Administrative Procedures Applicable to the Management of Highly Migratory Species

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]

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