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



[[Page 27997]]

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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  

[[Page 27998]]


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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: [email protected]. Include in the subject 
line of the e-mail the following document identifier: ``MSA 
Environmental Review Procedures''
     Federal e Rulemaking portal: http://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 http://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: http://www.nmfs.noaa.gov/msa2007/implementation.htm.

FOR FURTHER INFORMATION CONTACT: Marian Macpherson at 251-751-0650, e-
mail: [email protected].

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

[[Page 27999]]

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

[[Page 28002]]

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 environmental impacts, to the 
FMC prior to its vote. The proposed regulations state that NMFS is not 
obligated to respond to comments relevant to the draft IFEMS that are 
raised for the first time during Secretarial review. (See Sec.  
700.305(d)). The proposed regulations are intended to encourage the 
public to seek any change in the policy recommendation or alternatives 
considered before the FMC's vote when this can and should appropriately 
be done via the FMC process. Therefore, the proposal highlights the 
obligations of the interested public to raise pertinent comments at 
appropriate points in the

[[Page 28007]]

process. As discussed below, comments relevant to the draft IFEMS 
raised for the first time when the action is under MSA Secretarial 
review will be considered only in light of the Secretary's decision on 
the proposal's ultimately approvability, which includes compliance with 
NEPA and other applicable law.
4. Vote
    The FMC would vote to recommend action. Depending on the outcome of 
the vote, either a final IFEMS or a supplemental IFEMS could be 
prepared. A final IFEMS could be prepared and submitted with the 
transmittal package to begin Secretarial review if the FMC voted to 
recommend: (1) An alternative considered and analyzed in the draft 
IFEMS; (2) a hybrid of the alternatives analyzed in the draft; or (3) 
another alternative not specifically analyzed in the draft IFEMS, but 
otherwise within the range of the alternatives analyzed in the draft. 
If, however, the FMC voted to recommend a completely new alternative 
(``outside the box'' alternative) that was not previously analyzed, 
there would be a requirement for additional analysis, but the proposed 
approach would offer some flexibility in determining how to proceed as 
described below.
5. Supplemental IFEMS
    Section 700.203(b)(5) is intended to address the question of how to 
allow the FMC's recommended action to move forward towards submission 
to NMFS for decision, while assuring meaningful opportunity for the 
public to comment on the NEPA analysis both as the FMC develops its 
recommendation and as NMFS reviews the recommended action. Because the 
FMC process culminates in a vote from the FMCs, the FMCs rarely have a 
preferred alternative fully fleshed out prior to their vote. At FMC 
meetings, after hearing public testimony, an FMC may vote to recommend 
an action that is a modification of alternatives or combinations of 
alternatives specifically analyzed. Unless the impacts are beyond the 
scope of the analysis the FMC considered, these types of changes should 
not require a new draft IFEMS, but rather can be fully assessed in a 
final IFEMS and distributed for additional public comment before NMFS's 
final decision. The intention is to prevent the FMC from becoming 
trapped in a cycle of preparing a revised analysis to address the new 
alternative and conducting another vote, which again results in a 
completely new alternative, leading to yet another round of analysis 
and voting. On occasion, this cycle can lead to gridlock such that 
necessary and appropriate conservation and management measures or 
actions are inordinately delayed. If, however, the FMC selects a 
completely new alternative beyond the scope of the draft IFEMS, the 
public must be provided an opportunity to review a supplemental IFEMS.
    As described below, the proposed approach would give the FMCs and 
NMFS some flexibility in determining how to proceed when an unanalyzed 
alternative is selected by the FMC. The FMC could choose to take public 
comment on the supplemental IFEMS through the FMC process or to 
transmit the supplemental IFEMS to NMFS and have NMFS take public 
comment on it during Secretarial review of the proposed action.
    The FMC could decide to supplement the analysis, take public 
comment at the FMC level, and then submit the final IFEMS to NMFS with 
the transmittal package for the MSA recommendation(s). The supplemental 
document would be distributed to the public as another ``draft'' IFEMS 
and would comply with timing and commenting provisions regarding 
drafts. This approach would allow the FMC to maintain control of their 
analysis in the MSA process, and would allow a new vote at the FMC 
level prior to Secretarial review in the event that the supplemental 
analysis identified impacts that caused the FMC members to change their 
votes.
    Alternatively, the supplemental IFEMS could be prepared and 
submitted with the transmittal package for the MSA recommendation(s). 
NMFS would then request comment on the supplement during the 
Secretarial review period. This approach also contemplates that the 
supplemental IFEMS would be treated as another ``draft'' IFEMS and 
would comply with timing and commenting regarding drafts. There are 
many drawbacks to this approach, and NMFS anticipates that it would be 
used rarely, if ever, and only to address extraordinary circumstances. 
The FMC would not have the ability to revise its recommendation based 
on the results of the supplemental IFEMS. In addition, because of the 
limited time available for an additional notice and comment opportunity 
during the MSA's Secretarial review period, this approach would involve 
extremely tight turn-arounds due to the MSA's statutory time periods. 
This type of scheduling would involve severe workload burdens on staff 
and would involve a high risk of failure to meet the statutory 
deadline. However, in certain circumstances requiring the need for 
rapid response, this approach may be appropriate.
    To allow for the necessary steps to be completed within the 
mandatory review periods, when NMFS is reviewing an FMC-recommended 
regulation with a supplemental IFEMS on the MSA clock (MSA sec. 
304(b)), the proposed rule would allow the minimum NEPA time periods to 
be adjusted to run concurrently with the comment period on the proposed 
regulation, if justified.
    The FMCs and NMFS should continually evaluate the adequacy of 
existing IFEMS that cover ongoing management activities.
6. Final IFEMS
    For fishery management actions developed through the FMC process, 
the final IFEMS would: Describe the public comments received through 
the FMC public process; describe any changes made through the FMC 
public process, either to the analysis or to the proposed action; and 
describe any additional modifications to the alternative recommended as 
the proposed action by the FMC.
7. Transmittal
    When the package is complete, it would be ``transmitted'' to NMFS 
to initiate the MSA statutory review time periods.
8. Cooling Off Period and Comment Period for a Final IFEMS
    a. For a final IFEMS submitted with the transmittal package, NMFS 
would publish in the Federal Register an NOA of the Final IFEMS as part 
of the appropriate notice of proposed rulemaking or NOA of a proposed 
FMP or FMP amendment and solicit public comment on the IFEMS, along 
with public comment on the FMC's recommended action. This would 
represent a new opportunity for public comment not provided for under 
CEQ NEPA regulations or current NMFS NEPA procedures. Comments would 
address the Secretary's decision to approve, disapprove, or partially 
approve the recommended action, which requires consideration of 
consistency with applicable law such as the MSA and NEPA. The reason 
for providing a new opportunity for comment on the final IFEMS is to 
assure that, as the Federal action agency, NMFS provides the public an 
opportunity to participate in its decision-making. In addition, this 
provision would better align the MSA public comment opportunities 
during Secretarial review with those for the NEPA analysis.

[[Page 28008]]

    As discussed above, this proposed rule would require comments 
relevant to the FMCs' NEPA analysis to be raised via the FMC process. 
Therefore, comments on the final IFEMS should address issues relevant 
to NMFS' decision on the FMC's recommendation, such as compliance with 
the MSA, its National Standards, and other applicable law including 
NEPA. If comments requesting a change in the FMC's policy 
recommendation or otherwise relevant to the draft IFEMS are not made 
initially during the FMC process, but could have been, the Secretary 
would not be required to consider them at a later stage.
    Comments would be addressed in the ROD as provided for in the 
regulations (see Sec.  700.502(b)(4)). The Final IFEMS would also need 
to be filed with the EPA, and NMFS' publication of the NOA for the 
IFEMS would initiate the 30-day cooling-off period (which could be 
reduced to 15 days under certain circumstances).
    b. If a Supplemental IFEMS is submitted with the transmittal 
package, a Final IFEMS would need to subsequently be prepared and 
circulated for a period of public comment (which could be reduced to 15 
days if the action is a regulatory amendment) during Secretarial 
review. Publication of the Final IFEMS would initiate the 30-day 
cooling-off period (which could be reduced to 15 days if necessary to 
complete the Final IFEMS within the MSA's Secretarial review period).
9. ROD
    In the ROD, NMFS would respond to comments received on the Final 
IFEMS. However, as described below, NMFS would not be required to 
respond to comments raised for the first time with respect to a Final 
IFEMS if such comments were required to be raised with respect to a 
draft IFEMS pursuant to Sec.  700.303(b) and Sec.  700.304(d).
10. Public Comment and Agency Response Under the New Process
    As discussed above, in order to inform the development of the NEPA 
document and fishery management alternatives considered by the FMCs, 
comments relevant to the draft IFEMS, such as comments on the statement 
of purpose and need, range of alternatives, and evaluation of 
environmental impacts, would need to be raised prior to the FMC's vote 
to recommend a measure or action to NMFS. Because section 304 of the 
MSA limits NMFS' discretion to approval, partial approval, or 
disapproval of FMC-recommended actions, the proposed rule is intended 
to discourage the public from seeking a policy change for the first 
time at the NMFS level when this should appropriately be done via the 
FMC process. Therefore, the proposal highlights the obligations of the 
interested public to raise pertinent comments at appropriate points in 
the process. Comments raised for the first time when the action is 
under MSA Secretarial review would be considered only in light of the 
Secretary's decision whether to approve the proposal, which includes 
compliance with NEPA and other applicable law. Recommendations for 
additional or revised policy approaches not presented to the FMC are 
inappropriate at this time.

D. Alternatives To Be Analyzed

    Through this proposed rule, NMFS clarifies that ``reasonable 
alternatives'' are those derived from the statement of purpose and need 
of the action and that satisfy, in whole, or substantial part, the 
objectives of the proposed Federal action. Alternatives that are 
impractical or ineffective are not ``reasonable alternatives.'' This 
means that alternatives that are not consistent with the MSA and its 
national standards are not reasonable.
    With regard to the range of alternatives to be considered, the 
proposed rule uses the same language as the CEQ regulations requiring 
that the IFEMS ``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.'' The new language explicitly linking the scope of 
reasonable alternatives to the statement of purpose and need, in 
combination with existing language regarding the elimination of 
alternatives from detailed study, should provide more clarity to NMFS 
and FMCs that detailed analysis of alternatives not linked to the 
purpose of the action is unnecessary. As a result, NMFS and the FMCs 
will be better able to reduce the over-inclusion of alternatives that 
results in overly complex and voluminous alternatives analyses.
    These proposed regulations would also clarify NEPA's requirement to 
consider the ``no action'' alternative in the context of fishery 
management actions. For purposes of the MSA, unless a fishery is 
regulated, at least with regard to approved gear types, fishing is 
unrestricted. However, FMPs vary in the way management measures are 
implemented. In some FMPs, management measures sunset at the end of a 
certain time period, in others they have annual expirations, and in 
others they are effective until modified or removed. Thus, a literal 
interpretation of the term ``no action'' could sometimes result in an 
unregulated, open access fishery. Other times ``no action'' could mean 
a complete closure of the fishery. Still other times, it could mean 
something in between. NMFS proposes to clarify that the ``no action'' 
alternative does not mean the literal result of no Federal action. 
Rather, in a fishery management context, the no action alternative 
means the presumption that the fishery would continue being prosecuted 
in the same manner that it is being prosecuted at the time the 
development of the IFEMS is initiated. This interpretation produces a 
reasonable approximation of a baseline for purposes of NEPA's 
comparative analysis. Thus ``no action'' does not mean the literal 
management regime that would result if no Federal action were taken 
(such as sunsetting of measures resulting in open access, or complete 
closure of the fishery). Rather it means presumed continuation of 
management at the current baseline. However, in cases where it is 
reasonable to consider open access or complete closure alternatives, 
the analysis should include these as part of the reasonable range.
    NMFS notes however that the selection of alternatives for the 
purposes of NEPA compliance may be more limited than the selection of 
alternatives pursuant to other analytical requirements, including the 
Regulatory Flexibility Act, Executive Order 12866 and OMB Circular A-4, 
and the Unfunded Mandates Act. Pursuant to these authorities, the 
agency may consider alternatives that are inconsistent with the MSA or 
the National Standards, in the same way that the ``no action'' 
alternative may be inconsistent with statutory requirements. In 
addition, NMFS and the FMC may include in their analyses alternatives 
that are not ``reasonable alternatives'' at the time of the scoping 
decision for other reasons.

