Reviewing Environmental Impact Statements
for Fishery Management Plans
U.S. Environmental Protection Agency, Office of Federal Activities
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Reviewing Environmental Impact Statements for Fishery
Management Plans
Final Guidance
Prepared for:
Office of Federal Activities
U.S. Environmental Protection Agency
Ariel Rios Building (MC 2252A)
1 200 Pennsylvania Ave., N.W.
Washington, DC 20460
September 2005
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DISCLAIMER
The mention of company or product names is not to be considered an endorsement by the U.S.
Government or by the Environmental Protection Agency (EPA). This document was prepared with the
technical assistance of Labat-Anderson, Inc. (LABAT), under subcontract to Gannett Fleming, Inc., in
partial fulfillment of EPA Contract 68-W-03-029, Task Order 0008.
This guidance is intended to improve the internal management of EPA's review of environmental
documents, including Environmental Impact Statements (EISs) for fishery management plans (FMPs) and
FMP Amendments as these relate to EPA reviews made under Section 309 of the Clean Air Act. As such,
this is not a regulation. It does not create any right, benefit, or trust obligation either substantive or
procedural, enforceable by any person, or entity in any court against the agency, its officers, or any other
person. EPA's compliance with this guidance is not judicially reviewable. EPA may elect not to follow
this guidance as circumstances warrant and may revise it in the future.
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Reviewing Environmental Impact Statements for Fishery Management Plans
TABLE OF CONTENTS
SECTION TITLE PAGE NUMBER
Table of Contents i
PREFACE v
SECTION 1 — Introduction and Overview 1
1.1 EPA's Role and Authority; Why Does EPA Review FMP EISs? 1
1.1.1 Clean Air Act 1
1.1.2 Clean Water Act 3
1.2 Overview and Authority for Fishery Management Plans 4
1.3 Purpose of Guidance 5
SECTION 2 - Fishery Management Plans - Process and Requirements Under MSA 9
2.1 Regulatory Actions 9
2.1.1 Fishery Management Plans 9
2.1.1.1 National Standards for Fishery Conservation and
Management 10
2.1.1.2 FMP Content Requirements — Required Provisions 12
2.1.1.3 FMP Content Requirements — Discretionary Provisions 13
2.1.2 FMP Amendments (Amendments) 14
2.1.3 Framework Measures and Actions 15
2.1.4 Regulatory Amendments and Emergency and Interim Actions 17
2.2 Regulatory Process - Roles and Responsibilities and Steps in the Process 18
2.2.1 FMPs/Amendments and NEPA 19
2.2.2 Approaches to Preparing EISs and EAs for FMPs/Amendments 20
2.2.3 Roles and Responsibilities 21
2.2.3.1 Fishery Management Councils 26
2.2.3.2 NMFS/NOAA/Secretary of Commerce/General Counsel 27
2.2.3.3 EPA 30
2.2.4 FMP/Amendment Process - Phases and Steps 38
2.2.4.1 Phase I: Planning 38
2.2.4.2 Phase II: Preparation of Draft Documents 40
2.2.4.3 Phase III: Public Review of Draft Documents, Filing Draft
EIS/SEIS for Public Review; and Council Preparation and
Adoption of Final Documents 41
2.2.4.4 Phase IV: Secretarial Review and Approval/Disapproval
of Final FMP/Amendment; Filing Final EIS/SEIS for Public
Review; Proposed and Final Regulations for the
FMP/Amendment 43
2.2.4.5 Phase V: Continuing Fishery Management 45
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2.2.5 Future Direction 45
SECTION 3 - Fisheries Issues in NEPA Documents 49
3.1 Bycatch 51
3.2 Essential Fish Habitat 53
3.2.1 General 53
3.2.2 Mandatory contents — Description and Identification of EFH 55
3.3 Protected Species 56
3.4 Water Quality 61
3.5 Subsistence and Indigenous Fishing 61
3.6 Ecosystem-based Management Approach 62
3.7 Science of Fishery Management 65
3.8 Data Needs including Incomplete and Unavailable Information 67
3.9 Readability 68
SECTION 4 - Writing EPA Comment Letters 69
4.1 Commenting on Fishery Management in Section 309 letters 69
4.2 Checklist for Conducting Section 309 Reviews of FMP/Amendment Draft EISs .... 70
4.2.1 Notice of Intent 70
4.2.2 Purpose and Need 71
4.2.3 Alternatives 72
4.2.4 Affected Environment 76
4.2.5 Environmental Impacts 77
4.2.6 Mitigation 82
4.2.7 Procedural 84
SECTION 5 - Resources 87
5.1 Points of Contact 87
5.2 Recommended Reading and Websites 93
SECTION 6 - Bibliography 1 03
SECTION 7 - Acronyms/Glossary 1 09
LIST OF TABLES AND FIGURES
Tables
Table 2-1 Comparison of Roles and Responsibilities 34
Figures
Figure 1 -1 Guidance Roadmap 6
Figure 2-1 Comparison of the FMP/Amendment and NEPA Processes 22
Figure 3-1 Ecological Impacts of Fishing 50
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APPENDICES 125
Appendix A — Regional Council FMPs and Amendments 127
Appendix B - Other Fishery Management Authorities 131
Appendix C - Related Statutes and Executive Orders 135
Appendix D - Essential Fish Habitat (EFH) 137
Appendix E — Fishing Gear Descriptions 141
Appendix F-NAO 21 6-6 147
INDEX 219
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PREFACE
This document is designed to provide guidance for U.S. Environmental Protection Agency (EPA) reviewers
responsible for the review of Draft and Final Environmental Impact Statements (EISs) prepared for Fishery
Management Plans (FMPs) and FMP Amendments (Amendments) by the National Marine Fisheries
Service (NMFS), which is part of the National Oceanic and Atmospheric Administration (NOAA). The
FMPs and Amendments are prepared under the authority of the Magnuson-Stevens Fishery Conservation
and Management Act. The EISs for FMPs and Amendments are prepared by NMFS and Regional Fishery
Management Councils in accordance with the National Environmental Policy Act (NEPA), Council on
Environmental Quality regulations, and NOAA Administrative Order 21 6-6. EPA's review of EISs is in
accordance with Section 309 of the Clean Air Act.
This document was prepared with the technical assistance of Labat-Anderson, Inc. (LABAT), under
subcontract to Gannett Fleming, Inc., prime contractor to EPA's Office of Federal Activities, as a tool to
assist EPA reviewers when reviewing and developing comment letters on EISs for FMPs/Amendments; it
has been reviewed by NOAA. NOAA Counsel has reviewed this document and states it is accurate with
respect to its description of NOAA's statutes and regulations. This guidance should be considered a
work in progress that we expect to revise from time to time to address additional issues and, as necessary,
to reflect any new policies, regulations and judicial determinations. We encourage yoursuggestions and
feedback to improve the usefulness of the guidance.
Note that references to relevant websites are provided throughout this document. While the internet
citations (uniform resource locators, or URLs) were accurate at the time the data were collected, websites
change frequently due to changes in data availability or reorganization. The cited URLs may not work
in the future. If this occurs, "backing up" to a less specific web address may allow retrieval of the
information.
Office of Federal Activities
U.S. Environmental Protection Agency
Washington, DC
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SECTION 1
Introduction and Overview
1.1 EPA's Role and Authority: Why does EPA review FMP EISs?
The United States (U.S.) Environmental
Protection Agency (EPA) has a responsibility to
review and comment on major Federal actions
significantly affecting the quality of the human
environment, including Fishery Management
Plans (FMPs) and FMP Amendments
(Amendments) as developed, approved, and
implemented under the Magnuson-Stevens
Fishery Conservation and Management Act
(MSA) where those Plans and Amendments are
subject to the environmental impact statement
(EIS) requirement of the National Environmental
Policy Act (NEPA). EPA's review and comment
also helps to further the goals of several other
achieve "fishable" waters wherever attainable.
FMP Amendments
Once an FMP has been approved and implemented,
continuing management of the subject fishery involves
monitoring the fishery, evaluating new information,
and adjusting the management program through
changes to the FMP and/or to its implementing
regulations. In continuing fishery management,
program changes may be accomplished by amending
an FMP and implementing the FMP Amendment's
measures through final regulations. See Section
2.1.2.
statutes, including the goal of the Clean Water Act to
1.1.1 Clean Air Act
Section 309 of the Clean Air Act, as amended in 1970 (42 U.S.C. 7609, Public Law 91-604 12(a), 84
Stat. 1 709), directs the EPA to review certain proposed actions of other Federal agencies in accordance
with NEPA and to make those reviews available to the public. If EPA determines a matter is
environmentally unsatisfactory, EPA must refer the matter to the President's Council on Environmental
Quality (CEQ).
NEPA, as amended (42 U.S.C. 4321 ef seq., Public Law 91-190, 83 Stat. 852), and the CEQ
regulations implementing NEPA, require that a Federal agency proposing legislation and other major
actions significantly affecting the quality of the human environment, obtain comments from any other
Federal agency having jurisdiction by law or special expertise with respect to any environmental impact
involved, and thereafter prepare a detailed statement of these environmental effects (see 40 C.F.R.
1503.1).
Section 309 places an additional requirement to review EISs upon EPA because NEPA "does not assure
that Federal environmental agencies will effectively participate in the decision-making process. It is
essential that mission-oriented Federal agencies have access to environmental expertise in order to give
adequate consideration to environmental factors." (Sen. Rept. No. 91 -11 96, 91st Congress, 2nd Sess.
43, 1970).
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Section 309 confers upon EPA broad review responsibilities for proposed Federal actions. The EPA
Administrator delegates this responsibility to the Office of Federal Activities (OFA), and to the ten EPA
Regional Administrators for review of regional specific actions. OFA has developed a set of criteria for
rating draft EISs. The rating system provides a basis upon which EPA makes recommendations to the
lead agency for improving the draft. If EPA determines a matter continues to be environmentally
unsatisfactory, EPA must refer the final EIS to CEQ.
The Clean Air ActSection 309, Section 7609. Policy
Review.
"(a)The Administrator shall review and comment in
writing on the environmental impact of any matter
relating to duties and responsibilities granted pursuant
to this act or other provisions of the authority of the
Administrator, contained in any (l)legislation
proposed by any Federal department or agency, (2)
newly authorized Federal projects for construction and
any major Federal agency action (other than a project
for construction) to which section 102(2)(C) of Public
Law 91-190 I*] applies, and (3) proposed regulations
published by any department or agency of the Federal
Government. Such written comment shall be made
public at the conclusion of any such review.
(b) In the event the Administrator determines any
such legislation, action, or regulation is unsatisfactory
from the standpoint of public health, welfare, or
environmental quality, he shall publish his
determination and the matter shall be referred to the
Council on Environmental Quality."
[*] NEPA (42 U.S.C. 4332(2)(C) et seq.)
decisions for fisheries management.
Annually, OFA and its regional counterparts review
about 500 EISs and some 2,000 other actions. In
addition to conducting environmental reviews,
OFA develops guidance materials and provides
training courses on NEPA and Section 309
requirements for EPA regional staff, and promotes
coordination between EPA offices and other
Federal agencies.
EPA conducts Section 309 reviews consistent with
its Policy and Procedures for the Review of Federal
Actions Impacting the Environment (EPA 1984).
EPA recognizes that fisheries management and
associated regulatory processes are complex. EPA
further recognizes that ultimate responsibility lies
with the Department of Commerce (DOC), acting
through the National Oceanic and Atmospheric
Administration's (NOAA's) National Marine
Fisheries Service (NMFS), also known as NOAA
Fisheries.1 However, EPA has a unique
opportunity, through its NEPA and Section 309
obligations, to support NMFS in this effort.
FMP/Amendment EISs, when developed in the spirit
of NEPA, can facilitate meaningful and holistic
EPA's involvement at the early planning and scoping stages is strongly encouraged in its Policy and
Procedures (EPA 1984) to help provide a clearer understanding of the issues involved, support the
development of appropriate alternatives, help ensure that the analysis considers all direct, indirect and
cumulative impacts, and identify appropriate mitigation where needed.
The terms "NMFS" and "NOAA Fisheries" are synonymous and both appear throughout the literature, including
FMP/Amendment EISs; however, only NMFS is used in this guidance document.
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EPA's review responsibilities also provide an opportunity to establish effective working relationships with
their NEPA counterparts at NMFS and NOAA and within the Fishery Management Councils. As a result,
EPA's contributions can be numerous and valuable, including:
• Participating in interagency coordination early in the planning and scoping process to identify
significant environmental issues;
• Defining issues or identify sources of information;
• Identifying conflicts with protected marine species and fishing activities;
• Supporting full incorporation of conservation and environmental protection goals;
• Supporting an ecosystem-based management approach to fisheries management, where
appropriate;
• Supporting better decision-making; and
• Supporting streamlining of the FMP/Amendment NEPA process.
Section 2.2.3.3 provides additional detail on EPA's role in the FMP/Amendment EIS process, and Section
4 includes a discussion on the areas upon which EPA typically focuses in its reviews of FMP/Amendment
EISs.
1.1.2 Clean Water Act
The Clean Water Act (33 U.S.C. 1251-1387) sets forth as an objective of the Act to "restore and
maintain the chemical, physical, and biological integrity of the Nation's waters" and also sets forth as
a goal of the Act to provide for the protection and propagation of fish, shellfish and wildlife wherever
attainable (Section 1 01 (a)(2)). The Clean Water Act authorizes EPA to, among other actions, conduct
water quality and pollution research, provide grants for sewage treatment facilities, promulgate
technology-based requirements, issue water quality criteria guidance, and establish water quality
standards. The Act also establishes the National Estuary Program (NEP) which focuses on improving
water quality in an estuary. For point source discharges of pollutants, the Act establishes a permitting
program to regulate discharges to waters of the U.S., including discharges to ocean waters. There also
is a permitting program for discharges of dredge and fill material to waters of the U.S., including
wetlands. Wetlands are a vital component of ecosystems for many of the fish species considered in
FMP/Amendments. NMFS provides direct consultation to the EPA and the U.S. Army Corps of Engineers
as to the impacts of proposed activities on living marine resources and the methods for avoiding such
impacts.
While fishing and fishery management activities may have only minimal (if any) impact on water quality,
to the extent that adverse water quality effects do occur, EPA reviewers should consider, evaluate, and,
as appropriate, comment on the water quality aspects of fishery management activities. Section 3.4
includes a discussion of water quality concerns in fisheries management.
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Reviewing Environmental Impact Statements for Fishery Management Plans
1.2 Overview and Authority for Fishery Management Plans
Exclusive Economic Zone (EEZ)
"zone established by Presidential Proclamation 5030,
3 C.F.R. part 22, dated March 10, 1 983, and is that
area adjacent to the United States which, except where
modified to accommodate international boundaries,
encompasses all waters from the seaward boundary of
each of the coastal states to a line on which each
point is 200 nautical miles (370.40 km) from the
baseline from which the territorial sea of the United
States is measured."
50 C.F.R. 600.10
The MSA is the principle Federal statute
providing for management of the U.S. marine
fisheries. Originally enacted in 1976 as the
Fishery Conservation and Management Act
(Public Law 94-265), it established the first
Federal system to govern fishing within the
newly-declared 200-mile exclusive economic
zone (EEZ). This management system
established eight Regional Fishery Management
Councils (Councils) charged with developing
FMPs/Amendments based, in part, on scientific
information provided by NMFS. The Councils
submit their recommended FMPs/Amendments
to NMFS, acting on behalf of the Secretary of
Commerce (Secretary), for review, approval, and implementation by regulations. MSA's fishery
management system was established to meet the goals of conserving fishery resources and promoting
the U.S. commercial and recreational fishing industry. Under a set of statutory standards, the Councils
were tasked to make major management recommendations, such as the size of the allowable catch, the
length of the fishing season, the allocation of any quotas to states and fishers, and permitting and
licensing provisions. The MSA, along with a number of other factors (including Federal subsidies), led
to a rapid expansion of the U.S. fishing industry. By the early 1 990s, domestic landings had increased
five-fold since 1977, while foreign trawlers had virtually disappeared from U.S. coasts. This rapid
expansion of domestic fisheries has, in some cases, led to overfishing.
Passage of the Sustainable Fisheries Act (SFA) in 1 996, which amended the MSA, added new National
Standards concerning: (a) the minimization of bycatch to the extent practicable, and (b) the sustained
participation of fishing communities and the minimization, to the extent practicable, of adverse economic
effects on such communities. Also, the SFA established new requirements to rebuild overfished stocks
and to minimize, to the extent practicable, adverse effects on essential fish habitat (EFH) caused by
fishing.
Bycatch
"fish that are harvested in a fishery, but that are not sold or kept for personal use. Bycatch includes the
discard of whole fish at sea or elsewhere including economic discards and regulatory discards, and fishing
mortality due to an encounterwith fishing gear that does not result in capture offish (i.e., unobserved fishing
mortality)." (16 U.S.C. 1802(3) and 50 C.F.R. § 600.350(c)) Note that some bycatch species may be listed as
endangered and threatened under the Endangered Species Act.
Essential Fish Habitat (EFH)
"fhose wafers and suhsfrafe necessary fo fish for spawning, breeding, feeding, or growth to maturity."
16 U.S.C. 1802(10)
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Preparation of FMPs/Amendments (and supporting EISs) is authorized and guided by the following
documents:
• MSA, Section 301 (16 U.S.C. 1851), National Standards for Fishery Conservation and
Management: "Any fishery management plan ... shall be consistent with the [ten] national
standards for fishery conservation and management." The MSA also mandates the Secretary to
develop advisory guidelines to assist FMP development. NMFS has issued National Standards
Guidelines that serve primarily to interpret and aid compliance with the National Standards
(codifedatSOC.F.R. 600);
MSA, Section 303 (16 U.S.C. 1853), Contents of Fishery Management Plans. The MSA
mandates the development of FMPs as the primary responsibility of the Councils, although the
Secretary has authority to develop FMPs and Amendments for Highly Migratory Species (HMS)
(MSA Section 302(a)(3) and 304(g)) (see also Section 2.1). Section 303(a) of the MSA (16
U.S.C. 1853(a)) requires NMFS to include 14 provisions in an FMP or Amendment, whereas
section 303(b) of the MSA provides NMFS with the discretion to include 12 additional measures
in an FMP or Amendment. Some of the FMP provisions reflect, in some cases, competing
objectives which must be balanced in the course of decision-making.
• Operational Guidelines Fishery Management Process, National Marine Fisheries Service (Silver
Spring, MD), May 1, 1 997 (NMFS 1 997), with update Appendices May 11,1 998;
• Environmental Review Procedures for Implementing the National Environmental PolicyAct. NOAA
Administrative Order 21 6-6 (NAO 21 6-6), May 20, 1 999 (NOAA 1 999).
1.3 Purpose of Guidance
This guidance has been developed as a tool for EPA reviewers of EISs prepared only for those FMPs and
Amendments as developed, approved, and implemented under the MSA and managed by the eight
Councils and NMFS. It does not relate to plans prepared under state or regional interstate fishery
commission regulatory authority. The objectives of this guidance are to improve the quality of EPA Section
309 reviews of FMP/Amendment EISs, help ensure a more effective and efficient use of EPA's limited
staffing resources, and help ensure more consistent commentary across the Regions. The guidance also
may support NMFS in its ongoing efforts to streamline the regulatory process, reduce litigation, and
improve decision-making regarding the long-term sustainability of U.S. fisheries. By implementing its
NEPA responsibilities and commenting effectively on fishery management actions that impact our oceans
and marine ecosystem, EPA can help in the overall effort to support sustainable fisheries and protect our
marine resources.
This guidance includes important "tools" (e.g., glossary, acronyms, contacts, references) to support
reviewers in their review of the science (e.g., fishery biology) and impacts of fisheries management.
Appendices include additional information on the following topics: fisheries currently managed by the
eight Councils and NMFS and the FMPs/Amendments under which they are managed (Appendix A),
other fishery management authorities (Appendix B), related statutes and Executive Orders (E.O.s)
(Appendix C), EFH (Appendix D), and fishing gear descriptions (Appendix E); as well as a complete copy
of NMFS' Environmental Review Procedures for Implementing the National Environmental PolicyAct, NAO
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21 6-6 (Appendix F) for easy reference. Figure 1 -1 provides a roadmap with specific reference to where
in the guidance certain information can be found.
Figure 1 -1: Guidance Roadmap
WHERE DO 1 FIND INFORMATION ON...
Topic / Question
Related Guidance Section(s) / Table(s) / Figure(s)*
SUBJECT: Guidance Purpose
Why is this guidance document
important to EPA reviewers?
Section 1 .3 Purpose of Guidance
SUBJECT: Roles and Responsibilities of the FMP Development and Review Process
What is my role/
importance as a reviewer?
Who is responsible for each
step of the FMP development
and review(s) process?
Section 1.1 EPA's Role
Section 2.2.3 EPA (From Roles and Responsibilities, Section 2.2.3.1)
Section 2.2.3 Roles and Responsibilities
Table 2-1 Comparison of Roles and Responsibilities
Appendix B Other Fishery Management Authorities
SUBJECT: Fishery Management Plans (FMPs) Defined and FMP Development Process
Summary of the complete, overall
process of developing FMPs...
FMP purpose and
general contents...
Current FMP documents /
information per region...
Section 2 The Regulatory Framework
Section 2.2.4 FMP/Amendment Process - Phases and Steps
Figure 2-1 Comparison of the FMP/Amendment and NEPA Processes
Section 1 .2 Overview
Section 2.1 Regulatory Actions
Section 2.1 .1 Fishery Management Plans
Appendix A Regional Council FMPs and Amendments
SUBJECT: Federal Regulations and FMPs
How is NEPA involved with FMPs?
What are some of the related
Federal guidelines (e.g., statues,
executive orders) related to fisheries
management that 1 should consider
in my review/comments?
Section 1.1 EPA's Role
Section 1 .2 Overview
Section 2.2.1 FMPs/Amendments and NEPA
Section 2.2.2 Approaches to Preparing EISs and EAs for FMPs/Amendments
Section 2.2.3 EPA (From Roles and Responsibilities, Section 2.2.3.3)
Table 2-1 Comparison of Roles and Responsibilities
Section 3 Fishery Issues in NEPA Documents
Section 4.2 Section 309 Reviewer's Checklist of NEPA Compliance and
Environmental Issues
Section 2 FMPs - Process and Requirements under MSA
Section 2.1 Regulatory Actions, including MSA
Appendix C Related Statutes/Executive Orders
Appendix D Essential Fish Habitat
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WHERE DO 1 FIND INFORMATION ON...
Topic / Question
Related Guidance Section(s) /Table(s) / Figure(s)*
SUBJECT: Generating Comment Letters-Main Issues to Consider/Include and Examples
What are some of the related
environmental impacts 1 should
address during my review?
What are some of the main issues
that past reviewers [especially EPA
reviewers] have flagged during past
reviews of FMP EISs?
Where can 1 find examples of EPA
comments?
Section 3 Fishery Issues in NEPA Documents (Including sections on Bycatch,
Essential Fish Habitat, Protected Species, Water Quality, Subsistence
and Indigenous Fishing, and Ecosystem-based Management
Approach)
Section 3.7 Science of Fishery Management
Section 3.8 Data Needs/Incomplete or Unavailable Information
Section 3.9 Readability
Section 4 Writing EPA Comment Letters (Inclusive section that covers Purpose
and Need, alternatives, affected environment, impacts, mitigation)
Section 4.2.3 EPA Comments Concerning Alternatives
Section 4.2.5 Commenting on the Assessment of Impacts
Section 4.2.7 Procedural Issues
Section 4 Writing EPA Comment Letters
SUBJECT: Reading and Internet Resources on Technical, Scientific, and Legal Issues
1 need to find information on the
technical nature of what is described
in the FMP document...
1 need to find more information on
the scientific nature of what is
described in the FMP document...
1 need to find more information on
legal/litigation issues associated with
FMP documents...
Appendix E Fishing Gear Descriptions
Section 5.2 Recommended Reading and Websites (this section is categorized by
subject area)
Section 7 Acronyms/Glossary (for genera/ definitions)
Section 3.6 Science of Fisheries Management
Section 5.2 Recommended Reading and Websites (this section is categorized by
subject area)
Section 7 Acronyms/Glossary (for genera/ definitions)
Section 5.2 Recommended Reading and Websites (this section is categorized by
subject area; e.g., Laws and Regulations, Litigation,
Overview/Background)
SUBJECT: Points of Contact within EPA, Regional Councils, and NMFS
Who do 1 call for additional
information on any FMP topic?
Section 5.1 Points of Contact (sorted by Federal agency, Regional Fishery
Management Council, and other private organizations)
SUBJECT: Anticipated Future Trends
What is in store for the future?
Section 2.2.5 Future Direction
* Section(s) numbers, table(s), or figure(s) within this guidance document. Please refer to the Table of Contents for specific
page numbers
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SECTION 2
Fishery Management Plans - Process and
Requirements Under MSA
2.1 Regulatory Actions
The MSA provides the basic statutory framework for the protection, conservation and management of the
fishery resources found off the coast of the U.S. and the anadromous species and continental shelf fishery
resources of the U.S. It also extended U.S. jurisdiction over the fishery resources out to 200 miles
offshore from the three-mile seaward boundary of each of the coastal states (nine miles off Florida's Gulf
Coast, Texas, and Puerto Rico); and established eight Regional Councils, including the New England,
Mid-Atlantic, South Atlantic, Caribbean, Gulf of Mexico, Pacific, Western Pacific and North Pacific
Councils. Each Council has the authority and responsibility to recommend conservation and
management measures, through proposed FMPs/Amendments, for the ocean fisheries under its
jurisdiction. Once a Council prepares and adopts an FMP/Amendment as final, it submits the
FMP/Amendment to NMFS for Secretarial review, approval, and implementation. NMFS implements
approved FMP/Amendment measures by issuing appropriate regulations. NMFS, acting on behalf of
the Secretary, may approve, disapprove, or partially approve an FMP /Amendment submitted by a
Council for Secretarial review. Also, the MSA gives the Secretary emergency and interim rulemaking
authority (MSA section 305(c)) for all fisheries subject to management under the MSA, as well as specific
authority to develop and implement FMPs and Amendments for Atlantic HMS within the geographic area
of authority of more than one of the following Councils: New England, Mid-Atlantic, South Atlantic,
Caribbean, and Gulf of Mexico. HMS here refers to tuna species, marlin, oceanic sharks, sailfishes and
swordfish.
2.1.1 Fishery Management Plans
An FMP and its Amendments specify how a particular fishery (fish stocks and fishing for such stocks) will
be managed. An FMP/Amendment identifies important problems or issues in the fishery and specifies
conservation and management measures to address them. One of the primary objectives of
FMPs/Amendments is to achieve and maintain, on a continuing basis, the optimum yield from each
fishery. The optimum yield is that amount of fish from the fishery that will provide the greatest overall
benefit to the Nation, particularly with respect to food production and recreational opportunities, and
taking into account the protection of marine ecosystems. Other purposes of the MSA that may be
reflected in the measures of an FMP are stated in MSA sections 301 (National Standards for Fishery
Conservation and Management), 2(b) (Purposes), and 303(a) (Required Provisions of an FMP).
Appendix A identifies the fisheries currently managed by the eight Councils and NMFS and the FMPs
under which they are managed. Appendix B identifies the U.S. fisheries currently managed by other
fishery management authorities (e.g., Commissions, states) and the plans underwhich theyare managed.
It should be noted that this Section 309 guidance relates only to the review of EISs prepared for FMPs,
Amendments and other fishery management actions . However, it is important to be aware of the plans
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Reviewing Environmental Impact Statements for Fishery Management Plans
developed under other statutory authorities to the extent that their actions may impact those fisheries
managed by NMFS and the Councils, and the extent that NMFS and Council actions may impact
fisheries managed by others.
In order to assist the Councils in preparing FMPs, MSA specifies ten National Standards with which all
FMPs must comply and 14 mandatory provisions that must be contained in each FMP. In addition to the
National Standards and mandatory provisions, FMPs may also address 12 discretionary provisions.
2.1.1.1 National Standards for Fishery Conservation and Management
Underthe MSA, all FMPs/Amendments and their implementing regulations must comply with ten National
Standards for Fishery Conservation and Management (National Standards) that serve as the overarching
criteria and objectives for fishery conservation and management measures. NMFS has issued National
Standards Guidelines for use in ensuring that such measures are consistent with the MSA requirements
(50 C.F.R. 600.305-600.355). The National Standards are as follows:
(1) Conservation and management measures shall prevent overfishing while achieving, on a
continuing basis, the optimum yield from each fishery for the U.S. fishing industry.
