National Environmental Policy Act Compliance for Council-Initiated Fishery Management Actions Under the Magnuson-Stevens Act, 8920-8922 [2016-03684]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 81, Number 35 (Tuesday, February 23, 2016)]
[Notices]
[Pages 8920-8922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03684]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD124


National Environmental Policy Act Compliance for Council-
Initiated Fishery Management Actions Under the Magnuson-Stevens Act

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

ACTION: Notice of availability.

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SUMMARY: The purpose of this notice is to notify the public that NOAA/
NMFS has finalized revisions to the NOAA policy and procedures for 
complying with the National Environmental Policy Act (NEPA) in the 
context of Magnuson-Stevens Act (MSA) fishery management actions. This 
notice provides a summary of the public comments received and the 
agency's responses. The final revised and updated NEPA procedures for 
MSA actions are available online at https://www.nmfs.noaa.gov/msa2007/nepa.htm.

DATES: The final policy is effective February 23, 2016.

FOR FURTHER INFORMATION CONTACT: Steve Leathery, 301-427-8014.

SUPPLEMENTARY INFORMATION:

Background

    On February 19, 2013, in compliance with section 304(i), NMFS 
issued an internal policy pertaining to complying with NEPA in the 
context of MSA fishery management actions. This policy, entitled 
``Policy Directive 30-132: National Environmental Policy Act Compliance 
for Council-Initiated Fishery Management Actions under the Magnuson-
Stevens Act'' (the policy): Clarified roles and responsibilities of 
NMFS and the Regional Fishery Management Councils (Councils); explained 
timing and procedural linkages; provided guidance on documentation 
needs; and provided guidance for fostering partnerships and cooperation 
between NMFS and the Councils on NEPA compliance.
    After consulting with the Councils and with the Council on 
Environmental Quality (CEQ) on proposed revisions to the 2013 NMFS NEPA 
policy, NMFS proposed using this policy as a basis for issuing revised 
and updated NEPA procedures for MSA actions in the form of a line-
office supplement to NOAA Administrative Order (NAO) 216-6), which 
contains NOAA's policies and procedures for complying with the NEPA. On 
June 30, 2014, NMFS published a notice in the Federal Register inviting 
public comments for a 90-day period on a proposed supplement to the NAO 
(NAO supplement) intended to satisfy fully the requirements of section 
304(i) of the Magnuson-Stevens Act (MSA). Section 304(i) requires NMFS, 
in consultation with the Councils and Council on Environmental Quality 
(CEQ), to revise and update agency NEPA procedures to conform to the 
timelines for review and approval of fishery management plans and to 
integrate applicable environmental analytical procedures. 16 U.S.C. 
1854(i). After careful consideration of the public comments received in 
response to the 2014 notice, NOAA/NMFS has decided to finalize the NAO 
supplement with editorial, but no substantive, changes to the June 30, 
2014 draft.
    NMFS received comments from 5 environmental non-governmental 
organizations and 2 fishery management councils. The key issues are 
summarized below along with NMFS's responses. We note that many 
comments are similar to those raised previously either as comments on a 
proposed rule (73 FR 27998, May14, 2008), (which was subsequently 
withdrawn (79 FR 40703, Jul. 14, 2014)), or as comments on the 2013 
NMFS NEPA policy. When NMFS issued the 2013 NMFS NEPA policy directive, 
it developed a background document that addressed many of these 
comments. A copy of the background document for 2013 Policy Directive 
can be viewed and downloaded at the following site: https://www.nmfs.noaa.gov/sfa/laws_policies/msa/nepa.html.
    In this notice, we will limit our discussion to those comments that 
specifically address issues pertaining to the NAO supplement. Many of 
these comments pertain broadly to transparency in the NEPA process. 
NMFS is supportive of these comments and will explore ways to improve 
public access to NEPA documents and information on the status of 
ongoing NEPA analyses. However, NMFS believes that, given the limited 
purpose of the draft NAO supplement--to revise and update agency NEPA 
procedures to conform to the timelines for review and approval of 
fishery management plans and to integrate applicable environmental 
analytical procedures--the NAO supplement is not the appropriate 
vehicle for addressing all such issues. As NOAA generally works to 
revise and update its NEPA procedures through the NAO, the agency will 
continue seeking ways to enhance public access, participation and 
process transparency through all appropriate mechanisms.
    Key Issues Raised In Comments: NMFS notes that since the initiation 
of efforts to comply with section 304(i), commenters have expressed 
widely divergent opinions on how best to proceed. When introducing 
Policy Directive 30-132, ``National Environmental Policy Act Compliance 
for Fishery Management Actions under the Magnuson-Stevens Act (2/19/
2013),'' NMFS provided a background document that summarized NMFS's 
consideration of key issues and concerns, ``Introduction to NMFS Policy 
Directive: National Environmental Policy Act Compliance for Fishery 
Management Actions under the Magnuson-Stevens Act.'' Some of the same 
issues and concerns were re-introduced as comments on the draft 
Supplement. For additional context regarding NMFS's treatment of these 
concerns, please see the background document, available at: https://www.nmfs.noaa.gov/sfa/management/councils/ccc/2013/2013_md_agenda.htm.