E. Experimental Fishing

    The preferred alternative would specify that, in cases where 
experimental fishing activities are proposed to be conducted under an 
EFP, and 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 ABC, OY, or fishing mortality, the proposed activities would 
be eligible for a CE.

F. Incomplete/Unavailable Information

    Pursuant to the mandates of section 301(a)(2) of the MSA, NMFS and 
the FMCs are required to utilize the ``best

[[Page 28009]]

available scientific information'' in developing fishery management 
measures and actions. Case law has held that the MSA does not require 
NMFS or the FMCs to generate new information not already available 
(see, e.g., Recreational Fishing Alliance v. Evans, 172 F. Supp. 2d 35 
(D.D.C. Sep 20, 2001), Southern Offshore Fishing Ass'n v. Daley, 995 F. 
Supp. 1411 (D.D.C. 1998), Blue Water Fisherman's Ass'n v. Mineta, 122 
F. Supp. 2d 150 (D.D.C. 2000), A.M.L. Intern., Inc. v. Daley, 107 F. 
Supp. 2d 90 (D. Mass. 2000)). However, to maintain consistency with the 
existing CEQ regulations, this proposed rule would include a 
requirement that:

    NMFS shall identify incomplete information that is relevant to 
reasonably foreseeable significant adverse impacts and that is 
essential to a reasoned choice among alternatives and determine the 
overall costs and benefits of obtaining it. If NMFS finds that the 
overall costs of obtaining the information are not exorbitant, NMFS 
shall ensure that the information is obtained and include the 
information in the IFEMS. (Sec.  700.220)

    MSA National Standard 2 requires FMCs and NMFS to base their 
decisions on the best scientific information available. In light of the 
MSA's statutory provisions, in determining whether the costs of 
obtaining such information are ``exorbitant,'' NMFS must consider the 
availability of appropriated funds and research priorities identified 
by the agency, the FMC Science and Statistical Committees and FMCs 
pursuant to section 302(h)(7) of the MSA. It is also necessary to 
consider the cost of delaying an action to seek additional information. 
In addition, NMFS recognizes that the nature of the stock assessment 
process creates a dynamic flow of information, and that fishery 
management will always involve uncertainty. Therefore, the relevance of 
unavailable information must be considered within this context. Sec.  
700.220(c) would also specify that, if the uncertainties have already 
been analyzed in a prior analysis, subsequent analyses would cite to 
the previous analyses on the issue of unavailable information.

G. Emergency and Interim Actions

    This proposed rule would allow for the development of 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's ability to 
control the immediate impacts of the emergency. For emergencies or 
interim actions that will not result in significant impacts, NMFS would 
prepare an EA and FONSI. In the event the nature and scope of the 
emergency requires immediate promulgation of regulations and NMFS has 
not completed the EA and FONSI, NMFS would be required to publish the 
draft EA and FONSI with the final rule and subsequently complete the 
NEPA analysis prior to the expiration or extension of the emergency or 
interim rules' effective period.

H. Page Limits/Contents

    This proposed rule would require that NMFS consult with CEQ on a 
programmatic basis in those situations where recommended page limits 
are exceeded. The intent would be to assess the effectiveness of these 
documents and the reasons why a particular document or documents exceed 
the recommended limit and determine the feasibility of complying with 
this recommended goal.

I. Conflicts of Interest

    The proposed rule would clarify the conflicts of interest 
safeguards that apply when NMFS or the FMC selects a contractor to work 
on an analysis. It would require contractors to execute a disclosure 
statement specifying that they have no financial or other interest in 
the outcome of the project. If the NEPA document is prepared by 
contract, this proposed rule would require the responsible Federal 
official to provide guidance to contractors, to participate in the 
preparation of the contracted document, and to independently evaluate 
the IFEMS prior to its approval and take responsibility for its scope 
and contents. This proposed rule would also clarify that, to the extent 
that members of an FMC are involved in development of an IFEMS, they 
must comply with the rules regarding conflicts of interest as set forth 
in section 302(j) of the MSA, 15 CFR 14.42, 15 CFR 24.36(b), and 40 CFR 
1506.5(c).
Relationship to the CEQ Implementing Regulations
    NMFS proposes these regulations as a customization of and a 
supplement to the CEQ NEPA implementing regulations at 40 CFR Parts 
1500-1508. Readers familiar with the CEQ regulations will find many 
similarities, and in some places restatement of CEQ language into these 
regulations. However, where there are differences between the two, NMFS 
intends that these more specific regulations will be followed (in place 
of the general CEQ regulations) for fishery management actions. 
Similarly, for issues where these regulations are silent, the CEQ 
regulations continue to apply to fishery management actions where 
relevant.

Classification

    The NMFS Assistant Administrator has determined that this proposed 
rule is consistent with the provisions of the Magnuson-Stevens Act, and 
other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this certification is as follows:
    The proposed rule would implement a new environmental review 
process under the National Environmental Policy Act (NEPA) for fishery 
management actions pursuant to the MSA.
    This rulemaking is being conducted pursuant to section 304(i) of 
the MSA, which requires the Secretary of Commerce, in consultation with 
CEQ and the FMCs, to revise and update the NMFS procedures for 
compliance with NEPA for actions taken pursuant to the MSA. The purpose 
of the legislation is to conform the environmental review procedures to 
the time lines for review and approval of fishery management actions, 
and integrate applicable environmental analytical procedures with the 
procedure for preparation and dissemination of fishery management 
actions.
    The proposed rule is procedural in nature and is intended solely 
for internal agency and FMC use when preparing NEPA analyses for 
fishery management actions. Moreover, the proposed rule does not 
mandate that small entities behave in a particular way or regulate 
existing or future activities of an economic nature. Thus, the 
Department of Commerce does not anticipate that any small entities 
would be affected, directly or indirectly, by this proposed action.
    As a result, an initial regulatory flexibility analysis is not 
required and none has been prepared.

[[Page 28010]]

List of Subjects in 50 CFR Part 700

    Administrative practice and procedure, Environmental protection, 
Fisheries, Intergovernmental relations.

    Dated: May 2, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR Chapter VI by adding part 700 to read as follows:

PART 700--ENVIRONMENTAL REVIEW PROCESS FOR FISHERY MANAGEMENT 
ACTIONS

Subpart A--General
Sec.
700.1 Policy.
700.2 Authority.
700.3 Definitions.
700.4 NMFS capability to comply.
700.5 Agency procedures.
700.6 Elimination of duplication with State and local procedures.
700.7 Effective date and applicability.
Subpart B--NEPA and Fishery Management Planning
700.101 Apply NEPA throughout the fishery management process.
700.102 When to prepare an environmental assessment.
700.103 When to prepare an IFEMS.
700.104 Using a memorandum of framework compliance pursuant to a 
framework implementation procedure.
700.105 Using a Categorical Exclusion.
700.106 Lead agencies.
700.107 Cooperating agencies.
700.108 Scoping.
700.109 Time limits.
700.110 Adoption.
700.111 Combining documents.
700.112 Assignment of tasks.
Subpart C--Integrated Fishery and Environmental Management Statement
700.201 Purpose of the IFEMS.
700.202 Implementation.
700.203 Timing.
700.204 Interdisciplinary preparation.
700.205 Page limits.
700.206 Writing.
700.207 Phases of analysis; draft, final, and supplemental IFEMSs.
700.208 Recommended format.
700.209 Cover sheet.
700.210 Summary.
700.211 Purpose and need.
700.212 Alternatives including the proposed action.
700.213 Affected environment.
700.214 Environmental consequences.
700.215 List of preparers.
700.216 Preparation of an appendix.
700.217 Circulation of the IFEMS.
700.218 Tiering.
700.219 Incorporation by reference.
700.220 Incomplete or unavailable information.
700.221 Cost-benefit analysis.
700.222 Methodology and scientific accuracy.
700.223 Environmental review and consultation requirements.
Subpart D--Public Participation
700.301 Public outreach.
700.302 Inviting comment on the IFEMS.
700.303 Opportunity to comment.
700.304 Specificity of comments.
700.305 Response to comments.
Subpart E--Fishery Conservation and Management Actions That 
Significantly Affect the Quality of the Human Environment
700.401 Determining the significance of NMFS's actions.
700.402 Guidance on significance determinations.
Subpart F--NEPA and Fishery Management Decisionmaking
700.501 Fishery management decisionmaking procedures.
700.502 Record of decision.
700.503 Implementing the decision.
Subpart G--Additional Requirements and Limitations
700.601 Limitations on fishery management actions during MSA-NEPA 
process.
700.602 NMFS responsibility for environmental documents produced by 
a third-party.
700.603 Filing requirements.
700.604 Minimum time periods for agency action.
Subpart H--Emergencies and Categorical Exclusions
700.701 Emergencies.
700.702 Categorical exclusions.

    Authority: 16 U.S.C. 1854(i).

Subpart A--Policy and Authority


Sec.  700.1  Policy.

    (a) The National Marine Fisheries Service (NMFS) and the Fishery 
Management Councils (FMCs) shall to the fullest extent possible:
    (1) Integrate the requirements of the National Environmental Policy 
Act (NEPA) and other planning and environmental review procedures 
required by law with the Magnuson-Stevens Fishery Conservation and 
Management Act (MSA) procedures for 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.
    (2) Implement procedures to make the NEPA and MSA processes more 
useful to decisionmakers and the public; to reduce paperwork and the 
accumulation of extraneous background data; and to emphasize real 
environmental issues and alternatives. Environmental documents shall be 
concise, clear, and to the point, and shall be supported by the best 
available scientific information and evidence that NMFS has made the 
necessary environmental analyses.
    (3) Encourage and facilitate public involvement in decisions which 
affect the quality of the human environment, utilizing, to the extent 
practicable, the public involvement procedures set out in the MSA.
    (4) Apply NEPA through the MSA process to identify and assess the 
reasonable alternatives to proposed actions that will avoid or minimize 
adverse effects of these actions upon the quality of the human 
environment.
    (b) In the development of fishery management actions pursuant to 
the MSA NMFS and the FMCs shall:
    (1) Integrate the requirements of NEPA early and throughout the 
MSA's fisheries conservation and management process to insure 
implementation of NEPA's policies and the standards of the MSA while 
eliminating unnecessary delay in environmental impact assessment and 
fisheries conservation and management decisions.
    (2) Provide for consideration of environmental impacts, 
alternatives, and public comments at key points in the process to 
inform both the FMC's development of recommendations to the Secretary 
and the Secretary's decision whether to approve and implement the 
fishery management action.
    (3) Identify at an early stage the significant environmental issues 
deserving of detailed study and deemphasizing insignificant issues, 
thereby narrowing the scope of the environmental document accordingly.
    (4) Provide for appropriate time limits on the processes provided 
by this part.
    (c) NMFS shall use all practicable means, consistent with the 
requirements of the MSA, NEPA, and other essential considerations of 
national policy, to restore and enhance the quality of the human 
environment and avoid or minimize any possible adverse effects of their 
actions upon the quality of the human environment.


Sec.  700.2  Authority.

    This part is applicable to and binding on NMFS and the FMCs, and 
other interested agencies and members of the public for implementing 
the procedural provisions of NEPA, as amended (Pub. L. 91-190, 42 
U.S.C. 4321 et seq.), in the context of fishery management actions 
except where compliance would be inconsistent with other statutory 
requirements. These regulations are issued pursuant to NEPA, the MSA as 
amended (Pub. L. 109-479, sec. 107), and Executive Order 11514, 
Protection and Enhancement of Environmental Quality (March 5, 1970, as 
amended by

[[Page 28011]]

Executive Order 11991, May 24, 1977). The regulations apply to NMFS 
compliance with the whole of NEPA section 102. The provisions of NEPA, 
the MSA, and of these regulations must be read together as a whole in 
order to comply with the spirit and letter of the law. Subject to the 
limitations in MSA section 305(f), judicial review of NMFS' compliance 
with these regulations shall not occur before NMFS has promulgated 
regulations with a final Integrated Fishery Environmental Management 
Statement (IFEMS), has made a finding of no significant impact (when 
such a finding will result in action affecting the environment), or has 
made a Determination of Categorical Exclusion, or takes action that 
will result in irreparable injury. Any trivial violation of these 
regulations shall not give rise to any independent cause of action.


