Form of Documentation
a. Single Integrated Document
    Pursuant to NEPA, an EIS must be prepared for any major Federal 
action significantly affecting the quality of the human environment. An 
EA may be prepared as a first step to inform the determination of 
whether a proposed action would have a significant effect on the 
quality of the human environment, thereby requiring an EIS. Generally, 
the EIS is a more thorough analysis of impacts and alternatives than 
the EA. For development of FMPs by FMCs, however, this is not always 
the case. Development of FMPs or amendments under the MSA requires 
development of a comprehensive analysis that incorporates almost all of 
the content requirements for an EIS. In many cases, an FMC can 
relatively easily incorporate the additional EIS content requirements 
(i.e., cumulative impact analysis and reasonable range of alternatives) 
into the existing fishery management analysis.
    Given these requirements, one possible approach would be to 
eliminate the EA/EIS distinction, ensure that content requirements of 
an EIS are included in the MSA analysis, and adjust the procedures and 
timing for completing an EIS through the FMC process. Rather than 
focusing on whether or not an action is ``significant,'' this approach 
would undertake the more comprehensive analysis and consideration of 
alternatives for every action. Among other things, this approach would 
ensure preparation of EIS-level documents in ``close call'' situations. 
This approach was recommended by the CCC in their strawman, which would 
have required a single analytical document labeled an Environmental 
Impact Analysis (EIA).
    However, there was little support for this approach expressed 
through public comment. One of the most noted concerns expressed by the 
public focused on the potential difficulty in developing scaling 
criteria, and how EIAs would be tailored to allow an appropriate 
scaling of the analysis based on the scope of the proposed action. This 
approach could result in unnecessary analysis and delay for actions 
where an EA/FONSI is appropriate.
b. Status Quo
    NMFS considered retaining the three main forms of documentation 
currently provided for in the CEQ regulations: The EIS, EA/FONSI, and 
CE. While these forms of documentation are familiar to the public, 
retaining them as they currently exist in the CEQ regulations would 
negate the opportunity for improvements to the NEPA process for MSA 
actions as intended by the MSRA.
c. New Forms of Documentation
    The preferred alternative, as set forth in this proposed rule, 
would provide for four types of documentation based on the current EIS/
EA structure, but tailored to address the unique needs of the fishery 
management process: (1) An IFEMS, which would be similar to an EIS but 
with more explicit integration of MSRA requirements, (2) an EA/FONSI, 
(3) a CE, and Determination of Categorical Exclusion, and (4) a 
Memorandum of Framework Compliance (this would allow NMFS and the FMCs 
to efficiently implement the NEPA process for actions (e.g., frameworks 
and annual specifications) that fall within the scope of a prior NEPA 
analysis). These documents, with the exception of the Memorandum of 
Framework Compliance, would have content requirements similar to those 
provided under existing NMFS procedures and caselaw, but with revisions 
to address specific fishery-related needs. In combination with the 
adjustments to process and timing described below, the intent of these 
revisions is to retain the flexibility to utilize an EA/FONSI or CE, 
where appropriate, but to make the process for completing an EIS-level 
document (i.e., IFEMS), and/or utilizing a Memorandum of Framework 
Compliance, better integrated with existing MSA timing and decision-
making requirements.
2. Roles and Responsibilities
    NMFS analyzed the MSA and NEPA statutory and regulatory 
requirements and identified several different ways of viewing the roles 
and responsibilities of NMFS and the FMCs in an integrated MSA/NEPA 
process.
a. FMCs Responsible for NEPA Compliance
    One option would be to vest sole responsibility for preparing the 
NEPA analysis with the FMC and require that