For purposes of this guidance, "fish" means "finfish,
mollusks, crustaceans, or parts thereof, and all other
forms of marine animal and plant life other than
marine mammals and birds." This includes marine
turtles. Fishery means "one or more stocks offish that
can be treated as a unit for purposes of conservation
and management and that are identified on the basis
of geographic, scientific, technical, recreational, or
economic characteristics, or method of catch." Stock
of fish means a species, subspecies, geographical
grouping, or other category of fish capable of
management as a unit.
MSA Section 3 (Definitions) and
50 C.F.R. 600.10 (Definitions)
(2) Conservation and management measures
shall be based upon the best
scientific information available.
(3) To the extent practicable, an individual
stock of fish shall be managed as a unit
throughout its range, and interrelated
stocks of fish shall be managed as a unit in
close coordination.
(4) Conservation and management measures
shall not discriminate between residents of
different states. If it becomes necessary to
allocate or assign fishing privileges among
various U.S. fishermen, such allocation
shall be (A) fair and equitable to all fishermen; (B) reasonably calculated to promote
conservation; and (C) carried out in such manner that no particular individual, corporation, or
other entity acquires an excessive share of such privileges.
(5) Conservation and management measures shall, where practicable, consider efficiency in the
utilization of the resources; except that no such measure shall have economic allocation as its
sole purpose.
(6) Conservation and management measures shall take into account and allow for variations
among, and contingencies in, fisheries, fishery resources, and catches.
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iviewing Environmental Impact Statements for Fishery Management Plans
(7)
(8)
Conservation and management measures shall, where practicable, minimize costs and avoid
unnecessary duplication.
Conservation and management measures shall, consistent with the conservation requirements
of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into
account the importance of fishery resources to fishing communities in order to (A) provide for the
sustained participation of such communities, and (B) to the extent practicable, minimize adverse
economic impacts on such communities.
Overfishing: "Overfishing occurs whenevera stock or stock complex is subjected to a rate or level of fishing
mortality that jeopardizes the capacity of a stock or stock complex to produce MSY [max/mum sustainable
yield] on a continuing basis."
50C.F.R. 600.310
Overfished: "...any stock or stock complex whose size is sufficiently small that a change in management
practices is required to achieve an appropriate level and rate of rebuilding."
50 C.F.R. 600.310
(9)
(10)
Conservation and management measures shall, to the extent practicable, (A) minimize bycatch
and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.
Conservation and management measures shall, to the extent practicable, promote the safety of
human life at sea.
The first national standard (prevent overfishing
while achieving optimum yield) is the heart of any
FMP. The optimum yield is prescribed based on
the maximum sustainable [biological] yield from
the fishery, as reduced by relevant economic,
social and ecological factors (MSA Section 3). In
the case of overfished fisheries, the optimum yield
must provide for rebuilding the fish stock to a level
that is consistent with producing the maximum
sustainable yield for the fishery (MSA Section 3).
An FMP must establish specific and measurable
criteria for determining when the managed fishery
is overfished. Each FMP is to contain measures to
prevent overfishing or to end overfishing and
rebuild an overfished fishery within a specified time
period (MSA Sections 303(a) and 304(e)). These
measures apply when the Council or the Secretary
has determined that a fishery is overfished or is
approaching an overfished condition.
Optimum Yield
"...the amount of fish that will provide the greatest
overall benefit to the Nation, particularly with respect
to food production and recreational opportunities, and
taking into account the protection of marine
ecosystems; is prescribed as such on the basis of the
maximum sustainable yield from the fishery, as
reduced by any relevant economic, social, or
ecological factor.."
MSA Section Sand 50 C.F.R. 600.10
Maximum Sustainable Yield
"...the largest long-term average [annual] catch or
yield that can be taken from a stock or stock complex
under prevailing ecological conditions." (50 C.F.R.
600.31 0) It is used as a management goal. It differs
from optimum yield by considering only the biology of
the species.
U.S. Environmental Protection Agency
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2.1.1.2 FMP Content Requirements - Required Provisions
In addition to complying with the National Standards, each FMP must contain the following 14 required
provisions (MSA Section 303(a)):
(1) Measures to prevent overfishing and rebuild overfished stocks and measures to protect, restore
and promote the long-term health and stability of the fishery.
(2) A description of the fishery, including number of vessels involved, type and quantity of fishing
gear used, species of fish involved and their location, cost likely to be incurred in management,
actual and potential revenues from the fishery, any recreational interest in the fishery, and the
nature and extent of foreign fishing and Indian treaty fishing rights.
(3) An assessment of the present and probable future condition of, and the maximum sustainable
yield and optimum yield from, the fishery, and a summary of the source material used to make
the assessment.
(4) An assessment of the capacity and extent to which fishing vessels of the U.S. on an annual basis,
will harvest the optimum yield; the portion of the optimum yield which, on an annual basis, will
not be harvested by fishing vessels of the U.S. and can be made available for foreign fishing;
and, the capacity and extent to which the U.S. fish processors, on an annual basis, will process
that portion of such optimum yield that will be harvested by fishing vessels of the U.S.
(5) Specify the data that must be submitted to the Secretary with respect to commercial, recreational,
and charterfishing in the fishery, including, but not limited to information regarding the type and
quantity of fishing gear used, catch by species in numbers of fish or weight thereof, areas in
which fishing was engaged in, time of fishing, number of hauls, and the estimated processing
capacity of and the actual processing capacity utilized by U.S. fish processors.
(6) Options for temporary adjustments for access to the fishery for vessels otherwise prevented from
harvesting because of weather or other ocean condition affecting the safe conduct of the fishery;
except that the adjustment shall not adversely affect conservation efforts in other fisheries or
discriminate among participants in the affected fishery.
(7) A description and identification of EFH for the fishery, measures to minimize to the extent
practicable adverse effects on such habitat caused by fishing, and other actions to encourage
conservation and enhancement of such habitat.
(8) An assessment of kinds and amounts of scientific data needed for effective implementation of the
plan.
(9) A fishery impact statement for the plan or amendment which assesses and describes the likely
effects of the conservation and management measures on: (a) participants in the fisheries and
fishing communities affected by the plan or amendment, and (b) participants in the fisheries
conducted in adjacent areas under the authority of another Council, after consultation with such
Council and representatives of those participants.
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(10) Criteria for identifying when the fishery is overfished, including an analysis of how the criteria
were determined and the relationship of the criteria to the reproductive potential of stocks of fish
in that fishery. In the case of a fishery which is approaching an overfished condition or is
overfished, conservation and management measures to prevent overfishing or end overfishing
and rebuild the fishery.
(11) A standardized reporting methodology to assess the amount and type of bycatch occurring in the
fishery as well as measures to minimize bycatch and the mortality of unavoidable bycatch to the
extent practicable.
(12) An assessment of the type and amount of fish caught and released alive during recreational
fishing undercatch and release fishery management programs and the mortality of such fish, and
conservation and management measures to minimize mortality and ensure the extended survival
of such fish.
(13) A description of the commercial, recreational, and charter fishing sectors which participate in the
fishery and quantification of trends in landings of managed fishery resource by these sectors.
(14) A fair and equitable allocation of the resource among the commercial, recreational and charter
fishing sectors in the fishery when rebuilding plans or other conservation and management
measures that reduce the overall harvest in a fishery are necessary.
2.1.1.3 FMP Content Requirements - Discretionary Provisions
Section 303(b) of MSA identifies 12 discretionary provisions that also may be included in an FMP as
follows:
(1) Require permits and fees from any fishing vessel or fish processor who receives fish that are
subject to the plan.
(2) Establish time, area, and gear restrictions to limit fishing effort as necessary.
(3) Establish catch, sale, or transportation limits based on area, species, size, number, weight, sex,
bycatch, total biomass, or other factors consistent with any applicable Federal and State safety
and quality requirements.
(4) Prohibit, limit, condition, or require the use of specified types and quantities of fishing gear,
fishing vessels, or equipment for such vessels, including devices which may be required to
facilitate enforcement provisions.
(5) Incorporate (consistent with the National Standards, other MSA provisions, and other applicable
laws) the relevant fishery conservation and management measures of coastal states nearest to
the fishery.
(6) Establish a limited access system for the fishery in order to achieve optimum yield subject to
specific considerations.
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(7) Require fish processors to submit data necessary for the conservation and management of the
fishery.
(8) Require observers to be carried onboard a vessel for the purpose of collecting data necessary
for the conservation and management of the fishery.
(9) Assess and specify the impact of the plan on the naturally spawning anadromous fish stocks of
the region.
(10) Include incentives to employ fishing practices that minimize bycatch and decrease bycatch
mortality.
(11) Reserve portions of the allowable catch for use in scientific research.
(12) Prescribe other measures, requirements, conditions, and restrictions necessary for the
conservation and management of the fishery.
2.1.2 FMP Amendments (Amendments)
Once an FMP has been approved and implemented, continuing management of the subject fishery
involves monitoring the fishery, evaluating new information, and adjusting the management program
through changes to the FMP and/or to its implementing regulations. The ease of continuing
management for a fishery depends largely on the foresight exercised in preparing the FMP and on the
identification of continuing research and data needs required to monitor changing fishery conditions.
In continuing fishery management, program changes may be accomplished by amending an FMP
(Amendment) and implementing the Amendment's measures through final regulations. Alternatively,
certain management adjustments may be made through (a) "framework" measures and their allowable
or authorized framework actions (i.e., framework actions are taken by promulgating regulations), (b)
regulatory amendments (i.e., usually a type of framework action involving changes only to the FMP
implementing regulations), and (c) emergency and interim actions. This section addresses Amendments.
The other types of continuing fisheries management actions are discussed in Sections 2.1.3 and 2.1.4.
An FMP has been prepared, approved and implemented for most major or otherwise important stocks
of fish subject to management by NMFS and the Councils under the MSA. Consequently, NMFS' and
the Councils' ongoing efforts are largely focused on amending FMPs as fishery circumstances warrant.
The Councils and NMFS know through considerable experience that fishery conditions change overtime
and may even change quickly. Once an FMP fora fishery has been approved and implemented, NMFS
and the Council monitor the fishery on a continuing basis to see whether the FMP's goals are being met
and to make necessary conservation and management adjustments. If the Council (or NMFS) determines
that an Amendment is necessary to address new issues or changed fishery circumstances, then the same
basic process is followed for developing, reviewing, approving, and implementing the Amendment as
was followed for the original FMP. Of course, the Amendment will contain new information regarding
the relevant issues or changed fishery circumstances (e.g., stock size increases or decreases, increasing
number of fishery participants, etc.), new alternative measures for addressing these matters, and new
analyses of the possible impacts of these alternative measures (including the proposed or preferred
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alternative). FMP Amendments may be necessary due to other factors such as new statutory requirements
(e.g., the SFA of 1996 required amendments to all existing FMPs to incorporate new statutory
requirements regarding overfishing and EFH). Some Amendments result directly from proposals by
stakeholders such as recreational and commercial fishermen; other Amendments may be initiated by
NMFS (on behalf of the Secretary) through encouragement of the Council to take such action. Under
the MSA, the Secretary (NMFS) has the authority to prepare an FMP or Amendment for a fishery requiring
conservation and management should the Council not prepare it in a reasonable period of time. Also,
if the Secretary finds that an emergency or overfishing exists in a fishery, the Secretary has authority under
the MSA to promulgate emergency regulations or interim measures necessary to address the emergency
or overfishing situation without regard to whether an FMP exists for such fishery. As discussed earlier,
the Secretary has specific management authority for HMS, including the preparation and implementation
of FMPs and Amendments for these species. Finally, the Secretary has general authority to carry out any
FMP or Amendment approved or prepared by him/her in accordance with the provisions of the MSA
(Section 305(d)). It is noted that an environmental assessment (EA) or EIS must be prepared for an
Amendment depending on whether or not significant impacts are expected (See NAO 21 6-6, 6.03a.3).
2.1.3 Framework Measures and Actions
The process of developing, reviewing, approving, and implementing FMP Amendments is time consuming
and often can take several years or more. To address certain changes in fishery circumstances requiring
timely or urgent action, NMFS and the Councils have devised the "framework concept" in which an FMP
is amended to include a "framework measure" that allows subsequent expedited regulatory action when
needed. Such framework measures and their authorized framework actions must still meet the
requirements of the MSA and all other applicable law, including NEPA and E.O.s. Framework actions
are critical in fisheries with annual quotas or where quick, responsive "inseason" actions must be taken
during a fishing season (e.g., opening and closing a fishery or designated gear areas, inseason quota
allocation adjustments, etc.).
The essence of the framework concept is the adjustment of fishery management measures (framework
action) within the scope and criteria established by the FMP and its implementing regulations. As
explained previously, this is distinguished from changing a fishery management program through an FMP
Amendment. A framework measure is intended to describe future framework management actions that
would be implemented within a range of actions as defined and analyzed to the extent possible at the
time the framework measure is incorporated into the FMP. If a proposed regulatory action under an
FMP's framework measure is outside the scope of the FMP and its implementing regulations, then the
FMP must be amended before the action can be implemented. In summary, the purpose of a framework
measure is to make it possible to manage fisheries more responsively under conditions requiring "real
time" management.
The framework concept is not intended to circumvent the FMP Amendment process that must take place
when circumstances in the fishery change substantially or when a Council adopts a different management
philosophy and objectives that triggersignificantchanges in the management regime (e.g., single species
management changed to ecosystem-based fisheries management). However, every framework measure
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and its authorized framework actions must meet the applicable requirements of the MSA, NEPA, the
Administrative Procedure Act (APA), and other applicable laws and E.O.s. Also, every framework
measure must be assessed for its probable impacts (e.g., its environmental impacts under NEPA
requirements) and made available for public review and comment prior to its approval and
implementation. Depending upon the type of framework measure, an additional analysis of impacts and
opportunity for public comment may be provided in conjunction with the subsequent framework actions
authorized by the framework measure. The extent of this analysis and opportunity for public comment
for a framework action will depend on the level of specificity of the original framework measure.
There are two types of framework measures which may be considered: (1) traditional or "closed"
framework measures and (2) "open" framework measures. A"closed" framework measure describes with
great specificity the circumstances under which a particular subsequent framework action is to be taken.
The closed framework action is essentially ministerial and virtually without discretion. Closed framework
actions include such things as closure of a fishery based on projection of attainment of a quota,
adjustment of trip limits or hours of fishing based on actual effort, and adjustment of quotas based on
computational error or late reporting. Closed framework actions, many of which are routine inseason
management actions, are taken by rule-related notices (termed by NMFS as "notice actions" even though
they are rulemakings) published in the "Rules and Regulations" section of the Federal Register (FR).
While such inseason or notice actions may be taken in an expedited manner pursuant to an FMP's
framework measure, they are still subject to the requirements of the APA.
An "open" framework measure is one where the authorized framework actions cannot be forecast or
described with specificity beforehand. Consequently, there is more latitude in choosing the subsequent
framework action in response to a less well defined set of circumstances. The anticipated environmental
and other effects of open framework measures are less susceptible to thorough prior analysis than those
of closed framework measures. Therefore, an adequate assessment of probable impacts must be
conducted in conjunction with each specific framework action. Open framework measures commonly
provide for annual specification of optimum yield, domestic annual harvesting limits, total allowable level
of foreign fishing, domestic annual processing estimates, and fishery sector allocations. Other open
framework measures may adjust area boundaries in response to shifting fish populations, change size
limits to reduce discards, prohibit use of certain gear to ameliorate gear conflicts, and collect additional
data. Open framework actions may be inseason or annual actions and may last no longerthan a fishing
season or continue indefinitely if consistent with the underlying framework measure's provisions.
For approval and implementation, framework measures and their authorized framework actions must be
consistent with the same NEPA requirements that apply to FMPs and Amendments. As noted earlier, the
analysis of environmental impacts for a proposed framework measure should, to the extent possible,
assess the full range of impacts that may result from the allowable options for framework actions. This
"up front" analysis will reduce the scope of NEPA analysis required for subsequent specific framework
actions taken. Most closed framework measures allow for a full and adequate "up front" assessment of
possible environmental impacts resulting from the framework measure and its allowable range of
framework actions. In this case, there is no further analysis of environmental impacts required for each
specific framework action under NEPA. See NAO 21 6-6, 6.03d(3).
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2.1.4 Regulatory Amendments and Emergency and Interim Actions
Regulatory amendments amend regulations rather than FMPs. Section 303(c)(2) of the MSA provides
that a Council may submit proposed regulations (i.e., proposed regulatory amendment) to NMFS that
it deems necessary or appropriate for modifying regulations implementing an FMP or Amendment at any
time after the FMP or Amendment has been approved and implemented. For example, a Council may
submit a proposed regulatory amendment to NMFS to clarify Council intent or to interpret broad terms
contained in an approved FMP or Amendment. A regulatory amendment may also be used to implement
a portion of an approved FMP or Amendment that was reserved and the Council now intends that NMFS
implement it.
Regulatory amendments are often used in the context of a framework action, as authorized by an
underlying FMP "open" framework measure. This approach may be used when a Council believes that
a particular category of fishery issues or problems may occur in the future that must be addressed in a
time efficient manner by means other than amending the FMP. In such cases, the exact nature of the
issues, their particular precipitating events, and their specific remedial actions cannot be foreseen
precisely at the time that the FMP is first developed. For example, a Council may propose the use of a
regulatory amendment to address the concern that, with the growth of a fishery, a gear conflict might
arise that could lead to a serious fishery disruption. In this case, a Council may not be able to predict
the nature, location or magnitude of the future circumstances causing the problem with sufficient certainty
to specify, ahead of time, the particulars of the issue, the effects of the regulatory amendment addressing
the issue, or the specific authorizing criteria for regulatory action. Thus, use of the "closed" framework
approach as a means of addressing the potential future problem in an expedited manner is precluded.
Nevertheless, there may be a need to act more rapidly than is possible through the FMP amendment
process. Therefore, as a means of expedited and abbreviated rulemaking, the FMP may be amended
to incorporate a framework measure or procedure that provides for future regulatory amendments
(framework actions) given the occurrence in the fishery of certain problems or issues.
Regulatory amendments must follow normal rulemaking procedures including proposed and final rules,
determinations of significance under E.O. 1 2866 (Regulatory Planning and Review) and the Regulatory
Flexibility Act (RFA), and compliance with the APA rulemaking requirements such as notice-and-comment
and delayed effectiveness. Accordingly, regulatory amendments require some opportunity for public
input prior to NMFS' approval and implementation by final rule. A regulatory amendment offers
considerable time savings over an FMP Amendment because future regulatory changes are anticipated
within the scope of the FMP. An FMP framework measure authorizing future regulatory amendments as
framework actions, along with supporting documents (e.g., EA, Regulatory Flexibility Analysis, etc.),
should still define and analyze, as completely as possible: (a) the foreseen types of fishery issues or
problems, (b) the kinds of future regulatory amendments that may be taken to address them, (c) any
criteria or future regulatory action, (d) the economic, social, and environmental effects that may occur
from a future regulatory amendment, and (e) specific regulatory amendment procedures that are to be
used to take future action.
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Regulatory amendments are subject to the same environmental review requirements under NEPA as are
any other NMFS rulemaking actions. As indicated previously, an analysis of environmental impacts
prepared for an original FMP framework measure that authorizes future regulatory amendments may
necessarily be rather general. As is often the case with the regulatory amendment approach, the more
action-specific impacts, including environmental effects, are assessed fully at the time the regulatory
amendment is developed. During the notice and comment period for a regulatory amendment, the
regulatory amendment measures and the supporting analyses of expected impacts are published for
public comment.
Emergency and interim actions. Section 305(c) of the MSA provides authority for NMFS (on behalf of
the Secretary) to issue emergency regulations to address emergency circumstances in a fishery or to
implement interim measures to reduce overfishing in a fishery. A Council may recommend that NMFS
issue emergency regulations or implement interim measures based on appropriate findings regarding
fishery circumstances. Alternatively, NMFS may undertake such emergency or interim actions without
prior Council deliberations or determinations but based on its own findings about the fishery
circumstances. Regulations issued as an emergency action or interim measures under section 305(c) of
the MSA are effective for up to 1 80 days, with an additional 1 80-day period possible if the public has
had an opportunity to comment on the action during the first 180-day period. If a Council had
recommended the emergency regulations or interim measures from the outset, then a time extension for
an additional 180 days is possible if the Council is currently preparing an FMP, Amendment, and/or
proposed regulations to address the emergency or overfishing on a permanent basis.
Section 305(c) actions are not exempted from meeting the requirements of NEPA, the Endangered
Species Act (ESA), E.O. 1 2866, the Paperwork Reduction Act (PRA), the Coastal Zone Management Act
(CZMA), APA, and other applicable Federal statutes and E.O.s. However, exemptions, waivers, and
special arrangements are possible under certain circumstances. The NEPA requirements for preparing
environmental review documents for emergency actions are the same as for non-emergencies. Specific
NOAA guidance on meeting NEPA requirements for emergency actions is provided by Section 5.06 of
NAO 21 6-6. For many emergency or interim actions underthe MSA, NMFS may meet all requirements
under NEPA for environmental review without delaying the emergency action sufficiently to prevent
attaining its objectives. However, in those instances where compliance with CEQ regulations will impede
or limit meeting the critical objectives of the emergency or interim action, the NOAA NEPA Coordinator
may consult CEQ regarding alternative arrangements for NEPA compliance. Refer also to the NMFS
Operational Guidelines for guidance on NEPA compliance for emergency and interim actions (NMFS
1 997; see Section F.2).
2.2 Regulatory Process - Roles and Responsibilities and Steps in the Process
Under the MSA, the FMP process involves the preparation, review, approval, and implementation of
FMPs and Amendments by regulations. As discussed in Section 2.1.3, framework management actions
under the authority of an FMP framework measure can be considered part of the "FMP process."
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The MSA gives the eight Councils responsibility for developing fishery conservation and management
measures that will achieve "optimum yield" from the fisheries in their respective areas of jurisdiction while
preventing overfishing. Congress delegated to NMFS, through the Secretary, and to the Councils broad
scientific and policy discretion on issues ranging from the identification of a fishery "management unit"
to the evaluation of social, economic, and ecological factors in determining "optimum yield." As long
as the fishery management measures recommended by the Councils are consistent with the provisions
of the MSA, its National Standards for fishery conservation and management, and other applicable law,
the Secretary must approve and implement them. Generally, the Secretary may not substitute an
alternative Federal management strategy unless he/she determines that further management changes
are necessary and that the Council failed to act within a reasonable time period. Under MSA section
305(d), the Secretary has broad authority to carry out any FMP or Amendment approved or prepared by
him/her... and may promulgate such regulations....as may be necessary to discharge such responsibility
or to carry out any other provision of this Act. The MSA also provides for the Secretary to develop his/her
own management measures in certain circumstances (e.g., for Atlantic HMS such as tuna species, marlin,
oceanic sharks, etc.). In these cases the Secretary, too, has broad discretion in determining how to meet
the goals of the MSA within the constraints of the MSA's National Standards and other applicable law.
The MSA's National Standards set forth an array of competing policy goals that Councils and NMFS must
balance. The standards require that fishery management measures meet ten criteria for approval and
implementation, as identified in Section 2.1.1.1.
2.2.1 FMPs/Amendments and NEPA
Section 102(2)(C) of NEPA requires that an EIS be prepared for "major Federal actions significantly
affecting the quality of the human environment." Section 6 of NAO 216-6 (NOAA 1999) requires
preparation of an EIS when developing a new FMP for a previously unregulated species. This section
also requires preparation of at least an EA for an FMP Amendment unless the responsible program
manager decides to proceed directly with an EIS or supplemental EIS (SEIS). NAO 216-6 Section
6.03(d)(2) identifies fishery actions that require preparation of an EIS for new FMPs. Section 6.02
provides related guidance for making an EIS determination. Specifically, it identifies those conditions or
criteria which are used to determine if a proposed action is significant, thus warranting preparation of
an EIS. MSA actions normally requiring an EA or that are eligible for a categorical exclusion (CE) are
discussed in Section 6.03.2 While a number of EAs were prepared for both FMPs and Amendments in
prior years, the tendency in recent years has been to proceed directly to an EIS, given the potential for
Section 6.03 (Integrating NEPA Into NOAA's Decisionmaking Process) of NAO216-6 specifies that all plans must
be accompanied by an EA or EIS and identifies those that typically require an EA but not necessarily an EIS. The section
further specifies that management plan amendments not requiring an EIS must be accompanied by an EA unless they meet
the criteria of a CE (Section 5.05b). CEs are for actions which do not normally have the potential for significant impact,
either individually or cumulatively, on the quality of the human environment. Examples of CEs for management plan
amendments include, but are not limited to, ongoing or recurring fisheries actions of a routine administrative nature such as
reallocations of yield within the scope of a previously published FMP or fishery regulation, combining management units in
related FMP, and extension or change to the period of effectiveness of an FMP or regulation; and minor technical additions,
corrections, or changes to an FMP.
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significant impacts. While the Councils historically have made the determination regarding what level
of NEPA review is required (based on an interpretation of what the NMFS' Operational Guidelines
intended), NMFS now takes a much more active role in the determination and must concur with each
such decision.
In addition to new FMPs/Amendments requiring the appropriate NEPA documentation,
FMPs/Amendments that are more than five years old should be reviewed by NMFS to determine if a new
EIS (or SEIS) should be prepared (NAO/21 6-6, Section 6.03(a)). The five-year assessment should focus
on the overall status of the fishery, particularly the cumulative impacts of management actions over this
time period. If it is determined that fishery conditions have changed significantly so that the sustainable
aspects of the resource are affected (when compared to that described in the original EIS), or cumulative
effects over time have resulted in other significant environmental impacts, then NMFS may require that
a SEIS be prepared, according to NAO 21 6-6.
2.2.2 Approaches to Preparing EISs and EAs for FMPs/Amendments
The Operational Guidelines specify that NMFS and the Councils may follow one of two general
approaches in preparing EISs/EAs for FMPs and Amendments: (1) the FMP or Amendment and its
corresponding EIS/EA may be prepared as separate, stand alone documents, or 2) the FMP or
Amendment and its corresponding EIS/EA may be combined into one integrated document.
Under the first approach, the NEPA analysis or environmental review is prepared as a separate document
and is not incorporated into the related FMP/Amendment. Cross references between the NEPA
document and the FMP/Amendment are encouraged to minimize redundancies between texts, but, under
this approach, the EIS/EA is a stand-alone document that fully complies with the CEQ regulations and
NAO 21 6-6 requirements. Underthe second approach, the EIS/EAand the related FMP or Amendment
are combined in a single consolidated or integrated document. Such combined documents must still
satisfy the CEQ regulations and NAO 21 6-6. According to NAO 21 6-6, such consolidated documents
need not be prepared according to the CEQ recommended outline for NEPA documents, but they must
contain a detailed table of contents identifying required sections of the EIS or EA.
Underthe CEQ regulations, agencies are encouraged to combine environmental review documents with
other documents to reduce paperwork and avoid duplication (40 C.F.R. 1500.4(o), 1500.5(i) and
1506.4). Section 6.03.d of NAO 216-6 also encourages such integration: "To the extent possible
documents developed to support FMPs, FMP Amendments, regulatory amendments, letters of
acknowledgment of scientific research, authorization of educational activities, exempted fishing permits,
and other fishery regulatory actions developed under the MSA should be integrated with the required
NEPA document to produce one combined document." Section 6.03 also states that NMFS and the
Councils "should attempt to develop and integrate the NEPA document with the FMP public hearing
documents at the earliest possible stage to provide the public and decision makers with an assessment
of environmental impacts of the proposed actions prior to NMFS/Council decisions. The NEPA analysis
and the analysis required under MSA may be similar, but the scope of the NEPA analysis must include
a discussion of the broader impacts of the fishery as a whole on the human environment." NMFS tends
20
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to prefer the second or combined documents approach and the majority of recent FMPs and
Amendments reviewed by EPA have consisted of an integrated FMP EIS or Amendment EIS.
It should be noted that while an FMP or Amendment and its supporting EIS are typically integrated as a
single document, each of the two components is subject to a somewhat different agency and public
review schedule based on differences in NEPA and MSA statutory requirements. These differences are
illustrated in Figure 2-1, which provides a general overview of the current relationship between the FMP
and EIS development process. Detailed information pertaining to each step is provided in Section 2.2.4.
