[Federal Register Volume 62, Number 181 (Thursday, September 18, 1997)]
[Notices]
[Pages 48990-48995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24809]



[[Page 48990]]

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DEPARTMENT OF COMMERCE

[Docket No. 970903224-7224-01; I.D. 082297A]
RIN 0648-AK40
National Oceanic and Atmospheric Administration


Administrative Procedures Applicable to the Management of Highly 
Migratory Species

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

ACTION: Proposed procedural guidelines.

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SUMMARY: NMFS proposes to revise the administrative procedures it 
follows to prepare and issue highly migratory species (HMS) fishery 
management plans (FMPs) and FMP amendments (FMP amendments) and 
implementing regulations for the Atlantic Ocean, Gulf of Mexico, and 
Caribbean Sea in response to recent amendments to the Magnuson-Stevens 
Fishery Conservation and Management Act (Magnuson-Stevens Act). The 
proposed revised procedures include opportunities for involvement by 
the public, the Department of State (DOS), the U.S. Coast Guard (USCG), 
the Fishery Management Councils (FMCs), the International Committee for 
the Conservation of Atlantic Tunas (ICCAT) Advisory Committee (IAC), 
the ICCAT Commissioners, and advisory panels (APs) appointed under the 
MSFCMA and the Atlantic Tunas Convention Act (ATCA).

DATES: Comments are invited and must be received on or before October 
15, 1997.

ADDRESSES: Questions or comments regarding the proposed revised HMS 
procedures may be mailed or faxed to Rebecca Lent, Chief, Highly 
Migratory Species Management Division, Office of Sustainable Fisheries, 
NMFS, 1315 East-West Highway, Silver Spring, MD 20910 (fax: 301-713-
1917). Copies of this notice are also available at this address.

FOR FURTHER INFORMATION CONTACT: Liz Lauck or Jill Stevenson, Highly 
Migratory Species Management Division, Office of Sustainable Fisheries, 
NMFS, Telephone: (301) 713-2347.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Background

    On November 28, 1990, the President signed into law the Fishery 
Conservation Amendments of 1990 (Pub. L. 101-627), which amended the 
Magnuson-Stevens Act. Pub. L. 101-627 gave the Secretary of Commerce 
(Secretary) the authority to manage tuna, as of January 1, 1992, in the 
exclusive economic zone (EEZ) in the Atlantic Ocean, Gulf of Mexico, 
and Caribbean Sea under authority of the Magnuson-Stevens Act (16 
U.S.C. 1811). Pub. L. 101-627 also transferred from the Councils to the 
Secretary, effective November 28, 1990, the management authority for 
the other highly migratory species in the Atlantic Ocean, Gulf of 
Mexico, and Caribbean Sea (16 U.S.C. 1854(f)(3)). In 1996, the 
Magnuson-Stevens Act was further amended to require APs of balanced 
representation to be created to assist in the development of FMPs and 
FMP amendments for Atlantic HMS.
    Under the proposed revised procedures, the DOS, USCG, FMCs, IAC, 
and ICCAT Commissioners (Consulting Parties) would be consulted during 
the development of FMPs. They would be sent draft FMP documents, 
including the draft FMP or amendment, proposed rule, and draft EIS. The 
IAC and FMCs would participate in the HMS APs and, as such, would be 
consulted during several phases of the HMS process.

B. Purpose and Scope

    The Magnuson-Stevens Act, at 16 U.S.C. 1854(f)(3), requires that 
the Secretary undertake the following three major categories of actions 
regarding the conservation and management of HMS:
    1. Identification of research and information priorities, including 
observer requirements and necessary data collection and analysis;
    2. Preparation and amendment of FMPs; and
    3. Diligent pursuit, through international management entities 
(such as ICCAT), of international fishery management measures.
    This document proposes the process that NMFS would follow in 
undertaking the second category of actions--preparing, issuing, and 
implementing through final regulations HMS FMPs and amendments. NMFS 
emphasizes that this process is not intended to address the other two 
categories of actions except in general terms where they affect the 
development and implementation of fishery management measures for HMS. 
The process proposed herein is designed to address the statutory 
planning and rulemaking requirements of both the Magnuson-Stevens Act 
and the ATCA regarding management of Atlantic HMS. The process for 
preparing and amending FMPs for HMS described in this document 
incorporates ATCA requirements so that they are met whenever the United 
States acts to implement ICCAT recommendations through the FMP and its 
implementing regulations.