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the FMC develop the NEPA analysis during development of MSA management 
recommendations. This option would give the FMC full responsibility for 
completing the NEPA analysis. Under this scenario, the NEPA document 
would be primarily an FMC document. FMCs would be solely responsible 
for developing the final NEPA document prior to recommending management 
measures and actions to NMFS. The analysis would be prepared in 
accordance with the requirements for an EIS. NMFS would not participate 
substantially in the development of the document. The FMCs would be 
required to complete all required NEPA procedures, including the 
cooling-off period, prior to taking the final vote to recommend a 
measure or action. Because of the MSA's unique structure, based on the 
FMCs considering public input and making management recommendations to 
NMFS, and NMFS' subsequent decision to approve, disapprove, or 
partially approve any recommendation, this approach would effectively 
align NEPA's consideration of impacts and alternatives with the FMC's 
consideration of alternatives for recommendation to NMFS. However, NMFS 
is the Federal action agency ultimately responsible for NEPA 
compliance, and this option would not give NMFS involvement in the NEPA 
documentation and process to assure that NMFS satisfies its NEPA 
obligations.
b. NMFS Solely Responsible for NEPA
    NMFS identified two approaches by which NMFS could comply with the 
mandates of NEPA without involving the FMCs. However, neither of these 
scenarios would result in the type of information sharing and public 
participation envisioned by NEPA and these proposed regulations.
    (i) Separating the NEPA Analysis From the FMC's Process. Under this 
first scenario, NMFS, as the action agency, would conduct the NEPA 
analysis and prepare the appropriate NEPA document. NMFS would publish 
and make available the NEPA document separate from the FMC process, but 
if practicable NMFS could align its release of the document within the 
FMC process. NMFS, as a member of the FMC, could recommend NMFS's 
alternatives and NEPA analysis to the FMC as it considered alternatives 
prior to its final vote. However, NMFS has only one vote on each FMC 
and therefore could not ensure the range of alternatives NMFS analyzed 
in the NEPA document would be considered by the FMC as it developed its 
recommendation under the MSA. While the Secretary must disapprove a 
recommendation that does not comply with NEPA, MSRA directed NMFS to 
revise and update its procedures to integrate NEPA procedures with the 
procedure for the preparation and dissemination of fishery management 
plans, amendments, or other actions taken or approved pursuant to the 
MSA. NMFS did not adopt this alternative because it does not 
effectively integrate consideration of alternatives and impacts for the 
NEPA analysis and for the FMCs' development of management 
recommendations.
    (ii) NMFS Prepares the NEPA Analysis After the FMC Takes Final 
Action. Under this scenario, NMFS would again conduct the NEPA analysis 
and prepare the appropriate NEPA document. However, the NEPA process 
would not commence until after the FMC takes a final vote on its 
recommendations. This option is based on the theory that there is no 
proposed Federal action to analyze until the FMC transmits its 
recommendation and the Secretary is required to take action on the 
FMC's recommendation. However, this approach does not effectively 
integrate the analysis of alternatives and impacts for the NEPA 
analysis with the FMCs' development of recommended management measures 
and actions. This option would require significant reductions in the 
amount of time available for public review and comment on the NEPA 
analysis for all fishery management measures and actions.
c. Preferred Alternative
    The third alternative NMFS considered would modify the procedural 
requirements for conducting the NEPA analysis and preparing the 
appropriate NEPA document to accommodate the unique relationship 
between the FMCs and NMFS in the MSA context.
    This alternative is intended to better align public input to FMC 
recommendations and NMFS authority for approval and implementation of 
fishery management measures and actions and would establish a 
regulatory requirement that FMCs consider public comments on an IFEMS 
before taking a final vote. It is based on an understanding of the role 
of the FMC as an advisory body that narrows alternatives and makes 
recommendations and which, therefore, should be informed by public 
comment. This alternative also recognizes that NMFS, after having 
provided input and guidance to the FMC for the development of the NEPA 
document, bears ultimate responsibility for compliance with both MSA 
and NEPA. The requirements of NMFS procedures implementing NEPA would 
be modified to accommodate the respective roles of the FMCs and NMFS in 
the NEPA process. This alternative would provide for more explicit 
integration of NEPA in the MSA decisionmaking process and maximize 
opportunities for public participation by providing opportunities for 
review and comment at by both FMC and NMFS, levels, while allowing 
flexibility to reduce comment periods for FMCs in certain circumstances 
to meet fishery management need.
3. Timing and Flow of Process
    NMFS analyzed different ways to build flexibility and 
predictability into the timing requirements of the NEPA procedures to 
assure the appropriate level of NEPA analysis is prepared and to allow 
for the maximum amount of public participation during the FMCs' 
development of recommended management measures and actions.
a. CCC Strawman (Three-Meeting Minimum for IFEMS)
    The CCC strawman includes a recommended process that would require 
a minimum of three FMC meetings to develop a management recommendation 
and associated NEPA documentation. Upon further consideration at its 
May 2007 meeting, however, the CCC determined that some management 
recommendations needing to be completed in fewer than three meetings 
would benefit from and/or require analysis in an EIS-level document and 
recommended that the revised procedures address this issue.
b. Preferred Alternative (Two-Meeting Minimum for IFEMS)
    After analyzing the minimum timelines set forth in the CEQ 
regulations, the statutory timelines of the MSA, and the practical 
issues surrounding scheduling of FMC meetings and the logistics of 
completing the necessary steps to develop a fishery management 
recommendation, NMFS constructed an approach that would allow for the 
development of an IFEMS through a minimum two-meeting cycle, thus 
allowing for even the most time-constrained fishery management needs to 
be informed by an IFEMS.
    This alternative would take into account the statutory structure of 
the MSA decision-making process and the need for the FMC recommendation 
to move forward through Secretarial review to an ultimate decision in 
order to respond to real-time fishery management needs. This 
alternative accommodates the typical FMC process

