.

D. PHASE III: PUBLIC REVIEW AND COUNCIL ADOPTION

Background

This phase involves the review of the draft FMP and other related documents (draft NEPA documents, draft RIR, IRFA, including ESA analysis) by the public and NOAA/NMFS, the transformation of the draft FMP to a final FMP, and the adoption of the FMP by the Council. Councils must identify the preferred alternative to address the identified problems (see Sections 5.1 and 5.2).

Public hearings, as required under the Magnuson-Stevens Act, are conducted during this phase. A regularly scheduled Council meeting may be used to schedule public hearings. NMFS participates as necessary under NEPA and RFA, as requested by the Council. Councils must conduct public hearings at appropriate times and locations so as to allow interested persons to be heard during FMP preparation. The number of hearings will vary from fishery to fishery, depending on the level of public interest and the issues considered.

Because the management measures as expressed in the regulations represent the essence of an FMP's intended effect, early familiarity with these regulations will avoid misunderstandings by the public and by government reviewers. Councils are particularly urged to work with the RA and GCRA to have draft proposed regulations for each significant alternative available to the public and to submit them for NMFS informal review at the earliest possible time.

Once NMFS has determined that all necessary components of the draft FMP package have been completed by the Council, NMFS will begin its informal advance review of all draft documents. If a DEIS is required, NMFS will determine whether the DEIS is adequate for filing. If the DEIS is determined to be inadequate, it will be returned to the Council by the RA, identifying the deficiencies and suggesting modifications. If an EA will satisfy NEPA requirements, the draft EA will be reviewed and commented on by NMFS as part of the draft FMP/amendment package.

Once the Notice of Availability of the DEIS is published by EPA, NMFS will provide the Council with comments (by letter from the RA, including critical and substantive issues) by the 60th day after the start of the public review period for the DEIS. If the action does not involve filing of an EIS and subsequent public review, NMFS will provide comments by the 60th day after the draft FMP/amendment package is distributed to Regional and HQ reviewers. For those FMPs/amendments that involve complex issues comprising establishment of new policy, drafting legal opinions, or resolving substantive internal differences of opinion, comments may occasionally be delayed beyond the 60th day. However, 60 days for NMFS review and comment is a reasonable maximum time period to accomplish all the actions involved, and is an investment of time that should help to avoid substantive difficulties once the formal review period has begun. However, a Council has the option of requesting NMFS consultation and/or advance review of its draft FMP/amendment and associated documents prior to public hearings.


Event Schedule

III-1. Council submits draft package to Region and F/SF3. Package should include the following elements, some of which may be combined:

a. D(S)EIS/EA (50 copies);

b. Draft FMP/amendment (50 copies);

c. Draft RIR, including IRFA if applicable (20 copies);

d. Draft discussion and supporting statement for new or revised recordkeeping/reporting requirements (6 copies);

e. Draft proposed regulations, including preamble (6 copies); and

f. Source documents, if any (4 copies).

III-2. Region, GCRA/GCF, and F/SF3 begin review of draft package for critical and substantive issues, including ESA, and adequacy of supporting analytic documents. F/SF3 coordinates review with HQ, NOAA, and other agencies, as appropriate. F/SF provides a consolidated Office comment to RA; individual reviewer's comments are provided to the Region as available. If the DEIS is acceptable, F/SF3 prepares necessary transmittal letters (including letter to agencies and public groups), obtains OP/SP final clearance, and files the DEIS with EPA. F/SF3 provides the Council with filing, publication, and comment period information and the original signed letter. The Council distributes the DEIS (with the letter to agencies and public groups) concurrent with EPA filing. EPA publishes the Notice of Availability of the DEIS in the FR. The Council schedules public hearings and, through F/SF, publishes the Notice of Hearings in the FR.

III-3. Region prepares draft issues letter from the RA to the Council, and sends a copy to F/SF3 for review.

III-4. Region calls joint issues meeting with F/SF, GCRA, and GCF (in person or by conference call), if necessary, using the draft issues letter as a focus, and attempt to resolve differences, if any. If significant differences are not resolved, F/SF3 prepares a comment memo to the Region. F/SF3 informally transmits any technical comments to the Region.

III-5. Region revises draft issues letter to the Council, based on (a) the issues meeting, (b) any F/SF comment memo, and (c) technical comments. Region transmits the revised draft issues letter to F/SF for concurrence.

III-6. F/SF3 reviews the revised issues letter. If F/SF concurs, it notifies the Region. If F/SF does not concur, F/SF3 prepares a dissent memo (F/SF3 to F/SF), and transmits it, with the draft issues letter, to F/SF for resolution of differences. F/SF reviews the documents; confers with RA, GCF, and F/SF3, as necessary, advises of HQ position on issues, and informs the RA.

III-7. Region prepares the final issues letter to the Council, with a copy to F/SF and F/SF3. The target date for Council to receive the issues letter is 60 days after publication of the DEIS Notice of Availability, or, if there is no EIS, 60 days after the starting date of HQ and Regional review of the draft package.

III-8. If endangered or threatened species or critical habitat may be affected, NMFS consults with itself and/or FWS, depending on the species involved. The Council receives an informal consultation letter or biological opinion from NMFS and/or FWS.

III-9. Council revises FMP/amendment, NEPA document, and regulations, as appropriate, adopts by Council vote, and submits them for formal Secretarial review. If the Council's revision to the preferred alternative identified for public hearings is substantive, and may or will differ in context or intensity from the alternatives that were analyzed and subjected to public comment, a revised DEIS or DSEIS, with the required comment period, may be necessary (see Background above). Another vote by the Council would then be necessary. The Council is encouraged to submit the draft proposed rule to the RA for an informal review prior to submission of the FMP/amendment package for formal Secretarial review. The Council advises state(s) with approved coastal management programs whether the proposed management activity will affect any land or water use or natural resource of the coastal zone. Copies of the letter(s) to the state(s) and responses, if any, will be included in the submission of documents to the RA for Phase IV.

Regulatory Streamlining - Operational Guidelines