2.2.3. Roles and Responsibilities
The marine fisheries management system under MSA involves many players including: the eight Regional
Councils (including both Council members and advisory bodies), NMFS, NOAA, the DOC/Secretary,
states, Indian Tribal Governments, and Congress. The fisheries management structure and process is
complex and time consuming. It reflects not only the statutory requirements of the MSA, but also the
mandates of numerous other applicable Federal statutes and E.O.s. Related Federal statues and E.O.s
are listed in Appendix C. Also, this management system is affected significantly by agency policies,
Council operating procedures, Federal rules and procedures regarding administrative procedures,
requirements for open government and due process, and interjurisdictional arrangements between the
Federal government and the coastal states, and among the coastal states themselves.
The roles and responsibilities of three key players in the regulatory process —the Councils, NMFS/NOAA,
and EPA — are described in more detail below; and summarized in Table 2-1 found at the end of Section
2.2.3.
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Phase I: Planning
Phase II:
Draft Documents
Preparation
FMP/
Amendment
Process
Council identifies
fishery issues
requiring
FMP/Arnend
Council initiates
preparation of
FMP/Amend
and supporting DOCS
Council prepares
draft FMP/Amend
and supporting
DOCS
NEPA
Process
No
Council initiates
draft EA
preparation
Council prepares
draft EA
Figure 2-1. Comparison of FMP/Amendment and NEPA Processes*
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Phase III. Public Review and Final Documents Preparation
FMP/
Amendment
Process
CO
NEPA
Process
EA Process
Council adopts
draft FMP/Amend
and supporting DOCS
for public hearings
Council transmits
draft FMP/Amend
and supporting DOCS
to NMFS for informal
agency review
Council adopts DEIS
for filing with EPA and
for public hearings;
transmits to NMFS
Council adopts draft
EA for public;
transmits to NMFS
Council considers
comments received
on draft FMP/
Amend and
supporting DOCS
NMFS conducts
informal agency
review of draft FMP/
Amerd and supportinc
DOCS
Council prepares and
adopts final FMP/Amend
and supporting DOCS
and proposed regs
for Sec review
45-day
public
comment period
(NEPA)
Council prepares and
adopts FEIS for
filing witti EPA and
Sec review
Council prepares
and adopts final
EA/FONSI
for Sec review
Figure 2-1. Comparison of FMP/Amendment and NEPA Processes* (cont'd|
-------
Phase IV: Secretarial Review; FMP/AmendmentApproval/Disapproval; Proposed and Final Regulations
FMP/ —'
Amendment
Process
NMFS publishes
FR NOA for final
FMP/Amend
and supporting DOCS
60-day
public
NOA comment
period for FMP/
Amend and supporting
DOCS ends
NMFS considers
public and other
comments
received
NMFS receives
final FMP/Amend,
proposed regs, and
supporting DOCS,
initiate Sec review
comment period
(MSA)
15 to 60-day public
comment
period
(MSA)
NEPA
Process
EIS Process
30-day public comment
period (NEPA)
EA Process
NMFS revises final
EATON SI as
necessary based
on public comment
Figure 2-1. Comparison of FMP/Amendment and NEPA Processes* jcont'd)
-------
Phase IV: Secretarial Review; FMP/Amendment ApprovalDisapproval; Proposed and Final Regulations (cont'd)
FMP;
Amendment
Process
within 30-days from N QA
comments period end
(MSA)
NMFS approves/
disapproves
FMP/Amend: notifies Council
of final agency action
within 30-days from the proposed regs
comment period end
(MSA)
01
NEPA
Process
EIS Process
30-day period
(APA)
EA Process
Availability of signed
EA/FONSI
referenced in final regs
Figure 2-1. Comparison of FMP/Amendment and NEPA Processes* (cont'd)
* This figure presents the current Phases and steps in the FMP/Amendment process and in the supporting NEPA process, as described in detail in Section 2.2.4.
For purposes of facilitating the reviewer's understanding of the NEPA process required for FMPs/Amendments and implementing regulations under the MSA.,
this figure shows the FMP/Amendment and NEPA pro cesses as two separate but parallel and linked processes. In reality, these two processesare
closely integrated. Note that the spacing between steps is not based on a consistent length/time scale.
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2.2.3.1 Fishery Management Councils
The Councils are responsible under the MSA for the preparation of FMPs/Amendments, and related
regulatory actions (e.g., certain framework regulatory actions such as regulatory amendments and annual
fishery specifications). The Councils initiate most of the documentation to support fishery conservation
and management actions, and collaborate with the NMFS Regional Offices and state agencies as
appropriate. Consultation is conducted between NMFS Sustainable Fisheries, in its role as the action
agency and either NMFS Protected Resources Division or the U.S. Fish and Wildlife Service (FWS) as the
consulting agency, depending on the species in question. The regulations implementing Section 7 of the
ESA provide a specific role for applicants, who are persons who require formal approval or authorization
from the action agency as a prerequisite to conducting the action. NMFS does not consider the Councils
to be applicants because they do not conduct the action, but they sometimes participate in consultations
informally.
The MSA charges each of the eight Councils to prepare and submit to NMFS (acting on behalf of the
Secretary) an FMP and Amendments to such FMP that are necessary from time to time (Section 302(h))
for each fishery under its authority that requires conservation and management. To this end, the Councils
conduct public hearings to provide stakeholders and the general public an opportunity to be heard and
participate in the development of FMPs and Amendments. The Councils are also charged with reviewing
on a continuing basis, and revising as appropriate, each FMP's specification of the conditions of the
managed stocks, the maximum sustainable yield, the optimum yield, domestic harvesting and processing
capacities, the portion of the optimum yield available for foreign fishing, and other parameters. The
Council's periodic review and revision of these parameters for each FMP or Amendment is based on
stock assessment and other scientific information provided by NMFS, the member states, and other
sources.
A Council's functions are conducted by Council members with the assistance of an Executive Director and
administrative and professional support staff. Professional staff usually include biologists, economists,
and environmental review specialists. Each Council is required by the MSA to establish a scientific and
statistical committee (SSC) to assist in the development, collection, and evaluation of scientific
information (including statistical, biological, economic, and sociological information) relevant to
developing FMPs and Amendments. Each Council is also required to establish other advisory panels,
including a fishing industry advisory committee, to assist in performing its functions. Each Council is free
to establish such advisory panels as it deems necessary. Each Council is also free to establish procedures
applicable to its activities and those of its advisory panels within the constraints of specific statutory
requirements (Section 302(i)).
A Council's SSC and advisory panels (committees) are used to help develop recommendations on fishery
management actions. Committees typically receive public comment during their deliberations. These
committees allow public participation during the development of proposed actions, review of available
information, identification of alternatives, and clarification of issues brought to Council. The time, place,
and agenda for scheduled advisory committee meetings must be published in the FR two weeks prior to
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the meetings to give the public adequate prior notification. These committees advise the Councils but
do not have voting authority regarding Council adoption of final management measures or other official
Council functions.
A Council's SSC usually reviews the work of established technical teams and outside analysts to ensure
that Council management decisions are informed by the best available science. An SSC may employ
subcommittees for focused work on fishery-specific issues (e.g., review analytical methods that form the
basis of species stock size estimates). An SSC may also convene work groups to address the general
issues such as bycatch, overcapacity, harvesting policies, and the use of marine protected areas (MPAs)
in fishery management.
Councils use advisory panels on a wide variety of subjects including the effects of fishery management
measures on local economies, social structure of fishing communities, EFH and environmental issues,
conflicts between fishery user groups, enforcement issues, industry operations, and market conditions.
The Councils vary in the extent and manner in which they use advisory panels. Advisory panels are
usually composed of experienced and knowledgeable members of the public such as recreational and
commercial fisherman, law enforcement personnel, conservationists, fish processors, seafood dealers,
and academic or research scientists knowledgeable about a specific fishery or biological subject.
The Councils differ in their approaches to preparing FMPs and Amendments and supporting documents
(including the supporting NEPA document). Some Councils use only their own staff to draft the
FMP/Amendment and all supporting documents. Other Councils use FMP/Amendment development
teams that include both Council and NMFS Regional and Science Center staff. For the North Pacific
Council and its corresponding NMFS Alaska Region, the NMFS regional (and Science Center) staff have
typically taken the lead in preparing significant portions of an FMP/Amendment and its supporting
documents (i.e., NEPA document). All Councils rely heavily on the appropriate NMFS Region or Science
Center for technical or scientific expertise and information. Council staff often submit draft
FMP/Amendment documents to the appropriate NMFS Region and Science Center for informal review
and comment prior to public release as either a draft or final document.
Contact information for the eight Councils and NMFS Regional offices is provided in 5.1. Because the
specific roles of the Councils and NMFS Regions may vary by region, EPA reviewers are encouraged to
contact the appropriate Council or NMFS region to get information on the roles and responsibilities of
these players specific to a particular EPA region.
2.2.3.2 NMFS/NOAA/Secretary of Commerce/General Counsel
Various offices within NOAA and NMFS are involved in the FMP/Amendment EIS process. The
relationship between these offices is further addressed in this section, including the NMFS Regional
Administrator and Regional Staff; the NMFS Science Centers; the NOAA Assistant Administrator for
Fisheries, NMFS Headquarters Offices, and NMFS as an Agency; the Secretary; NOAA General Counsel;
and NOAA's NEPA Coordinator. Adirect linktothe NOAA organization chart can be found on NOAA's
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Home page at www.noaa.gov/ under the section entitled "About NOAA." The organization chart for
NMFS is found at http://www.nmfs.noaa.gov/org chart.htm.
The NOAA Assistant Administrator for Fisheries, NMFS Headguarters Offices, and NMFS as an
Agency. Under the MSA, the Secretary is ultimately responsible for federal management of fishery
resources in the FEZ. Through DOC and NOAA delegations of authority, most decision-making authority
under the MSA has been delegated to the Assistant Administrator for Fisheries (AAF). The AAF is
responsible for: (1) deciding whether to concur in the Regional Administrator's decision regarding
approval/disapproval of a Council-recommended FMP or Amendment; (2) deciding whetherto approve
and issue final rules implementing approved FMP or Amendment measures; (3) determining that the
appropriate environmental impact review (EIS or Finding of No Significant Impact (FONSI)/EA) has been
completed for the action and is adequate for public release; and (4) resolving with NOAA General
Counsel Headquarters any FMP/Amendment issues related to legal sufficiency.
Under authority delegated by the Secretary and NOAA Administrator, the AAF (NMFS) may prepare an
FMP and Amendments to such FMP if (a) the applicable Council fails to develop and submit to the AAF
within a reasonable time period an FMP or Amendment for such fishery if it requires conservation and
management; (b) the AAF disapproves or partially approves a Council's FMP or Amendment and the
Council involved fails to submit a revised FMP or Amendment; or (c) the species subject to management
are Atlantic HMS. If NMFS prepares a Secretarial FMP or Amendment because of (a) or (b) above, the
FMP or Amendment must be submitted to the appropriate Council(s) for consideration and comment
during a 60-day public comment period.
Within NMFS Headquarters, the Office of Sustainable Fisheries tracks Council and NMFS
FMP/Amendment activities; consults with and advises Regions on national policy implications of FMP-
related decisions; packages and forwards Regional/Council documents to NMFS, NOAA and DOC
leadership for clearance or approval; and facilitates communications to resolve problem issues raised
during Headquarters or NOAA/DOC/Office of Management and Budget (OMB) reviews.
NMFS' Domestic Fisheries Division of the Office of Sustainable Fisheries has the primary Headquarters
responsibility for reviewing and processing FMPs, Amendments, framework actions and other MSA
regulatory actions as well as their associated NEPA documents. Other NMFS Headquarters offices
include the Office of Protected Resources (OPR, also referred to by NMFS regional staff as the Protected
Resources Division or PRO), which is responsible for carrying out agency responsibilities under the ESA
and the Marine Mammal Protection Act (MMPA), and the Office of Habitat Conservation, whose FMP
focus areas include MSA EFH provisions. With respect to ESA, the Office of Sustainable Fisheries is
responsible for initiating ESA Section 7 consultation with OPR/PRD at the regional level, and that Section
7 consultations may be elevated to the HQ level (see also Section 3.3 for a discussion of NMFS
responsibilities with respect to ESA and its integration with NEPA).
Other NMFS responsibilities include submission of an annual report to Congress on the status of fish
stocks within each Council's geographic area of authority, including stocks identified as overfished or
approaching a condition of being overfished. When NMFS determines that a stock is overfished, it
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publishes a FR notice to this effect and informs the appropriate Council of the need to take action to end
overfishing and to rebuild the overfished stock. If a Council fails within one year of notification to develop
measures (i.e., via an FMP or Amendment) to stop overfishing and rebuild the depleted stock, NMFS
must prepare (within nine months) the requisite FMP or Amendment to end overfishing and rebuild the
stock.
NOAA General Counsel. NOAA General Counsel provides legal advice to both the Council and the
NMFS Regional Administrator, through NOAA General Counsel Regional Offices, throughout the
process of developing documentation and making and reviewing decisions regarding the
FMP/Amendment process. The NOAA General Counsel Regional Office provides legal advice to the
Regional Administrator confirming legal sufficiency of documentation and process, and elevates to
NOAA/General Counsel Headquarters any issue preventing a determination of legal sufficiency. NOAA
General Counsel also provides legal advice, through the Office of General Counsel for Fisheries (GCF),
to NMFS leadership.
NOAA's NEPA Coordinator. The NOAA NEPA Coordinator, located in the Strategic Planning Office
of NOAA's Assistant Administrator for Program Planning and Integration, reviews and provides final
agency reviews for all EISs and EAs/FONSIs. Additionally, the NOAA NEPA Coordinator is responsible
for filing NOAA's EISs with the EPA and signing all transmittal letters that disseminate NEPA documents
for public review.
NMFS Regional Administrator and Regional Staff. As a voting member of each Council, the NMFS
Regional Administrator is involved, along with other Council members, in the Council's development and
adoption of a final FMP or Amendment and its supporting documents (including proposed implementing
regulations) for submission for Secretarial review, approval, and implementation. In a different but
related role under the MSA, the NMFS Regional Administrator has been delegated authority (on behalf
of the Secretary) to approve, disapprove, or partially approve FMPs and Amendments submitted by a
Council, with the concurrence of NOAA Assistant Administrator for Fisheries. The authority to approve
and issue regulations (proposed or final) and analytical documents supporting the FMP or Amendment
has been, to date, retained by the Assistant Administrator for Fisheries and higher NOAA/DOC level
officials who must make certain non-delegated, rule-regulated determinations. The Regional
Administrator's approval of an FMP of Amendment normally requires NOAA Regional General Counsel
and NMFS Science Center clearances regarding appropriate legal and scientific elements.
The Regional Administrator and his/her staff review FMPs or Amendments and supporting documents
submitted by a Council to determine consistency with the National Standards, other provisions of the
MSA, and other applicable law. This Regional review is conducted "informally" on draft documents
submitted by the Council during Phase III and formally during Secretarial review (Phase IV) as a basis for
FMP/Amendment approval and implementation (see Section 2.2.4). The NMFS Region is the principal
agency contact with the Council, and may provide guidance and assistance to the Council in preparing
FMPs/Amendments, supporting documents, and implementing regulations. The Regions also have the
responsibility for: (1) preparing all decision documents for FMP/Amendment approval and
implementation (e.g., decision and transmittal memos associated with the Assistant Administrator's
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concurrence with the Regional Administrator's approval/disapproval of the FMP/Amendment and with
rulemaking actions); (2) ensuring that the Councils are aware of the requirements for their submitted
FMP/Amendment packages, including satisfactory regulatory and environmental analyses (i.e., Regulatory
Impact Review (RIR), Initial Regulatory Flexibility Analysis (IRFA), EA/EIS); and (3) certifying that all
supporting documents are adequate before approving the related FMP or Amendment. The Region is
also responsible for preparing any supporting statement for a collection-of-information under PRA, but
consults with the appropriate Science Center as necessary. Both the Region and the Science Center
maintain part of the administrative record supporting each agency rulemaking.
NMFS Science Centers. The six NMFS Science Centers provide varying levels of scientific and technical
support to the Councils as required for the development of FMPs and Amendments and supporting
documents. This may be accomplished by direct and active participation on a Council's
FMP/Amendment development team or by providing specific scientific and statistical information at the
Council's request. The Science Centers are required to certify definitions of "overfishing" and
"overfished" in an FMP or Amendment before the Regional Administrator approves them (see 50 C.F.R.
600.310). The Science Centers are involved in a variety of science-related activities, but primarily in the
development of the scientific information base required forfisheries conservation and management. The
Science Centers conduct research to address specific information needs regarding fish stock assessment
and population dynamics, fishery economics, fishery engineering, fishery biology, habitat conservation,
and the status of marine mammals protected under the MMPA and other species protected under the
ESA. The Science Centers provide input regarding analyses of environmental impacts for NEPA
documents prepared by the Councils or by NMFS. (See also Section 5.1 for Science Center contact
information).
2.2.3.3 EPA
EPA's role has been discussed previously in Section 1.1. The objective of the environmental review
process conducted by EPA is to foster the goals of the NEPA process by ensuring that EPA's environmental
expertise, as expressed in its comments on Federal actions, is considered in agency decision-making.
EPA may, as resources allow, assist NMFS in achieving the goals set forth in NEPA; in meeting the
objectives and complying with the requirements of laws and regulations administered by EPA; and in
developing concise, well-reasoned decision documents that identify and assess a range of project
alternatives, project impacts, and mitigation measures that will avoid or minimize adverse effects on the
environment (EPA 1984).
Presented below is a discussion of the points in the FMP/Amendment process where EPA is required or
may choose to participate. Of course, given EPA's primary role, its participation will focus on the
development of EISs (and EAs) for FMPs and Amendments. In addition to conducting Section 309
reviews of draft EISs/SEISs and final EISs/SEISs for FMPs and Amendments (as required), EPA is strongly
encouraged to become involved earlier in the FMP-related NEPA process, and EPA regional staff are
encouraged by OFA to work with NMFS Regional and Council staff (e.g., Regional NMFS NEPA
Coordinators) to the extent possible. This is consistent with EPA's policy of participating early in the NEPA
compliance effort of other Federal agencies to the fullest extent practicable. This approach also reflects
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EPA's interest in identifying environmental matters of concern regarding proposed agencies' actions at
their inception and to assist in resolving these concerns at the earliest possible stage of project
development. It is EPA's preference to address project concerns through early coordination with the
responsible agency, where possible and as resources allow, rather than to rely on submitting critical
comments on completed project NEPA documents (EPA 1 984).
The following are suggested steps for EPA staff participation in the NEPA aspects of a phased
FMP/Amendment process, with an emphasis on participating as early as possible. The four referenced
phases are consistent with those identified in Section 2.2.4 for the FMP/Amendment process.
Phase I Planning: Pre-scoping. Attending regular Council meetings offers a good opportunity to first
learn about fishery management actions needed to address fishery problems and to meet the key players
in the Council and NMFS Regional arenas. Attending these meetings should also help facilitate better
communication and coordination among involved resource management agencies and fishery and
environmental interest groups. For example, according to 40 C.F.R. 1 506.2(b) of the CEQ regulations
implementing NEPA: "Agencies shall cooperate with State and local agencies to the fullest extent possible
to reduce duplication between NEPA and State and local requirements." These regulations identify types
of cooperation (e.g., joint planning, environmental research and studies, public hearings), and require
EISs to discuss any inconsistencies between a proposed Federal action and State or local or tribal plans,
policies and laws (regulations). Where an inconsistency exists, the EIS should describe the extent to which
the agency would modify its proposed action in order to eliminate or minimize the inconsistency.
Phase I Planning: Scoping. EPA may, as resources allow, participate in the NMFS and Council scoping
processes to the fullest extent practicable, emphasizing attendance at scoping meetings (EPA 1984).
Traditionally, this is the step where some type of Council-NMFS collaboration begins since NMFS
publishes in the FR a Notice of Intent (NOI) to prepare an EIS and that NMFS and the Council plan to
hold scoping meetings for the subject management action. The Council and NMFS frequently make
available a scoping document or options paper at or before the scoping meeting for public
consideration. These documents usually identify the fishery problems underdiscussion (including any ESA
issues) and a general range of options for addressing them. EPA's participation or input during scoping
should allow early involvement in defining the environmental issues and theirscope as well as identifying
the best approaches or options for addressing them in the draft EIS.
Phase I Planning: Responding to Scoping Requests. EPA may, as resources allow, respond to an NOI
to prepare an EIS and/or attend any scoping meetings. EPA should review and respond by letter to all
scoping requests specifically made to the EPA. While NOIs to prepare an EIS are not considered specific,
the EPA environmental review coordinator assigned to follow a particular Council is responsible for being
aware of all relevant scoping requests and for participating in those of special interest to the EPA. Note
that the level of EPA participation in the scoping process will be determined by the environmental review
coordinator on a case by case basis taking into account EPA's responsibilities, the severity of potential
environmental impacts, priority concerns identified in the Administrator's Agency Operating Guidance,
and available staff and travel resources.
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Any EPA staff response to a non-EPA specific scoping request may be made by telephone, but a record
of communication should be kept in the official project file (EPA 1 984). Responses to specific requests
may take the form of either a letter of acknowledgment with a list of generic concerns, or a letter with
detailed action-specific comments. A generic scoping letter or telephone response should define EPA's
anticipated level of participation in the scoping process and include at least the following information:
• a list of all EPA permits that might be required,
• significant environmental issues that should be emphasized in preparation of the EIS,
• references to publications, including guidelines and current research, that would be useful in
analyzing the environmental impacts of various alternatives,
• a statement regarding EPA's intention to carry out its independent environmental review
responsibilities under Section 309 of the Clean Air Act, and
• the name, title, and telephone number of the appropriate working-level contact in EPA.
Phase II Preparation of Draft Documents: Preliminary Draft EIS. EPA's review of and comment on a
Council's preliminary draft EIS for a proposed FMP/Amendment (e.g., at same time that NMFS is
conducting a preliminary informal review and providing informal comments to the Council) would also
provide an opportunity to identify and resolve, in advance, any issues EPA may have before the draft EIS
is filed for public release and comment. If not already accomplished through scoping, EPA may, as
resources allow, discuss with NMFS and the Council the range of alternatives to be carried forward in
the draft EIS (which can be either too numerous or too limited) and help to ensure that all remaining
alternatives are reasonable or feasible. If EPA is not involved in scoping or the review of a preliminary
draft EIS, such comments on the alternatives analysis may also be provided during the EPA review of the
filed and publicly released draft EIS.
Phase II Preparation of Draft Documents: Detailed Analysis of Conservation and Management
Alternatives in the Preparation of the Draft NEPA Document (EIS/SEIS or EA). It is noted that in Phase
II, the Council and NMFS fully evaluate the impacts of the alternatives carried forward from the earlier
scoping and preliminary draft steps. It is further noted that NMFS encourages the Council to identify its
preferred management or regulatory alternatives at the draft EIS/SEIS or EA stage. In the past, there have
been numerous instances where the Council did not make final decisions regarding its preferred
management alternative(s) until it voted on the final FMP Amendment measures and associated final
EIS/SEIS or EA. Under NMFS's Regulatory Streamlining Project (see Section 2.2.5), joint Council-NMFS
efforts to "frontload" the critical environmental and other issues should facilitate the Council's
identification of its preferred management alternative in a preliminary draft NEPA document (e.g.,
preliminary draft EIS/SEIS or EA), if possible, and in the filed draft EIS/SEIS.
Phase III Public Review of Draft Documents; Filing Draft EIS/SEIS for Public Review, and Council
Preparation and Adoption of Final FMP/Amendment and Final Supporting Documents, Including final
EIS/SEIS or Final EA: Identification of the Preferred Alternative and Conceptual Mitigation Plan in the
Final NEPA Document. Upon filing of the draft EIS with EPA for public review, EPA may support this
analysis by using its program expertise to provide specific information on the direct, indirect and
cumulative effects of each alternative, including actions that could be taken to reduce the indirect effects
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of each alternative. This is also the stage where the Council and NMFS are to address EPA's comments
on the draft EIS/SEIS, as provided in a Section 309 letter, when preparing the final EIS/SEIS. Ideally,
EPA's NEPA Regional staff participation throughout the full FMP/Amendment process will facilitate the
Council's and NMFS' addressing all major EPA concerns prior to filing and public release of the final
EIS/SEIS.
Phase IV Secretarial Review and Approval/Disapproval of Final FMP/Amendment; Filing of Final
EIS/SEIS for Public Comment and Conclusion of Record of Decision (ROD); Proposed and Final
Regulations for the FMP/Amendment. EPA's review of a final EIS/SEIS upon its filing and public release
during the Secretarial review period for the final FMP or Amendment should be the basis for follow-up
coordination with NMFS on actions where EPA had identified significant environmental impacts at the
draft EIS/SEIS stage that are not yet resolved. This is to ensure a full understanding of the issues and to
ensure implementation of appropriate corrective actions. Unfavorable ratings, consultation with other
agencies, and potential referral to CEQ are EPA options for problematic proposals that have not been
resolved by earlier NEPA coordination/negotiating efforts with NMFS.
Table 2-1 summarizes and compares the roles and responsibilities of the three sets of key players in the
FMP process. Throughout Section 2, particularly Figure 2-1, Table 2-1, and Section 2.2.4 which follows,
EPA has attempted to capture to the greatest extent possible, and with significant input from NMFS3, the
current regulatory process with respect to: (1) the process for developing, reviewing, approving and
implementing FMPs/Amendments, and (2) the process for preparing and filing for public review draft
EISs/SEISs and final EISs/SEISs.
Appendix B identifies other entities, in addition to the coastal states, that also have responsibility for
conservation and management of U.S. fishery resources, such as the three Interstate Regional Fishery
Commissions.
In addition to EPA's review, both NMFS General Counsel Fisheries (GCF) and NMFS technical staff have
reviewed and commented on the guidance document, particularly Sections 2 and 3, relating to the FMP process and fishery
issues respectively.
rnfprfinn Anpnrv
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Reviewing Environmental Impact Statements for Fishery Management Plans
Table 2-1. Comparison of Roles and Responsibilities
Regional Fishery Management
Council (Council)
NMFS/NOAA/DOC
U.S. Environmental
Protection Agency
PHASE 1 - PLANNING
Identifies need for new FMP or
Amendment to address fishery
issues/problems; usually first identified
and discussed at regular Council
meeting.
Initiates scoping under NEPA
requirements to determine scope and
significance of issues and impacts;
prepares NOI to prepare EIS (even if
ultimately decide to prepare EA); NOI
usually combined with notice of
scoping meetings (NOS); forwards
NOI/NOS to NMFS for FR publication;
prepares publicly available scoping
document; holds public scoping
meetings.
Determines level of environmental
review and NEPA documentation with
NMFS and NOAA GC concurrence.
NMFS Regional Administrator (RA)
participates in early Council planning
discussions/activities as voting Council
member; NMFS Regional and Council
staff usually maintain close coordination
regarding identified fishery
issues/problems during all Phases.
Publishes NOI in FR; RA participates in
scoping as Council member; Regional
staff may participate in scoping process
as agreed between Council and Region;
Regional staff may comment on scoping
document and issues.
RA and NOAA GC concur in
determination about NEPA
documentation.
EPA Regional staff may participate in
planning and pre-scoping discussions
with the Council and/or NMFS as
requested.
EPA Regional and Headquarters staff
may comment on the NOI and scoping
document and issues and attend
scoping meetings.
PHASE II - PREPARATION OF DRAFT DOCUMENTS
Prepares draft FMP/Amendment and
draft supporting documents, including
draft NEPA document (i.e., draft EAor
EIS/SEIS) containing initial assessment
of impacts on protected species under
ESA and MMPA.
Regional staff assist, as requested by
Council and agreed upon by RA, in
document preparation (e.g., drafting
sections or entire documents) and
informal review/comment regarding draft
documents.
Council and NMFS Region may share early drafts of documents with each other
for review, comment, and appropriate revision. Considerable variation in this
practice depending upon Council, Region, and particular action involved.
EPA Regional staff may be involved in
draft document preparation, as
requested by Council and/or NMFS.