C. Highly Migratory Species

    The Magnuson-Stevens Act, at 16 U.S.C. 1802(14), defines the term 
``highly migratory species'' as tuna species, marlin (Tetrapturus spp. 
and Makaira spp.), oceanic sharks, sailfishes (Istiophorus spp.), and 
swordfish (Xiphias gladius). Further, the Magnuson-Stevens Act, at 16 
U.S.C. 1802(27), defines the term ``tuna species'' as albacore tuna 
(Thunnus alalunga), bigeye tuna (Thunnus obesus), bluefin tuna (Thunnus 
thynnus), skipjack tuna (Katsuwonus pelamis), and yellowfin tuna 
(Thunnus albacares).

D. Preparation and Amendment of FMPs

    As delegated by the Secretary, the Assistant Administrator for 
Fisheries, NOAA (Assistant Administrator) would issue FMPs or FMP 
amendments for HMS in the Atlantic Ocean, Gulf of Mexico, and Caribbean 
Sea. The Magnuson-Stevens Act directs the Secretary to undertake the 
following actions in preparing and amending FMPs for HMS:
    1. Conduct public hearings at appropriate times and places;
    2. Establish an AP balanced in its composition to fairly represent 
the commercial fishing involved for each FMP to be prepared or amended;
    3. Consult with and consider the comments and views of affected 
Councils, the ICCAT Commissioners, the IAC, and the AP;
    4. Evaluate the probable effects of conservation and management 
measures on affected fishery participants, and minimize, to the extent 
practicable, any disadvantage to U.S. fishermen in relation to foreign 
competitors; and
    5. Review, on a continuing basis (and promptly whenever a 
recommendation pertaining to fishing for HMS has been made under a 
relevant international fishery agreement), and revise as appropriate, 
the conservation and management measures contained in the FMP.
    6. Pursue comparable international fishery management measures with 
respect to HMS.
    The relationship between the Magnuson-Stevens Act and ATCA is not 
clearly addressed in either law. This document proposes a planning and 
rulemaking process for managing HMS species that NMFS believes to be 
consistent with both the Magnuson-

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Stevens Act and ATCA. Whenever practicable, NMFS will issue one 
regulation under the authority of both statutes. NMFS does not intend 
that this process, primarily administrative in character, will resolve 
conflicts and ambiguities between the Magnuson-Stevens Act and ATCA.

II. Process for the Management of HMS

    This document proposes the establishment of a general process for 
the preparation and implementation of: (1) FMPs; (2) FMP amendments; 
and (3) international management measures for HMS as required by the 
Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and the ATCA, 16 U.S.C. 
971 et seq. This process would be followed by NMFS in order to fulfill 
the Secretary's responsibilities for managing HMS under these statutes.
    Under the provisions of the Magnuson-Stevens Act and ATCA, several 
possible regulatory scenarios exist for HMS management, including: (1) 
An FMP that includes no international fishery management measures 
(e.g., those species for which ICCAT has made no recommendations to 
date, such as oceanic sharks); (2) an FMP that includes international 
fishery management measures authorized by and consistent with both 
Magnuson-Stevens Act and ATCA requirements; and (3) international 
fishery management measures, based upon ICCAT recommendations, 
implemented under ATCA but not yet included within an FMP (e.g., 
Atlantic tuna regulations promulgated under ATCA before preparation of 
and inclusion in an FMP). The proposed HMS management process addresses 
primarily the first two of these alternatives. The process for 
promulgating Atlantic tuna regulations under ATCA does not require as 
many steps or as much time as is required for preparation of an FMP or 
FMP amendment under the Magnuson-Stevens Act; however, it is NMFS'' 
intent to prepare an FMP (or FMPs) for Atlantic tunas. The rulemaking 
process for implementation of ICCAT recommendations that would be 
implemented by regulations in the absence of an FMP is discussed in 
this notice in abbreviated form. This particular rulemaking process 
would be used to implement ICCAT recommendations for an interim period 
until FMPs are prepared for all HMS designated by the Magnuson-Stevens 
Act, or until any existing HMS FMPs are amended to incorporate ICCAT 
recommendations.

