[Federal Register Volume 62, Number 181 (Thursday, September 18, 1997)]
[Notices]
[Pages 48990-48995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-24809]
[[Page 48990]]
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DEPARTMENT OF COMMERCE
[Docket No. 970903224-7224-01; I.D. 082297A]
RIN 0648-AK40
National Oceanic and Atmospheric Administration
Administrative Procedures Applicable to the Management of Highly
Migratory Species
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed procedural guidelines.
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SUMMARY: NMFS proposes to revise the administrative procedures it
follows to prepare and issue highly migratory species (HMS) fishery
management plans (FMPs) and FMP amendments (FMP amendments) and
implementing regulations for the Atlantic Ocean, Gulf of Mexico, and
Caribbean Sea in response to recent amendments to the Magnuson-Stevens
Fishery Conservation and Management Act (Magnuson-Stevens Act). The
proposed revised procedures include opportunities for involvement by
the public, the Department of State (DOS), the U.S. Coast Guard (USCG),
the Fishery Management Councils (FMCs), the International Committee for
the Conservation of Atlantic Tunas (ICCAT) Advisory Committee (IAC),
the ICCAT Commissioners, and advisory panels (APs) appointed under the
MSFCMA and the Atlantic Tunas Convention Act (ATCA).
DATES: Comments are invited and must be received on or before October
15, 1997.
ADDRESSES: Questions or comments regarding the proposed revised HMS
procedures may be mailed or faxed to Rebecca Lent, Chief, Highly
Migratory Species Management Division, Office of Sustainable Fisheries,
NMFS, 1315 East-West Highway, Silver Spring, MD 20910 (fax: 301-713-
1917). Copies of this notice are also available at this address.
FOR FURTHER INFORMATION CONTACT: Liz Lauck or Jill Stevenson, Highly
Migratory Species Management Division, Office of Sustainable Fisheries,
NMFS, Telephone: (301) 713-2347.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Background
On November 28, 1990, the President signed into law the Fishery
Conservation Amendments of 1990 (Pub. L. 101-627), which amended the
Magnuson-Stevens Act. Pub. L. 101-627 gave the Secretary of Commerce
(Secretary) the authority to manage tuna, as of January 1, 1992, in the
exclusive economic zone (EEZ) in the Atlantic Ocean, Gulf of Mexico,
and Caribbean Sea under authority of the Magnuson-Stevens Act (16
U.S.C. 1811). Pub. L. 101-627 also transferred from the Councils to the
Secretary, effective November 28, 1990, the management authority for
the other highly migratory species in the Atlantic Ocean, Gulf of
Mexico, and Caribbean Sea (16 U.S.C. 1854(f)(3)). In 1996, the
Magnuson-Stevens Act was further amended to require APs of balanced
representation to be created to assist in the development of FMPs and
FMP amendments for Atlantic HMS.
Under the proposed revised procedures, the DOS, USCG, FMCs, IAC,
and ICCAT Commissioners (Consulting Parties) would be consulted during
the development of FMPs. They would be sent draft FMP documents,
including the draft FMP or amendment, proposed rule, and draft EIS. The
IAC and FMCs would participate in the HMS APs and, as such, would be
consulted during several phases of the HMS process.
B. Purpose and Scope
The Magnuson-Stevens Act, at 16 U.S.C. 1854(f)(3), requires that
the Secretary undertake the following three major categories of actions
regarding the conservation and management of HMS:
1. Identification of research and information priorities, including
observer requirements and necessary data collection and analysis;
2. Preparation and amendment of FMPs; and
3. Diligent pursuit, through international management entities
(such as ICCAT), of international fishery management measures.
This document proposes the process that NMFS would follow in
undertaking the second category of actions--preparing, issuing, and
implementing through final regulations HMS FMPs and amendments. NMFS
emphasizes that this process is not intended to address the other two
categories of actions except in general terms where they affect the
development and implementation of fishery management measures for HMS.
The process proposed herein is designed to address the statutory
planning and rulemaking requirements of both the Magnuson-Stevens Act
and the ATCA regarding management of Atlantic HMS. The process for
preparing and amending FMPs for HMS described in this document
incorporates ATCA requirements so that they are met whenever the United
States acts to implement ICCAT recommendations through the FMP and its
implementing regulations.