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Re
iviewing Environmental Impact Statements for Fishery Management Plans
Regional Fishery Management
Council (Council)
NMFS/NOM/DOC
U.S. Environmental
Protection Agency
PHASE III - PUBLIC REVIEW OF DRAFT DOCUMENTS; FILING DRAFT EIS/SEIS FOR PUBLIC
REVIEW; AND COUNCIL PREPARATION AND ADOPTION OF FINAL DOCUMENTS
Adopts (usually by formal vote): (a)
draft FMP/Amendment and draft
supporting documents, including draft
NEPA document (i.e., draft EAor
EIS/SEIS) as adequate for public
hearings; and (b) draft EIS/SEIS as
adequate for filing with EPA through
NMFS/NOAAfor public comment (if
applicable).
RA votes with other Council members to
(a) take draft FMP/Amendment and draft
supporting documents to public hearings
and (b) find draft EIS/SEIS adequate for
filing with EPA.
Submits draft FMP/Amendment and
draft supporting documents to NMFS
for informal agency review; submits
draft EIS/SEIS to NMFS for filing with
EPA for public comment (draft EIS/SEIS
may or may not identify preferred
action alternative); distributes draft
FMP/Amendment and draft supporting
documents (including draft EA or
EIS/SEIS) to interested/affected
government agencies and public for
comment.
NMFS/NOAA files draft EIS/SEIS with EPA
for publication of FR Notice of Availability
(NOA) for public comment if document
found adequate; NMFS (with Council
assistance) distributes draft EIS/SEIS and
related draft FMP/Amendment and draft
supporting documents to
interested/affected government agencies
(e.g., EPA) and public for usual 45-day
NEPA comment period; NMFS returns
draft EIS/SEIS to Council for changes if
found inadequate for filing.
Publishes FR NOA of draft EIS/SEIS;
45-day (minimum) public comment
period begins.
Prepares and submits to NMFS a draft
FR notice of public hearings on draft
FMP/Amendment and draft supporting
documents, including draft EA or
EIS/SEIS; conducts public hearings on
draft FMP/Amendment and draft
supporting documents, including draft
EA or EIS/SEIS (hearings may be held
in conjunction with Council meeting).
Publishes FR notice of Council's
scheduled hearings; conducts informal
agency review of draft FMP/Amendment
and draft supporting documents,
including draft EA or EIS/SEIS.
Reviews and comments on draft
EIS/SEIS and related draft
FMP/Amendment and supporting
documents within 45 days (or longer
time period if extended by NMFS); EPA
typically reads FMP/Amendment as
part of draft EIS/SEIS review since
usually an integrated document.
Prepares final FMP/Amendment, final
supporting documents, including final
NEPA document (i.e., final EA or
EIS/SEIS), and "final" proposed
regulations based on public, NMFS,
and other federal agency (e.g., EPA)
comments.
Regional staff assist, as requested by
Council and agreed upon by RA, in final
document preparation (e.g., drafting
sections or entire documents).
U.S. Environmental Protection Agency
TO-0008 for contract 68-W-03-029
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Re
iviewing Environmental Impact Statements for Fishery Management Plans
Regional Fishery Management
Council (Council)
NMFS/NOM/DOC
U.S. Environmental
Protection Agency
Adopts by formal vote final
FMP/Amendment, final supporting
documents, including final NEPA
document (i.e., final EA or EIS/SEIS),
and "final" proposed regulations as
adequate for submission to NMFS for
formal Secretarial review. Note: The
final EA or EIS/SEIS (and
accompanying final FMP/Amendment
and other final supporting documents)
adopted by the Council identify, and
evaluate as appropriate, a preferred
alternative management action
pursuant to NEPA (40 C.F.R. 1502.14
PHASE IV-SECRETARIAL REVIEW AND APPROVAL/DISAPPROVAL OF FINAL FMP/AMENDMENT;
FILING FINAL EIS/SEIS FOR PUBLIC COMMENT; PROPOSED AND FINAL REGULATIONS FOR
THE FMP/AMENDMENT
Council submits final FMP/Amendment
and final supporting documents,
including final NEPA document (i.e.,
final EA or EIS/SEIS), and proposed
regulations to NMFS for Secretarial
NMFS immediately publishes FR NOA of
final FMP/Amendment and supporting
documents for 60-day public comment
period; NMFS distributes final
FMP/Amendment and final supporting
documents, including final NEPA
document (i.e., final EA or EIS/SEIS) to
interested/affected government agencies
and public.
NMFS immediately begins review of
proposed regulations for consistency with
FMP/Amendment, MSA, and other
applicable law; if regulations found
consistent, NMFS publishes proposed
regulations in FR for 1 5- to 60-day public
comment period; if regulations found
inconsistent, NMFS returns them to
Council with recommended changes.
U.S. Environmental Protection Agency
TO-0008 for contract 68-W-03-029
36
- September 2005
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Re
iviewing Environmental Impact Statements for Fishery Management Plans
Regional Fishery Management
Council (Council)
NMFS/NOM/DOC
U.S. Environmental
Protection Agency
May assist, at NMFS' request, in
distribution of the filed final EIS/SEIS
and related final FMP/Amendment and
final supporting documents to
interested/affected government
agencies and public.
NMFS/NOAA files final EIS/SEIS with
EPA for publication of FR NOA for 30-
day day public comment period if
document found adequate; NMFS (with
Council assistance as
requested)distributes final EIS/SEIS and
related final FMP/Amendment and final
supporting documents to
interested/affected government agencies
and public for 30-day "cooling-off"
comment period.
Publishes FR NOA of final EIS/SEIS for
30-day public review period ("cooling-
off" or "holding" period, as some EPA
regions call it) prior to final NMFS
action to approve/disapprove/
partially approve FMP/Amendment;
reviews final EIS/SEIS and provides
comments to NMFS; EPA may choose
not to comment on a final EIS/SEIS,
particularly if Draft EIS/SEIS rating was
LO [Lack of Objections].
NMFS considers public and Federal
agencies' comments on final
FMP/Amendment, final supporting
documents (including final EIS/SEIS), and
proposed rule received during 60-day
comment period for FMP/Amendment.
NMFS approves/disapproves/partially
approves final FMP/Amendment and
informs Council affinal agency action
within 30 days of end of 60-day
comment period for FMP/Amendment;
concurrent with final
approval/disapproval decision, NMFS
signs FONSI for final EA (as applicable)
and transmits to NOAAfor concurrence
or signs ROD if final EIS/SEIS (as
applicable).
Secretary promulgates (publishes) final
regulations in FR within 30 days of close
of 1 5- to 60-day public comment period
for proposed regulations that (a)
implement approved FMP/Amendment
measures, (b) summarize and address
public comments received, and (c)
become effective usually following a 30-
day delayed effectiveness period under
APA.
U.S. Environmental Protection Agency
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2.2.4 FMP/Amendment Process - Phases and Steps
NMFS's description of the phases and steps of the FMP/Amendment process is provided in depth in its
Operational Guidelines (NMFS 1997). The following revised appendices were issued in May 1998:
Appendix 2.a. (Coastal Zone Management Act); Appendix 2.c. (Procedures for Development of
Regulations); Appendix 2.d. (Guidelines for Regulatory Analysis of Fishery Management Actions); and
Appendix 2.f. (Paperwork Reduction Act). The Operational Guidelines may be found at the following
URL address, with a link to the guidelines at the bottom of website page:
http://www.nmfs.noaa.gov/sfa/domes fish/index.htm.
It is noted that NMFS' Regulatory Streamlining Project, currently under implementation, involves
significant changes in the Operational Guidelines (see Section 2.2.5 Future Direction).
The FMP/Amendment process is described in five phases:
• Phase I — Planning;
• Phase II — Preparation of Draft Documents;
• Phase III - Public Review of Draft Documents; Filing Draft EIS/SEIS for Public Review; Council
Preparation and Adoption of Final Document;
• Phase IV— Secretarial Review and Approval/Disapproval of Final FMP/Amendment; Filing Final
EIS/SEIS for Public Review; Proposed and Final Regulations to Implement Approved Measures;
and
• Phase V - Continuing Fishery Management.
Presented below is an outline of the major action steps under each phase of the FMP/Amendment
process. This outline represents a simplification of the process, which involves other actions (both
significant and minor) under the MSA as well as under numerous other applicable Federal laws and
E.O.s (see listing in Appendix C).
2.2.4.1 Phase I: Planning
This phase comprises the actions required prior to the preparation of an FMP or Amendment and its
implementing regulations. It involves: (1) identification of fishery problems/issues requiring conservation
and management through a new FMP or FMP Amendment, (2) conduct of the scoping process, (3)
determination of the appropriate level of NEPA review (i.e., which NEPAdocument will be prepared), and
(4) initiation of actions having schedules independent of those established under the MSA. Although
required by different individual statutory or administrative mandates, each of these actions is closely
interconnected, sharing the common purposes of defining the fishery management issues to be addressed
and the objectives for addressing them. The output of this phase should be an early overview and
understanding of the management issues or problems, the general options for resolving them, and the
statutory and other requirements that must be met before taking any final agency action. Integrating the
several identified required actions as fully as possible is desirable, and is the most efficient approach to
accomplishing the steps in this phase.
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The Phase I steps presented below reflect the current "Operational Guidelines" as last amended in 1 997
(NMFS 1 997). Thus, most of the Phase I steps indicate that the Council has the primary or even exclusive
responsibility for initiating and conducting the scoping activities and determining the appropriate
environmental review document required under NEPA for a given management action. As part of its
ongoing Regulatory Streamlining Project, NMFS is revising these Operational Guidelines to reflect a
modified FMP process that places greater emphasis on NEPA compliance (see discussion in Section
2.2.5, Future Direction). One change envisioned is a stronger focus on collaborative efforts between
the Councils and NMFS Regional Offices in developing the documentation that supports the fishery
management decisions under consideration. Under this proposed scenario, the Council and NMFS
Regional Office staff would collaborate, beginning at the earliest planning stage (Phase I), in preparing
all necessary documents (including NEPA documents). Therefore, it would not be assumed that either
the Council or NMFS Regional Office has a particular responsibility for doing all of the staff work for any
given required document. Thus, under Phase I, NMFS and the Council would have joint responsibility
for conducting the scoping process and for determining what NEPA document will be prepared for the
action. How this would be implemented for each Council and Regional Office pairing would be
established through an agreement between the two. Under the Regulatory Streamlining Project, the
Council-NMFS collaborative efforts in developing both draft and final documents would continue until
Secretarial review commences (Phase IV).
Steps
Council identifies fishery requiring conservation and management (new FMP) or requiring
management changes under an approved/implemented FMP due to fishery problems and issues
(i.e., changes via an FMP Amendment or framework regulatory action).
Council initiates scoping (NEPA requirement) to determine the scope and significance of
biological, ecological, economic, and social issues to be addressed; scoping can begin with FR
publication of a NOI to prepare an EIS, (whether or not decision to prepare EIS has been made),
usually combined with a notice of initiation of the scoping process and of scheduled scoping
meetings.
Council holds scoping meetings for public input on all major scoping issues; Council prepares
scoping documents summarizing the fishery issues or problems, alternative actions, if considered
at this point, to address identified issues, and potential impacts; public comments on scoping
issues and documents.
Council determines, based on scoping information and public comment, and with NMFS'
concurrence, the appropriate environmental review document in support of the FMP/Amendment
(i.e., EIS/SEIS, EA, or CE) and begins preparation. Note: ESA, MSA EFH, and MMPA
considerations are addressed at this point to the extent that potential significant impacts on
protected and managed species are identified that would require an EIS/SEIS.
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• Council and NMFS initiate supporting actions underapplicable law (e.g., ESA, MSAEFH, MMPA,
CZMA, E.O. 12866), as appropriate. A preliminary assessment of impacts on listed species and
critical habitats under ESA and on marine mammals under MMPA is required at this point.
2.2.4.2 Phase II: Preparation of Draft Documents
This phase involves the preparation of the draft FMP or Amendment, the draft NEPA document (draft EIS
or EA that includes the ESA and MMPA impact analysis, as appropriate), Draft Regulatory Impact Review
(DRIR), IRFA (if needed), draft PRA statement in support of new or revised information collection (estimate
of burden hours for record keeping and reporting requirements), and draft proposed regulations. Note
that in some regions (Northeast in particular), IRFAs are often only included in Final FMP/Amendment
EISs since the preferred alternative is not identified in the draft. When this happens, the final RFA is
included in the final rule package.
The responsibility for preparing these documents, except for ESA consultations and biological opinions
(BOs), lies primarily with the Council, with assistance from NMFS. While the Councils have assumed
most or all of the responsibility for preparing NEPA analyses in support of an FMP/Amendment (e.g, EA
or EIS), NMFS does have the final responsibility, as the Federal agency that will take the subject action,
for ensuring that such NEPA documents comply with NEPA, the CEQ regulations and NAO 21 6-6. For
this reason, there is significant collaboration between the Councils and NMFS Regions in determining
the appropriate level of environmental review for a proposed action and in preparing the EA or EIS in
support of it.
The amount of time taken by Councils to prepare these documents is discretionary, but once submitted
for public and informal agency review (Phase III) and formal Secretarial review (Phase IV), fixed schedules
come into play (as dictated by other applicable laws, hearing and public comment schedules, and MSA
requirements). Specific steps for Phase II are not provided; the timing and procedures for this phase are
individual to each Council and the fisheries under consideration. Close cooperation with the Council
and NMFS during Phases II and III is essential for reducing the risk of FMP/Amendment disapproval or
partial approval during Phase IV.
A central theme common to E.O. 1 2866, RFA, PRA, and MSA is the requirement to analyze the direct
and indirect effects of regulations, to demonstrate that regulations will result in net benefits to society, and
to explain why a chosen regulatory measure is superior to other alternatives. To the extent that MSA
documents are to be integrated with NEPA documents, FMP EISs would also discuss and analyze net
benefit. Likewise, a foundation for decision-making regarding approval/disapproval of an FMP or
Amendment is an analysis of the alternative fishery management measures that have been identified as
possible means of addressing the subject fishery issues or problems, while ensuring that the overall
objectives of the FMP or Amendment continue to be met. The FMP or Amendment is expected to set forth
and analyze the short-term, long-term, and cumulative effects of the preferred action and its alternatives
upon the total relevant human environment, which entails assessing potential biological/ecological,
economic, and social impacts. A Council's choice of a particular optimum yield for a fishery should be
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based on an analysis of these considerations, and must be carefully documented as consistent with the
National Standards for Conservation and Management, other MSA provisions, and other applicable law.
Steps
• Council prepares, based on scoping results and with NMFS' assistance, the draft
FMP/Amendment and all draft supporting documents, including the draft NEPA document (e .g.,
EIS/SEIS or EA), DRIR, Draft IRFA (if applicable), draft PRA statement, and draft proposed
regulations, if possible.
• FMP/Amendment preparation team identifies the proposed and alternative management
measures addressing the identified fishery problems/issues and assesses probable biological,
ecological, economic, and social impacts. Note: Councils, with NMFS's assistance, will assess
possible impacts on listed species and critical habitats under ESA requirements and on marine
mammals under MMPA.
2.2.4.3 Phase III: Public Review of Draft Documents; Filing Draft EIS/SEIS for Public Review; and
Council Preparation and Adoption of Final Documents
This phase involves: (1) Council adoption (usually by formal vote), for purposes of taking to public
hearings, the draft FMP or Amendment, draft supporting documents (including DRIR, draft IRFA, if
applicable; draft EA or EIS/SEIS; and an initial analysis of potential impacts on protected species under
ESA and MMPA (part of the environmental impact analysis)), and draft proposed implementing
regulations, if available; (2) NMFS/NOAA filing of draft EIS/SEIS, if applicable, with EPA for public
comment per NEPA requirements; (3) public comment on the draft FMP or Amendment, draft supporting
documents, and draft proposed regulations, if available, through Council-conducted public hearings;
(4) NMFS comment on the draft FMP or Amendment, draft supporting documents, and draft proposed
regulations (if available); (5) Council preparation of final FMP or Amendment, final supporting
documents (including FRIR, final IRFA, final EAorEIS/SEIS), and proposed implementing regulations; and
(6) Council adoption (by formal vote) of the final FMP or Amendment, final supporting documents, and
proposed regulations for submission for Secretarial review.
The Council's draft documents released for public review should identify, if possible, its preferred
alternative for addressing the specified fishery issues or problems. The Council conducts public hearings
in Phase III on the draft FMP or Amendment (and supporting draft documents and draft proposed
regulations if available) as required by the MSA. NMFS/NOAA participates, as necessary and
appropriate, regarding NEPA requirements during Phase III (e.g., NMFS/NOAA determines if draft
EIS/SEIS is adequate for filing; if so, NMFS/NOAA files the draft EIS/SEIS with EPA for public review and
comment).
Once NMFS has determined that the Council has completed all necessary components of the draft FMP
or Amendment package and submitted them to NMFS, NMFS will begin its informal review of these
documents. If a draft EIS/SEIS is required, NMFS/NOAA will determine whether it is adequate for filing.
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If the draft EIS/SEIS is determined to be inadequate, it will be returned by the Regional Administrator to
the Council with the deficiencies identified and appropriate modifications suggested. If an EA will satisfy
NEPA requirements for the proposed action, the draft EA will be reviewed and commented on by NMFS
as part of the draft FMP or Amendment package.
Based on a finding of consistency with the requirements of NEPA, NAO 21 6-6 and CEQ regulations,
NMFS/NOM will file the draft EIS/SEIS with EPA for public comment. Just prior to filing the draft
EIS/SEIS, NMFS and the Council will distribute copies and associated draft FMP or Amendment and draft
supporting documents to all interested parties for review and comment during Phase III, including
appropriate Federal agencies (e.g., EPA Regional Offices).
Following filing of the DEIS/DSEIS and publication of its Notice of Availability (NOA) (if applicable),
NMFS will review the draft FMP or Amendment and supporting draft documents (including draft EIS/SEIS
or EA) in depth. The Regional Administrator will provide the Council with agency comments (by letter),
which will include both critical and substantive issues, by the 60th day after the start of the public review
period (usually a 45-day comment period for the draft EIS/SEIS). If the action does not involve filing a
draft EIS/SEIS for public review, NMFS will provide comments by the 60th day after the draft FMP or
Amendment package is distributed to Regional and Headquarters reviewers, in accordance with the
NMFS 1997 Operational Guidelines. For those FMPs or Amendments that involve complex issues,
establishment of new agency policy, drafting legal opinions, or resolving substantive differences of
opinion within the agency, NMFS comments may be delayed beyond the 60th day (NMFS 1997). It is
noted that a Council has the option of requesting an early consultation with NMFS or even an advance
agency review of its draft FMP/Amendment and draft supporting documents (including draft NEPA
document) prior to the Council's public hearings in Phase III.
Steps
Council adopts (usually by formal vote), for purposes of taking to public hearings, the draft FMP
or Amendment, draft supporting documents (including DRIR, draft IRFA, if applicable, draft EA
or EIS/SEIS, and an initial analysis of potential impacts on protected species under ESA and
MMPA (part of the draft environmental impact analysis)); and draft proposed implementing
regulations, if available.
Council submits draft FMP/Amendment, draft supporting documents (including draft EA or
EIS/SEIS), draft proposed regulations (if available), and any source documents to NMFS for
informal agency review.
NMFS/Council distributes the draft FMP/Amendment and draft supporting documents (including
draft EA or EIS/SEIS (see below)) to interested/affected government agencies and public for
comment.
NMFS conducts an informal review of draft FMP/Amendment and draft supporting documents
for critical issues (potentially affecting approval) and substantive issues and for consistency with
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applicable laws, E.O.s and agency guidance; NMFS provides informal agency review comments
to the Council (usually within 60 days of receipt of draft FMP/Amendment package from Council)
reflecting agency's internal review and comments from other Federal agencies.
NMFS/NOM reviews the draft EIS/SEIS (if applicable) for consistency with NEPA, CEQ
regulations, and NAO216-6 requirements; if held consistent, NMFS/NOM files draft EIS/SEIS
with EPA for public review and comment; EPA publishes FR NOA for usual 45-day NEPA public
comment period. NMFS distributes, with Council assistance as requested, the filed draft EIS/SEIS
and associated draft FMP/Amendment and other draft supporting documents to
interested/affected government agencies (e.g,. EPA) and public. Note: EAs are not filed with EPA
at either draft or final stages; public reviews of EAs are optional.
• If endangered or threatened species, related critical habitat, or EFH may be affected, NMFS
consults with itself and/or the FWS, depending upon the species involved; NMFS informs Council
of agency ESA decisions resulting from formal or informal consultations, or agency EFH decisions
resulting from abbreviated or expanded consultations; MSA EFH and ESA Section 7 consultations
should be completed prior to Phase IV (submission for Secretarial review).
• Council holds public hearings on draft FMP/Amendment, draft supporting documents (including
draft EA or EIS/SEIS), and draft proposed regulations (if available).
• Council prepares final FMP/Amendment, final supporting documents (including FRIR, final IRFA,
final EA or EIS/SEIS) and proposed regulations based on public and NMFS/NOAA comments
on the draft documents received during Phase III; Council's final FMP/Amendment and final
supporting documents reflect ESA consultation determinations and incorporate measures
identified in the BO and incidental take statement (if applicable).
• Council adopts (formal vote) final FMP/Amendment, final supporting documents (including FRIR,
final IRFA, final EA, or EIS/SEIS), and proposed regulations for submission to NMFS for formal
Secretarial review.
2.2.4.4 Phase IV: Secretarial Review and Approval/Disapproval of Final FMP/Amendment; Filing
FEIS/FSEIS for Public Review; Proposed and Final Regulations for the FMP/Amendment
This phase involves: (1) Secretarial review of the final FMP or Amendment and final supporting
documents (including final EA or EIS/SEIS); (2) NMFS' publication in the FR for public review and
comment of the NOA of the final FMP or Amendment and final supporting documents, and of the
proposed implementing regulations; (3) NMFS/NOAA filing of final EIS/SEIS (as applicable) with EPA for
public review and comment; (4) NMFS' consideration of public comment on the final FMP or
Amendment, final supporting documents (including final EIS/SEIS or EA), and proposed regulations; (5)
NMFS' approval, disapproval, or partial approval of the FMP or Amendment; (6) NMFS' conclusion of
the NEPA process by signing of the FONSI (as applicable when final EA involved) or by signing of the
ROD (as applicable when a final EIS/SEIS involved); and (7) implementation of approved FMP or
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Amendment measures through issuing final regulations (publication in the FR). Note: If the Council
submits a final EIS/SEIS in support of the FMP or Amendment, NMFS/NOAA files it with EPA (if found
adequate under NEPA) for publication of an NOA for public review and comment (usual 30-day
comment period). Just prior to filing the final EIS/SEIS, NMFS will distribute copies of it and associated
final FMP or Amendment and supporting documents to all interested parties for review and comment
during Phase IV, including appropriate Federal agencies (e.g, EPA Regional Offices).
Steps
Council transmits final FMP/Amendment, final supporting document (including FRIR, final IRFA,
final EA or EIS/SEIS), and proposed regulations to NMFS for Secretarial review; NMFS declares
a "transmittal" date on which it has received all final documents from the Council required to
begin Secretarial review.
NMFS immediately begins review of final FMP/Amendment and final supporting documents for
consistency with National Standards, other MSA provisions, and other applicable law.
NMFS immediately publishes in the FR an NOA of the final FMP/Amendment and final
supporting documents for 60-day public comment period.
NMFS distributes final FMP/Amendment and final supporting documents (including final EA or
EIS/SEIS (see below)) to interested/affected Federal agencies for comment.
NMFS immediately begins review of proposed regulations for consistency with FMP/Amendment,
MSA and other applicable law. If found consistent, NMFS publishes proposed regulations in the
FR for 45-day public comment period after necessary NOAA/DOC legal and other clearances.
If found inconsistent, NMFS notifies Council with recommendations for revisions necessary to
make consistent. Note: The MSA provides that proposed regulations be published for a 15-day
to 60-day public comment period; standard NMFS practice provides a 45-day comment period
for proposed regulations for FMPs/Amendments.
Council may revise proposed regulations, if found inconsistent with applicable law and returned
by NMFS (see previous step), and re-submit to NMFS for re-evaluation and FR publication.
NMFS/NOAA reviews final EIS/SEIS (as applicable) for consistency with CEQ regulations and
NAO 21 6-6; if held consistent, NMFS/NOAA files final EIS/SEIS with EPA for public review and
comment; EPApublishes NOAin FRfor30-day NEPApubliccomment period. NMFS distributes,
with Council assistance as requested, the filed final EIS/SEIS and associated final
FMP/Amendment and other final supporting documents to interested/affected government
agencies (e.g., EPA) and public. Note: The 30-day public comment period must end prior to
NMFS's final action to approve/disapprove/partially approve the FMP/Amendment. Note: EAs
are not filed with EPA at either draft or final stages.
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• NMFS considers public comment on the final FMP/Amendment, final supporting documents
(including final EIS/SEIS or EA), and proposed regulations, as well as comments by other Federal
agencies received through the end of 60-day public comment period for the FMP/Amendment
(NOA), in taking final action to approve/disapprove/partially approve the FMP/Amendment.
• NMFS approves, disapproves, or partially approves final FMP/Amendment based on
determination of consistency with MSA and other applicable law, and notifies Council of agency
decision on or before the 30th day after end of public comment period for final FMP/Amendment
(NOA). Concurrent with NMFS' final action to approve/disapprove/
partially approve the FMP/Amendment, NMFS concludes the NEPA process either by: (a) signing
the FONSI for the final EA (as applicable) and transmitting it to NOAA for concurrence and
making the signed FONSI/final EA publicly availably (by mention in the final regulations or the
FR notice of final agency action when no final regulations are involved); or (b) by signing the
ROD (as applicable when final EIS/SEIS involved; NOAA Administrator for Fisheries signs ROD)
and making it publicly available (either through mention in the final regulations or in the FR
notice of final agency action when no final regulations are involved).
• NMFS promulgates final regulations within 30 days of end of the proposed regulations comment
period to implement approved final FMP/Amendment measures after necessary NOAA/DOC
legal and other clearances as applicable (OMB clearance required for significant rules under
E.O. 12866 and for collection-of-information measures subject to PRA). Following publication,
final regulations are effective after 30-day delayed effectiveness period under APA, unless waived
for good cause or if the measures lift regulatory restrictions. Final regulations summarize and
address all publiccomments received on the FMP/Amendment, supporting documents (including
final EIS/SEIS or EA), and proposed regulations.
2.2.4.5 Phase V: Continuing Fishery Management
Phase V involves continuing management adjustments for a fishery after an FMP has been approved and
implemented. These adjustments may be taken through: (1) an FMP Amendment (see Section 2.1.2 for
general discussion and Phases I-IV for specific process steps); (2) an FMP's framework measures and
authorized framework regulatory actions, including use of regulatory amendments (see Sections 2.1.3
and 2.1.4); (3) emergency and interim regulatory actions (see Section 2.1.4); and (4) Secretarial FMPs
or Amendments and implementing regulations (see Section 2.1.2). As discussed earlier, all such
continuing fishery management actions following the implementation of an FMP or Amendment will
necessitate supplemental or new environmental review documents consistent with NEPA requirements.
2.2.5 Future Direction
The preparation, review, approval and implementation of FMPs and Amendments and the attendant rules
and regulations under the MSA is, by its very nature, a complex process in which the Councils and NMFS
have distinct, yet overlapping roles. In many instances, the issues presented are controversial, politically
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charged, and difficult to analyze. In addition, a variety of other applicable laws impose even more
analytical and procedural requirements on an already complex system.
NMFS, with direction from Congress, initiated the Regulatory Streamlining Project to improve the way the
agency and the Councils integrate the multiple mandates governing fisheries management; increase
efficiency in designing and implementing fishery management measures; and improve overall the
decision-making process. The goal of this Project is to improve the efficiency and effectiveness of NMFS
fishery conservation and management activities and to increase compliance with all procedural
requirements. In different terms, the ultimate intent of the Project is to ensure that the fisheries
management process is done correctly the first time.
On December 26, 2002, the Secretary submitted a report on NMFS's Regulatory Streamlining Project
to Congress. The report outlined the changes that NMFS proposed or had already implemented to
improve its regulatory process. The report discusses NMFS' intended administrative and regulatory
process changes, focusing on the NEPA process as a framework within which to conduct all of the
analytical requirements imposed on the regulatory decision-making process for fisheries management.