HMS Management Process--Outline

1. Phase 1--Planning and Scoping
    a. Publish Notice-of-intent to prepare FMP or FMP amendment and 
(Environmental Impact Statement(EIS)/Environmental Assessment (EA)
    b. Draft issues/options statement
    c. Hold AP meeting
    d. Hold scoping meetings with the public
2. Phase 2--Preparation and Review of Draft Documents
    a. Prepare draft FMP amendment, EIS, proposed rule
    b. International management recommendations
    c. Solicit comments from Consulting Parties
    d. Hold AP meeting
3. Phase 3--Preparation of Proposed FMP or Amendment and Proposed 
Regulations and Public Review
    a. Notice of availability to the public and proposed regulations 
published
    b. Public hearings
    c. Hold AP meeting to consider comments
4. Phase 4--Preparation of Final Documents and Final Regulations 
Prepare final rule, FMP amendment, and Final EIS (FEIS)
5. Phase 5--Approval and Implementation
    a. Publish final rule
    b. Distribute FEIS and FMP amendment
6. Phase 6--Continuing and Contingency Fishery Management
    a. Hold AP meetings as needed
    b. Framework management measures or FMP amendments
    c. Take emergency actions, if necessary, for contingency fishery 
management

Information Distribution/Recordkeeping/Comments

    The NMFS Office of Sustainable Fisheries would notify fishery 
interests and FMCs of forthcoming management actions regarding HMS. A 
``facsimile transmission list'' of affected FMCs, ICCAT Commissioners 
and Advisory Committee members, AP members, Federal and state agencies, 
various fishery interests, and requesting members of the public 
presently is maintained by that Office to send advance notices of 
forthcoming actions (to add your name to the ``FAX NETWORK'', call 301-
713-2347). The list would be maintained under the proposed procedures. 
Also, notices of forthcoming hearings, meetings, public review and 
comment periods, and regulatory actions would be mailed to all who 
request this service. Copies of important draft, revised, and final 
documents (e.g., FMPs and amendments) would be mailed to those 
requesting such documents. Up-to-date quota monitoring and fishery 
regulation information is presently and would continue to be available 
on a telephone information hotline (301-713-1279, 508-281-9305). This 
information as it relates to tunas can presently be accessed and would 
continue to be accessible through the Atlantic tunas automated 
telephone permitting system (1-888-USA-TUNA) and on the Internet 
(http://www.usatuna.com).
    Comments received by NMFS during all phases of the HMS process 
would be considered to determine the need for initiation of rulemaking 
or changes in the FMP, FMP amendment, or supporting documents. NMFS 
would maintain a record of all public meetings during all phases of FMP 
or FMP amendment development. The record would summarize the 
discussions between NMFS representatives and constituents (including 
the AP) and would be included in NMFS' administrative record supporting 
the development and implementation of the subject FMP or amendment.
    Consistent with the Administrative Procedure Act (APA), 5 U.S.C. 
553, public comments received on proposed regulations (Phase 3) would 
be summarized and addressed in the preamble to the final regulations 
(Phase 5) to implement the FMP or amendment. New public comments 
regarding the draft final (supplemental) environmental impact statement 
(F(S)EIS) (i.e., comments regarding new or different issues not 
previously expressed during the Phase 3 public comment period on the 
draft (supplemental) environmental impact statement (D(S)EIS) would be 
summarized and addressed in the F(S)EIS (Phase 4) and filed for in the 
final public review under the National Environmental Policy Act (NEPA) 
(Phase 5). Council on Environmental Quality (CEQ) regulations require 
that an agency preparing a FEIS or final supplemental EIS (FSEIS) must: 
Assess and consider public comments, both individually and 
collectively, received on the D(S)EIS; respond to such comments by one 
of several means; and provide a summary of the comments and responses 
in the F(S)EIS. In this case, these comments would include those 
received on the D(S)EIS in Phase 2 and on the draft F(S)EIS in Phase 4.
1. Phase 1--Planning and Scoping
    The objectives of Phase 1 would be to: (1) Determine the nature and 
scope of the resource and management issues for