[[Page 28003]]

for development of a management recommendation with an EIS-level 
document, which usually involves an iterative process with the public 
in which several versions of a draft are shared and modified over the 
course of several FMC meetings prior to a final FMC vote. This 
alternative also recognizes that in some circumstances certain minimum 
time periods identified in the CEQ regulations may need to be reduced 
to allow the completion of an IFEMS in as few as two FMC meetings as 
described below.
    For a smaller subset of fishery management needs, various factors 
(such as the timing of the availability of fishery statistics, the 
timing of the opening of the fishing season, judicially-imposed 
deadlines, and the schedule of FMC meetings) can interact to constrain 
the available time between identification of a management need and the 
time when a management measure needs to be effective. The intent of 
this proposed rule is to maintain the iterative and deliberative 
processes of the FMCs as they exist for addressing management needs in 
a situation not subject to such time constraints, but to allow enough 
flexibility so that the system can also accommodate an IFEMS in a time-
constrained situation. This proposed rule (Sec.  700.604) would 
establish the following considerations for determining the 
appropriateness of reductions in minimum time periods for public 
comment:
    (1) Whether there is a need for emergency action or interim 
measures to address overfishing;
    (2) The potential long- and short-term harm to the fishery 
resource;
    (3) The potential long- and short-term harm to the marine 
environment, including non-target and protected species;
    (4) The potential long- and short-term harm to fishing communities;
    (5) FMC meeting schedules and ability to respond;
    (6) Degree of public need for the proposed action, including the 
consequences of delay;
    (7) Time limits imposed on the agency by law, regulations, or 
Executive Order.
    An important component of this approach would be supplementation of 
the requirement in the CEQ regulations linking the start of minimum 
time periods for public comments and the delay associated with the 
cooling off period to the Environmental Protection Agency's (EPA's) 
publication of the notice of availability (NOA). EPA publishes a notice 
in the Federal Register each Friday, listing all the EISs that were 
filed with EPA the previous week. In severely time-constrained fishery 
management situations, the time that is lost prior to EPA's weekly 
filing could be used by NMFS, the FMCs, and the public to complete 
better documents, to have a few more days of public comment, and/or to 
be able to complete an IFEMS on a very short deadline. The preferred 
alternative would allow NMFS to start the clock on the minimum time 
periods by filing the NOA of the IFEMS in the Federal Register as soon 
as the IFEMS is available to the public and filed with EPA. In such 
circumstances, the minimum time period could be calculated from the 
Federal Register publication date of the NMFS NOA. The EPA notice to 
follow would state that, pursuant to MSRA and EPA's authority to reduce 
prescribed periods for timing of agency action (40 CFR 1506.10(d)), EPA 
has reduce the applicable time according to the number of days provided 
for in preceding the NMFS NOA.
    In addition to providing for time savings in time-constrained 
situations, this proposed change would allow NMFS to start the clock on 
the comment period on the NEPA document simultaneously with the start 
of the comment period on the proposed fishery management measure or 
action. Allowing the clocks for the two sets of comment periods to 
begin and run simultaneously would further integrate the requirements 
of NEPA and the MSA.
4. Other Elements (Experimental Fishing, Emergencies, Page Limits, and 
the Range of Alternatives To Be Analyzed)
a. Experimental Fishing
    The public raised the issue that NEPA's requirements sometimes 
hinder the ability of research organizations to obtain EFPs. NMFS 
considered maintaining the status quo, as well as whether there may be 
opportunities to improve the current NEPA procedures with regard to 
EFPs. The preferred alternative would specify that, where experimental 
fishing activities proposed to be conducted under an EFP, and where the 
fish to be harvested have been accounted for in other analyses of the 
fishery such as by factoring a research set-aside into the allowable 
biological catch (ABC), optimum yield (OY), or fishing mortality, the 
activities could be eligible for a CE, as appropriate. Activities that 
are truly ``scientific research,'' as defined by 50 CFR 600.10, are not 