Comments and Responses

 Comment 1: Ultimate Responsibility for NEPA Lies With NMFS

    Comment: Commenters expressed support for the position emphasized 
in the NMFS NEPA procedures that NMFS retains ultimate responsibility 
for NEPA compliance. Some comments requested that the procedures be 
revised to indicate that NMFS must remain primary author of the NEPA 
documents, that NMFS must oversee the NEPA process, and that the 
Councils should not conduct NEPA scoping during Council meetings.
    Response: The NAO supplement clearly states that ``ultimate legal 
responsibility for NEPA lies . . . with NMFS.'' However, for reasons 
stated in

[[Page 8921]]

the final NAO supplement, NMFS believes that either NMFS or Council 
staff may draft NEPA documents as long as NMFS participates early, 
provides information or advice as needed, conducts appropriate outreach 
with other agencies and constituents, and independently evaluates each 
NEPA document's adequacy prior to using it in some fashion to satisfy 
its NEPA responsibilities. Further, for reasons stated in the draft NAO 
supplement, NMFS believes that the MSA and NEPA requirements for 
timelines, format, and public participation are compatible and may be 
conducted jointly as long as all responsibilities are fulfilled. Using 
a Council meeting to satisfy any requirement of NEPA for a public 
meeting or public outreach, such as scoping, enhances both the NEPA and 
MSA processes by infusing the NEPA activities and information into the 
council forum. As long as NMFS ensures that the procedures required by 
NEPA are satisfied, this arrangement can enhance NEPA's effectiveness. 
Where Council meetings will be used to conduct NEPA scoping, NMFS will 
work closely with Councils to ensure all requirements are met.

Comment 2: Supplemental Information Reports (SIRs) and Advanced 
Planning Procedure

    Comment: Some commenters opposed the proposed option of using a 
``NEPA Advanced Planning Procedure'' (NAPP), a Supplemental Impact 
Report (SIR), or other ``non-standard documentation,'' and in their 
comments, cited to CEQ regulations on programmatic EISs and tiering (40 
CFR 1502.20-1502.21).
    Response: The CEQ regulations do not preclude use of other 
documentation to support advanced planning on what actions may need 
NEPA analyses and/or to consider whether existing analyses are 
sufficient. Recently, the Ninth Circuit upheld NMFS' use of an SIR to 
conclude that a supplemental Environmental Assessment was unnecessary. 
Humane Society of the United States v. Pritzker, 548 Fed. Appx. 355, 
360 (9th Cir. 2013). See also, e.g., Marsh v. Oregon Natural Resources 
Council, 490 U.S. 360, 383-85 (1989) (upholding the Army Corps of 
Engineers' use of a SIR to analyze the significance of new reports in 
determining whether to supplement existing NEPA analysis). NMFS 
believes that the optional use of these forms of documentation offers a 
potential means to improve the efficiency of the NEPA process without 
sacrificing substantive obligations under NEPA. Therefore, NMFS retains 
these provisions in the final NAO supplement.

Comment 3. Conflict of Interest Guidance and Financial Disclosure 
Requirements

    Comment: Citing to 40 CFR 1506.5, one commenter suggested 
development of conflict of interest and financial disclosure procedures 
for Council members and staff involved in the NEPA documentation 
process. Those regulations require that when an agency relies on 
contractors to prepare NEPA documents, those contractors must execute a 
disclosure statement specifying that they have no financial or other 
interest in the outcome of the project. Id. Sec.  1506.5(c).
    Response: Council members and Council staff are not ``contractors'' 
and therefore the contractor-specific provisions of Sec.  1506.5 are 
inapplicable. The MSA establishes financial disclosure and recusal 
requirements for Council members (16 U.S.C. 1852(j)). These 
requirements are developed further and an explanation of the 
obligations on council staff are provided by regulation at 50 CFR 
600.225. As explained in the regulations, council members and council 
staff are subject to most Federal criminal statutes covering bribery, 
conflict-of-interest, disclosure of confidential information, and 
lobbying with appropriated funds. The conflict of interest and other 
conduct rules applicable to Council members and Council staff are 
summarized in Regional Fishery Management Councils--Rules of Conduct 
for Members (2014) (https://www.nmfs.noaa.gov/sfa/management/councils/training/2014/e_h1_members_conduct_rules.pdf) and Regional Fishery 
Management Councils--Rules of Conduct for Employees and Advisors (2014) 
(https://www.nmfs.noaa.gov/sfa/management/councils/training/2014/e_h2_employee_conduct_rules.pdf). While NMFS acknowledges that the 
scope of the CEQ NEPA regulations is not co-extensive with the 
applicable council staff conflict of interest regulations, given that 
council staff are not analogous to contractors, and that the existing 
regulations act to prevent conflicts of interest, NMFS does not believe 
that additional financial disclosure requirements will enhance or 
improve the MSA NEPA process or the quality of NEPA documents 
developed.