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the subject fishery that need to be addressed and identify alternative 
management approaches for their resolution; (2) provide the AP and the 
general public an opportunity to communicate views and concerns early 
in the rulemaking process; (3) develop a clear and concise written 
summary, for the species under consideration, of the major fishery 
management issues and options for addressing them (this document is 
referred to as the ``issues/options statement''); and (4) fulfill the 
``scoping'' action requirements for environmental analyses prepared 
under NEPA (refer to section 1501.7 of 40 CFR parts 1500-1508, the CEQ 
regulations for implementing NEPA, and to NOAA Administrative Order 
216-6, NOAA's guidance for compliance with NEPA).
    a. Notice-of-intent to prepare FMP or FMP Amendment and EIS. NMFS 
would publish in the Federal Register a notice-of-intent (notice) 
regarding FMPs and amendments. The notice would serve to notify the 
public of any scheduled public scoping meetings and would contain: (1) 
A statement of NMFS' intent to prepare and implement an FMP or 
amendment, promulgate new or amend existing regulations, and prepare, 
if applicable, an EIS or supplemental EIS (SEIS); (2) appropriate 
information concerning the availability of any relevant issues/options 
statement (see section b below); (3) a preliminary schedule of events; 
(4) date(s), time(s) and place(s) of the scheduled scoping meeting(s); 
and (5) a statement of whether or not the FMP or amendment would 
include any measures intended to implement fishery management 
recommendations of ICCAT (or any other international fishery management 
body). If necessary, the above information may be divided and published 
by more than one notice.
    If NMFS is preparing an EIS or SEIS in support of the FMP or 
amendment, NMFS would include within the notice-of-intent, to be 
published before beginning the scoping process, those items required 
under the CEQ regulations (40 CFR parts 1500-1508). These items include 
the following: (1) A description of the proposed action and possible 
alternatives; (2) the agency's proposed scoping process, including 
scoping meeting information, if applicable; and (3) the name and 
address of an agency contact who can answer questions regarding the 
proposed action and the (S)EIS.
    b. Draft Issues/options statement. NMFS would prepare a succinct 
draft statement of fishery issues, various options for addressing them, 
and potential management objectives; the ``issues/options statement.'' 
If ICCAT has recommended management measures for the fishery under 
consideration, the draft issues/options statement would outline the 
Secretary's preliminary recommendations as to the appropriate U.S. 
actions to implement any ICCAT recommendations. The draft issues/
options statement would be available to the public upon request, would 
be summarized in the notice, if appropriate, would be distributed to 
members of the relevant APs, and would be made available at any public 
scoping meetings.
    c. AP meeting. NMFS would consult during Phase 1 with the relevant 
AP and other affected Federal agencies (e.g., U.S.G.C. or the U.S. 
Customs Service). Consultation with the AP would take place in an AP 
meeting, called by NMFS and open to the public. This meeting would 
focus on concepts, issues, and management options. Documents would be 
provided to the AP in a timely manner and would generally include the 
draft issues/options statement. After reviewing comments from the AP, 
NMFS would revise documents as necessary prior to their preparation for 
public review and comment. The views and comments of the AP would be 
part of the permanent official administrative record supporting the 
development and implementation of the subject HMS FMP or FMP amendment.
    d. Scoping meetings. At least one scoping meeting would be held 
during Phase 1. The objectives of the scoping meeting(s) would be to: 
(1) Allow NMFS representatives to meet directly with the fishery 
interests; (2) review the draft issues/option statement in a public 
forum so that each fishery interest is aware of NMFS' views, as well as 
those of other interests; (3) provide all fishery interests an equal 
and early opportunity to present their views; and (4) encourage 
discussion of any mutual concerns relevant to the management of the 
fishery.
    Scoping meetings would be initiated by NMFS, would be open to the 
public, and would be announced and scheduled at times and places 
considered convenient for fishery interests. The date, location, and 
time of each scoping meeting would be announced to the public by timely 
Federal Register notice and directly by NMFS over its FAX NETWORK.
2. Phase 2--Preparation of Draft Documents; Initial Review by 
Consulting Parties
    Draft FMPs or amendments would contain all provisions required by 
16 U.S.C. 1853 and 1854 and would comply with all other Magnuson-
Stevens Act requirements.
    The following objectives of Phase 2 have been identified: (1) To 
review and consider comments submitted by the AP and the public at the 
scoping meetings, and to prepare and distribute a revised issues/
options statement; and (2) to prepare all draft documents required for 
regulatory actions to implement or amend an HMS FMP under the Magnuson-
Stevens Act and other applicable law;
    a. Prepare draft documents. The draft documents that would be 
prepared in Phase 2 could include the following and would be circulated 
to all Consulting Parties. An AP meeting would be held during this 
phase to assess comments from the Consulting Parties and recommend 
revisions of the following draft documents:
    1. Draft FMP or FMP amendment: The draft FMP or FMP amendment and 
supporting analyses would examine fully all appropriate fishery issues, 
propose alternative management measures to address the identified 
fishery issues or problems, assess the environmental, economic, and 
social impacts of each alternative measure, and could identify the 
preferred measures. Finally, the FMP or amendment would identify 
research and information priorities, including observer requirements 
and necessary data collection and analysis, for managing the fishery of 
concern.
    2. Draft proposed regulations: Only draft proposed regulations 
would be prepared in Phase 2 as opposed to formal proposed regulations 
consisting of both preamble and regulatory text, which would be 
prepared and published in Phase 3.
    3. Draft NEPA documents (EA, Draft EIS (DEIS), or DSEIS; Draft 
Regulatory Impact Review (DRIR); and Initial Regulatory Flexibility 
Analysis (IRFA) if applicable;
    4. Draft statement assessing nature and effectiveness of management 
measures for implementing the ICCAT recommendations;
    5. Draft SF-83I and supporting statement for approval of 
information-collection requirements under the Paperwork Reduction Act.
    6. Draft section 7 consultation under the Endangered Species Act;
    7. Initial consistency determination under the Coastal Zone 
Management Act; and
    8. Other documents as may be required.