Sec.  700.3  Definitions.

    For the purposes of this part, all terms defined in the regulations 
implementing NEPA established by the Council for Environmental Quality 
at 40 CFR part 1508 apply where relevant. The following definitions 
supplement these definitions.
    (a) Amendment. A change to an FMP (FMP amendment) or to an FMP's 
implementing regulations (regulatory amendment). For purposes of 
Secretarial review and procedure, the MSA treats an FMP amendment the 
same as an FMP (MSA section 304(a)). An amendment is different from a 
Framework Action in that a Framework Action is an action provided for 
within the structure of an existing FMP or regulatory scheme. An 
amendment is a change to the underlying FMP or regulatory scheme 
itself. See also the definitions of FMPs and Framework Actions, below.
    (b) Emergency action. A fishery management emergency action is an 
action taken pursuant to section 305(c) of the MSA, that responds to a 
situation that: Results from recent, unforeseen events or recently 
discovered circumstances; presents serious conservation or management 
problems in the fishery, including loss of life or serious injury; and 
can be addressed through emergency regulations for which the immediate 
benefits outweigh the value of advance notice, public comment, and 
deliberative consideration of the impacts on participants to the same 
extent as would be expected under the normal rulemaking process.
    (c) Environmental document. An EA, FONSI, draft IFEMS, supplement 
to a draft IFEMS, final IFEMS, supplement to a final IFEMS, or a Record 
of Decision (ROD). The memorandum issued to document a CE (``DCE'') or 
Framework Compliance Evaluation is also considered an environmental 
document.
    (d) Integrated Fishery and Environmental Management Statement 
(IFEMS). The analysis undertaken, to:
    (1) Identify the scope of issues related to a conservation and 
management need;
    (2) Make decisions that are based on understanding the 
environmental consequences of the proposed action; and
    (3) Determine the necessary steps for NEPA compliance.
    (e) Fishery Management Plan (FMP). A management plan for a federal 
fishery or fisheries developed and implemented pursuant to the MSA. The 
MSA establishes certain components that each FMP must include and sets 
up required policy considerations with which FMPs must comply (national 
standards). An FMP may include some measures that are implemented as 
regulations and others that are not. The MSA establishes separate 
timelines and review tracks for regulatory versus nonregulatory 
measures.
    (f) Framework implementation procedure. A Framework Implementation 
Procedure is a procedure established under an FMP that allows actions 
to be undertaken pursuant to a previously planned and constructed 
management regime without requiring additional environmental analysis. 
The types of measures that could fall within a Framework Implementation 
Procedure may include traditional framework actions, annual 
specifications and other fishery management actions, as appropriate. 
The intent of a Framework Implementation Procedure is to facilitate the 
adjustment of management measures within the scope and criteria 
established by an underlying management regime and analysis to provide 
for real time management of fisheries. A Framework Implementation 
Procedure achieves this goal by developing early broad-based analysis 
of management approaches and impacts that provide a foundation that 
specified subsequent actions, or categories of actions, may rely on. As 
long as subsequent management actions and their environmental effects 
fall within the scope of a prior analysis, no additional action-
specific analysis would be necessary.
    (g) Framework Compliance Evaluation (FCE). Documentation to 
determine whether an existing NEPA document remains adequate to support 
a fishery management action undertaken pursuant to a Framework 
Implementation Procedure. The FCE will culminate in either a 
determination that the existing NEPA analysis must be supplemented or 
preparation of a Memorandum of Framework Compliance for the file. 
Section 700.104 establishes a process for the development of an FCE.
    (h) Determination of Categorical Exclusion. A memorandum for the 
record providing the specific rationale that a fishery management 
action qualifies for a Categorical Exclusion under Sec.  700.701.


Sec.  700.4  NMFS capability to comply.

    NMFS shall ensure that it is capable (in terms of personnel and 
other resources) of complying with the requirements enumerated herein. 
Such compliance may include use of other's resources, but NMFS shall 
itself have sufficient capability to evaluate what others do for it. 
NMFS shall:
    (a) Fulfill the requirements of section 102(2)(A) of NEPA to 
utilize a systematic, interdisciplinary approach which will insure the 
integrated use of the natural and social sciences and the environmental 
design arts in planning and in decisionmaking which may have an impact 
on the human environment. NMFS shall designate a person to be 
responsible for overall review of agency NEPA compliance.
    (b) Identify methods and procedures required by section 102(2)(B) 
to insure that presently unquantified environmental amenities and 
values may be given appropriate consideration.
    (c) Ensure preparation of adequate IFEMSs pursuant to section 
102(2)(C).
    (d) Study, develop, and describe alternatives to recommended 
courses of action in any proposal which involves unresolved conflicts 
concerning alternative uses of available resources. This requirement of 
section 102(2)(E) extends to all such proposals, not just the more 
limited scope of section 102(2)(C)(iii) where the discussion of 
alternatives is confined to IFEMSs.
    (e) Comply with the requirements of section 102(2)(H) that the 
agency initiate and utilize ecological information in the planning and 
development of resource-oriented projects.
    (f) Fulfill the requirements of sections 102(2)(F), 102(2)(G), and 
102(2)(I) of NEPA, and of Executive Order 11514, Protection and 
Enhancement of Environmental Quality, section 2.


Sec.  700.5  Agency procedures.

    NMFS and the FMCs shall periodically review, and revise as 
necessary, their procedures to comply with the requirements set forth 
in the regulations in this part.

[[Page 28012]]

Sec.  700.6  Elimination of duplication with State and local 
procedures.

    (a) NMFS and the FMCs shall cooperate with State and local agencies 
to the fullest extent possible to reduce duplication between NEPA and 
State and local requirements, unless the agencies are specifically 
barred from doing so by some other law. Such cooperation shall to the 
fullest extent possible include:
    (1) Joint planning processes.
    (2) Joint environmental research and studies.
    (3) Joint public hearings (except where otherwise provided by 
statute).
    (4) Joint environmental assessments.
    (b) NMFS and the FMCs shall cooperate with State and local agencies 
to the fullest extent possible to reduce duplication between NEPA and 
comparable State and local requirements, including through development 
of joint environmental documents. In such cases NMFS and one or more 
State or local agencies may be joint lead agencies. Where State laws or 
local ordinances have environmental impact statement requirements in 
addition to but not in conflict with those in NEPA, NMFS shall 
cooperate in fulfilling these requirements as well as those of Federal 
laws so that one document will comply with all applicable laws.
    (c) Where applicable, to better integrate environmental documents 
into State or local planning processes, environmental documents shall 
discuss any inconsistency of a proposed action with any approved State 
or local plan and laws (whether or not federally sanctioned). Where an 
inconsistency exists, the environmental document should describe the 
extent to which NMFS would reconcile its proposed action with the plan 
or law.


Sec.  700.7  Effective date and applicability.

    The effective date of this part is [INSERT DATE 30 days from 
publication of the final rule in the Federal Register]. This part shall 
apply to fishery management actions initiated by NMFS or the FMCs after 
this effective date. NMFS or an FMC may also apply these regulations to 
actions already under development if NMFS or the FMC determines it is 
appropriate. No completed environmental documents need be redone by 
reasons of this part.

Subpart B--NEPA and Fishery Management Planning


Sec.  700.101  Apply NEPA throughout the fishery management process.

    NMFS and the FMCs shall integrate the NEPA process at the earliest 
possible time and throughout fisheries conservation and management 
planning to ensure that planning and decisions reflect environmental 
values and the purposes and policies of the MSA including the MSA's 
national standards, to avoid delays later in the process, and to head 
off potential conflicts. NMFS and the FMCs shall:
    (a) Comply with the mandates of section 102(2)(A) of the NEPA, to 
``utilize a systematic, interdisciplinary approach which will insure 
the integrated use of the natural and social sciences and the 
environmental design arts in planning and in decisionmaking which may 
have an impact on man's environment,'' and National Standard 2 of the 
MSA (section 301(a)(2)).
    (b) Identify environmental effects and values in adequate detail so 
they can be compared to economic and technical analyses. Environmental 
documents and appropriate analyses shall be made readily available and 
reviewed at the same time as other fisheries conservation and 
management planning and decision documents.
    (c) Study, develop, and describe appropriate alternatives to 
recommended courses of action in any proposal which involves unresolved 
conflicts concerning alternative uses of available resources as 
provided by section 102(2)(E) of the NEPA.


Sec.  700.102  When to prepare an environmental assessment.

    (a) An environmental assessment will normally be prepared for the 
following types of actions:
    (1) Framework actions or annual specifications taken pursuant to a 
fishery management plan and tiered to an IFEMS, EIS, or prior EA that 
are not covered by a CE or Memorandum of Framework Analysis; and
    (2) Emergency and interim actions under MSA section 305(c) 
developed in accordance with Sec.  604 of this part.
    (b) An environmental assessment is not necessary if NMFS or an FMC 
has decided to prepare an IFEMS or an environmental impact statement 
(EIS), or if NMFS has determined a DCE or Memorandum of Framework 
Analysis applies.
    (c) NMFS or an FMC may prepare an environmental assessment on any 
action at any time in order to assist fisheries conservation and 
management planning and decisionmaking.
    (d) An EA is required for a proposal for fishery management action 
that is not analyzed in an IFEMS or EIS and is not appropriately 
included in a categorical exclusion (Sec.  700.702).


Sec.  700.103  When to prepare an IFEMS.

    (a) In determining whether to prepare an IFEMS, NMFS, in 
consultation with the relevant FMC and considering the principles set 
forth in NOAA Administrative Order (NAO) 216-06 section 6.02, shall 
determine whether the proposal is one which normally requires an IFEMS, 
including:
    (1) Development of new fisheries management plans;
    (2) Amendment of existing fisheries management plans that have 
significant environmental effects; and
    (3) Other actions determined to be significant in accordance with 
the criteria set forth in subpart E of this part.
    (b) If the proposed action is not covered by paragraph (a) of this 
section and is not covered by a category of actions that NMFS has found 
normally do not require either an environmental impact statement or an 
environmental assessment (categorical exclusion Sec.  700.702), NMFS or 
the relevant FMC shall prepare an environmental assessment (Sec.  
700.102). NMFS and the FMCs where relevant, shall involve environmental 
agencies and the public, to the extent practicable, in preparing 
assessments required by Sec.  700.102.
    (c) NMFS, working with the FMC where relevant, shall ensure that 
either NMFS or the FMC begins the scoping process (Sec.  700.108) if an 
IFEMS will be prepared.


Sec.  700.104  Utilizing a memorandum of framework compliance pursuant 
to a framework implementation procedure.

    (a) An FMP may establish a Framework Implementation Procedure which 
provides a mechanism to allow actions to be undertaken pursuant to a 
previously planned and constructed management regime without requiring 
additional environmental analysis, as provided in this section. Such a 
procedure:
    (1) Shall allow for an evaluation of whether a fishery management 
action taken pursuant to a Framework Implementation Procedure falls 
within the scope of a prior environmental document;
    (2) Shall specify criteria that would trigger a requirement to 
supplement the prior analysis or would require an IFEMS or EA for the 
fishery management action taken pursuant to a Framework Implementation 
Procedure; and
    (3) May specify criteria that would permit actions under revision 
or review to continue during supplementation or revision of the prior 
document, and, if so, establish criteria for determining when this is 
appropriate.