C. Highly Migratory Species
The Magnuson-Stevens Act, at 16 U.S.C. 1802(14), defines the term
``highly migratory species'' as tuna species, marlin (Tetrapturus spp.
and Makaira spp.), oceanic sharks, sailfishes (Istiophorus spp.), and
swordfish (Xiphias gladius). Further, the Magnuson-Stevens Act, at 16
U.S.C. 1802(27), defines the term ``tuna species'' as albacore tuna
(Thunnus alalunga), bigeye tuna (Thunnus obesus), bluefin tuna (Thunnus
thynnus), skipjack tuna (Katsuwonus pelamis), and yellowfin tuna
(Thunnus albacares).
D. Preparation and Amendment of FMPs
As delegated by the Secretary, the Assistant Administrator for
Fisheries, NOAA (Assistant Administrator) would issue FMPs or FMP
amendments for HMS in the Atlantic Ocean, Gulf of Mexico, and Caribbean
Sea. The Magnuson-Stevens Act directs the Secretary to undertake the
following actions in preparing and amending FMPs for HMS:
1. Conduct public hearings at appropriate times and places;
2. Establish an AP balanced in its composition to fairly represent
the commercial fishing involved for each FMP to be prepared or amended;
3. Consult with and consider the comments and views of affected
Councils, the ICCAT Commissioners, the IAC, and the AP;
4. Evaluate the probable effects of conservation and management
measures on affected fishery participants, and minimize, to the extent
practicable, any disadvantage to U.S. fishermen in relation to foreign
competitors; and
5. Review, on a continuing basis (and promptly whenever a
recommendation pertaining to fishing for HMS has been made under a
relevant international fishery agreement), and revise as appropriate,
the conservation and management measures contained in the FMP.
6. Pursue comparable international fishery management measures with
respect to HMS.
The relationship between the Magnuson-Stevens Act and ATCA is not
clearly addressed in either law. This document proposes a planning and
rulemaking process for managing HMS species that NMFS believes to be
consistent with both the Magnuson-
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Stevens Act and ATCA. Whenever practicable, NMFS will issue one
regulation under the authority of both statutes. NMFS does not intend
that this process, primarily administrative in character, will resolve
conflicts and ambiguities between the Magnuson-Stevens Act and ATCA.
II. Process for the Management of HMS
This document proposes the establishment of a general process for
the preparation and implementation of: (1) FMPs; (2) FMP amendments;
and (3) international management measures for HMS as required by the
Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and the ATCA, 16 U.S.C.
971 et seq. This process would be followed by NMFS in order to fulfill
the Secretary's responsibilities for managing HMS under these statutes.
Under the provisions of the Magnuson-Stevens Act and ATCA, several
possible regulatory scenarios exist for HMS management, including: (1)
An FMP that includes no international fishery management measures
(e.g., those species for which ICCAT has made no recommendations to
date, such as oceanic sharks); (2) an FMP that includes international
fishery management measures authorized by and consistent with both
Magnuson-Stevens Act and ATCA requirements; and (3) international
fishery management measures, based upon ICCAT recommendations,
implemented under ATCA but not yet included within an FMP (e.g.,
Atlantic tuna regulations promulgated under ATCA before preparation of
and inclusion in an FMP). The proposed HMS management process addresses
primarily the first two of these alternatives. The process for
promulgating Atlantic tuna regulations under ATCA does not require as
many steps or as much time as is required for preparation of an FMP or
FMP amendment under the Magnuson-Stevens Act; however, it is NMFS''
intent to prepare an FMP (or FMPs) for Atlantic tunas. The rulemaking
process for implementation of ICCAT recommendations that would be
implemented by regulations in the absence of an FMP is discussed in
this notice in abbreviated form. This particular rulemaking process
would be used to implement ICCAT recommendations for an interim period
until FMPs are prepared for all HMS designated by the Magnuson-Stevens
Act, or until any existing HMS FMPs are amended to incorporate ICCAT
recommendations.