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3. Phase 3--Preparation of Revised Documents and Proposed Regulations; 
Public Review and Comment Period of the Proposed FMP/Amendment and 
Proposed Rule
    The following objectives have been identified for Phase 3: (1) 
Consider and evaluate all comments received during the public review 
and comment periods of Phase 2; (2) make necessary changes in preparing 
``revised'' documents; (3) prepare proposed regulations for 
implementing the FMP or amendment that accurately reflect the contents 
of the revised FMP or amendment and other revised documents and that 
meet all regulatory requirements necessary for publication in the 
Federal Register; (4) provide a formal period for public review and 
comment on the FMP or amendment and the proposed implementing 
regulations, as published in the Federal Register; and (5) hold an AP 
meeting to discuss previously submitted public comments.
    Notice of availability to the public and proposed regulations 
published. NMFS would publish in the Federal Register for public review 
and comment: (1) The notice of availability of the revised FMP or 
amendment and other revised supporting documents for public review and 
comment; (2) proposed regulations to implement the FMP or amendment; 
and (3) notice of any scheduled public hearings, if additional hearings 
are held.
    The Phase 3 period for public comment for the FMP or amendment, 
proposed regulations, and revised supporting documents would be 60 
days. The comment period on proposed regulations that are minor 
revisions to existing regulations could be less than 60 days. If 
significant changes are made in the revised FMP or amendment over the 
draft documents, or if significant new issues are addressed, additional 
public hearings could be held.
    AP meetings. The relevant AP would meet just prior to the close of 
the public comment period. The purpose of this meeting would be to 
consider comments received during the comment period and to make 
recommendations to NMFS in preparation for final rulemaking.
    A notice of scheduled public hearings would be published in advance 
in the Federal Register. Public hearings would be held on the draft FMP 
or FMP amendment, draft supporting documents, draft NEPA documents 
(D(S)EIS or EA), and proposed regulations. Hearings would be conducted 
at appropriate times and in appropriate locations in the geographical 
areas concerned so as to allow all interested persons to be heard. A 
NMFS official would preside over these hearings and receive the public 
testimony that would be recorded and become part of the administrative 
record.
    Comment periods for each document are summarized in the following 
table:

Draft FMP/Amend...........................  60-90 days.                 
EA........................................  45-60 days.                 
D(S)EIS...................................  45-60 days.                 
Proposed Regulations......................  60 days, unless minor       
                                             revisions.                 
                                                                        

    As a matter of standard agency practice, NMFS would not respond to 
or address public comments received during Phase 2 on an individual 
basis unless such comments are on the D(S)EIS, in which case the 
F(S)EIS will respond to any comments. All comments received in Phase 2 
would be considered carefully and evaluated by NMFS during Phase 3 in 
preparing the revised FMP or FMP amendment, revised supporting 
documents, the draft F(S)EIS, and proposed implementing regulations.
    The review period for a D(S)EIS would be initiated by a formal 
filing of the D(S)EIS with the U.S. Environmental Protection Agency 
(EPA), which would also publish a Federal Register notice of the 
availability of the D(S)EIS for public review and comment.
    NMFS would prepare these revised documents based upon review and 
evaluation of comments from Consulting Parties and the AP received 
during Phase 2. The revised documents would contain NMFS' preferred 
proposed management measures and the requisite analyses of expected 
biological, economic, and social impacts. Revised documents would be 
subject to all appropriate agency and Federal standards for approval 
and implementation of final FMPs and FMP amendments.
4. Phase 4--Preparation of Final Documents and Final Regulations
    The objectives of Phase 4 would be to: (1) Consider and evaluate 
all comments received during Phase 3, including those of the AP; (2) 
determine what final changes are necessary in all final documents; (3) 
prepare the final documents; and (4) complete all final agency 
requirements of documentation and regulatory procedure supporting the 
Phase 5 actions.
    If a D(S)EIS was prepared and subjected to public review and 
comment in Phase 3, a draft F(S)EIS would be prepared in Phase 4. This 
draft F(S)EIS should meet all legal requirements for an F(S)EIS even 
though it would not be filed with EPA and subjected to the final NEPA 
review (cooling-off period) until Phase 5.

Documents To Be Prepared and Document Contents.