subject to regulation under the MSA and thus not subject to this 
rulemaking.
b. Emergencies and Interim Actions Pursuant to the MSA
    NMFS possesses authority under section 305(c) of the MSA to 
promulgate emergency rules or interim measures. NMFS's must be able to 
respond quickly to emergency or overfishing situations while 
accommodating NEPA's requirements to ensure adequate public involvement 
and prepare the requisite analyses for a particular measure or action.
    As part of this proposed rulemaking, NMFS considered two options to 
comply with NEPA in the context of section 305(c) emergency and interim 
actions. One option would have allowed NMFS to prepare an abbreviated 
NEPA analysis for the measure or action. The scope and degree of 
analysis would have been determined in light of the nature and 
timeframe in which to address the emergency. Further, if good cause 
existed to waive the requirements for notice and opportunity for public 
comment on the proposed rule under the Administrative Procedure Act, 
NMFS would have afforded an opportunity for public comment on the NEPA 
document after implementation of the emergency or interim measures. The 
preferred option, as described in Sec.  700.701, would establish the 
option of developing programmatic alternative arrangements for NEPA 
compliance with CEQ for emergency or interim actions that may result in 
significant impacts. The intent is to limit such arrangements to 
specific types of emergency or interim actions that necessitate 
immediate attention and for which public involvement or detailed 
analyses would interfere with NMFS' ability to control the immediate 
impacts of the emergency. While this alternative would still allow for 
the use of ad hoc approaches where appropriate, it would allow 
flexibility to prepare planned and managed approaches that would avoid 
the inefficiencies and uncertainties of reactive, situation-specific 
arrangements.
c. Page Limits
    CEQ's guidance for preparation of EISs states that the text ``shall 
normally be less than 150 pages,'' and for proposals of unusual scope 
or complexity ``shall normally be less than 300 pages.'' 40 CFR 1502.7. 
NMFS and FMC-generated NEPA documents sometimes exceed these expected 
page limits. It has been suggested that reducing the number of pages of 
MSA NEPA documents could improve the overall analytical quality and 
public accessibility and understanding of the documents. The complexity 
of the

[[Page 28004]]

alternatives that must be analyzed for fishery management actions and 
measures and the difficulty of sufficiently analyzing these 
alternatives in a relatively short document, however, may result in 
documents exceeding these page limits. NMFS proposes to consult with 
CEQ on a programmatic basis in those situations where page limits for 
NEPA analyses are exceeded.
d. The Range of Alternatives To Be Analyzed
    A Federal agency's range of alternatives is reasonable if the 
alternatives meet an agency's stated purpose and need and, if they are 
consistent with an agency's statutory authorities and policy 
objectives. Although the range of alternatives should not be so 
narrowly defined so as to preclude meaningful consideration of 
alternate ways of accomplishing agency objectives, courts have afforded 
agencies much discretion to define what they consider to be reasonable 
in light of the controlling statute or purpose and need for the action. 
In some cases the lack of precisely drawn alternatives has led to 
overly complex NEPA documents.
    The CCC Subcommittee commented, in the context of MSA fishery 
management actions, that a literal interpretation of the requirement in 
CEQ's regulations that the EIS ``rigorously explore and objectively 
evaluate all reasonable alternatives, and for alternatives which were 
eliminated from detailed study, briefly discuss the reasons for their 
having been eliminated,'' results in FMCs and NMFS analyzing 
alternatives that the FMC would never recommend, requires detailed 
analysis of every reasonable alternative suggested by the public, and 
results in an overapplication of NEPA's requirements. The CCC 
Subcommittee recommended striking the word ``all'' from before 
``reasonable alternatives'' and clarifying that the requirement is to 
consider a ``reasonable range'' of reasonable alternatives. NMFS 
believes that clear guidance on the range of alternatives in the 
fishery management context would reduce the over-inclusion of 
alternatives that results in overly complex and voluminous alternatives 
analyses. The proposed rule would not eliminate the word ``all,'' but 
would encourage better analysis of an appropriate, not overly-
inclusive, range of alternatives.