[[Page 28013]]

    (b) A fishery management action taken pursuant to a Framework 
Implementation Procedure established under an FMP does not require 
additional action-specific analysis if NMFS determines through a 
Framework Compliance Evaluation that the management measures in the 
action and their environmental effects fall within the scope of a prior 
analysis. A Framework Compliance Evaluation shall:
    (1) Identify the prior EIS, IFEMS, or EA that analyzed the impacts 
of the fishery management action proposed to be taken pursuant to the 
Framework Implementation Procedure;
    (2) Identify new information, if any, relevant to the impacts of 
the fishery management action proposed to be taken pursuant to a 
Framework Implementation Procedure; and
    (3) Evaluate whether the fishery management action proposed to be 
taken pursuant to a Framework Implementation Procedure falls within the 
scope of the prior analyses and whether new information, if any, 
requires supplementation.
    (c) If the Framework Compliance Evaluation results in a 
determination that supplementation is not required, a Memorandum of 
Framework Compliance must be prepared for the file. A Memorandum of 
Framework Compliance is a concise (ordinarily 2 pages) document that 
briefly summarizes the fishery management action taken pursuant to a 
Framework Implementation Procedure, identifies the prior analyses that 
addressed the impacts of the action, and incorporates any other 
relevant discussion or analysis for the record.
    (d) If the Framework Compliance Evaluation results in a 
determination that supplementation is required, appropriate 
supplemental analyses shall be conducted.


Sec.  700.105  Using a Categorical Exclusion.

    (a) A fisheries management action may qualify for a Categorical 
Exclusions (CE) if NMFS determines that the action does not have the 
potential to pose individually and cumulatively significant effects to 
the quality of the human environment. NMFS will make this determination 
in accordance with 700.701.
    (b) Determination of Categorical Exclusion. NMFS must document a 
determination that an action qualifies for a CE in a Determination of 
Categorical Exclusion (DCE). The DCE must state the specific rationale 
behind why the action qualified for a categorical exclusion. For FMC-
initiated actions, the DCE must be included in the record available for 
public comment on the action. In addition, NMFS must include the DCE in 
its final decision documents for the action.


Sec.  700.106  Lead agencies.

    NMFS shall be the lead Federal agency for the purpose of preparing 
the IFEMS and shall, where applicable, designate co-lead agencies 
consistent with the provisions of 40 CFR 1501.5.


Sec.  700.107  Cooperating agencies.

    Upon request of NMFS, any other Federal agency which has 
jurisdiction by law shall be a cooperating agency. In addition any 
other Federal agency which has special expertise with respect to any 
environmental issue, which should be addressed in the statement, may be 
a cooperating agency upon request of NMFS. An agency may request NMFS 
to designate it a cooperating agency.
    (a) NMFS shall:
    (1) Request the participation of each cooperating agency in the 
NEPA process at the earliest possible time;
    (2) Use the environmental analysis and proposals of cooperating 
agencies with jurisdiction by law or special expertise, to the maximum 
extent possible consistent with its responsibility as lead agency; and
    (3) Meet with a cooperating agency at the latter's request.
    (b) Each cooperating agency has the same responsibilities under 
this part it does under 40 CFR 1501.6.


Sec.  700.108  Scoping.

    (a) NMFS and each FMC shall ensure that the MSA fishery management 
process includes an early and open process for determining the scope of 
issues to be addressed and for identifying the significant issues 
related to a proposed action. This process shall be termed scoping.
    (1) FMC-initiated actions. Scoping shall be based on the MSA's 
public process for the development of fishery management actions by 
FMCs and shall be initiated by a publication in the Federal Register of 
a scoping notice. NMFS shall publish a scoping notice as soon as 
practicable after the decision to initiate development of a fishery 
management action. NMFS and FMCs may conduct scoping hearings as 
independent scoping hearings, or as part of an FMC's public meetings. 
If scoping is conducted as part of an FMC meeting, a scoping notice 
must, at a minimum, be included as a component of the appropriate FMC's 
next meeting agenda (MSA section 302(i)(2)(C)) and must be titled and 
formatted in a manner that provides the public with adequate notice of 
the NEPA-related scoping process.
    (2) NMFS-initiated actions. For any fishery management action 
initiated by NMFS, as soon as practicable after its decision to 
initiate development of a fishery management action and/or prepare an 
IFEMS, NMFS shall publish a scoping notice in the Federal Register. The 
Federal Register notice shall be titled and formatted in a manner that 
provides the public with adequate notice of the NEPA-related scoping 
process and scoping activities conducted in conjunction with meetings 
of advisory panels.
    (b) As part of the scoping process for FMC-initiated actions:
    (1) NMFS, working with the appropriate FMC, shall ensure that 
affected Federal, State, and local agencies, any affected Indian tribe, 
the proponents of the action, and other interested persons (including 
those who might not be in accord with the action on environmental 
grounds) are invited to participate. NMFS, working with the appropriate 
FMC, shall ensure that the scoping process meets the purposes of 
scoping as set forth in 40 CFR 1501.7.
    (2) NMFS and the appropriate FMC shall cooperate to determine the 
scope (40 CFR 1508.25(a)) and the significant issues to be analyzed in 
depth in the environmental document.
    (3) NMFS and the appropriate FMC shall cooperate to identify and 
eliminate from detailed study the issues which are not significant or 
which have been covered by prior environmental review (Sec.  700.110), 
narrowing the discussion of these issues in the environmental document 
to a brief presentation of why they will not have a significant effect 
on the human environment or providing a reference to their coverage 
elsewhere.
    (4) NMFS and the appropriate FMC shall allocate assignments, with 
NMFS retaining responsibility for the final environmental document.
    (5) NMFS and the appropriate FMC shall indicate any public 
environmental assessments, environmental impact statements, IFEMS, and 
other environmental documents which are being or will be prepared that 
are related to but are not part of the scope of the environmental 
document under consideration.
    (6) NMFS and the appropriate FMC shall identify other environmental 
review and consultation requirements in order to integrate them with 
the environmental document as provided in Sec.  700.223.
    (7) NMFS and the appropriate FMC shall indicate the relationship 
between the timing of the preparation of environmental analyses and 
NMFS' and

[[Page 28014]]

the FMC's tentative planning and decisionmaking schedule.
    (c) As part of the scoping process for a NMFS-initiated action, 
NMFS shall:
    (1) Ensure that affected Federal, State, and local agencies, any 
affected Indian tribe, the proponents of the action, and other 
interested persons (including those who might not be in accord with the 
action on environmental grounds) are invited to participate and ensure 
that the scoping process meets the purposes of scoping as set forth in 
40 CFR 1501.7.
    (2) Determine the scope (40 CFR 1508.25(a)) and the significant 
issues to be analyzed in depth in the environmental document.
    (3) Identify and eliminate from detailed study the issues which are 
not significant or which have been covered by prior environmental 
review (Sec.  700.110), narrowing the discussion of these issues in the 
environmental document to a brief presentation of why they will not 
have a significant effect on the human environment or providing a 
reference to their coverage elsewhere.
    (4) Allocate assignments, with NMFS retaining responsibility for 
the final environmental document.
    (5) Indicate any public environmental assessments, environmental 
impact statements, IFEMS, and other environmental documents which are 
being or will be prepared that are related to but are not part of the 
scope of the environmental document under consideration.
    (6) Identify other environmental review and consultation 
requirements in order to integrate them with the environmental document 
as provided in Sec.  700.223.
    (7) Indicate the relationship between the timing of the preparation 
of environmental analyses and NMFS' tentative planning and 
decisionmaking schedule.
    (d) As part of the scoping process NMFS or an FMC may:
    (1) Set page limits on environmental documents (Sec.  700.205).
    (2) Set time limits (Sec.  700.109).
    (3) Hold an early scoping meeting or meetings which may be 
integrated with any other FMC meeting or other early planning meeting 
convened by NMFS or the FMC.
    (e) For FMC-initiated actions, NMFS and the FMC shall cooperate to 
revise the determinations made under paragraphs (a) and (b) of this 
section if substantial changes are made later in the proposed action, 
or if significant new circumstances or information arise which bear on 
the proposal or its impacts. For NMFS-initiated actions, NMFS shall 
revise determinations made under paragraphs (a) and (c) of this section 
if substantial changes are made later in the proposed action, or if 
significant new circumstances or information arise which bear on the 
proposal or its impacts.


Sec.  700.109  Time limits.

    (a) For FMC-initiated actions, NMFS and FMCs shall cooperate to set 
time limits or targets appropriate to individual actions (consistent 
with the minimum time periods required by Sec.  700.604) provided that 
the limits and targets are consistent with the purposes of NEPA and 
other essential considerations of national policy. For NMFS-initiated 
actions, NMFS shall set such time limits or targets.
    (b) NMFS and the FMCs may:
    (1) Consider the following factors in determining time limits or 
targets:
    (i) Potential for environmental harm.
    (ii) Size of the proposed action.
    (iii) State of the art of analytic techniques.
    (iv) Degree of public need for the proposed action, including the 
consequences of delay.
    (v) Number of persons and agencies affected.
    (vi) Degree to which relevant information is known and if not known 
the time required for obtaining it.
    (vii) Degree to which the action is controversial.
    (viii) Other time limits imposed on the agency by law, regulations, 
or executive order.
    (2) Set overall time limits or targets for each constituent part of 
the NEPA process, which may include:
    (i) Decision on whether to prepare an IFEMS (if not already 
decided).
    (ii) Determination of the scope of the IFEMS.
    (iii) Preparation of the draft IFEMS.
    (iv) Review of any comments on the draft IFEMS from the public and 
agencies.
    (v) Preparation of the final IFEMS.
    (vi) Review of any comments on the final IFEMS.
    (vii) Decision on the action based in part on the IFEMS.
    (3) Designate a person (such as the project manager or a person in 
the agency's office with NEPA responsibilities) to expedite the NEPA 
process.
    (c) State or local agencies or members of the public may request 
that NMFS set time limits.


Sec.  700.110  Adoption.

    (a) NMFS may adopt a Federal draft or final environmental 
assessment, environmental impact statement, IFEMS, or portion thereof 
provided that the assessment or statement or portion thereof meets the 
standards for an adequate environmental document under these 
regulations.
    (b) If the actions covered by the original environmental document 
and the proposed action are substantially the same, NMFS is not 
required to recirculate the other agency's final environmental document 
except as a final environmental document. Otherwise NMFS shall treat 
the environmental document as a draft and recirculate it.


Sec.  700.111  Combining documents.

    Any environmental document in compliance with NEPA may be combined 
with any other NMFS or FMC document to reduce duplication and 
paperwork.


Sec.  700.112  Assignment of tasks.

    For the purposes of this part, where the language provides that 
NMFS and/or an FMC must take action, or where the language does not 
specify a particular entity to take action, NMFS and the appropriate 
FMC must establish which entity shall carry out such action. This 
clarification may be established through a Memorandum of Understanding 
for each environmental document individually or for classes of 
environmental documents, but in no case should scoping activities be 
considered complete until such clarification is made.

Subpart C--Integrated Fishery and Environmental Management 
Statement


Sec.  700.201  Purpose of the IFEMS.

    A primary goal of the Integrated Fishery and Environmental 
Management Statement (IFEMS) is to better integrate the consideration 
of environmental impacts into the MSA's process for FMC and NMFS 
development of fishery management recommendations and actions, to more 
effectively align these considerations with the points in time where 
alternatives are being considered. The IFEMS will meet the policies and 
goals of NEPA and shall provide full and fair discussion of significant 
environmental impacts and shall inform decisionmakers and the public of 
the reasonable alternatives which would avoid or minimize adverse 
impacts or enhance the quality of the human environment. NMFS and the 
FMCs shall focus on significant environmental issues and alternatives 
and shall reduce paperwork and the accumulation of extraneous 
background data. IFEMS shall be concise, clear, and to the point, and 
shall be supported by evidence that

[[Page 28015]]

the agency has made the necessary environmental analyses. An IFEMS is 
more than a disclosure document. It shall be used by NMFS and the FMCs 
in conjunction with other relevant material to plan actions and make 
decisions.


Sec.  700.202  Implementation.