    (1) The final FMP or amendment, all final supporting documents;
    (2) The final F(S)EIS or EA; and
    (3) The final implementing regulations in appropriate form for 
approval, issuance, and implementation. The documents to be prepared in 
final form during Phase 4 would include all those listed as revised (or 
draft in the case of the F(S)EIS) under Phase 3.
    Based on the public comments received during Phase 3, NMFS could 
make changes in the FMP or FMP amendment management measures and 
corresponding analyses of environmental, economic, and social impacts. 
NMFS would not communicate with fishery interests or members of the 
public on the rulemaking during Phase 4, except to provide FMP or 
amendment status information. Furthermore, NMFS would not make public 
its decisions regarding the contents of a final FMP or FMP amendment, 
final supporting documents, and final implementing regulations until 
the Assistant Administrator has approved and issued the FMP or 
amendment publicly (see Phase 5) and filed the implementing final 
regulations with the Office of the Federal Register.
    NMFS may hold consultations in Phase 4 under special circumstances, 
particularly if ICCAT recommendations are to be implemented through the 
FMP or amendment and the public comments received during Phase 3 have 
raised new, significant or problematic issues.
5. Phase 5--Approval and Implementation
    The following objectives have been identified for Phase 5: (1) File 
the F(S)EIS with EPA and complete the final NEPA public review period 
prior to final agency action to approve and implement the FMP or 
amendment; (2) approve and issue the final FMP or amendment; and (3) 
implement the FMP by final regulations.
    Approval procedures and timing. Any F(S)EIS prepared for a final 
FMP or amendment would be filed with EPA prior to the Assistant 
Administrator's final approval and issuance of such FMP or amendment. 
As required by the CEQ regulations implementing NEPA, no final agency 
decision (here the issuance of an FMP, amendment, or a final rule where 
no FMP is involved) would be made until the later of either 90 days 
after publication of the notice of availability of the D(S)EIS or 30 
days

[[Page 48994]]

after publication of the notice of availability of the F(S)EIS.
    Approval of the final FMP or amendment and implementing final 
regulations by the Assistant Administrator, as well as clearance of the 
final regulations by the Department of Commerce and the Office of 
Management and Budget for promulgation and publication in the Federal 
Register, would follow standard NOAA and Departmental procedures. The 
Magnuson-Stevens Act requires that the final regulations must be 
promulgated within 30 days of the end of the comment period on the 
proposed regulations.
6. Phase 6--Continuing and Contingency Fishery Management
    Once an FMP for a HMS has been approved and implemented by final 
regulations, there would be a continuing need for monitoring the 
fishery and the effectiveness of the FMP and undertaking necessary FMP 
adjustments. Such adjustments would respond to changing fishery or 
resource conditions and, for certain fisheries, respond to 
international management actions and recommendations. These actions 
collectively comprise the ``continuing fishery management phase.'' The 
AP would be convened whenever necessary to address continuing fishery 
management issues and to consider necessary actions.
    It is anticipated that many of these FMP changes would be made 
through framework regulatory adjustment measures incorporated in each 
FMP; accordingly, it should not be necessary to repeat the full FMP 
amendment process outlined in this notice each time a change in the 
regulations is required. As examples, annual changes in quotas based 
upon the latest stock assessment or the latest ICCAT recommendations 
and in-season regulatory adjustments could be made through framework 
measures (see discussion below).
    Management adjustments would be based upon the latest and best 
available scientific information concerning the stock and fishery. 
Under 50 CFR 600.315, NMFS has the responsibility to assure that an 
annual Stock Assessment and Fishery Evaluation (SAFE) report is 
prepared, reviewed annually, and changed as necessary for each FMP. The 
SAFE report would summarize the most recent biological conditions of 
the managed species, as well as the social and economic conditions of 
the recreational and commercial fishing sectors and fish processing 
industries. The SAFE report would also provide a basis for determining 
annual harvest levels, documenting significant trends or changes in the 
resource and fishery over time, assessing the effectiveness of the 
management program, identifying required management adjustments, and 
identifying fishery data needs.
    (a) Framework management measures. To the extent possible, NMFS/
NOAA intends to include within each HMS FMP framework regulatory 
adjustment procedures that facilitate making annual and in-season 
changes in management measure under conditions requiring ``real time'' 
regulatory responses to fishery circumstances. If ICCAT recommends new 
fishery management measures or changes in existing measures for a 
fishery managed under an implemented FMP, NMFS would consider such 
recommendations and, if consistent with the requirements of both the 
Magnuson-Stevens Act and ATCA, incorporate them in the FMP and 
implementing regulations. It is anticipated that the regulatory 
framework mechanism in each FMP would provide the authority for most 
such periodic changes in management measures. The framework procedures 
would allow adjustments to the management measures within the scope and 
criteria established by the FMP and in a more expeditious manner than 
through the full FMP amendment process. Framework measures would be 
particularly useful where annual ICCAT recommendations for a fishery 
must be implemented within a short time period.
    It is anticipated that an FMP with framework measures may initially 
take longer to prepare since it must: (1) Anticipate and describe 
situations expected to occur; (2) establish criteria, procedures, and 
limits for regulatory actions; (3) allow for public comment on the 
range of potential actions, if identifiable, and on the degree of 
regulatory discretion held by the Secretary; and (4) provide 
documentation to support the framework under other applicable law. It 
is noted that framework measures alone do not satisfy statutory 
requirements of the Magnuson-Stevens Act, other applicable law, and 
Executive Orders. These requirements include full analyses of expected 
environmental effects of regulatory actions under framework provisions, 
and the opportunity for public review and comment.
    (b) Emergency actions. Pursuant to 16 U.S.C. 1855(c), the Secretary 
may promulgate emergency or interim regulations to address an emergency 
existing in any fishery without regard to whether an FMP exists for the 
fishery. The Secretary also may promulgate interim measures to reduce 
overfishing for any fishery. Emergency or interim regulations that 
change any existing FMP or amendment shall be treated as an amendment 
to such FMP or FMP amendment for the duration of the emergency period. 
The Secretary may implement emergency or interim regulations for HMS 
for up to 180 consecutive days from the date of publication of the 
emergency rule in the Federal Register and for one additional period of 
not more than 180 days, provided the public has had an opportunity to 
comment on the emergency regulations or interim measures. Prior to 
promulgating emergency or interim regulations for the HMS with which 
ICCAT is concerned, the Secretary would consult with the appropriate 
entities.