HMS Management Process--Outline
1. Phase 1--Planning and Scoping
a. Publish Notice-of-intent to prepare FMP or FMP amendment and
(Environmental Impact Statement(EIS)/Environmental Assessment (EA)
b. Draft issues/options statement
c. Hold AP meeting
d. Hold scoping meetings with the public
2. Phase 2--Preparation and Review of Draft Documents
a. Prepare draft FMP amendment, EIS, proposed rule
b. International management recommendations
c. Solicit comments from Consulting Parties
d. Hold AP meeting
3. Phase 3--Preparation of Proposed FMP or Amendment and Proposed
Regulations and Public Review
a. Notice of availability to the public and proposed regulations
published
b. Public hearings
c. Hold AP meeting to consider comments
4. Phase 4--Preparation of Final Documents and Final Regulations
Prepare final rule, FMP amendment, and Final EIS (FEIS)
5. Phase 5--Approval and Implementation
a. Publish final rule
b. Distribute FEIS and FMP amendment
6. Phase 6--Continuing and Contingency Fishery Management
a. Hold AP meetings as needed
b. Framework management measures or FMP amendments
c. Take emergency actions, if necessary, for contingency fishery
management
Information Distribution/Recordkeeping/Comments
The NMFS Office of Sustainable Fisheries would notify fishery
interests and FMCs of forthcoming management actions regarding HMS. A
``facsimile transmission list'' of affected FMCs, ICCAT Commissioners
and Advisory Committee members, AP members, Federal and state agencies,
various fishery interests, and requesting members of the public
presently is maintained by that Office to send advance notices of
forthcoming actions (to add your name to the ``FAX NETWORK'', call 301-
713-2347). The list would be maintained under the proposed procedures.
Also, notices of forthcoming hearings, meetings, public review and
comment periods, and regulatory actions would be mailed to all who
request this service. Copies of important draft, revised, and final
documents (e.g., FMPs and amendments) would be mailed to those
requesting such documents. Up-to-date quota monitoring and fishery
regulation information is presently and would continue to be available
on a telephone information hotline (301-713-1279, 508-281-9305). This
information as it relates to tunas can presently be accessed and would
continue to be accessible through the Atlantic tunas automated
telephone permitting system (1-888-USA-TUNA) and on the Internet
(http://www.usatuna.com).
Comments received by NMFS during all phases of the HMS process
would be considered to determine the need for initiation of rulemaking
or changes in the FMP, FMP amendment, or supporting documents. NMFS
would maintain a record of all public meetings during all phases of FMP
or FMP amendment development. The record would summarize the
discussions between NMFS representatives and constituents (including
the AP) and would be included in NMFS' administrative record supporting
the development and implementation of the subject FMP or amendment.
Consistent with the Administrative Procedure Act (APA), 5 U.S.C.
553, public comments received on proposed regulations (Phase 3) would
be summarized and addressed in the preamble to the final regulations
(Phase 5) to implement the FMP or amendment. New public comments
regarding the draft final (supplemental) environmental impact statement
(F(S)EIS) (i.e., comments regarding new or different issues not
previously expressed during the Phase 3 public comment period on the
draft (supplemental) environmental impact statement (D(S)EIS) would be
summarized and addressed in the F(S)EIS (Phase 4) and filed for in the
final public review under the National Environmental Policy Act (NEPA)
(Phase 5). Council on Environmental Quality (CEQ) regulations require
that an agency preparing a FEIS or final supplemental EIS (FSEIS) must:
Assess and consider public comments, both individually and
collectively, received on the D(S)EIS; respond to such comments by one
of several means; and provide a summary of the comments and responses
in the F(S)EIS. In this case, these comments would include those
received on the D(S)EIS in Phase 2 and on the draft F(S)EIS in Phase 4.
1. Phase 1--Planning and Scoping
The objectives of Phase 1 would be to: (1) Determine the nature and
scope of the resource and management issues for
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the subject fishery that need to be addressed and identify alternative
management approaches for their resolution; (2) provide the AP and the
general public an opportunity to communicate views and concerns early
in the rulemaking process; (3) develop a clear and concise written
summary, for the species under consideration, of the major fishery
management issues and options for addressing them (this document is
referred to as the ``issues/options statement''); and (4) fulfill the
``scoping'' action requirements for environmental analyses prepared
under NEPA (refer to section 1501.7 of 40 CFR parts 1500-1508, the CEQ
regulations for implementing NEPA, and to NOAA Administrative Order
216-6, NOAA's guidance for compliance with NEPA).
a. Notice-of-intent to prepare FMP or FMP Amendment and EIS. NMFS
would publish in the Federal Register a notice-of-intent (notice)
regarding FMPs and amendments. The notice would serve to notify the
public of any scheduled public scoping meetings and would contain: (1)
A statement of NMFS' intent to prepare and implement an FMP or
amendment, promulgate new or amend existing regulations, and prepare,
if applicable, an EIS or supplemental EIS (SEIS); (2) appropriate
information concerning the availability of any relevant issues/options
statement (see section b below); (3) a preliminary schedule of events;
(4) date(s), time(s) and place(s) of the scheduled scoping meeting(s);
and (5) a statement of whether or not the FMP or amendment would
include any measures intended to implement fishery management
recommendations of ICCAT (or any other international fishery management
body). If necessary, the above information may be divided and published
by more than one notice.