III. Proposed Changes to Existing NEPA Review Procedures

    After consulting with the FMCs and CEQ, and carefully considering 
input from the public, NMFS is proposing to implement new regulations, 
to be published at 50 CFR part 700, establishing fisheries-specific 
procedures for NEPA compliance. This approach would replace the 
existing NMFS procedures for complying with NEPA in the context of 
fishery management under the MSA. These specific regulations for 
implementing NEPA in the context of fishery management under the MSA 
would supplement the general CEQ regulations implementing the 
procedural provisions of NEPA. While the CEQ definitions (40 CFR part 
1508) and other generally applicable provisions of the CEQ regulations 
are not paraphrased or repeated, they would remain relevant and 
applicable. Based on public review and comment on these proposed 
regulations, CEQ will review the final NMFS regulations for conformity 
with NEPA. 40 CFR 1507.3.

A. Form of Documentation

    The proposed process would utilize four forms of documentation: The 
IFEMS, the EA/FONSI, the CE, and the Memorandum of Framework 
Compliance.
1. IFEMS
    The IFEMS would be comparable to an EIS-level analysis. As the name 
indicates, it would integrate applicable environmental analyses into a 
single document.
    The content of the IFEMS would be largely similar to that of an 
EIS. This proposed rule contains additional specificity concerning what 
constitutes a reasonable range of alternatives, including the ``no 
action'' alternative, how incomplete or unavailable information should 
be treated for purposes of fishery management, and a specific 
requirement to consider cumulative impacts. The proposed process would 
also allow for the timing and procedures associated with the IFEMS to 
be modified from those CEQ has established for EISs.
    While the NEPA-related contents of the IFEMS would be similar to 
the EIS, the procedural requirements would be different. The proposed 
name change from EIS to IFEMS is intended to make clear that the 
requirements applicable to an IFEMS are distinct from those applicable 
to an EIS, especially in terms of procedure and timing, but also 
regarding the identification of alternatives, how to deal with 
incomplete information, and the requirement to analyze cumulative 
impacts. Existing FMPs and EISs would not need to be amended to comply 
with the new IFEMS requirement. IFEMS would only need to be developed 
for new actions or to take advantage of new frameworking measures.
    This proposed rule would also establish categories of actions that 
would normally require an IFEMS, such as new FMPs, and FMP amendments 
with significant impacts (Sec.  700.103). These categories are expected 
to assist with agency and FMC planning and inform public expectations 
on the appropriate level of NEPA documentation. For example, when 
initiating analysis of a new action, an FMC or NMFS would be able to 
quickly determine which level analysis would most likely be applicable 
to that type of action. However, the determination of significance for 
a particular action would still ultimately be based on the application 
of the significance criteria.
2. EA/FONSI
    The EA/FONSI would still be available for use based on the 
``significance'' test as is currently the case. In addition, the 
proposed revisions would establish certain categories of actions that 
would normally qualify for this level of analysis, such as emergency 
actions and annual specifications or frameworks not covered by a 
Memorandum of Framework Compliance as described below. The effect of 
these categories would also be to assist with agency and FMC planning 
and inform public expectations. However, the determination of 
significance for a particular action would still ultimately be based on 
the application of the significance criteria.
    In addition, new Sec.  700.401(d) would authorize the use of a 
FONSI for an action that may have significant or unknown effects, as 
long as the significance and effects have been analyzed previously. 
This provision is intended to address situations such as recurrent 
annual management measures, the effects of which are significant or 
unknown, and which therefore do not qualify for a CE, but nevertheless 
do not require a new EIS every year given the previous analysis.
3. CE (and Determination of Categorical Exclusion (DCE)) (Sec. Sec.  
700.105 and 700.702)
    The current CEQ guidance defines CEs and encourages agencies to use 
them. The proposed revisions include a new section on CEs that would 
establish a new form of documentation (DCE). The proposed revisions 
would also establish a new CE category for experimental fishing 
activities permitted under an EFP, where the fish to be harvested have 
been accounted for in other analyses of the FMP, such as by factoring a 
research set-aside into the