D. Regulations Implementing ICCAT Recommendations Without an FMP

    The ATCA authorizes the Secretary to promulgate regulations as may 
be necessary and appropriate to carry out ICCAT recommendations under 
16 U.S.C. 971d(c) upon favorable action by the Secretary of State under 
16 U.S.C. 971c(a). Section 971d(c) requires the Secretary to: (1) 
Publish a general notice of proposed rulemaking in the Federal 
Register, and (2) afford interested persons an opportunity to 
participate in the rulemaking process through submission of written 
data, views, or arguments and through one or more public hearings.
    In the event that the Secretary must implement ICCAT 
recommendations when no FMP has been prepared or would not be prepared 
in sufficient time NMFS would inform the Secretary of State regarding 
the actions considered appropriate for the United States with regard to 
ICCAT recommendations within 5 months of ICCAT's notifying the United 
States of its recommendations. NMFS would publish a proposed rule in 
the Federal Register to implement ICCAT recommendations and would 
provide a public review and comment period, including one or more 
public hearings. The proposed regulations would contain a statement of 
the considerations involved in issuing the regulations, a statement 
assessing the nature and effectiveness of the measures for implementing 
the recommendations of ICCAT that are being or will be carried out by 
other countries whose vessels fish for the subject species in the ATCA.
    NMFS would consider the public comments before publishing final 
regulations in the Federal Register and would summarize and respond to 
these comments in the preamble of the final rule. The final regulations 
generally

[[Page 48995]]

would become effective 30 days after the date of filing for public 
inspection with the Office of the Federal Register, and will be 
applicable to all vessels and individuals subject to U.S. jurisdiction 
on the date prescribed by NMFS.

Classification

    This action has been determined to be not significant for purposes 
of E.O. 12866.
    Because this is a document concerning agency procedure or practice, 
under 5 U.S.C. 553(b)(B) prior notice and opportunity for public 
comment is not required to be given. Nevertheless, because NMFS wishes 
to establish revised procedures with the benefit of the public's 
comment, NMFS is voluntarily giving prior notice and an opportunity for 
public comment.
    Because prior notice and opportunity for public comment is not 
required by 5 U.S.C. 553, or by any other law, the analytical 
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
are inapplicable.
    These proposed guidelines contain no new collection of information 
requirements.

    Dated: September 12, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
[FR Doc. 97-24809 Filed 9-15-97; 4:37 pm]
BILLING CODE 3510-22-P