    To achieve the purposes set forth in Sec.  700.201, NMFS and the 
FMCs shall prepare IFEMSs in the following manner:
    (a) An IFEMS shall be analytic rather than encyclopedic.
    (b) Impacts shall be discussed in proportion to their significance. 
There shall be only brief discussion of other than significant issues.
    (c) An IFEMS shall be kept concise and shall be no longer than 
absolutely necessary to comply with NEPA, the MSA, and other applicable 
requirements. Length and level of detail should be proportional to 
potential environmental problems and the scope of the fishery 
management action under consideration.
    (d) An IFEMS shall state how alternatives considered in it and 
decisions based on it will or will not achieve the requirements of 
sections 101 and 102(1) of NEPA and other environmental laws and 
policies.
    (e) The range of alternatives discussed in an IFEMS shall encompass 
those to be considered by the Secretary.
    (f) NMFS shall not commit resources prejudicing selection of 
alternatives before making a final decision (Sec.  700.601).
    (g) An IFEMS shall serve as the means of assessing the 
environmental impact of proposed fishery management actions, rather 
than justifying decisions already made.


Sec.  700.203  Timing.

    (a) In general, preparation of an IFEMS shall be commenced as close 
as possible to the time that NMFS or an FMC is developing fishery 
conservation and management measures and actions and considering 
alternatives so that the IFEMS can serve practically as an important 
contribution to the FMC deliberations and NMFS decisionmaking process 
and will not be used to rationalize or justify decisions already made. 
For recommendations initiated by an FMC, the FMC must use the draft 
IFEMS in its deliberations. Both the draft and final IFEMS, and the 
public comments thereon, inform the Secretary's final decision.
    (b) IFEMS for fishery management actions developed by an FMC. (1) 
NMFS shall publish a Notice of Availability (NOA) of a draft IFEMS in 
the Federal Register no later than public release of the FMC's meeting 
agenda notice. NMFS shall ensure that the draft IFEMS is made available 
to the public at least 45 days in advance of the FMC meeting (unless 
this time frame is reduced under Sec.  700.604(b)).
    (2) The public shall have an opportunity to comment on the draft 
IFEMS both by attending the FMC meeting and by submitting written 
comments to the FMC.
    (3) The FMC shall review the draft IFEMS and consider all public 
comments on the draft IFEMS prior to making the final FMC 
recommendation on a fishery management action.
    (4) The FMC shall deliberate and vote in accordance with procedures 
adopted in accordance with Sec.  700.501.
    (5) After the FMC's vote, the IFEMS shall be revised as necessary 
to reflect the FMC's action and any necessary changes to the analysis. 
The final IFEMS must address all public comments and modifications that 
occurred through the council process and must be submitted with the 
recommended management measure or action to begin Secretarial review. 
If necessary, the FMC or NMFS shall supplement the draft IFEMS in 
accordance with Sec.  700.207(c). In its final vote to recommend an 
action, an FMC may select combinations of parts of various alternatives 
analyzed in the draft IFEMS or a new alternative within the scope of 
those analyzed in the draft IFEMS. NMFS may accept this recommendation 
without further analysis or supplementation by the FMC.
    (6) The final or supplemental IFEMS shall be transmitted to NMFS 
along with the FMC's proposed action.
    (i) Final IFEMS submitted with transmittal package. NMFS shall 
publish in the Federal Register an NOA of the final IFEMS as part of 
the appropriate notice of proposed rulemaking or NOA of a proposed FMP 
or FMP amendment as required by MSA sections 304(a)(1)(B) and 
304(b)(1)(A), and shall solicit public comment on the IFEMS along with 
public comment on the FMC's recommended action. Publication of the NOA 
initiates the 30 day period set forth at Sec.  700.604(c).
    (ii) Supplemental IFEMS submitted with transmittal package. NMFS 
shall publish in the Federal Register an NOA of any supplemental IFEMS 
as part of the appropriate notice of proposed rulemaking or notice of 
availability of a proposed FMP or FMP amendment as required by MSA 
sections 304(a)(1)(B) and 304(b)(1)(A), and shall solicit public 
comment on the supplemental IFEMS along with public comment on the 
FMC's recommended action. Prior to making a final decision on the 
proposed action, NMFS shall publish a final supplemental IFEMS that 
responds to public comments in accordance with Sec.  700.604. 
Publication of the NOA initiates the 30 day period set forth at Sec.  
700.604(c).
    (7) NMFS shall prepare and issue its Record of Decision (ROD) on 
the final IFEMS concurrently with its decision on the FMC-recommended 
action as provided for in Sec.  700.502.
    (c) Fishery management actions developed by NMFS. For FMPs, FMP 
amendments, and regulations developed by the Secretary pursuant to MSA 
sections 304(c), (e), and (g) (including HMS), and 305(d) the draft 
IFEMS shall be circulated for public comment in accordance with Sec.  
700.604(b).
    The Final IFEMS shall respond to public comments received on the 
Draft and shall be published prior to the decision on the proposed 
action in accordance with Sec.  700.604(c).


Sec.  700.204  Interdisciplinary preparation.

    IFEMSs shall be prepared using an inter-disciplinary approach which 
will insure the integrated use of the natural and social sciences and 
the environmental design arts (section 102(2)(A) of NEPA). The 
disciplines of the preparers shall be appropriate to the scope and 
issues identified in the scoping process (Sec.  700.108).


Sec.  700.205  Page limits.

    To the extent practicable, IFEMS shall comply with the non-binding 
page limits established for Environmental Impact Statements by 40 CFR 
1502.7; NEPA-related text of final IFEMSs (e.g., paragraphs (d) through 
(g) of Sec.  700.208) should be less than 150 pages (excluding maps, 
charts, and graphic displays of quantitative information), but may be 
up to 300 pages for proposals of unusual scope or complexity. NMFS and 
the FMC may use tiering, cross-referencing, and appendices to help 
minimize the size of the IFEMS. NMFS shall consult with CEQ on a 
programmatic basis if these page limits are regularly exceeded.


Sec.  700.206  Writing.

    NMFS and the FMC must develop the IFEMS based on the best 
scientific information available, including analysis and supporting 
data from the natural and social sciences. Each IFEMS should use all 
appropriate techniques to clearly and accurately communicate with the 
public and with decisionmakers, including plain language, tables, and 
graphics, with particular emphasis on making complex

[[Page 28016]]

scientific or technical concepts understandable to the non-expert.


Sec.  700.207  Phases of analysis: Draft, final, and supplemental 
IFEMSs.

    IFEMSs shall be prepared in two stages and shall be designed to be 
supplemented as necessary to address substantial changes in fishery 
conservation and management actions and significant new circumstances 
or information.
    (a) Drafts. Draft IFEMSs shall be prepared in accordance with the 
scope decided upon in the scoping process. NMFS, and the FMC as 
appropriate, shall work with any cooperating agencies and shall obtain 
comments as required in subpart D of this part. The draft IFEMS must 
fulfill and satisfy to the fullest extent possible the requirements 
established for detailed statements in section 102(2)(C) of NEPA. If a 
draft IFEMS is so inadequate as to preclude meaningful analysis, a 
revised draft of the appropriate portion shall be prepared and 
circulated. All major points of view on the environmental impacts of 
the alternatives including the proposed action must be included in the 
draft IFEMS to the extent practicable.
    (b) Final.--(1) In general. A Final IFEMS shall respond to comments 
as required in subpart D of this part. The IFEMS shall discuss at 
appropriate points any responsible opposing view which was not 
adequately discussed in the draft and shall indicate both NMFSs' and, 
for those actions initiated by an FMC, the FMC's response to the issues 
raised.
    (2) FMC-initiated actions. For fishery management actions being 
developed through the FMC process, the final IFEMS will also: describe 
the public comments received through the FMC public process; describe 
any changes made through the FMC public process either to the analysis 
or to the proposed action; and describe any additional modifications to 
the alternative recommended as the proposed action by the FMC.
    (c) Supplements. (1) NMFS or an FMC shall prepare supplements to a 
draft or final IFEMS if:
    (i) There are substantial changes in an action that are relevant to 
environmental concerns (either prior to the Secretary's approval of the 
recommended proposal for agency action or during its implementation); 
or
    (ii) There are significant new circumstances or information 
relevant to environmental concerns and bearing on the action or its 
impacts.
    (2) NMFS or an FMC may also prepare supplements when NMFS or the 
FMC determine that the purposes of NEPA and the MSA will be furthered 
by doing so.
    (3) NMFS or an FMC shall adopt procedures for introducing a 
supplement into its formal administrative record, if such a record 
exists.
    (4) A supplement to an IFEMS shall be prepared, circulated, and 
filed in the same fashion (exclusive of scoping) as a draft and final 
IFEMS.
    (5) Preparation of a supplement to an IFEMS does not require 
suspension of ongoing fishery management actions, such as 
implementation of an FMP, covered by the IFEMS during the 
supplementation process.
    (6) In the event that an FMC modifies the proposal and votes to 
recommend an alternative not within the range of alternatives analyzed 
in the draft IFEMS, the affected portions of the IFEMS shall be amended 
to include an analysis of the effects of the recommended action prior 
to transmission of the proposal for initiation of Secretarial review 
pursuant to the MSA. The supplemental draft IFEMS shall be available 
for public comment as specified in Sec.  700.203(b).


Sec.  700.208  Recommended format.

    NMFS and the FMCs shall use a format for IFEMSs which will 
encourage good analysis and clear presentation of the alternatives 
including the proposed action. The following standard format for IFEMSs 
should be followed unless NMFS determines that there is a compelling 
reason to do otherwise:
    (a) Cover sheet.
    (b) Summary.
    (c) Table of contents.
    (d) Purpose of and need for action.
    (e) Alternatives including proposed action (sections 102(2)(C)(iii) 
and 102(2)(E) of NEPA).
    (f) Affected environment.
    (g) Environmental consequences (especially sections 102(2)(C)(i), 
(ii), (iv), and (v) of NEPA and additional requirements of the MSA and 
other applicable law as appropriate).
    (h) List of preparers.
    (i) List of Agencies, Organizations, and persons to whom copies of 
the IFEMS are sent.
    (j) Index.
    (k) Appendices (if any).

    Note to Sec.  700.208: The IFEMS will consist of, at a minimum, 
items outlined in paragraphs (d) through (g) of this section; shall 
be presented in a format which will encourage good analysis and 
clear presentation of the alternatives including the proposed 
action; and may also include such other elements as may be necessary 
to fulfill the requirements of the MSA and other applicable law. If 
a different format is used, it shall include paragraphs (a), (b), 
(c), (h), (i), and (j) of this section and shall include the 
substance of paragraphs (d), (e), (f), (g), and (k) of this section, 
as further described in Sec. Sec.  700.208 through 700.216, in any 
appropriate format.

Sec.  700.209  Cover sheet.

    The cover sheet shall not exceed one page. It shall include:
    (a) Reference to NMFS as lead agency and the applicable FMC, as 
appropriate, and the list of cooperating agencies if applicable.
    (b) The title of the proposed action that is the subject of the 
IFEMS (and if appropriate the titles of related cooperating agency 
actions), together with the geographic location where the action is 
located.
    (c) The name, address, and telephone number of the person at the 
agency or FMC who can supply further information.
    (d) A designation of the IFEMS as a draft, final, or draft or final 
supplement.
    (e) A one paragraph abstract of the IFEMS.
    (f) The date by which comments must be received, calculated in 
accordance with Sec.  604 of this part.


Sec.  700.210  Summary.

    Each IFEMS shall contain a summary which adequately and accurately 
summarizes the IFEMS. The summary shall stress the major conclusions, 
areas of controversy (including issues raised by agencies and the 
public), and the issues to be resolved (including the choice among 
alternatives). The summary should not exceed 15 pages.


Sec.  700.211  Purpose and need.

    The IFEMS shall briefly specify the underlying purpose and need to 
which the proposed fishery management actions and alternatives are 
responding.


Sec.  700.212  Alternatives including the proposed action.