If NMFS is preparing an EIS or SEIS in support of the FMP or
amendment, NMFS would include within the notice-of-intent, to be
published before beginning the scoping process, those items required
under the CEQ regulations (40 CFR parts 1500-1508). These items include
the following: (1) A description of the proposed action and possible
alternatives; (2) the agency's proposed scoping process, including
scoping meeting information, if applicable; and (3) the name and
address of an agency contact who can answer questions regarding the
proposed action and the (S)EIS.
b. Draft Issues/options statement. NMFS would prepare a succinct
draft statement of fishery issues, various options for addressing them,
and potential management objectives; the ``issues/options statement.''
If ICCAT has recommended management measures for the fishery under
consideration, the draft issues/options statement would outline the
Secretary's preliminary recommendations as to the appropriate U.S.
actions to implement any ICCAT recommendations. The draft issues/
options statement would be available to the public upon request, would
be summarized in the notice, if appropriate, would be distributed to
members of the relevant APs, and would be made available at any public
scoping meetings.
c. AP meeting. NMFS would consult during Phase 1 with the relevant
AP and other affected Federal agencies (e.g., U.S.G.C. or the U.S.
Customs Service). Consultation with the AP would take place in an AP
meeting, called by NMFS and open to the public. This meeting would
focus on concepts, issues, and management options. Documents would be
provided to the AP in a timely manner and would generally include the
draft issues/options statement. After reviewing comments from the AP,
NMFS would revise documents as necessary prior to their preparation for
public review and comment. The views and comments of the AP would be
part of the permanent official administrative record supporting the
development and implementation of the subject HMS FMP or FMP amendment.
d. Scoping meetings. At least one scoping meeting would be held
during Phase 1. The objectives of the scoping meeting(s) would be to:
(1) Allow NMFS representatives to meet directly with the fishery
interests; (2) review the draft issues/option statement in a public
forum so that each fishery interest is aware of NMFS' views, as well as
those of other interests; (3) provide all fishery interests an equal
and early opportunity to present their views; and (4) encourage
discussion of any mutual concerns relevant to the management of the
fishery.
Scoping meetings would be initiated by NMFS, would be open to the
public, and would be announced and scheduled at times and places
considered convenient for fishery interests. The date, location, and
time of each scoping meeting would be announced to the public by timely
Federal Register notice and directly by NMFS over its FAX NETWORK.
2. Phase 2--Preparation of Draft Documents; Initial Review by
Consulting Parties
Draft FMPs or amendments would contain all provisions required by
16 U.S.C. 1853 and 1854 and would comply with all other Magnuson-
Stevens Act requirements.
The following objectives of Phase 2 have been identified: (1) To
review and consider comments submitted by the AP and the public at the
scoping meetings, and to prepare and distribute a revised issues/
options statement; and (2) to prepare all draft documents required for
regulatory actions to implement or amend an HMS FMP under the Magnuson-
Stevens Act and other applicable law;
a. Prepare draft documents. The draft documents that would be
prepared in Phase 2 could include the following and would be circulated
to all Consulting Parties. An AP meeting would be held during this
phase to assess comments from the Consulting Parties and recommend
revisions of the following draft documents:
1. Draft FMP or FMP amendment: The draft FMP or FMP amendment and
supporting analyses would examine fully all appropriate fishery issues,
propose alternative management measures to address the identified
fishery issues or problems, assess the environmental, economic, and
social impacts of each alternative measure, and could identify the
preferred measures. Finally, the FMP or amendment would identify
research and information priorities, including observer requirements
and necessary data collection and analysis, for managing the fishery of
concern.
2. Draft proposed regulations: Only draft proposed regulations
would be prepared in Phase 2 as opposed to formal proposed regulations
consisting of both preamble and regulatory text, which would be
prepared and published in Phase 3.