The open and public processes required by the MSA and NEPA a re to provide the basis for implementing
regulatory streamlining. Together, the MSA and NEPA require the incorporation of all of the relevant
factors into fisheries conservation and management decisions; prescribe an open process for identifying
issues and considering a range of alternatives; provide for review and participation by affected states and
Indian tribes; and promote effective public review and input. The MSA requires fishery management
actions to be consistent with other applicable laws. Similarly, the CEQ regulations for implementing
NEPA require agencies, to the fullest extent possible, to integrate the NEPA process with other planning
and regulatory compliance requirements (such as the consultation requirement under Section 7 of the
ESA, and consistency determinations under the CZMA). This integration must occur at the earliest
possible time to ensure that planning and decisions take into account environmental values reflected in
these other laws and regulations, avoid delays later in the process, and prevent potential conflicts with
alternatives and mitigation methods required by other laws. Documents prepared under the MSA and
NEPA do not replace other applicable requirements, such as the RIR which is prepared in compliance
with EO 1 2866 or the Preliminary Regulatory Economic Evaluation (PREE) prepared in compliance with
the RFA. Rather, the public resources of the MSA and NEPA are to provide a venue for addressing all
applicable requirements under the Regulatory Streamlining Project. NMFS has identified and is taking
a number of actions to implement the Regulatory Streamlining Project. Those with a NEPA focus include
the following:
Front-Loading the NEPA Process. Environmental, social, and economic factors need to be considered
early in the development of management actions. Regulatory streamlining efforts are currently underway
at NMFS that include front-loading the regulatory analysis based on what NMFS views as the most
demanding analytical tasks - those required by NEPA. Front-loading the NEPA process will allow more
effective use of NEPA procedures to identify and resolve important issues earlier in the FMP/Amendment
process, such as the interface of NEPA and ESA. This will be accomplished through the active
participation of all Regional, Science Center, and Council staff in key responsibilities (e.g,. sustainable
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fisheries, protected resources, habitat, economics, legal review), as well as appropriate Headquarters
staff, at the early stages of the development of the fishery management action - a "no surprises"
approach. All relevant reviewing parties are to participate early in the FMP/Amendment process to
ensure that all significant legal and policy issues are identified to the extent possible. Draft documents
will be circulated to all involved parties, including EPA reviewers who are willing to review and offer
comments on NEPA documents as they are being developed.
Revise the NMFS Operational Guidelines for the Fishery Management Process. Operational
Guidelines are being revised to incorporate, in part, the "front-loading" of the NEPA process referenced
above, i.e., to promote early input from all interested parties and to utilize existing processes under NEPA
as a forum for bringing together all relevant stakeholder input in an early and open way. These
Guidelines represent NMFS' official procedural guidelines under the MSA for assisting Councils and all
other involved parties in the development, review, approval, and implementation of FMPs, Amendments,
and their implementing regulations.
Establishing a National NEPA Train ing Program. NMFS has set up ongoing national training programs
to ensure that Regional, Headquarters, and Council staff are trained in NEPA and the requirements of
all related statutes and mandates. Numerous, agency-wide NEPA training courses have been conducted
to date and this training will continue in some form on a long-term basis.
Hiring Environmental Policy Coordinators. A NMFS Headquarters "National Environmental Policy
Coordinator" and Regional NEPA Coordinators have been hired to ensure national and regional
consistency, facilitate front-loading of the NEPA process, provide advice on integrating statutes, and
remain current on national policy issues related to environmental compliance. The major role of
Regional NEPA Coordinators will be to conduct training and quality control reviews of EAs and EISs to
make sure they are adequate and in compliance with NEPA, the CEQ regulations, NAO 21 6-6, and all
other applicable requirements. It is also anticipated that the NMFS Regional NEPA Coordinators will
serve as a primary point of communication with the EPA reviewers regarding the development and/or
review of specific EISs and related issues. Many of the Regional NEPA Coordinators have already
established ongoing working relationships with appropriate staff in EPARegional Offices. Regional NEPA
Coordinators may be contacted at the NOAA Regional phone numbers provided in Section 5. Finally,
many of the Councils have hired NEPA specialists.
Improving the Administrative Process. Elimination of unnecessary levels of agency review of documents,
including all NEPA documents, and changes in delegations of signature authority will be considered over
the next two years.
Improving the Fishery Management Process. The front-loading of the NEPA process, as it is integrated
with the MSA FMP/Amendment process, is expected to result in significant efficiency/effectiveness
improvements in fisheries management and in reductions in litigation.
The Regulatory Streamlining Project is well underway but there a re still major steps yet to be undertaken.
Once the revised Operational Guidelines are finalized, they will be implemented as soon as possible.
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There will be a transition time required for full and successful implementation of the revised
FMP/Amendment process while NMFS, Councils, and other participants adjust to changed roles and
responsibilities. It is anticipated that NMFS will share with EPA these revised Operational Guidelines
once they are released and will coordinate with appropriate EPA Headquarters and Regional staff in how
they may best work with the Councils and NMFS in achieving the Project objectives. Certainly, earlier
and more systematic communications between NMFS/Council staff and EPA staff regarding the
identification and assessment of environmental impacts of proposed fishery management actions should
result.
Of additional note are EPA's own efforts to address existing problems with the FMP/Amendment EISs
through the development of this Section 309 review guidance.
Finally, it should be noted that MSA has been scheduled for re-authorization for the last four years.
During that time, Congress has held numerous hearings on various aspects of hte MSA, and key
members of both the Senate and House of Representatives have proposed legislation to re-authorize the
MSA. Congressional hearings to date have taken public testimony on a number of major issues that may
results in changes to the MSA. These issues have included overcapitalization of fisheries, cooperative
research within the fishing industry, individual fishing quotas (IFQs), and interactions between fisheries
and marine mammals, ecosystem-based management, the proper use of scientific information, Council
operations, and the effects of sonar on marine mammals. Congress is expected to revisit MSA re-
authorization in 2005.
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Reviewing Environmental Impact Statements for Fishery Management Plans
SECTION 3
Fishery Issues in NEPA Documents
While past emphasis has been on fishery development and expansion, with single-species management
the practice, fishery managers are nowtransitioning too future that involves stabilization, contraction, and
ecosystem-wide effects of the fisheries. The diversity of fishing regions, the pressures on resources, the
variability of management performance, the complexity of ecosystem-based management, and the varying
status of fish stocks all make conservation and management of fisheries a complex and interdependent
effort.
The major challenge of fisheries management is to find a balance between social, economic and
biological considerations that ensures healthy fisheries and healthy ecosystems. Balance is critical to
sustainability- balance between the present and the future needs, resource use and conservation, biology
and economics, communities and individuals, variability and stability. It should be noted that economic
and social impacts are considered major components to finding this balance.
Fora fish stock to remain biologically productive overtime, the fish mortality rate must not exceed the rate
at which the fish can renew themselves through reproduction and growth. Fish mortality rates are affected
by natural, environmental, and human causes. Natural effects include fish preying on each other, disease
and age. Environmental conditions that affect fish include oceanic conditions that may affect the
availability of food, thereby affecting the rates of growth and survival for fish, and quality and quantity of
their habitat. Human impacts include fisheries in which fish are removed in targeted fishing - as a
harvested resource — and are removed as they are caught incidentally to targeted fishing — as bycatch.
Incidentally caught fish, or bycatch, can be impacted by direct injury or death from the fishing gear, from
injury during handling and release, or from the "ghost fishing" of lost gear. Bycatch that is discarded can
be indirectly impacted by the fishery due to loss of fitness which allows them to become easy prey for
predators. Fish are also impacted indirectly from gear disturbances to habitat (particularly EFH) or from
fishing practices that alter the mix of fish stocks (e.g., reduced food source where one species feeds on
another). All of these effects also impact non-fish marine animals (e.g., marine mammals, sea turtles, and
birds).
Figure 3-1 illustrates the possible ecological impacts of fishing, showing how fishing can alter ecosystem
structure and function. The physical impact of some fishing gear on the seafloor may impact habitats for
important commercial species and other marine life. Togetherthese impacts can lead to habitat damage,
reduced biodiversity, changes in food webs, and reduced ecosystem function.
U.S. Environmental Protection Agency
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eviewing Environmental Impact Statements for Fishery Management Plans
Fishing
V-4fG^^^+*
Habitat Damage
•Alterationto -Damageto
F* geologic living seafloor
structures structures
Bycatch
•Economic -Regulatory -Collateral
discards discards mortality
«Predator-Prey «Compellive 'Changes in marine
interactions interactions food webs
Altered Ecosystem Structure and Function
Figure 3-1. Ecological Impacts of Fishing
Source: Morgan and Chuenpagdee 2003 (Shifting Gears, Addressing the
Collateral Impacts of Fishing Methods in U.S. Wafers)
The overall approach to fisheries management is slowly changing. Looking beyond individual fish stocks
to the sustainability of ecosystems is an idea that is now being encouraged and implemented, consistent
with NMFS' mission statement of "...stewardship of living marine resources through science-based
conservation and management and promotion of healthy ecosystems." Innovation is needed for methods
to catch fish, and reduce bycatch, protect EFH, rebuild over-fished stocks, reduce over-capitalized fleets,
resolve user and interest group conflicts, and increase accountability.
Another important component of fisheries management is the ability to base decision-making on the best
available scientific information that encompasses all biological and human components of the fishery
system, as set forth in MSA's National Standard 2 (50 C.F.R. 600.315). To the extent that information
is available, it must be included in an FMP/Amendment NEPA document. Even with the best available
data, however, there may be large gaps in knowledge and considerable uncertainty surrounding fishery
management decisions, particularly given the complex and dynamic nature and interrelationships of
marine ecosystems. Where information is lacking or uncertainties exist, these data deficiencies need to
U.S. Environmental Protection Agency
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be clearly explained in the EIS as per CEQ regulations at 40 C.F.R. 1502.22. In addition, the EIS should
clearly identify monitoring and research efforts to address data gaps and/or uncertainties.
The following sections provide a more detailed look at the major environmental fishery issues including:
bycatch, EFH, protected species, water quality, subsistence and indigenous fishing, and ecosystem-based
management. Three additional "big picture" issues important in the development of FMP/Amendment
EISs are addressed. These include the science of fisheries management, data needs (e.g., use of best
scientific data and incomplete or unavailable information), and document readability.
3.1 Bycatch
During fishing operations, a substantial number of fish and/or other organisms may be incidentally
caught, sometimes resulting in mortality (depending on the species caught, the fishing gear, season, and
area). As such, bycatch and discards add to fishing mortality and should be considered a direct effect of
fishing. MSA and its implementing regulations define bycatch as "fish which are harvested in a fishery,
but which are not sold or kept for personal use, and includes economic discards and regulatory discards.
Bycatch does not include fish released alive under a recreational catch and release fishery management
program." Fish, in turn, are defined under MSA as "finfish, mollusks, crustaceans, or parts thereof, and
all other forms of marine animals and plant life other than marine mammals and birds." Under this
definition, sea turtles are considered "fish" although all sea turtles in U.S. waters are protected under the
ESA. Protections for marine mammals and sea birds are provided by ESA, and further protections are
found in the MMPA and Migratory Bird Treaty Act (MBTA), respectively. Within MSA, bycatch is further
defined as regulatory discards and economic discards. Regulatory discards are defined as harvested fish
that fishers are required by regulation to discard whenever caught (e.g., fish or other organisms
designated prohibited species that by law must be returned to the sea) or are required by regulation to
retain but not sell, including fish that may be below legal size or which are caught in excess of established
bycatch or catch quotas. Economic discards are defined as fish that are the target of a fishery but which
are not retained because they are of an undesirable size, sex or quality, or a species for which no market
exists, or for other economic reasons. Some specific examples of economic discards include fish of the
wrong species (non-target species), fish of unmarketable size, or fish damaged by gear through
mishandling or by predation while in nets or hooked. Some specific examples of regulatory discards
include juvenile fish, fish of the wrong sex (berried female lobster), fish captured beyond quota, and fish
or other organisms designated as prohibited species that by law must be returned to the ocean.
Bycatch is not a new issue or problem. It has existed since fishing began and virtually all fisheries in the
world have some bycatch associated with them. Bycatch exists because of the imperfect nature of fish
capture, the limited selectivity of certain fishing gear, the behavior and distribution of fish, and the
structure of management programs. Some examples of how these factors cause bycatch are:
• Limited selectivity of certain fishing gear, e.g., longlining forswordfish often results in catches of
sharks, marlin, tuna, and turtles.
• Fish behavior and distribution, e.g., bait in lobster pots attracts and captures black sea bass,
tautog, and crabs, as well as lobsters.
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• Management programs, e.g., a quota system that may result in "high-grading", i.e., discarding
small specimens of the target species to make room for more valuable specimens of the same
species when the total allowable catch (TAG) is limited.
The quantity of fish killed as bycatch is a significant factor for many stocks. Evidence suggests that these
levels of mortality are unsustainable and that we are above the maximum sustainable level of many
fisheries' biological productivity. Alverson ef a/ (1 998) estimated that roughly 25% of fishery catch is
discarded. Using this estimate, Dayton and Colleagues (as cited in Roady 2002) estimated that in the
year 2000, U.S. fisheries discarded approximately 2.3 billion pounds (1.05 million metric tons) of sea
life. Bycatch of this magnitude can significantly impact individual species and marine ecosystems. It can
also create significant challenges for both fishers and managers, and has become a primary driver in how
some fisheries are managed. Bycatch of species protected under MMPA and ESA can cause fisheries to
be closed; and when a fishery exceeds its bycatch limit for certain species, it is closed for the season.
It should be noted that under MSA, the primary bycatch or discard concern pertains to discards associated
with the harvesting of finfish and the incidental taking of sea turtles. However, the incidental taking of
species other than fish (as defined by the MSA), such as marine mammals and sea birds, is also
considered bycatch according to NMFS in its 1 998 report, Managing the Nation's Bycatch (NMFS 1 998),
which defines bycatch as "the discarded catch of any living marine resource plus retained incidental catch
and unobserved mortality due to a direct encounter with fishing gear." However, NMFS is not
emphasizing the inclusion of "retained incidental catch" as bycatch in its recent National Bycatch strategy.
The taking of non-fish species also has been referred to as "incidental catch," "incidental species," and
"incidental take, " although the latter phrase (incidental take) usually refers to the taking of protected
species, including non-fish species, as defined under ESA and MMPA ("take"). EPA reviewers may see
reference to one or more of these terms in the course of reviewing an FMP/Amendment EIS, so it is helpful
to be aware of the varying terminology and its implications under the respective regulations.
The MSA requires FMPs/Amendments to be consistent with ten National Standards, including National
Standard 9, which states that "conservation and management measures shall, to the extent practicable,
minimize bycatch and, to the extent bycatch cannot be avoided, minimize the mortality of such bycatch."
Section 303 of the MSA requires NMFS to establish a standardized reporting method for bycatch and to
minimize bycatch and the mortality of unavoidable bycatch to the extent practicable. Practicability criteria
for National Standard 9 also have been set forth in 50 C.F.R. 600.350(d)(3). Specific factors to be
considered in an analysis of practicability of management measures to minimize bycatch include:
population effects for the bycatch species; ecological effects due to changes in the bycatch of that species;
changes in bycatch of other species offish and the resulting population and ecosystem effects; effects on
marine mammals and birds; changes in fishing, processing, disposal, and marketing costs; changes in
fishing practices and behavior of fishermen; changes in research, administration, and enforcement costs
and management effectiveness; changes in economic, social and/or culture I value of fishing activities and
non-consumptive uses of fishery resources; changes in distribution of benefits and costs; and social effects.
A number of advances have been made to address issues relating to the management of bycatch within
the Nation's fisheries - by NOAA, the Councils, fishermen, private industry, and other groups, often
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working cooperatively. As part of its National Bycatch Strategy, NMFS has developed goals and objectives
for standardized bycatch reporting methodologies, and a national approach to standardized bycatch
monitoring programs (NOAA 2004). Each NMFS region also has identified bycatch priorities and
developed implementation plans. A complete listing of bycatch related documents, including the above
and recent regulatory actions and FMP Amendments, etc. are available on the NMFS website at
http://www.nmfs.noaa.gov/bycatch.htm.
Numerous methods currently in use to monitor and estimate fishery bycatch include: the use of data
collected onboard fisheries research vessels and chartered vessels, self-reporting by fishermen and/or
other industry representatives, at-sea fisheries observers, and video cameras and digital scanning devices.
Estimates of bycatch should be incorporated into FMPs/Amendments and taken into account in setting
fishing quotas and in understanding and managing fishing to protect ecosystems and non-fished
ecosystem components. Reducing fishing intensity on target species can also reduce bycatch.
In addition to bycatch limits and bycatch monitoring, gear modifications, gear restrictions, and other
regulations have been implemented to reduce bycatch. In the North Pacific, biodegradable panels are
required for pot gear to minimize bycatch associated with so-called ghost fishing of lost gear; and gillnets
for groundfish have been prohibited to prevent ghost fishing and bycatch of non-target species. Recently,
NOAA announced the development of a new technology to help commercial longline vessels reduce
accidental capture and harm to endangered sea turtles, following three years of gear research in the
Atlantic Ocean to develop turtle friendly fishing gear and methods for commercial longline vessels. The
agency and partners have concluded that encounters with leatherback and loggerhead turtles can be
reduced by as much as 90 percent by switching the type of hook and bait from the traditional "J" style
hook with squid to a large (1 8/0) circle style hook with mackerel. The research has been so successful
that NOAA now requires the use of these technologies in U.S. longline fisheries in both the Atlantic and
Pacific. (NOAA News Online Story, January 5, 2004, and August 16, 2004; found at:
www.noaanews.noaa.gov/stories2004/s2147.htm and
http://www.magazine.noaa.gov/stories/magl 44.htm.
Technological developments and careful selection of fishing gear (e.g., bycatch-reduction devices) also
can be effective in reducing bycatch. Such options should be encouraged, developed, and required
where appropriate, and FMPs/Amendments should document that bycatch is being reduced to the extent
practicable. Section 4.2.5 includes a checklist of environmental issues, including bycatch, that a Section
309 reviewer should consider when reviewing FMP/Amendment EISs.
3.2 Essential Fish Habitat
3.2.1 General
Few question the need for habitat protection in order to maintain and rebuild fish stocks. Congress
defines EFH as "those waters and substrate necessary to fish for spawning, breeding, feeding, or growth
to maturity" (1 6 U.S.C. 1 802 (1 0)). In Section 303 (a)(7) of MSA, Congress directed the NMFS and the
eight Councils, under the authority of the Secretary, to describe and identify EFH in each FMP, minimize
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to the extent practicable the adverse effects of fishing on EFH, and to identify other actions to encourage
the conservation and enhancement of EFH. Further, Section 305(b)(2) of MSA, directs other Federal
agencies to consult with the Secretary with respect to "any action authorized, funded, or undertaken, or
proposed to be authorized, funded, or undertaken by such agency that may adversely affect any essential
fish habitat identified under the Magnuson-Stevens Act." The goal of the EFH provisions is to bring
attention to habitat conservation necessary for sustainable fisheries management.
The identification of EFH requires information on current and historic stock size, geographic range, time
and space distribution, and life stages within habitats occupied by the managed species. As a result, EFH
is multi-dimensional and can be identified for a specific species in a certain geographic area or in a
particular level of the water column. EFH descriptions and identifications should also account for spatial
and temporal variation in the distribution of each major life stage (defined by developmental and
functional shifts) to aid in understanding managed species habitat needs. While a specific habitat may
only be essential to a particular species during a certain time of year or season, the regulations governing
EFH designation do not provide for temporal designation (i.e., once a habitat is designated EFH, it is EFH
all year long.
Many parties participate in the public process of designating EFH. The eight Councils and NMFS (HMS
Division), which have the responsibility for drafting FMPs, are charged with proposing EFH descriptions
and identifications for each life stage of the managed species in their jurisdiction. These descriptions and
identifications must be based on the best available science regarding the habitat requirements of each
managed species and are developed through a public process with many opportunities for input. Once
proposed descriptions and identifications have been made by a Council through an FMP or Amendment,
a notice is published in the FR to inform the general public that the FMP or Amendment has been
submitted to NMFS for Secretarial review. NMFS reviews public comments on the FMP or Amendment
before making a final decision on whether to approve a Council's proposed EFH descriptions and
identifications.
Specific Council responsibilities under EFH are threefold: (1) Councils address the description and
identification of EFH and Habitat Areas of Particular Concern4 (HAPCs), minimization of adverse impacts
to EFH to the extent practicable, and make recommendations for actions and conservation and
enhancement techniques; (2) Councils may take part in consultation with the Secretary, NMFS and Federal
agencies on the Federal projects that may adversely affect EFH; and (3) Councils continue to manage and
support a sustainable fishery. Guidance and procedures for implementing the 1 996 amendments (which
included a requirement to protect EFH), were provided through final rules published by the NMFS in the
FR on January 17, 2002, and promulgated at 50 C.F.R. 600.805-600.930. As new FMPs are
developed, EFH for newly managed species will be defined as well.
Habitat Areas of Particular Concern are subsets of EFH identified based on one or more of the following
considerations: importance of ecological function; extent to which the habitat is sensitive to human-induced degradation;
whether and to what extent development activities are stressing the habitat type; or rarity of habitat type (50 C.F.R.
600.81 5(a)(8))
n I P rn f p r f I n n An p n r v
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Specific Federal agency responsibilities under EFH are to consult with the Secretary with respect to any
Federal action that may adversely affect any identified EFH (MSA Section 2(b)(7)). Guidance and
procedures for EFH consultations are promulgated at 50 C.F.R. 600.905-600.930. As part of the EFH
consultation process, the guidelines require Federal action agencies to prepare a written EFH Assessment
describing the effects of that action on EFH (50 C.F.R. 600.920(e)(l)). EFH Assessment guidance is
provided by NMFS at www.nmfs.noaa.gov/habitat/habitatprotection [links to "essential fish habitat" and
then to EFH guidance documents].
3.2.2 Mandatory Contents - Description and Identification of EFH
NMFS regulations at 50 C.F.R. 600.815 "Contents of Fishery Management Plans" require each FMP to
describe and identify EFH in text that clearly states the habitats and habitat types determined to be EFH
for each life stage of the managed species; to explain the physical, biological and chemical characteristics
of the EFH, if known; and to explain how these characteristics influence the use of EFH by the species/life
stage. FMPs also must identify the specific geographic location or extent of habitats described as EFH and
include maps of the geographic locations of EFH or the geographic boundaries within which EFH for each
species and life stage is found.
The FMP Amendments also must identify and describe potential threats to EFH, including threats from
development, fishing, or any other non-fishing related activities (e.g., dredging, fill, excavation, mining,
impoundment, discharge, runoff, conversion of aquatic habitat). Specifically, they must: (1) address how
different fishing methods affect EFH by assessing the impacts of fishing practices on EFH in their regions
(e.g., gear impacts on habitat and benthic organisms, prey species and their habitat); and then, if a
fishing practice is determined to have an adverse effect on EFH that is more than minimal and not
temporary, (2) adopt measures to minimize that impact, to the extent practicable. To meet this
requirement, Councils may develop measures such as the following to help protect EFH:
• Fishing equipment restrictions: limit seasonal and area uses of trawl gear and bottom longlines;
restrict net mesh sizes, traps, and entanglement gear to allow escapement of juveniles and non-
target species; reduce fish and shellfish traps set near coral reefs and other hard bottoms; limit
seasonal and areal uses of dredge gear in sensitive habitats; prohibit use of explosives and
chemicals; restrict diving activities that have potential adverse effects; prohibit anchoring of fishing
vessels in coral reef areas and other sensitive areas; and prohibit fishing activities that cause
significant physical damage in EFH.
• Time/Area closures: closing areas to all fishing or specific gear types during spawning, migration,
foraging and nursery activities; and designating zones to limit effects of fishing practices on certain
vulnerable or rare areas/species/life history stages.
• Harvest limits: limits on the take of species that provide structural habitat for other species
assemblages or communities, and limits on the take of prey species.
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Adverse effects may be direct or indirect; physical, chemical or biological alterations of the waters or
substrate; loss of, or injury to benthic organisms, prey species and their habitat; and other ecosystem
components. Adverse effects may be site-specific or habitat-wide impacts, including individual,
cumulative, orsynergistic consequences of actions (50 C.F.R. 600.910(a)). Much information is available
to the Councils, but research is especially important where the gear of one fishery affects the habitat of
another, or where both fishing and non-fishing activities affect EFH and result in potential cumulative
impacts.
Councils also are encouraged to give special consideration to the adverse impacts of fishing on HAPCs,
whose designations are encouraged by NMFS to focus conservation priorities and efforts on localized
areas that are vulnerable to degradation, and on specific habitat areas that play a particularly important
role in the life cycles of Federally managed fish species.
The identification of EFH, adverse impacts, and recommendations must be included in the
FMPs/Amendments of managed fisheries. Councils have approached this directive in three ways: drafting
individual EFH amendments for FMPs for specific fisheries, drafting a generic EFH amendment for all
managed fisheries in a particular region, or jointly preparing amendments to address co-managed species
that may occur in two or more regions. Appendix D contains more information on EFH, including EFH
related consultation requirements (including integration of EFH and ESA consultation and roles and
responsibilities within NMFS), EFH in State waters, and links to relevant websites.
3.3 Protected Species
Statutory requirements relating to species protected under ESA, MMPA, and MBTA and the related E.O.
(E.O. 1 31 86, Protection of Migratory Birds) are addressed below. These statutes and E.O. directly govern
fishery interactions with threatened and endangered species and other specially protected species,
although fishery interactions with marine mammals and birds are also addressed to some extent in
NOAA's bycatch reduction strategy.
Marine mammals, seabirds, and otherspecies can be impacted by fisheries through competition for prey,
direct injury and/or mortality (e.g., bycatch), and habitat disturbance (e.g., EFH). There are many
examples:
• Longline fishery interacting with protected sea turtles, especially loggerheads, leatherbacks, and
green turtles; as well as seabirds, such as the Laysan albatross and black-footed albatross; and
to a lesser extent, whale and dolphin species. Marine species may attempt to feed on the baited
hooks or may get a flipper or wing caught by an exposed hook.
• Sea turtles may get trapped in shrimp trawls and be killed or seriously injured.
• Entanglement of whales, marine mammals, and sea turtles in gillnets and trap lines (e.g., lobster
pots in New England entangle endangered right whales, gillnet gear entangle bottlenose
dolphins).
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Advances in fishing gear have resulted in some modifications to reduce impacts to protected species. For
example, shrimp trawls often include a Turtle Excluder Device (TED), a grid of bars with an opening in the
net at either the top or the bottom that is fitted into the neck of the trawl. Target species (shrimp) slip
through the bars and are caught in the bag at the end of the trawl. Larger, non-target animals, such as
turtles, strike the grid bars and are ejected through the opening in the net.
Species protected under ESA (16 U.S.C. 1531 efseq.)5
EPA reviewers should be familiar with the requirements for interagency consultation on FMP/Amendments
that may affect endangered or threatened species listed under the ESA or their designated critical habitat.
Under Section 7 of the ESA, "each Federal agency shall, in consultation with and with the assistance of
the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to
jeopardize the continued existence of any endangered species or threatened species or result in the
destruction or adverse modification of habitat of such species...". FMP/Amendments are actions subject
to Section 7 of the ESA. The FMP/Amendment DEIS should include the status of any ESA-related
coordination with other agencies and associated documentation and incorporate consultation results in
the final EIS. For marine and anadromous species listed under the ESA that may be affected by a
proposed FMP/Amendment, NMFS typically consults within itself (OPR/PRD) and the FWS (if marine birds
or other species under their jurisdiction could be affected). The two agencies are collectively referred to
as the Services.
In FMP/Amendments and related documents, the Councils, in coordination with NMFS, must assess the
potential impacts of the action on listed species and any critical habitat. NMFS OPR/PRD and FWS (if
applicable) should provide a list of endangered and threatened species, critical habitat(s), and species
proposed for listing to Councils so that Councils can assess whether proposed fishery management, under
FMPs/Amendments, may affect listed or proposed species or critical habitat.6 The NMFS Sustainable
Fisheries Division (SFD) should assist the Councils in assessing whether any effects on protected species
and critical habitat may occur. Although not required by law, candidate species may also be considered.
Candidate species are those for which the Services have sufficient information to support a proposal to
list, but the proposal is precluded by higher-priority listing actions. Consideration of candidates can assist
planning through advance notice of potential listings, allowing resource managers to alleviate threats and
thereby possibly remove the need to list the species as endangered or threatened.
If SFD determines the proposed action may affect any listed species or critical habitat, informal or formal
consultation must be completed. Informal consultation is appropriate for low risk situations, formal
consultation for situations posing more risk. To determine whether informal or formal consultation is
Note that the ESA consultation process may vary by Council, NMFS region, and with NEPA document
development; and the internal consultation process within NMFS may vary by region.