    In this section NMFS, and as appropriate, the FMCs shall:
    (a) Based on the information and analysis presented in the sections 
on the Affected Environment (Sec.  700.213) and the Environmental 
Consequences (Sec.  700.214), present in the IFEMS the environmental 
impacts of the proposal and the alternatives in comparative form, thus 
sharply defining the issues and providing a clear basis for choice 
among options by the Secretary, NMFS, the FMCs and the public.
    (b) 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. 
For fishery management

[[Page 28017]]

actions, ``reasonable alternatives'' are those derived from the 
statement of purpose and need of the action, in context of the MSA's 
National Standards and requirements and requirements of other 
applicable laws, and which satisfy, in whole, or substantial part, the 
objectives of the proposed federal action. Alternatives that are 
impractical or would not achieve stated purposes and needs are not 
``reasonable alternatives.''
    (c) Devote substantial treatment to each alternative considered in 
detail including the proposed action so that reviewers may evaluate 
their comparative merits.
    (d) Include reasonable alternatives not within the jurisdiction of 
the lead agency.
    (e) Include the alternative of no action. ``No action'' means 
continued management of the fishery as it is being prosecuted at the 
time development of the IFEMS is initiated, taking into account the 
underlying management regime with assumptions as to how it would 
continue being prosecuted into the future. ``No action'' does not mean 
the literal fishery management regime that would result in the absence 
of a Federal action.
    (f) Identify the preferred alternative or alternatives, if one or 
more exists, in the draft IFEMS and identify such alternative in the 
final IFEMS unless MSA or other applicable law prohibits the expression 
of such a preference.
    (g) Include appropriate mitigation measures not already included in 
the proposed action or alternatives.


Sec.  700.213  Affected environment.

    The IFEMS shall succinctly describe the environment of the area(s) 
to be affected or created by the alternatives under consideration. This 
description shall be no longer than is necessary for the Secretary and 
the public to understand the effects of the alternatives. Data and 
analyses incorporated in an IFEMS shall be commensurate with the 
importance of the impact, with less important material summarized, 
consolidated, or incorporated by reference to existing descriptions of 
the affected environment that NMFS regularly maintains and makes 
available to the public. NMFS shall avoid useless bulk in IFEMS and 
shall concentrate effort and attention on important issues. Verbose 
descriptions of the affected environment are themselves no measure of 
the adequacy of an IFEMS.


Sec.  700.214  Environmental consequences.

    This section forms the scientific and analytic basis for the 
comparisons under Sec.  700.212. It shall consolidate the discussions 
of those elements required by sections 301 and 303 of MSA and sections 
102(2)(C)(i), (ii), (iv), and (v) of NEPA which are within the scope of 
the IFEMS and as much of section 102(2)(C)(iii) as is necessary to 
support the comparisons. The discussion will include the environmental 
impacts of the alternatives including the proposed action, any adverse 
environmental effects which cannot be avoided should the proposal be 
implemented, the relationship between short-term uses of the fishery 
and other affected aspects of the human environment and the maintenance 
and enhancement of long-term productivity, and any irreversible or 
irretrievable commitments of resources which would be involved in the 
proposal should the proposed fishery conservation and management 
measures be implemented. This section should not duplicate discussions 
in Sec.  700.212. It shall include discussions of:
    (a) Direct effects and their significance.
    (b) Indirect and cumulative effects and their significance.
    (c) Possible conflicts between the proposed action and the 
objectives of Federal, regional, State, tribal and local plans, 
policies and controls for the area concerned. (See Sec.  700.602(d).)
    (d) The environmental effects of alternatives including the 
proposed action. The comparisons under Sec.  700.212 will be based on 
this discussion.
    (e) Energy requirements and conservation potential of various 
alternatives and mitigation measures.
    (f) Natural or depletable resource requirements and conservation 
potential of various alternatives and mitigation measures.
    (g) Historic and cultural resources, and reuse and conservation 
potential of various alternatives and mitigation measures.
    (h) Means to mitigate adverse environmental impacts (if not fully 
covered under Sec.  700.212(f)).


Sec.  700.215  List of preparers.

    The IFEMS shall list the names, together with their qualifications 
(expertise, experience, professional disciplines), of the persons who 
were primarily responsible for preparing the IFEMS or significant 
background papers, including basic components of the IFEMS (Sec. Sec.  
700.204 and 700.206). Where possible the persons who are responsible 
for a particular analysis, including analyses in background papers, 
shall be identified.


Sec.  700.216  Preparation of an appendix.

    If NMFS or an FMC prepares an appendix to an IFEMS the appendix 
shall:
    (a) Consist of material prepared in connection with an IFEMS (as 
distinct from material which is not so prepared and which is 
incorporated by reference (Sec.  700.219)).
    (b) Normally consist of material which substantiates any analysis 
fundamental to the impact assessment.
    (c) Normally be analytic and relevant to the decision to be made.
    (d) Be circulated with the IFEMS or be readily available on 
request.


Sec.  700.217  Circulation of the IFEMS.

    NMFS shall ensure that the entire draft and final IFEMS, except for 
certain appendices as provided in Sec.  700.216 and an unchanged IFEMS 
as provided in Sec.  700.304, are circulated in a format that is 
readily accessible to decision-makers and the public.


Sec.  700.218  Tiering.

    NMFS and the FMCs shall tier their environmental documents to 
eliminate repetitive discussions of the same issues and to focus on the 
actual issues ripe for decision at each level of environmental review 
(40 CFR 1508.28). Whenever a broad IFEMS has been prepared (such as for 
a program, policy, or fishery management plan or amendment ) and a 
subsequent IFEMS or environmental assessment is then prepared on an 
action included within the entire program, policy, or fishery 
management plan or plan amendment, the subsequent IFEMS or 
environmental assessment need only summarize the issues discussed in 
the broader IFEMS, incorporate discussions from the broader IFEMS by 
reference, and shall concentrate on the issues specific to the 
subsequent action. NMFS shall ensure that the broader IFEMS is 
maintained in locations and in a format that is readily accessible to 
decision-makers and the public, and the subsequent document shall state 
where the earlier document is available.


Sec.  700.219  Incorporation by reference.

    NMFS and the FMCs shall incorporate material into an IFEMS by 
reference when the effect will be to reduce the length or complexity of 
the IFEMS without impeding agency and public review of the action. The 
incorporated material shall be cited in the IFEMS and its content 
briefly described and instructions on how the public can access the 
incorporated material provided in the IFEMS. Material that is 
incorporated by reference must be maintained in locations and in a 
format

[[Page 28018]]

that is reasonably available for inspection by potentially interested 
persons within the time allowed for comment. Material based on 
proprietary data which is itself not available for review and comment 
shall not be incorporated by reference.


Sec.  700.220  Incomplete or unavailable information.

    When NMFS or an FMC is evaluating reasonably foreseeable 
significant adverse effects on the human environment in an IFEMS and 
despite a review of the best available scientific information, there is 
incomplete or unavailable information, consistent with MSA section 
303(a)(8) and National Standard 2, NMFS or the FMC shall make clear 
that such information is lacking.
    (a) NMFS or the FMC shall identify incomplete information that is 
relevant to reasonably foreseeable significant adverse impacts and that 
is essential to a reasoned choice among alternatives and determine the 
overall costs and benefits of obtaining it. If NMFS finds that the 
overall costs, including the costs of delay, of obtaining the 
information are not exorbitant, NMFS shall ensure that the information 
is obtained and include the information in the IFEMS.
    (b) If NMFS finds that the information relevant to reasonably 
foreseeable significant adverse impacts cannot be obtained because the 
overall costs of obtaining it are exorbitant or the means to obtain it 
are not known, the IFEMS shall include:
    (1) A statement that such information is incomplete or unavailable;
    (2) A statement of the relevance of the incomplete or unavailable 
information to evaluating reasonably foreseeable significant adverse 
impacts on the human environment;
    (3) A summary of the best available scientific evidence which is 
relevant to evaluating the reasonably foreseeable significant adverse 
impacts on the human environment; and
    (4) An evaluation of such impacts based upon theoretical approaches 
or research methods generally accepted in the scientific community. For 
the purposes of this section, ``reasonably foreseeable'' includes 
impacts which have catastrophic consequences, even if their probability 
of occurrence is low, provided that the analysis of the impacts is 
supported by credible scientific evidence, is not based on pure 
conjecture, and is within the rule of reason.
    (c) Any time an IFEMS considers and addresses incomplete or 
unavailable information, subsequent actions relating to the same 
uncertainties may reference the initial assessment or evaluation.


Sec.  700.221  Cost-benefit analysis.

    To the extent that a cost-benefit analysis relevant to the choice 
among environmentally different alternatives is being considered for 
the proposed action, it shall be incorporated by reference or appended 
to the IFEMS as an aid in evaluating the environmental consequences. To 
assess the adequacy of compliance with section 102(2)(B) of NEPA the 
IFEMS shall, when a cost-benefit analysis is prepared, discuss the 
relationship between that analysis and any analyses of unquantified 
environmental impacts, values, and amenities. For purposes of complying 
with NEPA, the weighing of the merits and drawbacks of the various 
alternatives need not be displayed in a monetary cost-benefit analysis. 
The IFEMS should separately indicate qualitative considerations that 
are not monetized and are likely to be relevant and important to a 
decision, including factors not related to environmental quality.


Sec.  700.222  Methodology and scientific accuracy.

    NMFS and the FMCs shall insure the professional integrity, 
including scientific integrity, of the discussions and analyses in 
IFEMSs. They shall identify any methodologies used and shall make 
explicit reference by footnote to the scientific and other sources upon 
which they relied for facts or conclusions in the IFEMS. Discussion of 
methodology may be placed in an appendix.


Sec.  700.223  Environmental review and consultation requirements.

    (a) To the fullest extent possible, NMFS and the FMCs shall prepare 
draft IFEMSs concurrently with and integrated with environmental impact 
analyses and related surveys and studies required by the Fish and 
Wildlife Coordination Act (16 U.S.C. 661 et seq.), the National 
Historic Preservation Act of 1966 (16 U.S.C. 470 et seq.), the 
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), and other 
environmental review laws and executive orders.
    (b) The draft IFEMS shall list all Federal permits, licenses, and 
other entitlements which must be obtained in implementing the proposal. 
If it is uncertain whether a Federal permit, license, or other 
entitlement is necessary, the draft IFEMS shall so indicate.

Subpart D--Public Participation


Sec.  700.301  Public outreach.

    For fishery management actions developed through the FMC process, 
NMFS and the FMCs shall solicit public involvement, including through 
the MSA's public FMC process. For fishery management actions developed 
by the Secretary, NMFS shall conduct similar outreach, including 
through existing MSA public processes. NMFS and the FMCs where 
applicable, shall:
    (a) Make diligent efforts to involve the public in preparing and 
implementing their NEPA procedures for fishery management actions.
    (b) Provide public notice of NEPA-related hearings, public 
meetings, and the availability of environmental documents so as to 
inform those persons and agencies who may be interested or affected.
    (1) In all cases NMFS shall ensure that notice is mailed to those 
who have requested it on an individual action.
    (2) In the case of an action identified by NMFS as having effects 
of national concern, notice shall include publication in the Federal 
Register, notice by mail to national organizations reasonably expected 
to be interested in the matter, and outreach via the Internet. When 
engaged in rulemaking, NMFS shall provide notice to national 
organizations who have requested that notice regularly be provided. 
NMFS shall maintain a list of such organizations.
    (3) In the case of an action with effects primarily of local 
concern the notice may include:
    (i) Notice to State and areawide clearinghouses.
    (ii) Notice to Indian tribes where tribal resources may be 
affected.
    (iii) Notice following the affected State's public notice 
procedures for comparable actions.
    (iv) Publication in local newspapers (in papers of general 
circulation rather than legal papers).
    (v) Notice through other local media.
    (vi) Notice to potentially interested community organizations 
including small business associations.
    (vii) Publication in newsletters that may be expected to reach 
potentially interested persons particularly in the major fishing ports 
of the region and in other major fishing ports having a direct interest 
in the affected fishery.
    (viii) Direct mailing to owners and occupants of nearby or affected 
property.
    (ix) Posting of notice on and off site in the area where the action 
is to be located.
    (x) Outreach via the Internet.