Comment 4. The Procedures Merely Capture the Status Quo

    Comment: NMFS received a comment that the draft NAO supplement does 
not represent ``revisions,'' as required by MSA section 304(i), because 
it merely captures the status quo.
    Response: The final NAO supplement establishes national-level 
guidance which adopts best practices currently in use by some region-
council pairs. While these approaches may seem like status quo to some 
parties, due to regional variations in practices, the guidance does 
represent changes for others. NMFS believes that the MSA NEPA process 
has been substantially improved and refined over the past decade or 
more, and the draft NAO supplement builds on that success and can help 
NMFS and the Councils achieve greater consistency for MSA NEPA 
implementation. Establishing a uniform framework applicable to all 
parties effectuates a reasoned change that institutionalizes lessons-
learned and best practices for the development of expeditious and 
useful NEPA processes.

Comment 5. The Procedures Should Facilitate Transparent Public 
Involvement

    Comment: NMFS received comments indicating that the procedures 
should facilitate and enhance public involvement and transparency. Some 
comments provided specific suggestions pertaining to mandatory use of 
Web sites to provide greater public access to NEPA information.
    Response: NMFS agrees that the procedures should promote 
transparency and public participation. Encouraging the application of 
NEPA as much as practicable via the council process should enhance 
meaningful public participation and promote transparency. Most Councils 
currently provide online access to NEPA documents that were completed 
or that are being developed for fishery management actions. NMFS will 
continue to work with Councils to improve accessibility and ease of 
navigation of these sites to promote transparency and improved public 
participation in the MSA NEPA process.

Comment 6. MSA Section 304(i) Requirements

    Comment: NMFS received comments that the draft NAO supplement 
satisfies fully the requirements of MSA section 304(i) and conversely, 
that it does not satisfy those requirements.
    Response: The NAO supplement satisfies the requirements of MSA 
section 304(i) by establishing national-level guidance and by adopting 
best practices currently in use by some region-council pairs, thereby 
revising and updating agency NEPA procedures to conform to the 
timelines for review and approval of fishery management plans while 
integrating applicable environmental analytical procedures.

[[Page 8922]]

NMFS consulted extensively with the Councils and with CEQ over the 
course of several years, held public hearings and a public workshop as 
authorized by Congress, issued a proposed rule and received over 
150,000 public comments that were carefully analyzed and considered, 
developed and implemented an internal NMFS Policy Directive on MSA NEPA 
procedures, and released the draft NAO supplement for public comment. 
During this process, the Councils and stakeholders expressed a broad 
range of views regarding what MSA section 304(i) required and what 
improvements to the process were needed. MSA section 304(i) did not 
change or eliminate any existing MSA or NEPA requirements, but required 
development of revised and updated NEPA procedures that conformed to 
the timelines for FMP review and approval and integrated applicable 
procedures. NMFS has carefully considered all input received to date 
and believes the final NAO supplement fully satisfies requirements as 
mandated by Congress under MSA section 304(i).

Comment 7. Compliance With NEPA, CEQ Regulations, and Other Guidance

    Comment: Several comments suggested that the draft NAO supplement 
should include various NEPA requirements established by CEQ 
regulations, guidance or other sources, such as avoiding the use of 
stale documentation, addressing new information, considering an 
adequate scope of alternatives, and identifying when an EIS is 
required.
    Response: NMFS is cognizant of the requirements of NEPA and the CEQ 
regulations, as well as other sources of Guidance such as CEQ's ``Forty 
Most-Asked Questions.'' The intent of the final NAO supplement is not 
to reiterate existing guidance and requirements, but to clarify how 
NMFS and Councils can work together to effectively comply within the 
context of MSA management and regulatory requirements. In addition, the 
main body of NAO 216-6 provides additional guidance on the types of 
NEPA documentation and how to use them.

Comment 8. Requirement for Council Usage

    Comment: The policy should require that the NEPA analysis must be 
completed prior to Council deliberations so that Councils can rely upon 
that analysis to inform their deliberations.
    Response: NMFS and the Councils work cooperatively and 
collaboratively to address NEPA requirements for MSA fishery management 
actions while continually assessing new information and emerging 
fishery conservation and management issues.
    NMFS agrees that both the NEPA and MSA processes are enhanced by 
integrating NEPA into the Council process. The final NAO supplement 
encourages NMFS and the Councils to prepare and make available as much 
NEPA documentation as practicable (given timelines and resource needs) 
during the Council's development of its management recommendation. This 
approach recognizes that the Council-proposed alternative, and thus 
final development of the NEPA analysis, may not occur until after a 
Council takes final action on its management recommendation.
    The final NAO supplement recognizes that there will be variations 
regarding the extent to which NEPA can be completed during council 
deliberations because of the need to take timely management action to 
address conservation and management needs as new information becomes 
available. To better integrate NEPA into the iterative and deliberative 
processes of the Councils while allowing enough flexibility so that the 
fishery management system can respond effectively in time-constrained 
situations and still comply with NEPA, the final NAO supplement 
identifies factors to consider and establishes a procedural nexus 
setting forth the minimum requirements for completeness in the Council 
process.

    Dated: February 11, 2016.
Eileen Sobeck,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 2016-03684 Filed 2-22-16; 8:45 am]
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