Section 7(a)(4) of the ESA establishes a procedural duty to confer with the Services regarding species proposed for
listing and proposed critical habitat if an action is likely to jeopardize the species or adversely modify the habitat. The
purpose of this conference is to identify potential conflicts when the species or critical habitat is finally listed.
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necessary/ SFD provides an assessment to OPR/PRD showing whether the action is likely to adversely
affect the species or critical habitat. To initiate informal consultation, the SFD should submit an analysis
— which may be incorporated into the DEIS or drawn from analysis in the DEIS — with its determination that
a proposed FMP/Amendment is not likely to have adverse effects. The Services will use this and other
information to independently analyze effects during informal consultation. The Services will review the
finding through an informal consultation and, if Services concur on an effect determination of "not likely
to adversely affect," they will issue a letter stating their concurrence and the Section 7 consultation
requirements will have been met.
However, if the FMP/Amendment is likely to adversely affect a listed species (through direct or indirect take
or any adverse impacts on habitat or ecosystems) or designated critical habitat, SFD will initiate formal
Section 7 consultation with the appropriate Service who will then conduct consultation which is concluded
with the issuance of a BO by the Services assessing whether or not the action is likely to jeopardize the
continued existence of a species or adversely modify critical habitat. Note: formal consultation is initiated
after the action agency, NMFS SFD in this case, makes a request and submits an initiation package that
meets the requirements at 50 C.F.R. 402.14(c). The information from the initiation package may be
included in other required draft environmental documents in-so-far as the requirements of those other
documents are met. If NMFS or FWS conclude that the action is likely to jeopardize or adversely modify,
they are required to provide reasonable and prudent alternatives (RPAs) to the proposed action(s), that
will avoid jeopardy or adverse modification. If "take" is anticipated — harm or killing of listed species
otherwise prohibited under Section 9 of the ESA - the Services specify reasonable and prudent measures
(RPMs) to minimize the take that, if implemented, provide an exemption from the take prohibition.
A draft BO is unlikely to be prepared by the writing of the EIS; however, the Council and SFD should be
working with PRO and/or FWS as they begin the FMP/Amendment formulation and some background
information about the affected listed species and any critical habitat, and preliminary effects/impact
assessments may be available and should be incorporated if they are.
At a minimum, the FMP/Amendment DEIS should identify the following:
1. whether consultation is needed, has occurred, the status of consultation, a schedule for when
consultation will be completed (if available);
2. any documents (e.g., a biological evaluation), or reference to such documents stemming from
Section 7 consultation, with a summary in the DEIS; and
3. a discussion of how the results of consultation will be incorporated and addressed in the Final
FMP/Amendment EIS (if they are not included in the draft FMP/Amendment EIS).
The results of consultation and a discussion of how any RPAs or RPMs will be implemented should be
included in the Final FMP/Amendment EIS and should be discussed in the ROD.
Consultation status and/or required documentation may not be addressed in FMP/Amendment DEISs,
such that conclusions regarding "no effect" to a listed species or critical habitat cannot be substantiated.
Although biological evaluations and FMP/Amendment DEISs are often integrated into one document, if
an assessment is available at the Draft EIS stage yet not incorporated into the DEIS, the reviewer could
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request a copy to review concurrently. If the documentation is not yet available, the draft assessment
should provide sufficient analysis that can be included in the Draft EIS to support general conclusions
made regarding potential impact. To help facilitate document review, EPA could suggest that related ESA
consultation and issues information be included in one section of the FMP/Amendment DEIS. This is
particularly useful if a preferred alternative has been identified in the DEIS. If the DEIS lacks the biological
evaluation orothersupporting information to determine potential effects to listed species, the reviewer may
want to meet with NMFS to suggest the DEIS be revised and resubmitted.
Regulatory streamlining efforts are currently underway at NMFS that include front-loading the regulatory
analysis based on what NMFS views as the most demanding analytical tasks - those required by NEPA -
including the interface of NEPA and ESA. The issue of when to begin formal consultation under ESA is
of particular concern since sometimes there is no preferred alternative identified in the DEIS, therefore
there is no defined action on which to base a BO. As part of regulatory streamlining, NMFS is working
more closely with the Councils in development of alternatives, and its preferred alternative, to evaluate
possible impacts and effects of alternatives on protected and ESA listed species. While this process cannot
take the place of formal Section 7 consultation, it is designed to aid the Council in its decision-making
process. Whenever consultation has been completed and a BO is available, the EIS should, at a
minimum, cross reference the status, effects, conclusion, RPAs, and incidental take statement sections of
the BO in the NEPA document and reference the BO.
Species protected under MMPA (16 U.S.C. 1371 efseq.)
Impacts on marine mammals may be addressed through the ESA consultation process, however, not all
marine mammals are listed on the ESA so reviewers should be familiar with the MMPAand the protections
it provides to marine mammals. The MMPA establishes a moratorium on the taking and importing of
marine mammals and marine mammal products, with certain exceptions. Responsibility is divided
between NMFS' Office of Protected Resources (over 1 50 stocks of whales, dolphins, and porpoises, as
well as seals and sea lions) and FWS (other marine mammals: sea otters, polar bears, manatees,
dugongs, and walrus) for authorizing takings under limited circumstances, including incidental takings
during commercial fishing operations. NMFS maintains an informative website regarding its MMPA
responsibilities and activities, as well as the MMPA itself, at: http://www.nmfs.noaa.gov/pr.
The MMPA was amended in 1 994 and one of the most important changes was the goal of "incidental
mortality or serious injury of marine mammals occurring in the course of commercial fishing operations
be reduced to insignificant levels approaching a zero mortality and serious injury rate..." To aid in
fulfilling this goal, the MMPA requires that NMFS categorize commercial fisheries in one of three
categories, based upon level of marine mammal takes, impose permit registration and monitoring
requirements for fisheries for which marine mammal take is a concern (Category I or II fisheries), establish
take reduction teams and plans to minimize take of marine mammals in fisheries, and produce annual
marine mammal stock assessment reports, to ensure that the categorization of fisheries is correct.
Every year NMFS publishes a List of Fisheries (LOF) which lists all commercial fisheries in the U.S. into one
of three categories dependent upon level of marine mammals mortalities or serious injury resulting from
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operation of the fishery. Categories are based on the level of potential biological removal (PBR),
essentially the numberof individuals that can be removed from the marine mammal stock, through human
activities, and still allow the stock to meet or maintain its optimal sustainable population (see 50 C.F.R.
229.2 for the implementing regulations). Category I fisheries are those forwhich marine mammal serious
injury or mortality is greater than or equal to 50% of PBR (frequent interactions); Category II fisheries have
serious injury/mortality rates between 1 and 50% (occasional interactions); Category III fisheries have
serious injury/mortality rates less than or equal to 1 % of PBR (remote likelihood of interaction). Category
I and II fisheries require a permit from NMFS and may be required to take observers on the fishing vessels
and may require that NMFS create a Technical Review Team (TRT) to advise management on appropriate
measures to reduce take of marine mammals. TRTs are more likely to be created if a depleted or strategic
stock of marine mammals is being taken. Designation of a depleted or strategic stock provides some
additional protections for marine mammals of concern, however, it does not provide the same level of
protection as an ESA listing and does not require a separate consultation. An FMP/Amendment should
identify the fishery's categorization on the annual LOF and any additional permit requirements pursuant
to the listings. It should also include a review of the status of the marine mammal stocks that may interact
with the fishery and actions to mitigate impacts.
Species protected under Migratory Bird Treaty Act (16 U.S.C. 703 ef seq.)
The Migratory Bird Treaty Act (MBTA) was enacted to implement a convention between the United States
and a number of other countries to protect migratory birds, including sea birds. This federal law makes
it illegal to "pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, offer for sale, sell,
offer to purchase, purchase, deliver for shipment, ship, caused to be shipped, deliver for transportation,
transport, cause to be transported, carry, cause to be carried by any means whatever, any migratory bird,
included in the terms of this Convention...for the protection of migratory birds...or any part, nest, or egg
of such bird." Seabirds are frequent companions to commercial marine fishing vessels, attracted to the
churning waters of a boat's wake to feed on escaping fish from trawl nets, seines, and other fishing gear,
and on baited hooks of hook-and-line vessels. Some seabirds can be incidentally caught during fishing
operations; most can get caught on baited hooks set by hook and line gear. The DEIS FMP/Amendment
should include potential interactions between the fishery and migratory birds and possible mitigations for
take.
In addition, NMFS has developed a National Plan of Action (NPOA) to address sea bird bycatch in
longline fisheries, which is part of a larger international effort to reduce sea bird bycatch in longline
fisheries. The final version of the plan is available on the NMFS website at:
www.fakr.noaa.gov/protectedresources/seabirds/national.htm. Forsome endangered bird species, take
in longline fisheries significantly affects the species potential to survive or recovery. EPA reviewers should
make sure that any DEIS FMP/Amendment addressing longline fishing have included a discussion on
seabird mortalities. Sea bird interactions can also be significant in gillnets and trawls.
The Pacific Fishery Management Council (PFMC) is developing the first FMP that includes mandatory
seabird avoidance measures (U.S. West Coast Fisheries for Highly Migratory Species). In 1 996, the North
Pacific Fishery Management Council (NPFMC) established mandatory seabird avoidance measures to
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reduce the incidental take of seabirds in hook-and-line fisheries. Through collaboration with Sea Grant
researchers and the hook and line fishing industry, the Council approved more stringent requirements in
2001. Most recently, on January 1 3, 2004, NMFS issued a final rule to revise the regulations requiring
seabird avoidance measures in the hook-and-line groundfish fisheries of the Bering Sea Aleutian Islands
(BSAI) Management area and Gulf of Alaska (GOA), and in the Pacific halibut fishery in U.S. Convention
waters off Alaska (69 FR 1 930). This action is intended to improve the current requirements and further
mitigate interactions with the short-tailed albatross, an endangered species protected under ESA, and
other seabird species in hook-and-line fisheries in and off Alaska.
In summary, EPA reviewers should ensure that FMP/Amendment EISs address all potential direct, indirect
(e.g., shift in fishing effort to rebuild fisheries may impact protected species), and cumulative impacts to
protected species and consider measures, such as gear modifications, to help minimize impacts to
protected species.
3.4 Water Quality
Since water quality is an EPA mandate, EPA reviewers should comment on water quality in Section 309
comment letters, as appropriate, and as it relates to fisheries. Fishery management actions may have only
minimal impacts on water quality. However, to the extent that adverse water quality effects (both from
fishing and from cumulative effects from other sources) can adversely affect fish (e.g., turbidity, oil sheen
from vessels, fish advisories), EPA reviewers should focus on both types of concern. EPA reviewers have
commented regarding impacts to water quality and have noted several concerns with respect to the Clean
Water Act, including the potential for water quality degradation from discards of fish processing waste
from vessels, mercury bioaccumulation in fish (and associated human health concerns from fish
consumption), fuel/oil spills from vessels, and perhaps most frequently, potential cumulative effects of
turbidity/sedimentation impacts resulting from mobile fishing gear (e.g., dredges and trawls).
3.5 Subsistence and Indigenous Fishing
Consistent with E.O. 12898, EPA can help ensure that other agencies identify and address, as
appropriate, environmental justice concerns which could include native peoples involved in subsistence
and indigenous fishing. Subsistence fisheries are those conducted for food and other products but not
for commercial or recreational use. These fisheries are pursued mostly, but not exclusively, by native
peoples (e.g., the Inupiats of Alaska) and represent a small proportion of total catch, although they may
be important locally.
Indigenous fisheries are often established through treaties and other agreements between the Federal
government, tribal governments, and other native groups. They are concentrated in California, Oregon,
Washington, and Alaska. Treaty tribes are formally represented in Pacific fisheries management, where
the total catch quotas of salmon and several stocks of groundfish and shellfish include direct treaty
allocations (although it should be noted that the Pacific Council does not manage shellfish stocks).
Indigenous fishing includes commercial, subsistence, and ceremonial catches. While indigenous fisheries
are a small proportion of total U.S. landings, they are of large importance regionally. Some EPA
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reviewers have expressed concern regarding the lack of communication with tribal governments and native
populations and whether impacts to subsistence and indigenous fishing have been considered. The DEIS
should clearly state what efforts were taken to involve native populations, what issues were identified, if
any, and how they were addressed.
3.6 Ecosystem-based Management Approach
Fishing and ecosystems interact. Both are affected by environmental changes and human activities.
Fishing has obvious direct effects on fished stocks. It can alter abundance, age and size structure, sex
ratio, genetic structure of fished populations, and species composition of marine communities. The
removal of important commercial species (who prey on other fish) also can have large effects on
ecosystems. Fishing also can affect habitats, most notably by modifying bottom topography and the
associated benthic communities. Thus the effects of fishing on many marine ecosystems, including changes
in productivity and biological diversity, can be significant.
The challenge facing fishery managers is to ensure that fishing — commercial, recreational, and
subsistence - allows the health of the marine ecosystem to be maintained. The single-species approach
of the past may not fully accommodate the broader concerns for ecosystem health. Ideally, fishery
management decisions would be made with a full understanding of the impacts of fish harvesting on all
components of the marine ecosystem, and the ability to answer questions such as: Will the population of
prey species of the target species increase as a result of reduced predation? Will the larger population
of that prey species, in turn, reduce its own food supply (another prey species or vegetation such as
seagrasses) to unsustainable levels, and if so, would this have other ecological effects (e.g., loss of
vegetation could result in habitat loss or beach erosion)? In another scenario: Could overfishing of the
target species adversely affect another managed fishery nearby and perhaps be counterproductive to its
rate of recovery? Although considerably more complex, an ecosystem-based approach to fisheries
management takes into account the effects of changing interactions of fishery resources at different trophic
levels (e.g., striped bass and crabs) that are not necessarily addressed in single-species management.
A number of reviewers, including EPA, have noted the value of evaluating fisheries management using
an ecosystem-based approach rather than focusing only on the target species. A DOC NMFS 1 999
report to Congress by the Ecosystem Principles Advisory Panel (Ecosystem-Based Fishery Management)
(NMFS 1 999) identified such a need and offered a practical combination of principles and actions that
they believe "will propel management onto ecological sustainable pathways." Specifically, the report
identified basic principles, goals and policies for ecosystem-based fisheries management and provided
recommendations related to developing and implementing fisheries ecosystem plans and the research
required to support management. The eight recommendations included:
• delineation of the geographic extent of the ecosystem(s) that occur within the Council's authority;
• development of a conceptual model of the food web (predator-prey relationships);
• description of habitat needs of different life history stages for all plants and animals "significant"
to the food web;
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• calculation of total removals - including incidental mortality - and relationship to standing
biomass, production, optimum yields, natural mortality, and trophic structure;
• assessment of uncertainty (how to characterize and buffer against);
• development of indices of ecosystem health as targets for management;
• description of available long-term monitoring data and how used; and
• assessment of ecological, human and institutional elements of ecosystem most significant to
fisheries and outside Council/DOC authority.
The first recommendation includes the establishment of MPAs.7 Such areas, where fishing may be
prohibited, have been effective in protecting and rebuilding populations of many marine species. They
often increase the numbers of fish and other species in nearby waters.
With respect to ongoing activities analyzed in FMPs/Amendments, the panel recommended, in particular,
that Councils be encouraged to apply ecosystem principles, goals and policies in the following three areas
to ensure effective development and implementation of a new type of plan, the fishery ecosystem plan:
• Consider predator-prey interactions affected by fishing allowed under the FMP/Amendment. Set
optimum yields considering ecological factors and the integrity of the ecosystem, and justify TAC
with respect to total ecosystem biomass, production and interspecies relationships.
• Consider bycatch taken during allowed fishing operations and the impacts such removals have
on the affected species and the ecosystem as a whole, in terms of food web interactions and
community structure. FMPs/Amendments should identify bycatch taken by gear types and describe
how bycatch changes temporally and spatially in a given fishery; management actions should
consider implications of such removals and their consequences; FMPs/Amendments should
identify and consider existing or potential alternative gear types of fishing practices which could
reduce such bycatch.
• Minimize impacts of fisheries operations on EFH identified with the FMP/Amendment.
FMPs/Amendments should not only identify gear effects on habitat (direct or indirect effects on
E.O. 1 31 58 defines MPAs as "any area of the marine environment that has been reserved by Federal, State,
territorial, tribal, or local laws or regulations to provide lasting protection for part or all of the natural and cultural resources
within." There are many different types of MPAs in U.S. waters, including National Marine Sanctuaries, fishery management
zones (e.g., where use of specific types of fishing gear are restricted), national seashores, national parks, national
monuments, critical habitats, national wildlife refuges, national estuarine research reserves, State conservation areas, State
reserves, and many others. MPAs have different management characteristics and have been established for different
purposes - to protect, maintain, or restore natural and cultural resources in coastal and marine waters. They have been
used effectively both nationally and internationally to conserve biodiversity, manage natural resources, protect endangered
species, reduce use conflicts, provide educational and research opportunities, and enhance commercial and recreational
activities. NOAA and the Department of Interior maintain a website on Marine Protected Areas of the United States at:
http://www.mpa.gov/.
^finn Anpnry
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managed or unmanaged species), but also identify existing or potential alternative gear types or
fishing patterns, such as area closures, which could alleviate these impacts.
Ecosystem considerations are being taken into account more and more in fisheries management, such
as the effect of fishery removals on protected species (e.g., marine mammals and sea turtles) and forage
for marine birds, and the effect of fishing gear on habitat. Several Programmatic FMP/Amendment EISs,
in fact, are currently underway or have been recently released that incorporate an ecosystem-based
approach. Other FMP authorities, such as the Chesapeake Bay Council, also recognize the value of an
ecosystem-based approach to fisheries management and have committed to incorporating ecosystem
considerations and multi-species interactions in the management of bay fishery resources. It is important
to note, however, that the success of this approach depends, at least in part, on the availability of better
scientific information relating to the complex interactions within an ecosystem or ecosystems. EPA
recognizes that the science for ecosystem management is not fully developed, and that additional research
is needed in many areas, including how fishing affects ecosystems, how fishing gear impact habitat,
bycatch reduction, the optimal size of MPAs, and stock conditions.
Under NOAA's Strategic Plan of September 2004 titled "New Priorities forthe 21st Century," a major goal
is to "protect, restore, and manage the use of coastal and ocean resources through an ecosystem
approach to management." (See NOAA's Strategic Planning Office website at http:7www.spo.noaa.gov.)
NMFS's Strategic Plan of October 14, 2004, identifies specific long term actions necessary to fulfill the
NOAA goal as it applies to the conservation and management of living marine resources. These actions
include (a) improved monitoring and assessments of ecosystems to provide routine forecasts on the effects
of human activities, changes in the physical and chemical environment (e.g,. seasonal short-term and
long-term climate change), and interactions among biological resource communities and their habitats
that affect the structure and productivity of regional marine ecosystems; (b) conducting mandated
economic and social science monitoring, assessment, and analysis; and (c) increasing the agency's ability
to conduct community profiles, evaluate protected species, and analyze the impacts of marine protected
areas.
Over the next several years, NMFS will undertake priority efforts to better understand the multiple
components that comprise sustainable marine ecosystems, including fishery resources, threatened and
endangered species, marine mammals, biodiversity, and important habitats, as well as the risks to these
ecosystems. NMFS intends to use this information to better manage human actions and to predict and
monitor the impact of fishery management decisions on the fishery resources, economy, and coastal
communities. These efforts will require improved scientific understanding of both the natural and human-
induced factors that result in ecosystem changes.
NMFS priority management objectives in the near future that are dependent on the scientific information
obtained by the above research and monitoring activities include: (a) an increased number of fish stocks
managed at sustainable levels; (b) an increased number of regional coastal and marine ecosystems
delineated with approved indicators of ecological health and socioeconomic benefits that are monitored
and understood; and (d) an increased number of marine habitat acres conserved and restored. The
agency's basic challenge is to manage uses of ecosystems by applying scientifically sound observations,
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assessments, and research findings to ensure the sustainable use of resources and to balance competing
uses of coastal and marine ecosystems.
EPA recognizes that NMFS' efforts to date to incorporate an ecosystem-based approach is an agency
initiative with no direct legal requirement. EPA acknowledges and supports these efforts.
3.7 Science of Fisheries Management
In accordance with MSA, all fished stocks with FMPs must be assessed to determine if they are overfished,
or are undergoing overfishing that could lead to a stock becoming overfished. The basic goal of stock
assessment is to estimate the amount of fish that can be safely removed (allowable biological catch) while
keeping the fish population healthy.8 Accurate stock assessments require information on: (1) catch and
fishing activities for the stock, (2) surveys offish abundance, and (3) the biology of the stock. To the extent
possible, environmental and ecosystem factors that influence the stock are incorporated into the
assessment.
A stock assessment is designed to determine the abundance of individuals in the stock, the amount of
additional mortality caused by fishing, and the productive potential of the stock to sustain itself. Usually,
estimates of the fishing mortality rate and stock size that can optimize (or maximize) the catch on a
sustainable basis are provided. Thus, major outputs of an assessment are a determination of the status
of the stock relative to present fishing intensity, the stock's ability to sustain additional fishing, and the rate
at which a depleted stock is expected to rebuild to its target level of abundance.
Inherent to the development of fisheries management measures (i.e., alternatives) analyzed in an
FMP/Amendment EIS is the status of a stock (or stocks), as well as the methodology used to determine the
quotas/catch of the fishery itself (landings, gear, fishing grounds, allocation, processing, markets, etc.).
Much of this highly technical discussion is based on sophisticated modeling and can be very difficult to
understand. One of the major concerns that has been raised by reviewers of FMPs/Amendments (other
than EPA) has been the methodology used to determine the amount of TAG and whether all factors have
been considered. EPA reviewers may choose to defer the review of the more technical analyses performed
by fishery scientists and biostatisticians to NMFS (e.g., one of six regional science centers). Another
approach might be to incorporate or adopt the comments and/or recommendations of an independent
panel of experts that has been convened specifically for the development or review of a particular
FMP/Amendment or related fishery resource issue. Contact with the appropriate NMFS regional office,
science center or Council could help identify such a panel, if one exists. For example, the Recovery
Science Review Panel was convened by NMFS in 2001 to help guide the scientific and technical aspects
of recovery planning for listed salmon and steelhead species in the Pacific Northwest. The use of such
It is important to distinguish between species, population and stock in discussing fishery biology. Biologists
define them as follows: species is a group of similar animals that can freely interbreed; population is a group of animals of
the same species living in a certain area; while stock refers to the practical unit of a population that is selected for
management of harvesting purposes. In some cases a managed stock may include more than one species.
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panels and the incorporation of panel recommendations into an EIS are additional questions EPA may
raise during the EIS review, as noted below.
EPA reviewers who are untrained in fishery biology could focus on the following questions:
• Does the analysis make sense?
• Is sufficient information included?
• Has the best available scientific information been used?
• Does the analysis provide a basis for the statements made?
• Are conclusions justified?
• Has the model used been identified?
• Has the model been reviewed/accepted by scientific community?
• Have all uncertainties been properly addressed?
• Have any dissenting opinions been identified and an explanation provided if the opinion was
discounted?
• Was any special panel formed to address a specific issue(s) in the FMP/Amendment EIS and if so,
does the EIS include a discussion of any panel recommendations?
The review also could focus on the extent to which the fishery and biological elements identified above
are addressed in the FMP/Amendment. The age of first spawning and the age of fish being caught are
particularly relevant to the establishment of size limits and gear restrictions to protect fish (at least until they
have a chance to spawn once). For example, minimum mesh size limits for gill nets is a gear restriction
that allows smaller fish to escape.
Finally, those Section 309 reviewers who are interested in learning more about fishery biology and
population modeling may want to refer to the following additional resources:
• A National Research Council publication, Improving Fish Stock Assessments (1998), which
describes the different conceptual and mathematical models currently used to guide fisheries
management.
• Understanding Fisheries Management: A Manual for Understanding the Federal Fisheries
Management Process, including Analysis of the!996 Sustainable Fisheries Act (Wallace and
Fletcher 2001), a publication funded by NOAA and prepared by Mississippi-Alabama Sea Grant
Consortium. This manual is especially suited for the layperson; it is available online at:
http://nsgl.gso.uri.edu/masgc/masgch00001.pdf/. Part 1 includes some basics on stock
assessment, age, growth and death, virtual population analysis (VPA), overfishing, indices and
allocation. Appendices address surplus production and provide a comparison of annual mortality
rates and instantaneous mortality rates.
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• Annual Report to Congress on the Status of U.S. Fisheries - 2001, Toward Rebuilding America's
Marine Fisheries (mandated by the SFA amendments) (NMFS 2002). Appendix 1 of this annual
report includes a description of the methodology for determining stock status.
3.8 Data Needs, Including Incomplete and Unavailable Information
The second National Standard under MSA relates to the need to include the best scientific information
available. One of the major concerns with FMP/Amendment EISs is the degree to which they have
included the necessary scientific data/best available information and the extent to which this information
is used appropriately. A second concern relates to the adequacy of scientific information (including how
to deal with unavailable information and/or uncertainties) and how it should be handled in an EIS. This
latter situation occurs all too frequently in fisheries management since, even in the best assessments, it is
rare that everything that should be known about a stock is known.
Based on past EPA reviews, areas where additional information is required but has not always been
provided, include listed species (e.g., depleted, threatened, and endangered species), modeling results,
EFH, and specific mechanisms or approaches to ensure enforceability. In some cases, information is
available, but simply not included (e.g., BO). In other cases, information is presented but not related to
the discussion or conclusions. Still in other instances, the data are simply not available, are outdated
(e.g., fishery assessment data), or the EIS preparers failed to obtain or include the required data (e.g.,
bycatch data), or incorporate the best available scientific information.
In many cases, the scientific data necessary to conclusively evaluate environmental impacts may be
incomplete or unavailable at the time an EIS is being prepared, thereby making evaluation and
comparison of alternatives difficult. In recognition of this possibility, CEQ regulations at 40 C.F.R.
1502.22 specifies an approach for handling data gaps in a manner which allows the environmental
evaluation process to proceed in a reasonable fashion. The burden on the agency preparing the EIS is
to fully disclose the situation, i.e, "the agency shall always make clear that such information is lacking."
If the incomplete information relevant to reasonably foreseeable significant adverse impacts is essential
to a reasoned choice among alternatives and the overall costs of obtaining that information is not
exorbitant, the agency shall include the information in the EIS. However, if the information is unavailable,
or if the cost of obtaining the information is exorbitant, then agencies must: (1) acknowledge that the
information is incomplete and unavailable; (2) explain the significance of the information to evaluating
reasonable foreseeable adverse impacts; (3) summarize existing credible scientific evidence relevant to
evaluating the reasonable foreseeable adverse impacts; and (4) evaluate the impacts based on theoretical
approaches or research methods generally acceptable to the scientific community.
The adequacy of existing science is often questioned. Many argue, for example, that stock assessments
could greatly benefit from improvements in the capacity for resource assessment surveys, recreational
fishery data, incorporation of more ecosystem interactions, etc. All parties are concerned that the status
of nearly two thirds of our nation's fish stocks is still unknown. And many fishery stakeholders note a
critical gap in information needed for ecosystem management, especially relating to ecological
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Reviewing Environmental Impact Statements for Fishery Management Plans
relationships and EFH requirements. EPA reviewers can question dated information or data gaps.
However, EPA should defer to the expertise of NMFS and the Councils regarding the adequacy of, or
uncertainties associated with, modeled fishery data (e.g., optimum yield, maximum sustainable yield,
overfishing, biomass, etc.).
In summary, fisheries are managed in the context of an incomplete understanding of fish population
dynamics, interactions among species, effects of environmental factors on fish populations, and effects
of human actions. As a result, successful fisheries management must address and deal with uncertainties
and errors. Reviewers should be aware of such information gaps and needs when reviewing the EISs.
3.9 Readability
"Writing. Environmental impact statements shall be
written in plain language and may use appropriate
graphics so that decisionmakers and the public can
readily understand them. Agencies should employ
writers of clear prose or editors to write, review, or
edit statements, which will be based upon the analysis
and supporting data from the natural and social
sciences and the environmental design arts."
(40C.F.R. 1502.8)
FMPs/Amendments often prove very difficult to
read because of the level of science and
extensive amount of technical jargon presented
in the documents. This concern has been
expressed in several of the EPA comment letters.