[[Page 28019]]

    (c) Hold or sponsor public hearings or public meetings whenever 
appropriate or in accordance with statutory requirements. Criteria 
shall include whether there is:
    (1) Substantial environmental controversy concerning the proposed 
action or substantial interest in holding the hearing.
    (2) A request for a hearing by another agency with jurisdiction 
over the action supported by reasons why a hearing will be helpful. If 
a draft IFEMS is to be considered at a public hearing, NMFS or the FMC 
should make the document available to the public at least 45 days in 
advance of FMC action. This time period may be reduced in accordance 
with criteria specified in Sec.  700.608.
    (d) Solicit appropriate information from the public.
    (e) Explain in its procedures where interested persons can get 
information or status reports on environmental documents and other 
elements of the NEPA process.
    (f) Make environmental documents, the comments received, and any 
underlying documents available to the public pursuant to the provisions 
of the Freedom of Information Act (5 U.S.C. 552(a)(2)), without regard 
to the exclusion for interagency memoranda where such memoranda 
transmit comments of Federal agencies on the environmental impact of 
the proposed action. Materials to be made available to the public shall 
be provided to the public without charge to the extent practicable, or 
at a fee which is not more than the actual costs of reproducing copies 
required to be sent to other Federal agencies, including CEQ.


Sec.  700.302  Inviting comment on the IFEMS.

    (a) After preparation of a draft IFEMS and before preparation of a 
final IFEMS, NMFS shall ensure that NMFS or the FMC:
    (1) Obtains the comments of any Federal agency which has 
jurisdiction by law or special expertise with respect to any 
environmental impact involved or which is authorized to develop and 
enforce environmental standards affecting fishery conservation and 
management.
    (2) Requests the comments of:
    (i) Appropriate State, tribal, and local agencies which are 
authorized to develop and enforce environmental standards;
    (ii) Indian tribes that may be affected or have special expertise;
    (iii) Any agency which has requested that it receive environmental 
documents on actions of the kind proposed; and
    (iv) Any affected FMC (as provided by MSA sections 304(c)(4) and 
304(g)(1)).
    (3) Requests comments from the public, affirmatively soliciting 
comments from those persons or organizations that may be interested or 
affected.
    (b) Comments on final.NMFS shall request comments on a final IFEMS 
before making a final decision on whether to approve a proposed action 
except as provided in Sec. Sec.  700.608 (minimum time periods) and 
700.701 (emergencies). In any case, other agencies or persons may make 
comments before the Secretary makes a final decision under MSA Section 
304. Public comment on the final IFEMS may address the sufficiency of 
compliance with NEPA to inform the Secretary's decision whether to 
approve, disapprove, or partially approve a fishery management plan, or 
amendment pursuant to MSA section 304(a)(3), or promulgate regulations 
pursuant to MSA section 304(b), as applicable.


Sec.  700.303  Opportunity to comment.

    (a) Comments of other agencies. Federal agencies with jurisdiction 
by law or special expertise with respect to any environmental impact 
involved and agencies which are authorized to develop and enforce 
environmental standards are required (by 40 CFR 1503.2) to comment on 
IFEMSs within their jurisdiction, expertise, or authority. A Federal 
agency may reply that it has no comment. If a cooperating agency is 
satisfied that its views are adequately reflected in the IFEMS, it 
should reply that it has no comment.
    (b) Comments of the interested public--(1) Fishery Management 
Actions developed by the FMCs. For fishery management actions being 
developed through the FMC process, the interested public must provide 
any comments it may have relevant to the draft IFEMS, such as comments 
on the statement of purpose and need, range of alternatives, and 
evaluation of environmental impacts, to the FMC during the public 
comment period on the draft IFEMS by submitting written comments or 
during the appropriate FMC meeting by providing oral testimony.
    (2) NMFS actions. For fishery management actions developed by NMFS, 
the interested public must provide any comments it may have relevant to 
the draft IFEMS, such as comments on the statement of purpose and need, 
range of alternatives, and evaluation of environmental impacts, to NMFS 
either through NMFS' scoping process or during the comment period on 
the draft IFEMS to allow NMFS to meaningfully consider and address all 
comments.


Sec.  700.304  Specificity of comments.

    (a) NMFS and FMCs shall seek comments on an IFEMS that are as 
specific as possible and may address either the adequacy of the IFEMS 
or the merits of the alternatives discussed or both.
    (b) NMFS and the FMC shall request that, when a commenting agency 
criticizes the predictive methodology used in the IFEMS, the commenting 
agency should describe the alternative methodology which it prefers and 
why.
    (c) NMFS shall request that a cooperating agency specify in its 
comments whether it needs additional information to fulfill other 
applicable environmental reviews or consultation requirements and what 
information it needs. In particular, it is required to specify any 
additional information it needs to comment adequately on the draft 
IFEMS' analysis of significant site-specific effects associated with 
any grant or approval decision for applicable permit, license, or 
related requirements or concurrences by that cooperating agency.
    (d) When a cooperating agency with jurisdiction by law objects to 
or expresses reservations about the proposal on grounds of 
environmental impacts, the agency expressing the objection or 
reservation is required (by 40 CFR 1503.3(d)) to specify the mitigation 
measures it considers necessary to allow the agency to grant or approve 
applicable permit, license, or related requirements or concurrences.


Sec.  700.305  Response to comments.

    (a) Comments received on the draft IFEMS shall be addressed in the 
final IFEMS as follows. The final IFEMS shall assess the comments both 
individually and collectively, shall document how both the FMC and NMFS 
considered them collectively and individually, and shall describe how 
both the FMC and NMFS responded. Possible responses are to:
    (1) Modify the alternatives including the proposed action to the 
extent consistent with the MSA.
    (2) Develop and evaluate alternatives not previously given serious 
consideration.
    (3) Supplement, improve, or modify the analyses.
    (4) Make factual corrections.
    (5) Explain why the comments do not warrant further response, 
citing the sources, authorities, or reasons which support this position 
and, if appropriate, indicate those

[[Page 28020]]

circumstances which would trigger reappraisal or further response.
    (b) All substantive comments received on the draft IFEMS should be 
attached to the final IFEMS whether or not the comment is thought to 
merit individual discussion in the text of the IFEMS. In the event that 
multiple copies of the same comment are submitted, such as a form 
letter, it will suffice to attach one representative copy of the 
comment and include one representative response.
    (c) If changes in response to comments are minor and are confined 
to the responses described in paragraphs (a) (4) and (5) of this 
section, they may be written on errata sheets and attached to the 
statement instead of rewriting the draft statement. In such cases only 
the comments, the responses, and the changes and not the final 
statement need be circulated (Sec.  700.217). The entire document with 
a new cover sheet shall be filed as the final statement (Sec.  
700.603).
    (d) Responses to comments on the final. In the record of decision 
(ROD), NMFS will respond to comments received on the Final IFEMS as 
provided in Sec.  700.502(b). NMFS is not required to respond to 
comments raised for the first time with respect to a Final IFEMS if 
such comments were required to be raised with respect to a draft IFEMS 
pursuant to Sec.  700.302(b).

Subpart E--Fishery Conservation and Management Actions That 
Significantly Affect the Quality of the Human Environment


Sec.  700.401  Determining the significance of NMFS's actions.

    (a) NMFS, in consultation with the relevant FMC, must consider the 
proposed fishery management action in light of its context and 
intensity to determine the significance of environmental effects in 
order to determine whether to prepare a FONSI or IFEMS.
    (b) Context. Context means that significance of an action must be 
analyzed with respect to society as a whole, the affected region and 
interests, and the locality. Both short- and long-term effects are 
relevant.
    (c) Intensity. Intensity refers to the severity of the impact. The 
following factors must be considered in evaluating intensity:
    (1) Impacts may be both beneficial and adverse--a significant 
effect may exist even if NMFS believes that on balance the effect will 
be beneficial;
    (2) Degree to which public health or safety is affected;
    (3) Unique characteristics of the geographic area;
    (4) Degree to which effects on the human environment are likely to 
be highly controversial;
    (5) Degree to which effects are highly uncertain or involve unique 
or unknown risks;
    (6) Degree to which the action establishes a precedent for future 
actions with significant effects or represents a decision in principle 
about a future consideration;
    (7) Individually insignificant but cumulatively significant 
impacts;
    (8) Degree to which the action adversely affects entities listed in 
or eligible for listing in the National Register of Historic Places, or 
may cause loss or destruction of significant scientific, cultural, or 
historic resources;
    (9) Degree to which endangered or threatened species, or their 
critical habitat as defined under the Endangered Species Act of 1973, 
are adversely affected; and
    (10) Whether a violation of Federal, state, or local law for 
environmental protection is threatened.
    (d) Potentially significant but previously analyzed effects. An 
FONSI may be appropriate for an action that may have significant or 
unknown effects, as long as the significance and effects have been 
analyzed previously.


Sec.  700.402  Guidance on significance determinations.

    (a) NMFS may, as appropriate, develop guidance regarding criteria 
for determining the significance of effects on a national or regional 
level for purposes of informing the determination of whether a FONSI is 
appropriate or an IFEMS must be prepared.
    (1) Such guidance may expand on, but not replace, the general 
language in Sec.  700.401 of this part.
    (2) NOAA and NMFS have developed guidance on the determination of 
significance of fishery management actions (e.g., NOAA Administrative 
Order (NAO) 216-6 and NMFS' Guidelines for the Preparation of a Finding 
of No Significant Impact, NMFS Instruction 30-124-1).
    (b) NMFS may develop guidance for a specific region that considers 
how any of the following specific criteria apply.
    (1) The extent to which the proposed action may be reasonably 
expected to compromise the sustainability of any target species that 
may be affected by the action.
    (2) The extent to which the proposed action may be reasonably 
expected to compromise the sustainability of any non-target species.
    (3) The extent to which the proposed action may be reasonably 
expected to cause substantial damage to the ocean and coastal habitats 
and/or essential fish habitat as defined under the MSA and identified 
in FMPs.
    (4) The extent to which the proposed action may be reasonably 
expected to have a substantial adverse impact on public health or 
safety.
    (5) The extent to which the proposed action may be reasonably 
expected to adversely affect endangered or threatened species, critical 
habitat of these species, or marine mammals.
    (6) The extent to which the proposed action may be reasonably 
expected to result in cumulative adverse effects that could have a 
substantial effect on the target species or non-target species.
    (7) The extent to which the proposed action may be expected to have 
a substantial impact on biodiversity and ecosystem function within the 
affected area (e.g., benthic productivity, predator-prey relationships, 
etc).
    (8) How to assess significant social or economic impacts that are 
interrelated with significant natural or physical environmental 
effects.
    (9) The degree to which the effects on the quality of the human 
environment are likely to be highly controversial. Although no action 
should be deemed to be significant based solely on its controversial 
nature, this aspect should be used in weighing the decision on the 
proper type of environmental review needed to ensure full compliance 
with NEPA. Socio-economic factors related to users of the resource 
should also be considered in determining controversy and significance.
    (10) Whether the action would result in the introduction or spread 
of nonindigenous species.

Subpart F--NEPA and Fishery Management Decisionmaking


Sec.  700.501  Fishery management decisionmaking procedures.

    In addition to the procedures set forth herein, NMFS and the FMCs 
shall adopt and maintain procedures, consistent with current or future 
Statements of Organization, Practices, and Procedures, as described in 
50 CFR 600.115, to ensure that fishery management decisions are made in 
accordance with the policies and purposes of NEPA and the MSA.


Sec.  700.502  Record of decision.