[[Page 28005]]

ABC, OY, or fishing mortality. In addition, the proposed revisions 
would establish, by regulation, other categories of actions that would 
qualify for a CE and which are currently contained in NOAA's 
Administrative Order that provides internal agency guidance on 
administering NEPA (NOA 216-6).
4. Framework Implementation Procedures and the Memorandum of Framework 
Compliance (Sec.  700.104)
    This section would allow the NEPA process for fishery management to 
be streamlined for measures or actions that have been previously 
analyzed by the FMCs or NMFS. Specifically, this proposal would allow 
FMCs or NMFS to establish Framework Implementation Procedures (FIPs), 
i.e., formal mechanisms to allow actions to be undertaken pursuant to a 
previously planned and constructed management regime without requiring 
additional NEPA analysis. In its simplest terms, the goal of a FIP is 
to provide that, when the environmental impacts of fishery management 
measures have been analyzed in a broad parent document, subsequent 
actions to implement these measures, e.g., a framework action, annual 
specifications, or harvest limits, would not need further NEPA 
analysis, so long as the impacts of a subsequent action fall within the 
range of effects considered by the broad parent document.
    The proposed use of FIPs would allow FMCs and NMFS to integrate 
NEPA's requirements into an existing MSA management tool that provides 
for advance planning and rapid response to real-time fishery management 
needs. Many FMPs include provisions, known as ``frameworks,'' that 
permit a class of actions to be undertaken pursuant to procedures 
described under the FMP without requiring an amendment to the 
underlying FMP. The FMP or FMP amendment that establishes these 
procedures often includes extensive analysis of a range of measures and 
actions that are anticipated to be taken in the future through the use 
of these framework procedures. The FIP provisions proposed in this rule 
would allow an FMC or NMFS to utilize the same sort of advance planning 
for analysis of environmental impacts. FIPs could be used for a variety 
of fishery management measures and actions, including traditional 
framework actions, annual specifications, and other fishery management 
actions, as appropriate.
    To establish a FIP, the FMCs or NMFS would include procedures in an 
FMP that comply with the requirements specified in Sec.  700.104(a) of 
the proposed regulations. For example, the FIP would need to specify 
criteria that would trigger the requirement to supplement a prior 
analysis if a new IFEMS or EA for the subsequent fishery management 
action would be needed.
    This proposed rule would also establish a Framework Compliance 
Evaluation process to evaluate whether a fishery management action 
taken pursuant to an FIP established under an FMP requires additional 
action-specific analysis. At a minimum, the Framework Compliance 
Evaluation would serve two purposes: First, to identify the applicable 
underlying NEPA document(s) for the subsequent fishery management 
action; and second, to determine whether the underlying NEPA 
document(s) can support the action (i.e., whether the action and its 
anticipated effects fall within the scope of the prior analysis) or 
whether the NEPA analysis requires supplementation due to new 
information or because the effects of the subsequent action have not 
been previously analyzed.
    The Framework Compliance Evaluation would result in one of two 
outcomes, as specified in Sec.  700.104(c) and (d): (1) The development 
of a Memorandum of Framework Compliance that documents briefly how the 
fishery management action taken pursuant to a FIP falls within the 
scope of a prior NEPA analysis; or (2) the determination that 
supplementation of the prior NEPA analysis is needed to satisfy NMFS's 
NEPA obligation for the subsequent fishery management action.