Notwithstanding the fact that some of the EISs
are complicated by the science and the nature
of the action, it is important that EPA continue to
encourage NMFS to prepare documents that
can be understood by the lay public, and to
translate scientific information into a format that
is useful to decisionmakers. No action should
be so complicated that it cannot be described and evaluated in simple terms. EPA reviewers should
encourage the use of visual aids (tables, figures, graphics) to help the reader better understand the
complex, more difficult concepts, and to allow comparison. Several other items related to readability
include ensuring that technical terms are explained in lay terms, acronyms are identified in a list of
acronyms and defined in a glossary (or not used) and that the use of scientific jargon is minimized. While
readability should not be a central focus of EPA's review [1 500.1 (c) ..."it is not better documents but better
decisions that count"], it is proper for EPA to encourage more readable, easily understood documents.
Sample comments relating to document readability are found in Section 4.2.7.
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Reviewing Environmental Impact Statements for Fishery Management Plans
SECTION 4 Writing EPA Comment Letters
The preceding section described how fisheries management issues should be discussed in NEPA
documents. While EPA reviewers, in general, should give deference to NMFS and the technical experts
with respect to the detailed aspects of fisheries management, there are ways for Section 309 reviewers
and NEPA coordinators to use their Section 309 comment letters to improve NEPA documents. This
section provides a brief overview of Section 309 reviews, followed by a checklist tool for reviewers. The
checklist is broken out by sections of an EIS including example comments where appropriate.
4.1 Commenting on Fishery Management in Section 309 Letters
EPA must comment on any matter relating to EPA's duties and responsibilities contained in, among other
things, actions subject to NEPA's EIS requirement (42 U.S.C. 7609, Public Law 91-604 12(a), 84 Stat.
1 709). EPA's comments on any aspect of the NEPA process are most useful when they provide specific
instructions concerning information needs or provide specific direction to the preparing agency. For
example, if EPA determines that the fisheries management alternatives or overall approach is too narrowly
targeted or is likely to produce significant impacts, the Section 309 comment letters should say so. If
analyses or critical information is missing from the document, the letters should indicate what additional
analyses should be undertaken or information should be included. At the same time, Section 309
reviewers need to recognize that considerable uncertainty and data gaps remain with respect to fisheries.
In instances where reviewers may request additional data, Section 309 comments should be as
constructive as possible with emphasis on incremental improvement in the analysis of environmental
impacts from fisheries management. Better documentation of fisheries management issues will lead to
greater public disclosure and involvement, and ensure better decisions relating to maintaining the
sustainability of our fisheries. Finally, Section 309 reviewers should strive for consistency in comments,
using established language that has proven successful.
The primary EPA mandate relevant to FMPs is water quality, specifically its potential degradation by fishing
gear (e.g,. clam or scallop dredging causing turbidity clouds) and possible overboard disposals (e.g.
finfish and shellfish viscera) (see Section 3.4 for a discussion of possible water quality concerns). NEPA
issues include comments on the alternatives analysis, direct/indirect/cumulative impacts and mitigation,
as well as general document inconsistencies and readability. Under Section 309 of the Clean Air Act, EPA
reviewers should comment on other issues where appropriate, such as Federally protected species, effects
of the FMP/Amendment on EPA National Estuary Plans, habitat loss (EFH, dredge and bottom trawl
damage to seafloor), environmental justice, the overall FMP approach (e.g., whether it is ecosystem-
based, whether another fishery or nonfishery species would be affected and how if the target species is
overfished), and selected issues of interest (e.g, bycatch, ghost fishing effects, or predator-prey
relationships).
Detailed comments in NOAA/NMFS/Council areas of expertise should generally be avoided (e.g., fishery
data modeling to develop values for optimum yield, maximum sustainable yield, mortality rates, biomass
levels defining overfishing, landing quotas, minimum size restrictions, time/area closures, fleet reductions,
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etc.), unless the EPA reviewer has a particular expertise in one or more of these areas and can elaborate
upon the environmental issues or concerns with a proposed action. Exceptions include common sense
comments concerning the adequacy of data (e.g., whether they are current), the inclusion of data (e.g.,
are there data for gear effects; are there bycatch data from independent observers onboard, etc.), and
the substantiation of each conclusion that was based on modeling data. Reviewers also should consider
the "logic flow" such as whether sufficient information has been provided to the reader to reach a
conclusion or form an opinion.
4.2 Checklist for Conducting Section 309 Reviews of FMPAmendment Draft EISs
While the following checklist is not all-inclusive, it provides an overview of the regulatory and
environmental issues that a Section 309 reviewer should consider when reviewing FMP/Amendment EISs.
This checklist should be used only as a guide or tool. It is NOT a mandatory list that must be followed,
nor are all items in the checklist necessarily applicable to a certain action. Note that the list is broken
down by topic and includes selected example comments, where appropriate.
4.2.1 Notice of Intent (NOI)
EPA reviewers may wish to provide comments and suggestions for preparation of the EIS during the public
scoping process. Commenting at this early stage, in response to a NOI to prepare an EIS and before
actual preparation of the document begins, would assist the document preparer by providing indications
of areas that are important to EPA and the benefit of EPA's perspective of potentially significant issues and
reasonable alternatives.
Comments in response to a NOI should be placed in the official Section 309 review file for easy reference
when the DEIS comes in for review. Some examples of the types of general comments EPA may wish to
make at this early stage of document development are:
• "The draft EIS should describe the existing environment and any sensitive species in detail sufficient
to understand potential impacts that may occur from the proposed action and alternatives."
• "In accordance with Section 1 502.14 of the CEQ regulations for implementing NEPA, the draft
EIS should:
— rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives
which were eliminated from detailed study, briefly discuss the reasons for their elimination,
- devote substantial treatment to each alternative considered in detail including the proposed
action so that reviewers may evaluate their comparative merits,
— include any reasonable alternatives not within the jurisdiction of the lead agency,
— include the alternative of no action,
- identify the agency's preferred alternative or alternatives, if one or more exists, in the draft
statement,
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- identify such alternatives in the final statement unless another law prohibits the expression of
such a preference, and
- include appropriate mitigation measures not already included in the proposed action or
alternative."
If a specific issue is known to be important to a particular region, EPA may wish in its comments to remind
the preparing agency of that importance. For example:
• "The importance of Native subsistence fishing needs to be described and discussed in the draft
EIS in detail sufficient to provide a basis for considering the potential for impacts resulting from
the proposed FMP."
4.2.2 Purpose and Need
Under the MSA, as amended, all FMPs/Amendments must comply with the ten National Standards and
contain "measures to prevent overfishing and rebuild overfished stocks and measures to protect, restore
and promote the long-term health and stability of the fishery" (see Section 2.1.1.1). These mandates
typically form the basis for a sometimes broad statement of purpose and need that relates to the
sustainability of a particular fishery. More focused management measures or approaches may be
developed in response to specific fishery management problems or needs, such as addressing a specific
conflict between different gear users or addressing an allocation request by a fishery sector. The
FMP/Amendment purpose and need would be more narrowly presented in these latter instances.
Under NEPA, the purpose and need section of the EIS presents a brief statement explaining why agency
action is being considered, i.e., the underlying purpose and need to which the agency is responding. This
statement is a critical element which sets the overall direction of the document and serves as an important
screening criterion for determining which alternatives are reasonable and should be carried forth in the
analysis. If a purpose and need statement appears to allow only one reasonable solution, then it may be
too narrowly written and the statement and reasons for rejecting other alternatives should be re-examined
and confirmed or revised, as appropriate.
Some EPA reviewers have observed that the purpose and need statement in FMP/Amendment EISs is
difficult to understand and appears to unduly restrict the range of alternatives analyzed. It is important
for the purpose and need statement to be clearly written so that the decisions to be made, and the options
available, are clearly understood. Purpose and need should answer the following questions:
•S What is the basic problem or deficiency with the existing situation and why is this a problem?
•S How does purpose and need relate to the agency's mission and what facts support the need?
S Why is this problem occurring here and why is it important? If it is occurring somewhere else too,
why is it being addressed only here? Where does "here" end and why?
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•S Why are we addressing this problem now? Why not before, or later? What could happen if the
problem is not addressed now (e.g., statutory, operational policy, new program)? What has
happened since the problem was not addressed earlier? What will happen if the current situation
is allowed to continue?
Additional questions an EPA reviewer may wish to consider when reviewing a purpose and need statement
could include the following:
•S Is the statement of purpose and need clearly worded so that the decision to be made is
understood?
S Does the statement of need provide a clear explanation of why there is a need for action?
•S Does the statement of purpose and need lead to a reasonable range of alternatives?
The EPA reviewer could provide the following type of comment either before document preparation
begins, i.e., in response to the NOI, or as a result of reviewing a draft EIS where the reviewer felt the
purpose and need was unclear:
• We suggest that the document, consistent with the language of 40 C.F.R. 1502.1 3 "briefly specify
the underlying purpose and need", succinctly list the purpose and need statements driving the
project, and use these statements as the starting point for formulating alternatives and analysis.
4.2.3 Alternatives
CEQ Requirements
The importance of alternatives development and evaluation in an EIS cannot be overstated. The CEQ
regulations consider the alternative section (including the proposed action) to be the heart of the EIS and
provide substantial direction and discussion on how alternatives are to be developed and treated. Section
1 502.14 of the regulations state that the alternative section of an EIS should present the environmental
impacts of the proposal and the alternatives in a comparative form, sharply defining the issues and
providing a clear basis for choice among options by the decisionmaker and the public. Further, the
alternatives section is to: 1) rigorously explore and objectively evaluate all reasonable alternatives and
to briefly discuss reasons for rejecting those alternatives eliminated from detailed study; 2) devote
substantial treatment to each alternative considered in detail including the proposed action so that
reviewers may evaluate their comparative merits; 3) include reasonable alternatives not within the
jurisdiction of the lead agency; 4) include the alternative of no action; 5) identify the agency's preferred
alternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the
final statement unless another law prohibits the expression of such a preference; and 6) include
appropriate mitigation measures not already included in the proposed action or alternatives.
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No Action Alternative
A "no action" alternative must be considered in all EISs, as required by Section 1502.14(d) of the CEQ
NEPA regulations. It provides a benchmark, enabling decisionmakers to compare the magnitude of
environmental effects of the action alternatives. It also can be an example of a reasonable alternative
potentially outside the jurisdiction of the agency which must be analyzed (46 FR 1 8026, March 23, 1 981).
CEQ guidance discusses two types of "no action", depending on the nature of the proposal being
evaluated: continuing the present course of action (maintenance of the status quo) orthe proposed activity
not taking place at all (46 FR 1 8026, March 23 1 981). In the case of updating a management Plan, like
FMPs/Amendments, where ongoing programs initiated under existing legislation and regulations will
continue, even as the new plans are developed or updated, the "no action" alternative would be "no
change" from the current management regime or no regulatory change. Thus, the "no action" alternative
may be thought of in terms of continuing with the present course of action, or maintenance of the sfafus
quo, until the action is changed. The second interpretation of "no action" is illustrated in instances
involving federal decisions on proposals for projects, where the "no action" would mean the proposed
activity would not take place 46 FR 1 8026, March 23 1 981, Question 3).
The No Action alternative should not automatically be considered the same as the existing condition of
the affected environment, since reasonably foreseeable future actions may be taken whether or not any
of the action alternatives are chosen; this is especially true in fisheries management. When the No Action
alternative, such as maintenance of the sfafus quo, is different from the existing condition, as projected
into the future, the difference should be clearly defined. "No Action" therefore is often described as the
"future without the proposed action." Example "future" changes may include other NMFS resource
management actions that affect the fishery and resource use changes. Sufficient discussion should be
devoted to the No Action alternative so that readers can make the needed comparisons for evaluation.
Alternatives in FMP/Amendment EISs
Alternatives in FMP/Amendment EISs may be derived from combinations of various fishery management
actions or strategies relating to resource management, habitat conservation, stock rebuilding, etc., and
which include, but are certainly not limited to:
• size of the unit to be managed (including areas closed to fishing),
• establishment and size of marine protected areas,
• fishing gear, methods, and restrictions,
• number of fishers,
• length of the season (including closed seasons),
• amount of catch,
• monitoring of catch,
• bycatch and protected species,
• allocations, and
• permit requirements.
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All management measures may not be relevant to a II plans, and reviewers should be flexible and prepared
to exercise judgement when evaluating whether all reasonable alternatives have been considered.
Reviewers also should expect to find some discussion of alternatives that were eliminated from detailed
study and the rationale for their elimination as required by CEQ regulations.
Other criticisms of alternatives in FMP/Amendment EISs include the following: the alternatives are so
vague such that they would result in almost any action allowed to be taken and the environmental
consequences cannot be adequately defined; the alternatives are too narrow and do not include a
sufficient range; and the alternatives consider only short-term fixes rather than incorporate longer-term
goals and objectives.
All reasonable alternatives considered in an FMP/Amendment, including the preferred alternative and
other reasonable alternatives that are not within NMFS' jurisdiction, must adequately incorporate the
standards and requirements of MSA.
When reviewing the alternative discussion in an EIS, the EPA reviewer may wish to consider the following
questions:
S Is the proposed action clearly defined?
•S Is a reasonable range of alternatives analyzed in the document?
S Has sufficient information been presented to explain why alternatives eliminated from detailed
study were eliminated?
•S Are the environmental impacts of alternatives presented in a comparative form to sharply define
the issues and provide a clear basis for choice among alternatives?
•S Has sufficient information been presented to allow the decisionmaker or other readers to evaluate
the difference among alternatives?
S Is the No Action alternative clearly identified and described in sufficient detail so that its scope is
clear and potential impacts can be identified?
S Are the impacts presented in a manner which allows the decisionmaker and other reviewers to
rigorously compare and evaluate the comparative merits of the alternatives?
•S Are the alternatives treated fairly and in an even handed manner?
S Is a preferred alternative identified? (Optional in a draft EIS, but required in a final EIS - see
Section 1 502.14(e) for the conditions which provide flexibility on this requirement).
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•S Do the proposed action and alternatives considered as reasonable achieve the stated purpose
and need?
EPA Comments Concerning Alternatives on Previous EISs
EPA reviewers of previous draft, final and supplemental EISs, have commented extensively on alternatives.
Among the concerns noted in these previous reviews were: 1) lack of identification of a preferred
alternative in the draft EIS [Note that 40 C.F.R. 1502.14 says "agencies shall identify the agency's
preferred alternative or alternatives, if one or more exists, in the draft statement and identify such
alternative in the final statement unless another law prohibits the expression of such a preference"], 2)
consideration of an unduly restrictive range of alternatives (in some cases the restrictive range presented
potential problems for the decisionmaker, in others the restrictive range failed to provide protection to the
ecosystem and to sensitive species), 3) alternative presentation (format) was difficult to follow and didn't
allow for comparative evaluations (see example comment below), 4) specific shortcomings of a specific
alternative (see example below), and 5) the preferred alternative might not achieve its intended goal. In
one case, the preferred alternative involved closing part of a fishing area to U.S. fishermen because of
concerns with sea turtle bycatch. EPA noted that since foreign fishermen were not restricted by the ESA
to release any caught sea turtles, closing of the area to U.S. fishermen could actually result in more turtles
being caught and killed (by foreign fishermen). Some EPA reviewers have observed that some
FMPs/Amendments contain too many alternatives and that many could probably have been dismissed
from further consideration - with appropriate justification in the DEIS for each alternative rejected - to help
streamline the NEPA process.
If the EPA reviewer finds that the alternatives are not clearly compared in an EIS with respect to impacts,
the following type of comment might be made:
• In order to better meet the spirit of public disclosure of impacts under NEPA, the FEIS should
provide a clear overview of all of the alternative FMP actions and potential impacts to relevant
resources. An effective way to present this information would be to include a table or matrix which
lists all of the proposed actions and alternatives on one axis and briefly identifies [sic] the
associated environmental impacts along the other axis. This would give an overview of all the
proposed actions, and offer a quick comparison of the different environmental impacts associated
with each action and the entire FMP.
Should the EPA reviewer be concerned about the ability of the proposed alternatives to maintain
sustainability of the target (or non-target species), a comment that identifies specific shortcomings of an
alternative(s) would be appropriate. An example comment is provided below that relates to the need to
include Stellar sea lion protection measures as part of the alternative(s):
• "EPA is concerned that the alternatives do not contain sufficient protective measures to conserve
Stellar sea lions. Pages 2-3 and 2-4 describe the history of the Stellar sea lion protection
measures. Measures that have been implemented to protect Stellar sea lions to date include
preventing willful and accidental deaths of Steller sea lions and the limiting of fishing activities
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both temporally and spatially. All action alternatives, except alternative 2, are continuations of
these same themes and we are concerned that a larger ecosystem approach may be needed to
maintain viable populations or Steller sea lions, specifically by lowering the total allowable catch
in the fishery as a whole."
4.2.4 Affected Environment
This section of the EIS provides a general description of the area and resources that may be affected by
the agency's proposal. If available, historic changes and trends affecting a resource or feature, up to and
including present conditions, should be described to set the stage for the projection of future changes and
trends concerning that resource orfeature. Emphasis should be placed on environmental parameters that
would be significantly affected by the alternatives and only brief treatment should be given to
characteristics that would be affected to only a minimal degree. The EIS should also state that for
resources predicted not to be impacted, no further analysis or discussion is warranted due to the lack of
impact.
Questions that EPA may wish to consider in the review of a draft EIS could include:
S Is the existing environment described in sufficient detail to form a basis for evaluating the potential
for direct, indirect and cumulative impacts?
•S Is the physical environment of the project area, including the associated ecosystem (if
appropriate), identified and described? Important ecosystem characteristics may include ocean
regime conditions, food web, predator-prey relationships, habitat (water column and benthic),
including EFH.
S Are descriptions of the target and potentially affected non-target species (e.g., fish, mammals,
birds) and protected species included?
•S Is the existing relationship between the target species and other components of the target species'
environment addressed? Were all life stages of target fish discussed and related to appropriate
species in the food chain?
•S Are unique characteristics of the affected geographical area described, such as proximity to
historic or cultural resources, MPAs, national estuaries, park lands, or ecologically critical areas?
•S Are cultural and human features of the affected environment described, such as cultural,
recreational, unique or significant marine life/areas, socioeconomic, low-income and minority
populations, tribal, subsistence and indigenous fishing, fishing communities, etc.? [Note that with
respect to environmental justice and tribal consultation, NMFS is in the process of developing its
own guidance and approach to conducting environmental justice assessments.]
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•S Have important resources been identified and described in detail commensurate with the potential
for impact?
S Is the affected environment section balanced by the environmental impact section? (Lengthy
descriptions of the existing resources that are unaffected by the proposed action or alternatives
may make interesting reading, but are of little value to the decision maker and should be
excluded.)
•S If environmentally sensitive resources are present which require an environmental review under
another law, regulation or E.O., has that review requirement been met or integrated into the EIS?
(If the review requirement has been met, does the EIS acknowledge that the requirement has been
completed and summarize and incorporate any pertinent or relevant information?)
•S If consultation has been completed confirming environmentally sensitive resourcesare not present
in the affected area, are the consultation letters included in an appendix?
An example comment that the EPA reviewer might wish to make concerning the status of consultation on
protected species is as follows:
• The draft [NEPA document] references the NMFS BO and approval of an incidental take permit
for the [type of fisheries] as proof that the proposed action will not jeopardize the subject protected
species. We recommend that the final [NEPA document] either attach these documents as
appendices and/or summarize the underlying rationale provided for the no jeopardy opinion.
4.2.5 Environmental impacts
For the purposes of NEPA, "effects" and "impacts" are synonymous. Direct effects are caused by the
action and occur at the same time or place as the action. The direct effect typically is the taking of the
target species. Indirect effects are reasonably foreseeable effects caused by the action that occur later in
time or are farther removed in distance. Cumulative effects are those that result from the incremental
impact of an action when added to other past, present and reasonably foreseeable future actions,
regardless of what agency or person undertakes such other actions. Indirect and cumulative effects result
from the relationship between the target species and other components of the environment (e.g.,
predators, competitors, prey species, bycatch, habitat, etc.). For example, measures to rebuild fisheries
may shift fishing efforts that, in turn, could adversely impact a protected species. Because fisheries are
part of a larger, connected ecosystem, potential indirect and cumulative impacts are an especially
important consideration in an FMP EIS. For example, overfishing of the target species in an extreme case
could result in a population explosion of a non-target competitor or prey species and subsequent adverse
ecological impacts. Potential cumulative effects are one driving factor for the current emphasis on
ecosystem-based approach to fisheries management in an effort to improve the sustainability of fisheries.
Both EPA and CEQ have developed guidance documents relating to the consideration of cumulative
impacts. These include the Consideration of Cumulative Impacts in EPA Review of NEPA Documents (EPA
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1999) and Considering Cumulative Effects - Under the National Environmental Policy Act (CEQ 1997).
In reviewing the cumulative impacts analyses, EPA's guidance suggests that reviewers should focus on the
specific resources and ecological components that can be affected by the incremental effects of the
proposed action and other actions in the same geographic area. Further, it suggests that the reviewer
should determine whether the NEPA analysis has identified the resources and ecosystem components
cumulatively impacted by the proposed action and other actions by considering: (1) whether the resource
is especially vulnerable to incremental effects; (2) whether the proposed action is one of several similar
actions in the same geographic area; (3) whether other activities in the area have similar effects on the
resource; (4) whether these effects have been historically significantforthis resource; and (5) whetherother
analyses in the area have identified a cumulative effects concern.
Major environmental concerns associated with FMPs and Amendments include impacts not only to target
species but to non-target species, including protected species, such as from bycatch and ghostfishing, and
loss of EFH; water quality; and minority populations, who rely on subsistence fishing for food. In some
cases, the non-target species can be released unharmed and survive. In other cases, the non-target fish
may be unable to survive, such as from abrupt hydrostatic pressure changes when brought to the surface.
Most impacts to non-target species occur from bycatch or loss of essential habitat (e.g., harvesting of
sargassum which may serve as a nursery area for juvenile sea turtles). Other impacts may include
depletion of a food supply (where one species serves as food foranotherspecies) or impacts to the benthic
(seafloor) community from bottom-fishing gear which can reduce habitat complexity or destroy physical
refuges for animals such as the tubes of tube-worms, etc.
Impacts are considered substantive if they jeopardize the sustainobility of any target or non-target species;
cause substantial damage to the ocean and coastal habitats or EFH; adversely impact public health or
safety; adversely impact an endangered or threatened species, marine mammal or the critical habitat of
these species; or have a substantial impact on biodiversity and ecosystem function within the affected area
(e.g., benthic productivity, predator-prey relationships).
Questions an EPA reviewer may wish to consider in reviewing the environmental impacts (consequences)
section of an EIS include:
•S Is sufficient information present to support the conclusion regarding impact level?
•S Is sufficient information provided about the proposed action and alternatives to support
comparison of impacts?
•S Have the beneficial and adverse effects, and direct, indirect and cumulative effects been identified
for target and non-target species (e.g., fish, sea turtles, marine mammals, sea birds) and quantified
to the extent possible?
•S Would the proposed action affect any EPA mandates, including water quality (e.g., particularly
relevant to actions where processing onboard the fishing vessel is an option)?
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Would the proposed action threaten the violation of Federal, State, Tribal, or local law or
requirements imposed for the protection of the environment?
Would the proposed action cause substantial damage to the ocean and coastal habitats and/or
EFH as defined under the MSA and identified in the FMP/Amendment?
Would the proposed action have a substantial adverse impact on public health or safety?
Would the proposed action have a substantial adverse impact on worker/fisher health or safety
(e.g., operation in poor weather conditions as a result of restricted fishing seasons and/or closed
fishing areas - could also affect water quality if vessel sank)?
Where relevant, have the following social and economic impacts been considered: impacts to
low-income or minority (human) populations, impacts to fishing communities, impacts to those
who rely on living marine resources for subsistence?
Would the action result in the introduction or spread of a non-indigenous or invasive species?
Does the proposed action have the potential to jeopardize the sustainability of any target species
or non-target species that may be affected by the action?
Does the EIS consider the potential for cumulative effects of the proposed action and other
activities in the area under consideration (e.g., fishery over time, past fishing practices, other
fisheries, other human activities)?
Would the proposed action have a substantial impact on biodiversity and ecosystem function
within the affected area ( e.g., benthic productivity, predator-prey relationships)?
Have ecosystem considerations been incorporated to the extent possible, such as changes in
biomass, impacts to habitat (including water column, benthic, EFH) from fishing gear, and impacts
to food supply (predator prey, harvest of key prey, prey availability)?
Have bycatch and EFH issues been adequately addressed?
Does the EIS include an estimate of bycatch and address the extent to which it will be reduced?
Is there sufficient information to conduct an EFH consultation? If consultation has been completed
(e.g., for final EIS), are the results of the consultation included as well as any EFH conservation
recommendations and NMFS' responses?
Does the EIS use the "best scientific information available"?
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•S Does the EIS adequately address uncertainties and incomplete/unavailable information, including
how such information might influence the analysis and conclusion?
S Is the right gear of the proper scale being used? (For example, the efficiency of using large trawls
and dredges when fishing days at sea are reduced needs to be balanced against potential habitat
destruction, increased turbidity/sedimentation of adjacent areas, bycatch, etc.)
S Have potential direct, indirect and cumulative impacts to sensitive/protected species (e.g.,
threatened and endangered, marine mammals) and environments (designated marine protected
areas, estuaries in the NEP, etc.) been adequately discussed for the proposed action and
alternatives?
•S If threatened or endangered species are potentially impacted, is the status of the coordination
process under ESA clearly identified (e.g., Draft EIS)?
S If ESA consultation is completed (e.g., final EIS) and a BO has been prepared, is it (or a summary)
included in the draft/final EIS/SEIS?
S Have unavoidable impacts been clearly identified?
•S Does the EIS discuss the relationship between the use of man's environment and the maintenance
and enhancement of long-term productivity and any irreversible or irretrievable commitments of
resources involved if the proposed action is implemented? (Note that this provision of the CEQ
regulations tracks very closely with the intent of the MSA provision concerning overfishing, stock
rebuilding and sustainability of the resource.)
S Are environmental impacts addressed in proportion to their potential significance? (Note that the
impacts analysis and discussion should focus on those aspects of the proposal that have the
potential for significant impacts. Insignificant impact discussions should provide sufficient
information to demonstrate that all relevant environmental attributes were considered and enough
information to show why greater consideration is not needed.)
EPA reviews may include the following types of comments concerning environmental impacts; these
comments are issue-specific and serve only as examples:
• The Draft SEIS references the NMFS 1 998 BO and approval of an incidental take permit (IIP) for
the salmon fisheries as proof that the FMP will not jeopardize the ESA listed salmonid species. A
summary of the assumptions, conclusions, and recommendations of the BO are not provided.
We strongly recommend that the Final SEIS either attach these documents as appendices and/or
summarize the underlying rationale provided for the no jeopardy opinion and the IIP.
• The document indicates (page 1 5) that some vessels may not clean their shellstock at sea until the
shallow waters are reached inside the Days-at-sea (DAS) monitoring lines. Such actions could
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result in seasonal water quality issues such as lower dissolved oxygen and higher biological
oxygen demand due to the decay of discarded scallop viscera. What enforcement actions or
amendment provisions would preclude such water quality degradation? Also, use of dredges as
well as trawls would have a cumulative effect on water quality (turbidity).
The SEIS should state clearly what the cumulative impact is over time of continually removing a
portion of the remaining target species. The continuous slimming of the fish population could
cause significant changes in the fishery over time, including the age and size class distribution of
the remaining fish, and affect the number, size and location of fish available for protected Stellar
sea lions.
Fish move between protected and unprotected areas of the fishery. While spatial and temporal
fishing restriction in areas inhabited by Steller sea lions might provide some short-term relief, a
continued reduction in the amount of fish in the ecosystem beyond a critical point would make
such protection measures superfluous. For these reasons, we believe that the SEIS must clearly
state both the annual and long-term reduction in target species biomass from fish activities and
analyze the effects of that reduction on Steller sea lions (see 40 C.F.R. 1 508.7). Ultimately, the
SEIS, BOs and other decision-making documents for the fishery must demonstrate that proposed
actions conserve listed species, other marine mammals, and target species per the ESA, MMPA,
and MSA, respectively.
The discussion of the estimated effectiveness of the proposed management actions in reducing
bycatch should be expanded in the FEIS to include information on how bycatch rates will be
monitored and evaluated under the new FMP.