    (a) NMFS shall complete a concise public ROD by the time of its 
final decision.
    (b) The ROD must do the following.
    (1) Describe the decision.
    (2) Describe all alternatives considered by NMFS and the FMCs in 
developing the recommended action

[[Page 28021]]

and reaching the final decision, specifying the alternative or 
alternatives which were considered to be environmentally preferable.
    (i) The description of alternatives may discuss preferences among 
alternatives based on relevant factors including economic and technical 
considerations under the MSA and other statutory requirements.
    (ii) The description of alternative must also identify and discuss 
all such factors including any essential considerations of national 
policy which were balanced in developing the recommended action and in 
making the final decision and state how those considerations entered 
into the decision.
    (3) State whether all practicable means to avoid or minimize 
environmental harm from the alternative selected have been adopted, and 
if not, why they were not. Where the decision is based upon the 
existence of mitigation measures, the ROD must include a description of 
the monitoring and enforcement program adopted or to be adopted, and, 
if not yet adopted, any obstacles to its adoption.
    (4) Contain NMFS's responses to comments received on the final 
IFEMS, if any. In the event the public identifies similar issues to 
those previously responded to in the final IFEMS, NMFS shall note in 
the ROD where the prior response to the same or similar comments can be 
located and provide additional response, if necessary. If the public 
fails to submit comments at the appropriate point in the process, as 
specified in Sec.  700.303, NMFS may, but is not required to, address 
comments that should have been raised at the draft level.


Sec.  700.503  Implementing the decision.

    NMFS may provide for monitoring to assure that the decisions are 
carried out and shall do so for any mitigation adopted to mitigate 
significant adverse effects or to obtain information for future IFEMSs 
or fishery conservation and management decisions. Mitigation (Sec.  
700.502(b)(3)) and other conditions established in the IFEMS or during 
its review and committed as part of the decision shall be implemented 
by NMFS, the FMC, recipients of permits or licenses, or other agencies 
if appropriate. NMFS shall:
    (a) Include appropriate conditions in grants, permits or other 
approvals.
    (b) Condition funding of implementing actions on mitigation.
    (c) Upon request, inform cooperating or commenting agencies on 
progress in carrying out mitigation measures which they have proposed 
and which were adopted by the Secretary.
    (d) Regularly make available to decisionmakers and the public the 
results of relevant monitoring.

Subpart G--Additional Requirements and Limitations


Sec.  700.601  Limitations on fishery management actions during MSA-
NEPA process.

    (a) Until NMFS issues a record of decision as provided in Sec.  
700.502 (except as provided in paragraph (c) of this section), NMFS 
shall take no action concerning the proposal which would:
    (1) Have an adverse environmental impact; or
    (2) Limit the choice of reasonable alternatives.
    (b) If NMFS is aware that a person is about to take an action 
within NMFS's jurisdiction that would meet either of the criteria in 
paragraph (a) of this section, then NMFS shall promptly notify the 
applicant that NMFS will take appropriate action to insure that the 
objectives and procedures of NEPA are achieved.
    (c) While work on a required IFEMS is in progress and the action is 
not covered by an existing IFEMS or other program statement, NMFS shall 
not undertake in the interim any major Federal action covered by the 
plan or program which may significantly affect the quality of the human 
environment unless such action:
    (1) Is justified independently of the IFEMS;
    (2) Is itself accompanied by an adequate environmental document; 
and
    (3) Will not prejudice the ultimate decision on the IFEMS. Interim 
action prejudices the ultimate decision on the IFEMS when it tends to 
determine subsequent development or limit alternatives.


Sec.  700.602  NMFS responsibility for environmental documents produced 
by a third-party.

    (a) Information. If NMFS requires a non-Federal entity to submit 
environmental information for possible use by NMFS in preparing an 
environmental document, then NMFS should assist the non-Federal entity 
by outlining the types of information required. NMFS shall 
independently evaluate the information submitted and shall be 
responsible for its accuracy. If NMFS chooses to use the information 
submitted by the non-Federal entity in the environmental document, 
either directly or by reference, then the names of the persons 
responsible for the independent evaluation shall be included in the 
list of preparers. It is the intent of this paragraph that acceptable 
work not be redone, but that it be verified by NMFS.
    (b) Environmental assessments. If NMFS permits an applicant to 
prepare an environmental assessment, NMFS, besides fulfilling the 
requirements of paragraph (a) of this section, shall make its own 
evaluation of the environmental issues and take responsibility for the 
scope and content of the environmental assessment.
    (c) IFEMSs. Any IFEMS prepared pursuant to the requirements of MSA 
section 304(i) and NEPA shall be prepared directly by NMFS, an FMC, or 
a contractor selected by NMFS or an FMC, or where appropriate under 
Sec.  700.106(b), a cooperating agency. It is the intent of these 
regulations that the contractor be chosen solely by NMFS or the FMC, or 
by NMFS in cooperation with cooperating agencies, or where appropriate 
by a cooperating agency to avoid any conflict of interest. Contractors 
shall execute a disclosure statement prepared by NMFS, or where 
appropriate the cooperating agency, specifying that they have no 
financial or other interest in the outcome of the project. If the 
document is prepared by contract, the responsible Federal official 
shall furnish guidance and participate in the preparation and shall 
independently evaluate the IFEMS prior to its approval and take 
responsibility for its scope and contents. Nothing in this section is 
intended to prohibit any agency from requesting any person to submit 
information to it or to prohibit any person from submitting information 
to any agency. To the extent that members of an FMC are involved in 
development of an IFEMS, they must comply with the rules regarding 
conflicts of interest as set forth in section 302(j) of the MSA, 15 CFR 
14.42, 15 CFR 24.36(b), and 40 CFR 1506.5(c).


Sec.  700.603  Filing requirements.

    NMFS shall ensure the timely filing with EPA of IFEMSs together 
with comments and responses. NMFS shall file IFEMSs with EPA when they 
are transmitted to commenting agencies and made available to the 
public. EPA shall deliver one copy of each IFEMS to CEQ, which shall 
satisfy the requirement of availability to the President.


Sec.  700.604  Minimum time periods for agency action.

    (a) Calculation of time periods. NMFS shall publish a notice in the 
Federal Register notifying the public of any draft or final IFEMS 
available for public comment. The minimum time periods set forth in 
this section may be calculated from the date of publication

[[Page 28022]]

of the notice in the Federal Register, in accordance with 40 CFR 
1506.10(d).
    (b) Comment period on a draft IFEMS. NMFS and the FMCs shall 
integrate the solicitation of public comment on the draft IFEMS with 
the MSA's existing public processes.
    (1) Except as provided in paragraph (b)(2) of this section, NMFS 
and the FMCs shall provide at least 45 days for public comment on the 
draft IFEMS in advance of a meeting where the FMC may take action
    (2) NMFS may, in consultation with the FMC and EPA, reduce the 
period for public comment on a draft IFEMS to a period of no less than 
14 days if NMFS finds that such reduction is in the public interest, 
based on consideration of the following factors.
    (i) Whether there is a need for emergency action or interim 
measures to address overfishing;
    (ii) The potential long- and short-term harm to the fishery 
resource;
    (iii) The potential long- and short-term harm to the marine 
environment, including non-target and protected species;
    (iv) The potential long- and short-term harm to fishing 
communities;
    (v) The ability of the FMC to consider public comments in advance 
of a scheduled FMC meeting;
    (vi) Degree of public need for the proposed action, including the 
consequences of delay; and
    (vii) Time limits imposed on the agency by law, regulations, or 
executive order.
    (3) NMFS should not reduce the public comment period, even if in 
the public interest, if the value of public notice and comments 
outweighs the factors listed in paragraph (b)(2) of this section, based 
on the consideration of the following factors.
    (i) The degree to which the affected communities had prior notice 
of NMFS' or the FMC's consideration of the proposed fishery management 
actions;
    (ii) The complexity of the proposed action and accompanying 
analysis;
    (iii) The degree to which the proposed action is not related to 
exigent circumstances; and
    (iv) The degree to which the science upon which the action is based 
is uncertain or missing.
    (4) In cases where the public comment period is reduced to less 
than 45 days, NMFS and the FMCs shall explain the rationale for the 
reduced time period in the NOA announcing the public comment period. 
The comment period must be the maximum amount of time consistent with 
the rationale provided.
    (c) Timing of NMFS Decision. (1) Except as provided in paragraphs 
(c)(2) and (3) of this section, NMFS shall not make a final decision on 
a fishery management action until the later of the following dates:
    (i) Ninety (90) days after publication of the NOA for a draft IFEMS 
for an FMP or FMP amendment.
    (ii) Thirty (30) days after publication of the NOA for a final 
IFEMS.
    (2) NMFS may make a final decision earlier than the times provided 
in paragraph (c)(1) of this section if the Secretary, in consultation 
with EPA, determines one of the following.
    (i) NMFS is engaged in rulemaking under section 305(c) of the MSA 
and the Administrative Procedure Act (APA) for the purpose of 
protecting the public health or safety or is responding to a fishery 
management emergency, in which case NMFS may waive or reduce the time 
periods provided in this section and publish a decision on the final 
rule simultaneously with publication of the notice of the availability 
of the final IFEMS; or
    (ii) NMFS has published a supplemental IFEMS and has solicited 
public comment during the review period provided by MSA section 304 and 
there is not sufficient time to complete the Final IFEMS and provide 
for the full 30-day cooling off period within the MSA timeframe. In 
this case the time periods provided for in paragraph (c)(1) of this 
section may be reduced by up to 15 days.
    (3) For regulations published under section 304(b) of the MSA, the 
time periods provided by paragraph (c)(1) of this section shall be 
reduced or enlarged to be commensurate with the comment period provided 
for the review of the proposed rule.
    (d) If the exception listed in paragraph (c)(2)(i) of this section 
applies, NMFS shall take comment on the final IFEMS for 30 days after 
publication.

Subpart H--Emergencies and Categorical Exclusions


Sec.  700.701  Emergencies.

    (a) If NMFS finds that there is a need for an emergency action or 
interim measure to address overfishing, that the action may have 
significant environmental impacts, and that there is not sufficient 
time to finalize the NEPA analysis, NMFS shall develop alternative 
arrangements for NEPA compliance and consult with CEQ about such 
alternative arrangements. NMFS and CEQ shall limit such arrangements to 
actions necessary to control the immediate impacts of the emergency. 
NMFS may develop programmatic alternative arrangements to ensure that 
such arrangements are limited to the actions necessary to control the 
immediate impacts of the emergency.
    (b) If NMFS finds that an emergency exists and that proposed 
emergency regulations will not result in a significant environmental 
impact, NMFS shall document such finding in an EA and FONSI. If NMFS 
finds that the nature and scope of the emergency requires promulgation 
of emergency regulations prior to the completion of an EA and FONSI, 
the Secretary shall develop alternative arrangements for NEPA 
compliance that include promulgation of the emergency regulations with 
a draft EA and FONSI that shall be finalized prior to the expiration or 
extension of the effective period of the regulations.
    (c) Other actions remain subject to NEPA review in accordance with 
this part.


Sec.  700.702  Categorical exclusions.

    (a) The following categories of actions, as found by NOAA in 
consultation with CEQ for conformity with NEPA and CEQ implementing 
regulations, normally do not require either an environmental impact 
statement or an environmental assessment and constitute categorical 
exclusions:
    (1) Ongoing or recurring fisheries actions of a routine 
administrative nature when the action will not have any impacts not 
already assessed or NMFS finds they do not have the potential to pose 
significant effects to the quality of the human environment (apart from 
those already described in an environmental document) such as: 
Reallocations of yield within the scope of a previously published 
IFEMS, FMP or fishery regulation, combining management units in related 
FMP, and extension or change of the period of effectiveness of an FMP 
or regulation;
    (2) Minor technical additions, corrections, or changes to a Fishery 
Management Plan or IFEMS; and
    (3) Research activities permitted under an EFP or Letter of 
Authorization 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 ABC, OY, or Fishing Mortality.
    (b) NOAA and NMFS guidance. NOAA and NMFS may develop guidance 
pursuant to 40 CFR 1507.3 on how NMFS will identify categorical 
exclusions not specified in paragraph (a) of this section.
    (c) Extraordinary circumstances for categorical exclusions. NOAA 
and NMFS may develop guidance on how NMFS will determine whether 
extraordinary circumstances exist such

[[Page 28023]]

that an action that normally qualifies for a categorical exclusion 
requires the preparation of an EA or IFEMS.
    (d) Existing guidance. NOAA has developed additional guidance on 
the identification and use of Categorical Exclusions (NOAA 
Administrative Order 216-6).

 [FR Doc. E8-10271 Filed 5-13-08; 8:45 am]
BILLING CODE 3510-22-P