3. Draft NEPA documents (EA, Draft EIS (DEIS), or DSEIS; Draft
Regulatory Impact Review (DRIR); and Initial Regulatory Flexibility
Analysis (IRFA) if applicable;
4. Draft statement assessing nature and effectiveness of management
measures for implementing the ICCAT recommendations;
5. Draft SF-83I and supporting statement for approval of
information-collection requirements under the Paperwork Reduction Act.
6. Draft section 7 consultation under the Endangered Species Act;
7. Initial consistency determination under the Coastal Zone
Management Act; and
8. Other documents as may be required.
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3. Phase 3--Preparation of Revised Documents and Proposed Regulations;
Public Review and Comment Period of the Proposed FMP/Amendment and
Proposed Rule
The following objectives have been identified for Phase 3: (1)
Consider and evaluate all comments received during the public review
and comment periods of Phase 2; (2) make necessary changes in preparing
``revised'' documents; (3) prepare proposed regulations for
implementing the FMP or amendment that accurately reflect the contents
of the revised FMP or amendment and other revised documents and that
meet all regulatory requirements necessary for publication in the
Federal Register; (4) provide a formal period for public review and
comment on the FMP or amendment and the proposed implementing
regulations, as published in the Federal Register; and (5) hold an AP
meeting to discuss previously submitted public comments.
Notice of availability to the public and proposed regulations
published. NMFS would publish in the Federal Register for public review
and comment: (1) The notice of availability of the revised FMP or
amendment and other revised supporting documents for public review and
comment; (2) proposed regulations to implement the FMP or amendment;
and (3) notice of any scheduled public hearings, if additional hearings
are held.
The Phase 3 period for public comment for the FMP or amendment,
proposed regulations, and revised supporting documents would be 60
days. The comment period on proposed regulations that are minor
revisions to existing regulations could be less than 60 days. If
significant changes are made in the revised FMP or amendment over the
draft documents, or if significant new issues are addressed, additional
public hearings could be held.
AP meetings. The relevant AP would meet just prior to the close of
the public comment period. The purpose of this meeting would be to
consider comments received during the comment period and to make
recommendations to NMFS in preparation for final rulemaking.
A notice of scheduled public hearings would be published in advance
in the Federal Register. Public hearings would be held on the draft FMP
or FMP amendment, draft supporting documents, draft NEPA documents
(D(S)EIS or EA), and proposed regulations. Hearings would be conducted
at appropriate times and in appropriate locations in the geographical
areas concerned so as to allow all interested persons to be heard. A
NMFS official would preside over these hearings and receive the public
testimony that would be recorded and become part of the administrative
record.
Comment periods for each document are summarized in the following
table:
Draft FMP/Amend........................... 60-90 days.
EA........................................ 45-60 days.
D(S)EIS................................... 45-60 days.
Proposed Regulations...................... 60 days, unless minor
revisions.
As a matter of standard agency practice, NMFS would not respond to
or address public comments received during Phase 2 on an individual
basis unless such comments are on the D(S)EIS, in which case the
F(S)EIS will respond to any comments. All comments received in Phase 2
would be considered carefully and evaluated by NMFS during Phase 3 in
preparing the revised FMP or FMP amendment, revised supporting
documents, the draft F(S)EIS, and proposed implementing regulations.
The review period for a D(S)EIS would be initiated by a formal
filing of the D(S)EIS with the U.S. Environmental Protection Agency
(EPA), which would also publish a Federal Register notice of the
availability of the D(S)EIS for public review and comment.
NMFS would prepare these revised documents based upon review and
evaluation of comments from Consulting Parties and the AP received
during Phase 2. The revised documents would contain NMFS' preferred
proposed management measures and the requisite analyses of expected
biological, economic, and social impacts. Revised documents would be
subject to all appropriate agency and Federal standards for approval
and implementation of final FMPs and FMP amendments.
4. Phase 4--Preparation of Final Documents and Final Regulations
The objectives of Phase 4 would be to: (1) Consider and evaluate
all comments received during Phase 3, including those of the AP; (2)
determine what final changes are necessary in all final documents; (3)
prepare the final documents; and (4) complete all final agency
requirements of documentation and regulatory procedure supporting the
Phase 5 actions.