B. The Role of the FMCs and NMFS in the NEPA Process

    The proposed approach recognizes that the MSA created a unique 
structure for Federal fisheries management, under which both the FMCs 
and NMFS have important roles. The FMCs are advisory bodies that 
develop management alternatives and make recommendations that NMFS must 
approve or partially approve unless they are inconsistent with 
applicable law. Given the primary role FMCs play in the development of 
fishery management measures and actions, FMC decisions should be 
directly informed by public comment, and the MSA's public process 
requirements address this need. For its part, NMFS has the authority to 
approve and implement fishery management measures and actions and bears 
ultimate responsibility for compliance with the MSA and NEPA. To 
account for these different roles, portions of the proposed procedures 
would differ from the current NMFS procedures with respect to the 
requirements for public participation and consideration of and 
responses to public comment by NMFS and the FMCs.
    This proposed rule would establish new duties and opportunities 
intended to ensure both that public input relevant to the development 
of alternatives and policy recommendations is provided to the FMC when 
the FMC is developing its recommendations, and that NMFS considers and 
responds to comments addressing its decision to approve, disapprove, or 
partially approve an FMC recommendation, which includes consideration 
of NEPA compliance. This proposed rule would establish: a new 
requirement for FMCs to consider public comments on draft IFEMSs prior 
to voting to recommend a measure or action for Secretarial review; 
flexibility to reduce the public comment period on IFEMSs to fit a two-
meeting cycle where necessary; additional requirements for 
consideration and response to public comments by NMFS (including a new 
comment period on the Final IFEMS and a new requirement to respond to 
comments on the Final IFEMS in the ROD, as appropriate); and 
flexibility for NMFS to reduce the cooling-off period where necessary.
    In light of the important role the FMCs play in the MSA process, 
public comment regarding scope of analysis, alternatives, and impacts 
should appropriately be directed to the FMCs during the development of 
recommended management measures and actions. However, NMFS recognizes 
that this requirement could affect the FMCs' ability to respond rapidly 
to a fishery management need in some cases. Because integrating NEPA 
requirements into the FMC process requires assurances that public input 
can be considered prior to narrowing the range of alternatives, this 
proposed rule attempts to balance opportunities for public input with 
the need for rapid response to management needs. Therefore, this 
proposed rule includes modifications to timing and process as discussed 
further in section C below.

C. Timing and Process

    This proposed rule would establish a process for conducting the 
necessary NEPA analyses within the context of the FMC process. For EAs 
and CEs, the procedures currently used by the FMCs would not be 
affected. Likewise, there would not be significant changes to the 
existing process for Secretarial and HMS actions. Therefore, this 
discussion focuses on the proposed process by which an IFEMS would be 
prepared for an FMC-initiated action.
    The key concept behind the proposed changes in procedure is that 
the opportunities for public participation

[[Page 28006]]