If a D(S)EIS was prepared and subjected to public review and
comment in Phase 3, a draft F(S)EIS would be prepared in Phase 4. This
draft F(S)EIS should meet all legal requirements for an F(S)EIS even
though it would not be filed with EPA and subjected to the final NEPA
review (cooling-off period) until Phase 5.
Documents To Be Prepared and Document Contents.
(1) The final FMP or amendment, all final supporting documents;
(2) The final F(S)EIS or EA; and
(3) The final implementing regulations in appropriate form for
approval, issuance, and implementation. The documents to be prepared in
final form during Phase 4 would include all those listed as revised (or
draft in the case of the F(S)EIS) under Phase 3.
Based on the public comments received during Phase 3, NMFS could
make changes in the FMP or FMP amendment management measures and
corresponding analyses of environmental, economic, and social impacts.
NMFS would not communicate with fishery interests or members of the
public on the rulemaking during Phase 4, except to provide FMP or
amendment status information. Furthermore, NMFS would not make public
its decisions regarding the contents of a final FMP or FMP amendment,
final supporting documents, and final implementing regulations until
the Assistant Administrator has approved and issued the FMP or
amendment publicly (see Phase 5) and filed the implementing final
regulations with the Office of the Federal Register.
NMFS may hold consultations in Phase 4 under special circumstances,
particularly if ICCAT recommendations are to be implemented through the
FMP or amendment and the public comments received during Phase 3 have
raised new, significant or problematic issues.
5. Phase 5--Approval and Implementation
The following objectives have been identified for Phase 5: (1) File
the F(S)EIS with EPA and complete the final NEPA public review period
prior to final agency action to approve and implement the FMP or
amendment; (2) approve and issue the final FMP or amendment; and (3)
implement the FMP by final regulations.
Approval procedures and timing. Any F(S)EIS prepared for a final
FMP or amendment would be filed with EPA prior to the Assistant
Administrator's final approval and issuance of such FMP or amendment.
As required by the CEQ regulations implementing NEPA, no final agency
decision (here the issuance of an FMP, amendment, or a final rule where
no FMP is involved) would be made until the later of either 90 days
after publication of the notice of availability of the D(S)EIS or 30
days
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after publication of the notice of availability of the F(S)EIS.
Approval of the final FMP or amendment and implementing final
regulations by the Assistant Administrator, as well as clearance of the
final regulations by the Department of Commerce and the Office of
Management and Budget for promulgation and publication in the Federal
Register, would follow standard NOAA and Departmental procedures. The
Magnuson-Stevens Act requires that the final regulations must be
promulgated within 30 days of the end of the comment period on the
proposed regulations.
6. Phase 6--Continuing and Contingency Fishery Management
Once an FMP for a HMS has been approved and implemented by final
regulations, there would be a continuing need for monitoring the
fishery and the effectiveness of the FMP and undertaking necessary FMP
adjustments. Such adjustments would respond to changing fishery or
resource conditions and, for certain fisheries, respond to
international management actions and recommendations. These actions
collectively comprise the ``continuing fishery management phase.'' The
AP would be convened whenever necessary to address continuing fishery
management issues and to consider necessary actions.
It is anticipated that many of these FMP changes would be made
through framework regulatory adjustment measures incorporated in each
FMP; accordingly, it should not be necessary to repeat the full FMP
amendment process outlined in this notice each time a change in the
regulations is required. As examples, annual changes in quotas based
upon the latest stock assessment or the latest ICCAT recommendations
and in-season regulatory adjustments could be made through framework
measures (see discussion below).
Management adjustments would be based upon the latest and best
available scientific information concerning the stock and fishery.
Under 50 CFR 600.315, NMFS has the responsibility to assure that an
annual Stock Assessment and Fishery Evaluation (SAFE) report is
prepared, reviewed annually, and changed as necessary for each FMP. The
SAFE report would summarize the most recent biological conditions of
the managed species, as well as the social and economic conditions of
the recreational and commercial fishing sectors and fish processing
industries. The SAFE report would also provide a basis for determining
annual harvest levels, documenting significant trends or changes in the
resource and fishery over time, assessing the effectiveness of the
management program, identifying required management adjustments, and
identifying fishery data needs.
(a) Framework management measures. To the extent possible, NMFS/
NOAA intends to include within each HMS FMP framework regulatory
adjustment procedures that facilitate making annual and in-season
changes in management measure under conditions requiring ``real time''
regulatory responses to fishery circumstances. If ICCAT recommends new
fishery management measures or changes in existing measures for a
fishery managed under an implemented FMP, NMFS would consider such
recommendations and, if consistent with the requirements of both the
Magnuson-Stevens Act and ATCA, incorporate them in the FMP and
implementing regulations. It is anticipated that the regulatory
framework mechanism in each FMP would provide the authority for most
such periodic changes in management measures. The framework procedures
would allow adjustments to the management measures within the scope and
criteria established by the FMP and in a more expeditious manner than
through the full FMP amendment process. Framework measures would be
particularly useful where annual ICCAT recommendations for a fishery
must be implemented within a short time period.
It is anticipated that an FMP with framework measures may initially
take longer to prepare since it must: (1) Anticipate and describe
situations expected to occur; (2) establish criteria, procedures, and
limits for regulatory actions; (3) allow for public comment on the
range of potential actions, if identifiable, and on the degree of
regulatory discretion held by the Secretary; and (4) provide
documentation to support the framework under other applicable law. It
is noted that framework measures alone do not satisfy statutory
requirements of the Magnuson-Stevens Act, other applicable law, and
Executive Orders. These requirements include full analyses of expected
environmental effects of regulatory actions under framework provisions,
and the opportunity for public review and comment.
(b) Emergency actions. Pursuant to 16 U.S.C. 1855(c), the Secretary
may promulgate emergency or interim regulations to address an emergency
existing in any fishery without regard to whether an FMP exists for the
fishery. The Secretary also may promulgate interim measures to reduce
overfishing for any fishery. Emergency or interim regulations that
change any existing FMP or amendment shall be treated as an amendment
to such FMP or FMP amendment for the duration of the emergency period.
The Secretary may implement emergency or interim regulations for HMS
for up to 180 consecutive days from the date of publication of the
emergency rule in the Federal Register and for one additional period of
not more than 180 days, provided the public has had an opportunity to
comment on the emergency regulations or interim measures. Prior to
promulgating emergency or interim regulations for the HMS with which
ICCAT is concerned, the Secretary would consult with the appropriate
entities.
D. Regulations Implementing ICCAT Recommendations Without an FMP
The ATCA authorizes the Secretary to promulgate regulations as may
be necessary and appropriate to carry out ICCAT recommendations under
16 U.S.C. 971d(c) upon favorable action by the Secretary of State under
16 U.S.C. 971c(a). Section 971d(c) requires the Secretary to: (1)
Publish a general notice of proposed rulemaking in the Federal
Register, and (2) afford interested persons an opportunity to
participate in the rulemaking process through submission of written
data, views, or arguments and through one or more public hearings.
In the event that the Secretary must implement ICCAT
recommendations when no FMP has been prepared or would not be prepared
in sufficient time NMFS would inform the Secretary of State regarding
the actions considered appropriate for the United States with regard to
ICCAT recommendations within 5 months of ICCAT's notifying the United
States of its recommendations. NMFS would publish a proposed rule in
the Federal Register to implement ICCAT recommendations and would
provide a public review and comment period, including one or more
public hearings. The proposed regulations would contain a statement of
the considerations involved in issuing the regulations, a statement
assessing the nature and effectiveness of the measures for implementing
the recommendations of ICCAT that are being or will be carried out by
other countries whose vessels fish for the subject species in the ATCA.
NMFS would consider the public comments before publishing final
regulations in the Federal Register and would summarize and respond to
these comments in the preamble of the final rule. The final regulations
generally
[[Page 48995]]
would become effective 30 days after the date of filing for public
inspection with the Office of the Federal Register, and will be
applicable to all vessels and individuals subject to U.S. jurisdiction
on the date prescribed by NMFS.
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
Because this is a document concerning agency procedure or practice,
under 5 U.S.C. 553(b)(B) prior notice and opportunity for public
comment is not required to be given. Nevertheless, because NMFS wishes
to establish revised procedures with the benefit of the public's
comment, NMFS is voluntarily giving prior notice and an opportunity for
public comment.
Because prior notice and opportunity for public comment is not
required by 5 U.S.C. 553, or by any other law, the analytical
requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
are inapplicable.
These proposed guidelines contain no new collection of information
requirements.
Dated: September 12, 1997.
David L. Evans,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 97-24809 Filed 9-15-97; 4:37 pm]
BILLING CODE 3510-22-P