and the requirements for comment and response have been revised to 
align with the MSA process and to reflect the respective roles of the 
FMCs and NMFS under the MSA, as discussed above. To allow the process 
to flow, as envisioned under the MSA, from FMC recommendation to an 
ultimate final agency action by NMFS, flexibility would be built into 
the procedural timelines.
    As described in the discussion of roles in section B. above, this 
proposed rule strikes a balance between creating additional NEPA 
procedures required for the FMCs and where appropriate allowing for 
reductions of time for public review and input. While it imposes new 
duties on the FMCs to consider public input before voting, it does so 
in a manner intended to allow the process to continue moving forward to 
a decision point at the NMFS level. It is vital that FMCs and NMFS 
retain the ability to respond rapidly to fishery management needs. It 
is important to note that the public would be given as much time to 
review the draft as the FMC members and that any reduction in time must 
be supported by one of the criteria enumerated in these proposed 
regulations.
    To offset any potentially shortened public review period on the 
draft during the development of FMC recommendations, this proposed rule 
would add additional public input requirements for NMFS. This would 
include a new comment period on a Final IFEMS, and a new requirement to 
respond to comments on the Final IFEMS in the ROD.
    The goal of the proposal is to make the process flexible enough to 
allow adequate public involvement, but to allow for adjustments when 
necessary to meet a time-sensitive resource management need. The 
minimum time period in which an FMC recommendation supported by an 
IFEMS could be completed under the proposed regulations would be over 
the course of two FMC meetings.
    For FMC-initiated actions, the process would flow as follows:
1. Scoping
    The basic scoping approach for FMC-initiated actions would be based 
on the MSA process. Generally, the initial scoping notice would be 
published in the Federal Register as part of an FMC's meeting agenda 
notice, and no less than 14 days in advance of the FMC meeting. This 
provision would not limit the ability of an FMC or NMFS to publish a 
scoping notice earlier in the process. In addition to the FMC meeting, 
other scoping activities could also be conducted by the FMC or NMFS. 
NMFS would have to ensure that the scoping process meets the purposes 
of scoping as proposed to be set forth at Sec.  700.108. The scoping 
notice would be required to be titled and formatted in a manner that 
provides the public with adequate notice of the NEPA-related scoping 
process. For NMFS-initiated actions, including HMS actions, NMFS would 
initiate scoping via a Federal Register notice and would provide notice 
of scoping activities, if any, conducted in conjunction with HMS 
Advisory Panel meetings or other meetings held by NMFS.
    While the intent is to utilize the existing FMC processes to the 
extent practicable, the proposed regulations would allow scoping to be 
satisfied by many different mechanisms, including: FMC or NMFS planning 
meetings and public hearings; requests for public comment on public 
hearing documents; discussion papers; and other versions of decision 
and background environmental documents. Scoping meetings should 
adequately inform interested parties of the proposed action and 
alternatives to facilitate substantive participation in the development 
of the management measures and environmental document. If the proposed 
action has already been subject to a lengthy development process that 
has included early and meaningful opportunity for public participation 
in the development of the proposed action, those prior activities may 
be used as part of meeting the scoping components of these 
environmental review procedures.
    Note that, in order to get the scoping notice out as early as 
possible, the FMC may not identify alternatives prior to publication of 
the notice. In this case, it would be sufficient to indicate that 
alternatives will be identified through the FMC process and that the 
public will have an opportunity to provide input through the FMC 
process.
    NMFS, working with the FMCs, will develop guidance on the 
appropriate format and content for scoping notices.
    In addition, the proposed rule includes a requirement at Sec.  
700.112 that, with respect to any responsibilities not clearly assigned 
by this rule, NMFS and the FMC would assign these responsibilities 
prior to completion of the scoping process.
2. Draft IFEMS
    The draft IFEMS would be circulated for public comment for at least 
45 days prior to the FMC voting to recommend an action to NMFS, unless 
any of the considerations in Sec.  700.604(b)(2) are met. The FMC would 
be required to consider public comment on the IFEMS prior to voting to 
recommend the action. At a minimum, the notice of its availability 
would be required to be published no later than with the agenda notice 
for the upcoming FMC meeting at which FMC action would take place.
    Under the proposed rule, the allowable public comment period on a 
draft IFEMS might, in extraordinary circumstances, be only 14 days, 
compared to CEQ's required minimum time period of 45 days for public 
comment on draft EISs (DEISs). It is important to note, however, that 
the draft IFEMS informs the FMCs in their development of recommended 
management measures and actions. In light of the unique role the FMCs 
play, the draft IFEMS would be specifically designed to link NEPA's 
considerations to the FMC process of developing recommended management 
measures and actions under the MSA.
 3. Public Comment
    In order to ensure that the public has a meaningful opportunity to 
participate in the NEPA process as the FMC develops its recommended 
management measures and actions, as well as ensure that the FMC is 
well-informed when making its MSA recommendations, the FMC would be 
required to consider public comment on the draft IFEMS prior to voting 
to make a final recommendation to the Secretary. Because FMC meetings 
are public meetings and transcripts are kept, there would be a record 
of how the FMC addresses comments. The FMC's vote would also provide 
evidence of how the FMC responded to comments. In addition, this 
proposed rule would require the final IFEMS to document how both the 
FMC and NMFS responded to comments on the draft (Sec.  700.304).
    Likewise, the commenting public would need to raise comments 
pertinent to the FMC's analysis, such as the scope of the analysis, the 
alternatives considered, and the expected