The FEIS should specifically address the issue of bycatch associated with fishing on seamounts,
and evaluate actions which might reduce the level of bycatch associated with this technique.
We encourage the FMP to implement a ghost panel in the traps used at the directed red crab
fishery because of the relatively slow reproductive capacity of this species. Ghost fishing occurs
when traps are lost but remain on the sea floor and continue to entrap marine life — including
target species —for years. Trap materials of wood and wire mesh can last a long time in a marine
environment, especially in a deep-sea cold water environment.
Given the predicted impacts on protected sea turtles, EPA recommends that the proposed re-
initiation of Section 7 consultation pursuant to the ESA be completed and the issue resolved before
the final SEIS is published.
The FEIS should describe any cumulative impacts resulting from the proposed action and similar
ongoing or future actions in other related fisheries, such as the recently released Amendment 9
for this Western Pacific Pelagic Fishery, the Coral Reef Ecosystem FMP and FMP for Pacific Coast
Highly Migratory Species.
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• Given the large percentage of trawlers in the groundfish fleet, the FEIS should address the specific
impacts associated with trawl exemptions to depth and area closures. In particular, the document
should discuss the effectiveness of gear adjustment in avoiding or limiting impacts on overfished
species, and the impacts to EFH.
• The document should discuss the indirect effects on the ecosystem through changes in the relative
numbers and size structure of various species populations. In particular, the document should
address whether some species are more affected by density dependent predator prey dynamics,
and what impact that has on rebuilding models.
Because many of the impacts addressed in FMPs/Amendments relate to fishing gear (e.g., bycatch and
EFH), this guidance includes a primer (Appendix E) to help familiarize the Section 309 reviewer with the
various types of commercial fishing gear in use today. It includes a brief description and photograph of
the major types of gear and website links (see also Section 5.2). The reviewer is also referred to the
following website of NOAA photographs, which include photos of various fishing techniques and other
fish illustrations [under link to "Fisheries"]: http://www.photolib.noaa.gov/collections.html.
4.2.6 Mitigation
Typically, as potentially adverse impacts are identified during scoping and as the NEPA document is being
prepared, mitigation measures are identified and incorporated into the alternative actions. The alternatives
may include some form of active mitigation (modifying fishing gear, reducing the number of fishing
vessels, reducing the number of fishing days) or passive mitigation (closing area, establishing marine
reserve).
Mitigation measures also may include monitoring, with the prospect of supporting adaptive management
(i.e., need to monitor the accuracy of predictions and allow sufficient flexibility in process to make future
corrections). Use of third party (independent) observers onboard fishing vessels is one example. NOAA
currently deploys fishery observers to collect catch data from U.S. commercial fishing and processing
vessels in some fisheries. The data collected under NOAA's Fisheries Observer Programs can also be
used to reduce bycatch. When available, they provide for credible estimates of the type, rate, and level
of bycatch. They also collect information on fishing practices and other factors that may contribute to
bycatch; and are used to monitor the effectiveness of bycatch reduction measures, such as gear
modifications or time/area restrictions. EPA reviewers should encourage the incorporation of monitoring
data to the extent that it is available, or indicate the need for additional monitoring if the necessary data
are not available or adequate.
If it is determined that mitigation, as incorporated into the management action alternatives, is not
achieving the desired goals, then further mitigation may be necessary. Any new mitigation requirements
would likely be incorporated through a notice action or framework action (see Section 2.1.3), and could
include those identified above, as well as reducing a fishing area (e.g., if it is determined that damage
to existing coral reefs is occurring from the originally proposed levels); further reducing the number of
fishing vessels; reducing quotas; changing size restrictions; changing gear type to be permitted or
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prohibited; and designating new (or expand existing) MPAs. All of these measures could be used to further
reduce impacts to target and non-target species.
Questions that the EPA may wish to consider when reviewing an FMP/Amendment EIS relating to
mitigation include:
S Are measures to mitigate or reduce impacts built into the alternatives, as appropriate, and clearly
identified?
•S If further mitigation to reduce adverse impacts is reasonable, such as those recommended as a
result of EFH or ESA consultation, has that been described and included in the EIS?
While monitoring is often an appropriate mitigation measure and should be encouraged in EPA reviews,
there are limitations to its effectiveness of which EPA reviewers should be aware. Possible complications
depend on the type of monitoring needed, but can include: safety (e.g., of observers), vessel size, cost,
availability and cost of electronic monitoring options, etc.).
Finally, another component to successful mitigation is effective enforcement. Enforcement of fishery
regulations is accomplished by complementary efforts of NOAA and State enforcement agencies, and the
U.S. Coast Guard, both at sea and dockside. The Coast Guard enforces both domestic regulations and
international treaties, including enforcement of maritime boundaries and high seas driftnet violations.
NOAA Enforcement conducts patrols and investigations to enforce fisheries regulations and total catch
limits. Vessel monitoring systems may also be required on many fisheries to enforce time and area
closures (e.g., required for protected species).
EPA has commented on the need for mitigation in past FMP EISs. Sample comments are included below:
• The EIS should explore strategies for reducing post-hatchling turtle mortality. Prohibiting
Sargassum harvesting from July to October, when the turtle hatching season is over, is one
strategy that might be explored.
• Some means of protecting Federally managed fin fish species and Federally protected sea turtles
needs to be discussed. Current harvesting methods using trawls would entrain and drown sea
turtles, especially the young.
A sample comment relating to enforcement is also provided:
• The FEIS should provide a thorough discussion of how NMFS and the Council will ensure
enforcement of the proposed guidelines. The current status of efforts to obtain funding and
technical assistance to implement Vessel Monitoring System systems and/or increased observer
coverage on vessels as a means of enforcing the 2003 specifications should also be discussed.
In the absence of these methods of enforcement, the FEIS should provide a substantive discussion
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of how NMFS and the Council will monitor and enforce depth and area closures in 2003 through
other management measures.
4.2.7 Procedural
One of the major challenges an agency faces when preparing an EIS is to take often highly complex
scientific data and present it in a manner understandable to the decisionmaker and lay public. Further,
in order to ensure relative consistency in approach among Federal agencies preparing EISs, the CEQ
developed and issued procedural regulations which all Federal agencies are to follow. EPA reviewers may
wish to consider the following procedural questions when reviewing an FMP/Amendment EIS:
S Is the EIS written clearly and in a manner easily understood by a lay person? (Note that
background and detailed, highly technical information, if necessary, is best included in an
appendix to the EIS.)
S Are all of the sections required by the CEQ regulations contained in the EIS?
•S Is a contact person clearly identified in the EIS?
S Is a list of names and qualifications (expertise, experience, and professional disciplines) of persons
who were primarily responsible for preparing the EIS included?
S Is there a list of cooperating agencies (State, Tribal, or Federal)?
•S Is the name and address of the person within the lead agency who can answer questions about
the EIS stated?
S Was the distribution of the draft EIS to the public completed prior to filing with EPA?
•S Do stated time periods for public comment provide the minimum time period required by the CEQ
regulations (i.e., 45-day minimum on the draft EIS)?
The EPA reviewer may wish to offer comments to improve the clarity of the EIS or to make the document
more user friendly to both the decisionmaker and lay public. Example comments relating to readability
include:
• We recommend that detailed historical records including life-history information and supporting
information be included in an appendix rather than the main body of the EIS.
• Several characteristics of the draft EIS lessen its readability and reduce its value to the public and
the decision-maker. In order to make the document more "user friendly", we recommend the
following: 1) the document be revised and reformatted to present information in a simple and
logical manner; 2) the use of scientific jargon be reduced; 3) a glossary of fishing terms and list
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of acronyms used in the EIS be included; 4) historical records and life history information be
summarized in the main body of the document and the detailed information, if necessary, be
relegated to an appendix; 5) historical information deemed important to the decision-making
process be analyzed and that analysis be included in the EIS; and 6) clearer maps be used that
reflect only important information (extraneous material results in confusion and cluttered
appearance makes maps difficult to read).
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SECTION 5 Resources
5.1 Points of Contact
The following is a list of potentially useful contacts provided by agency and organization. This listing is
based on direct contacts made during development of this guidance as well as referrals from these
contacts to other knowledgeable professionals in this field. This list is not comprehensive, and EPA
welcomes additional names to this list, as identified by NOAA and other reviewers of this draft guidance.
Contact information is current per the date of this guidance document and are provided for the following
agencies/organizations:
• U.S. Department of Commerce (NOAA and NMFS, Regional Offices, EFH regional
contacts, Regional Fisheries Science Centers)
• Fishery Management Councils
• CEQ, Executive Office of the President
• National Resources Defense Council
• Chesapeake Bay Program
• Natural Rivers Heritage/Coastal America
• The Ocean Conservancy
NMFS Domestic Fisheries - Headquarters and Regional Offices
OFFICE LOCATION
National/HQ
1 31 5 East West Highway
Silver Spring, MD 20910
Alaska Regional Office
PO Box 21 668
Juneau, AK 99802-1 668
Northwest Regional Office
2725 Montlake Blvd. East
Seattle, WA 981 12-2097
Pacific Island Region Honolulu
1 601 Kapiolani Blvd, Suite 1 1 0
Honolulu, HI 96814
Southwest Regional Office Long Beach
501 West Ocean Blvd.
Long Beach, CA 90802-421 3
Southeast Regional Office
9721 Executive Center Drive North
Koger Bldg., Suit 201
St. Petersburg, FL 33702
CONTACT INFORMATION*
Phone (301) 713-2341
FAX (301) 713-0596
Phone (907) 586-7221
FAX (907) 586-7249
www.fakr.noaa .gov
Phone (206) 860-3200
FAX (206) 860-3217
www.nwr.noaa.gov/
Phone (808) 973-2937
FAX (808) 973-2941
http://swr.nmfs.noaa.gov/pir
Phone (562) 980-4000
FAX (562) 980-4018
http://swr.nmfs.noaa.gov/
Phone (727) 570-5301
FAX (727) 570-5300
http://sero.nmfs.noaa.gov/
* NEPA Coordinators can be contacted at regional phone numbers.
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NMFS Domestic Fisheries - Headquarters and Regional Offices
OFFICE LOCATION
Northeast Regional Office
One Blackburn Drive
Gloucester, MA 01 930-2298
Highly Migratory Species
National Office
Gloucester, MA
St. Petersburg, FL
CONTACT INFORMATION*
Phone (978) 281-9300
FAX (978) 281-9333
www.nero.noaa.qov/nero/
Phone (301) 713-2347
Phone (978) 281-9260
Phone (727) 570-5447
www.nmfs.noaa.qov/sfa/hms
NMFS Regional Fisheries Science Centers4
REGION NAME OF CENTER
RESPONSIBILITIES
CONTACT INFORMATION
Alaska
Alaska Fisheries
Science Center
(AFSC)
Responsible for research in the marine waters and
rivers of Alaska. The AFSC develops and manages
scientific data and technical advice to the North
Pacific Fishery Management Council, the NMFS
Alaska Regional Office, to U.S. representatives
participating in international fishery negotiations, and
to the fishing industry and its constituents. Center
scientists estimate the size and value of the
commercial fishery resources and monitor changes in
stock abundance. AFSC staff also compile and
analyze broad data bases on marine mammals,
domestic and international fisheries, fisheries
oceanography, environmental, fishery economics, and
fishing gear research.
Alaska Fisheries Science Center
Department of Commerce
National Oceanic and Atmospheric
Administration
National Marine Fisheries Service
7600 Sand Point Way N.E.,
Bin Cl 5700, Building 4
Seattle, Washington 981 1 5-0070
Phone: (206) 526-4000
Fax: (206) 526-4004
http://www.afsc.noaa.gov/
Northwest
Northwest Fisheries
Science Center
(NWFSC)
Conducts multi disciplinary research to provide
fisheries management information and technical
advice. Such information supports national programs
of NMFS and the NMFS Northwest Regional Office,
and responds to the needs of the Pacific Fishery
Management Council and other constituencies along
the U.S. West Coast. NWFSC staff develop the
scientific data bases required for status of stocks and
status of fisheries reports, EAs and EISs for
management plans and international negotiations.
The Northwest Center pursues research to answer
specific needs in the subject areas of habitat
conservation, aquaculture, endangered and protected
species, food science, fishery economics, and
resource utilization.
Northwest Fisheries Science Center
2725 Montlake Blvd. East
Seattle, WA 98112-2097
Phone: (206) 860-3200
Fax: (206-860-3210
http://www.nwfsc.noaa.gov/
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NMFS Regional Fisheries Science Centers4
REGION NAME OF CENTER
RESPONSIBILITIES
CONTACT INFORMATION
Pacific
Islands
Pacific Islands
Fisheries Science
Center (PIFSC)
Work at the Science Center is focused in three areas:
fisheries and coral reef research and protected species
research and recovery. The laboratory conducts
biological, ecological, and economic research in
support of five FMPs. The laboratory also conducts
fisheries oceanographic research from a marine
ecosystem standpoint. The protected species efforts
examine the status and problems affecting the
populations of the Hawaiian monk seal and the green
sea turtle and makes recommendations for their
recovery. The Center is organized into five research
investigations: coral reef ecosystem, fish biology and
ecology, ecosystems and environment, fishery
management and performance, and protected
species.
Pacific Islands Fisheries Science
Center
2570 Dole Street
Honolulu, Hawaii 96822-2396
(808) 983-5307
Fax: (808) 983-2902
http://www.pifsc.nmfs.noaa.gov/
Southwest
Southwest Fisheries
Science Center
(SWFSC)
Conducts integrated research programs in biology,
mathematics, oceanography, economics and
computer sciences for the purpose of developing
scientific information to support the management and
allocation of Pacific coastal and high seas fishery
resources. SWFSC activities are designed to support
the scientific, statistical and economic needs of the
Western Pacific Fishery Management Council and the
Pacific Fishery Management Council; the NMFS
Southwest Regional Office; and International
Commissions for world-wide tuna and Antarctic
resources. Center efforts are also directed toward the
reduction of porpoise mortality, and better
understanding of the biological and environmental
factors affecting U.S. commercial and recreational
fisheries.
Southwest Fisheries Science Center
8604 La Jolla Shores Drive
La Jolla, California 92037-1 508
(858) 546-7000
Fax: (858) 546-7003
http://swfsc.nmfs.noaa.gov
Southeast
Southeast Fisheries
Science Center
(SEFSC)
Conducts multi disciplinary research in waters
adjacent to the southeastern U.S., as well as Puerto
Rico and the U.S. Virgin Islands. The Southeast Center
supports large marine ecosystem programs, conducts
fishery research, and collects and reports fisheries
statistical data. SEFSC staff develop the scientific
information base required for fishery resource
conservation, fishery development and utilization,
habitat conservation, and protection of marine
mammals and endangered species. The Center also
conducts impact analyses and EAs for international
negotiations and for FMPs/Amendments for the South
Atlantic Fishery Management Council, the Gulf of
Mexico Fishery Management Council , and the
Caribbean Fishery Management Council. SEFSC also
supports national programs of NMFS and the NMFS
Southeast Regional Office
Southeast Fisheries Science Center
75 Virginia Beach Drive
Miami, Florida 33149
(305) 361-4286 (Office of the
Director)
http://www.sefsc.noaa.gov/
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NMFS Regional Fisheries Science Centers4
REGION NAME OF CENTER
RESPONSIBILITIES
CONTACT INFORMATION
Northeast
Northeast Fisheries
Science Center
(NEFSC)
Manages a multi disciplinary program of basic and
applied research to (1) better understand living marine
resources of the Northeast Continental Shelf
Ecosystem from the Gulf of Maine to Cape Hatteras,
and the habitat quality essential for their existence and
continued productivity; and (2) describe and provide
to management authorities such as the New England
Fishery Management Council and the Mid-Atlantic
Fishery Management Council, industry, and the
public, options for the conservation and utilization of
living marine resources. NEFSC also provides
information in support of national programs of NMFS
and the NMFS Northeast Regional Office.
Northeast Fisheries Science Center
1 66 Water Street
Woods Hole, MA 02543-1026
(508) 495-2000
Fax: (508) 495-2258
http://www.nefsc.noaa.gov/
* NOAA Fisheries' principal scientific and technical expertise lies with the more than 1500 personnel assigned to the five regional fisheries
science centers around the country. NMFS laboratories provide stock assessment information and management advice to support the NOAA
stewardship mission for the living marine resources in their regions. These cross disciplinary efforts are undertaken in cooperation with other
Federal and State agencies, international organizations, foreign governments, the fishing industry, and academia. The scope of the work is
broad in time, space, and discipline. In addition to these essential responsibilities, each science center has unique research strengths and
capabilities. (This information taken directly from the NMFS' website, http://www.st.nmfs.gov/st2/scictr.html) Access this website for links to
detailed information about each science center.
U.S. Department of Commerce (NOAA and NMFS)
Office of Habitat Conservation/Habitat Protection Division (301
713-4300
NOAA, Office of Strategic Planning (301) 713-3318
NOAA Legislative Affairs (202) 482-4981
NOAA General Counsel, Regulatory Streamlining Project (301]
713-2231
Sustainable Fisheries, State/Federal (301 ) 71 3-2334
NOAA/NMFS EFH Coordinators, Office of Habitat Conservation
TITLE/LOCATION
Habitat Protection (HQ/National)
Alaska Regional Office
Northwest Regional Office
Pacific Islands Regional Office
Southwest Regional Office
Southeast Regional Office
Northeast Regional Office
CONTACT
INFORMATION
Phone (301) 713-4300
Phone (907) 271-3029
Phone (503)231-6266
Phone (808) 973-2935
or 2937
Phone (562) 980-4044
Phone (504) 389-0508
Phone (978) 281-9277
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Fishery Management Councils
North Pacific Fishery Management Council
http://www.fakr.noaa .gov/npfmc/
605 West 4 Avenue, Suite 306
Anchorage, Alaska 99501 -2252
(907) 271-2809
Western Pacific Regional Fishery Management Council
http://www.wpcouncil.org/
1 164 Bishop Street, Suite 1400
Honolulu, Hawaii 96813
(808) 522-8220
Pacific Fishery Management Council
http://www.pcouncil.org
7700 NE Ambassador Place, Suite 200
Portland, OR 97220-1 384
(503) 820-2280
Gulf of Mexico Fishery Management Council
http://www.gulfcouncil.org/
The Commons at Rivergate
301 8 U.S. Highway 301 North, Suite 1 000
Tampa, Florida 33619-2266
(813) 228-2815
Caribbean Fishery Management Council
http://www.caribbeanfmc.com/
268 Muhoz Rivera Ave., Suite 1 1 08
San Juan, Puerto Rico 00918-2577
(787) 766-5926
South Atlantic Fishery Management Council
http://www.safmc.net/
One Southpark Circle; Suite 306
Charleston, SC 29407-4699
(803) 571-4336
Mid-Atlantic Fishery Management Council
(NEPA Coordinator and Fishery Management Specialist)
http://www.mafmc.org/mid-atlantic/mafmc.htm
Room 2115 Federal Building; 300 S. New Street
Dover, DE 1 9904
(302) 674-2331
New England Fishery Management Council
http://www.nefmc.org/
50 Water Street, Mill 2
Newburyport, MA 01950
(978) 465-0492
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Council on Environmental Quality, Executive Office of the President
722 Jackson Place, N.W.
Washington, DC 20503
(202) 456-6541 Phone
(202) 456-0753 FAX
Other Oraanizations
National Resources Defense Council
(415) 777-0220
Marine Fisheries Conservation Network
(202) 543-5509
Natural Rivers Heritage/Coastal America
(202) 401-0226
National Resources Defense Council (New York)
(212) 616-1320
The Ocean Conservancy
(415) 979-0900
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5.2 Recommended Reading and Websites
Below is a list of documents and websites that reviewers can examine to assist in preparing comment
letters. The documents and websites have been separated by subject area and include a summary of the
document or website. While this list mainly focuses on documents in addition to those that have been
identified as relevant and discussed in the main text of the guidance, some documents may be included
both places.
The Internet citations (uniform resource locators, or URLs) were accurate at the time the data were collected.
However, note that the websites change frequently due to changes in data availability or reorganization of
information, and the cited URLs may not work in the future. If this occurs, "backing up" to a less specific
web address may allow retrieval of the information.
Overview/Background
Speir, J. (ed.). 1 998. Sustainable Fisheries for the 21st Century. New Orleans, LA: Tulane Institute for
Environmental Law and Policy.
Summary: A critical examination of issues associated with implementing the Sustainable Fisheries
Act.
U.S. Commission on Ocean Policy. September 2004. An Ocean Blueprint for the 21st Century.
Summary: Report containing the Com mission's final recommendations for a new, comprehensive
national ocean policy that ensures sustainable use and protection of our ocean, coasts, Great
Lakes for today and far into the future. The Commission recommends moving towards an
ecosystem-based management approach by focusing on three cross-cutting themes: (1) a new,
coordinated national ocean policy framework to improve decision making; (2) cutting edge ocean
data and science translated into high-quality information for managers; and (3) lifelong ocean-
related education to create well-informed citizens with a strong stewardship ethic.
On line version: Report available through Commission website.
www.oceancommission.gov/
U.S. Ocean Action Plan (2004), The Bush Administration's Response to the U.S. Commission on Ocean
Policy.
Summary: Report identifies immediate, short-term actions that provide direction for ocean policy
and highlights and also outlines additional long-term actions for the future. Example actions
include establishment of new Cabinet-level Committee on Ocean Policy; promotes work with
Regional Fisheries Councils to promote greater use of market-based system for fisheries
management; development of ocean research priorities plan and implementation strategy;
implement coral reef local action strategies; seeks passage of NOAA Organic Act establishing
NOAA within the Department of Commerce; supports State and Federal Partnerships in the Gulf
of Mexico; and advance ocean stewardship through implementation of Cooperative Conservation
Executive Order.
On line version: Report available at http://ocean.cea.gov
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U.S. Department of Commerce, National Oceanic and Atmospheric Administration, Office of Public
and Constituent Affairs. September 2, 1 999. Turning to the Sea: America's Ocean Future.
Summary: General report presenting recommendations, in twenty-five subject areas, for a
comprehensive Federal policy to explore, protect, and sustain the oceans. Overall categories are:
economic benefits, global security, and marine resources. Ongoing concerns and specific
recommendations are outlined for endangered marine species, marine sanctuaries, ocean /costal
habitats, water quality, nonindigenous species, marine debris, international fisheries, and domestic
fisheries.
U.S. Department of Commerce. 2003. National Bycatch Strategy.
Summary: Report outlines how NOAA Fisheries will improve upon and expand current bycatch
reduction efforts and undertake new bycatch initiatives.
On line version: Report available on NOAA website at www.nmfs.noaa.gov/bycatch.htm
Pew Oceans Commission. 2003. America's Living Oceans: Charting a Course for Sea Change, A
Report to the Nation: Recommendations for a New Ocean Policy. June.
Summary: This report summarizes the state of the US oceans and puts forward sweeping
recommendations calling for a new ocean governance framework that recognizes our
dependence on health ocean ecosystems and practices precaution. The report offers innovative
recommendations on ocean governance, fisheries management, coastal development, marine
pollution and aquaculture. Among the threats to our oceans are increasing pollution from cities
and farmland, intensive coastal development, overfishing, habitat alterations, bycatch, invasive
species, aquaculture, and climate change [these are all potential factors to be considered in
addressing cumulative impacts in FMP/Amendment EISs]. The primary problems with ocean
governance identified in the report included its fragmented nature, traditional focus on exploitation
over conservation, and an individual species focus as opposed to an ecosystem focus. In
response to these problems, the Commission has laid out five priority objectives: (1) reforming
ocean governance; (2) restoring fisheries; (3) protecting the coasts; (4) cleaning coastal waters;
and (5) guiding sustainable aquaculture. Highlights of the recommendations include creation of
a unified and independent governance system under a new National Oceans Policy Act with
regional Ocean Ecosystem Councils, a national system of marine reserves, and an independent
National Oceans Agency. For fisheries, it is suggested that Magnuson Stevens Act be amended
to use ecosystem health as a baseline for management. Other measures recommended to help
restore America's fisheries include: separating conservation and allocation decisions,
implementing ecosystem-based planning and marine zoning, regulating the use of fishing gear
that is destructive to marine habitats, requiring bycatch monitoring and management plans as a
condition of fishing, requiring comprehensive access and allocation planning as a condition of
fishing, and establishing a permanent fishery conservation and management trust fund. Report
also provides good information on status of fisheries (ecologically and commercial crucial fish
species) and on problems with marine aquaculture and invasive species, such as salmon from
farm pens, which establish themselves in our coastal waters, often crowding out native species and
altering habitat and food webs).
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NOM, NMFS. 2003. Implementing the Sustainable Fisheries Act. Achievements from 1 996 to the
Present. June.
Summary: This report highlights NOAA Fisheries' accomplishments since 1 996 with respect to
overfishing, rebuilding overfished stocks, protecting EFH, minimizing bycatch, enhanced research
and improved monitoring. Also includes nice history and summary, by Council region, of all the
FMPs/Amendments for each managed fishery [good background for EPA reviewers on past actions
taken with respect to each fishery.]
Ecosysfem-based A/lanagemenf
U.S. Department of Commerce, NOM, NMFS, Ecosystem Principles Advisory Panel. April 1999.
Ecosystem-based Fishery Management - A report to Congress as mandated by the Sustainable Fishery
Act amendments to the Magnuson-Stevens Fishery Conservation and Management Act of 1 996.
Summary: Recognizing the potential of an ecosystem-based fisheries management approach to
improve fisheries management, Congress requested that the NMFS convene a Ecosystem
Principles Advisory Panel (Panel) of experts to assess the extent to which ecosystem principles are
currently applied in fisheries management, and to recommend how best to integrate ecosystem
principles into future fisheries management and research. This 54 page report was created in
response to the Congressional request. This report summarizes of the Panel's efforts including the
establishment of principles, goals, and policies; and detailing a set of specific recommendations
toward Congress for the implementation by NMFS, the Fishery Management Councils, and other
relevant agencies/organizations. The document is an excellent source of global recommendations,
references, and definitions.
On-line version: http://www.nmfs.noaa.gov/sfa/EPAPrpt.pdf
Research
NMFS Strategic Plan For Fisheries Research
Summary: This Plan, which updates the original Strategic Plan for Fisheries Research released in
1 998, is a requirement of Section 404 (a) of the Magnuson-Stevens Act and requires the Secretary
of Commerce to develop, triennially, a strategic Plan for fisheries research for the subsequent five
years. Furthermore, this Plan outlines NMFS' proposed research efforts on fisheries, habitat, and
protected species research that solely address requirements of the Magnuson-Stevens Act.
On-line version: http://www.st.nmfs.gov/st2/strateqic plan.html
Fishery Biology
National Marine Fisheries Service. 1 999. Our Living Oceans. Report on the status of U.S. living marine
resources, 1999. U.S. Dep. Commerce, NOM Tech. Memo. NMFS-F/SPO-41.
Summary: The "National overview" section of this document shows the significant living marine
resources (LMR's) and their fisheries, including the biological status of the LMR's in 25 separate
units. Contains data on productivity of stocks, degree of utilization (level of use of a fisheries
resource), regional and species-group synopses, recent yields, protected resources, and issues of
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national concern. Also is a good source for contact information within NMFS, the councils, and
acronyms and definitions.
On-line version: http://spo.nwr.noaa.aov/olo99.htm
National Marine Fisheries Service, Office of Sustainable Fisheries. April 2002. Toward Rebuilding
America's Marine Fisheries. Annual Report to Congress on the Status of U.S. Fisheries as Mandated by
the SFA amendments to the MSFCMA of 1 996.
Summary: Describes in a series of tables, the status of marine fish stocks under Federal
management in the U.S. FEZ. The report shows significant progress has been made in recent
years; two stocks were declared to be fully rebuilt in 2001. In addition, the number of stocks with
sustainable harvest rates and stock sizes have risen sharply since 1 999. The stocks with
sustainable harvest rates rose by 45 percent between 1999 and 2001, while those with
sustainable stocks increased by a third. These positive changes have been a result of rebuilding
programs that are in place or under development for virtually all overfished stocks.
On-line version: www.nmfs.noaa.aov/sfa/rea_svcs/statusostocks/Stock_status01 .htm
National Research Council. 1999. Sustaining Marine Fisheries.
Summary: This book documents the condition of marine fisheries today, highlighting species and
geographic areas that are under particular stress. Challenges to achieve sustainability within
fisheries are identified and addressed, and strengths and weaknesses of current fishery
management efforts are examined.
A/lode/ing
National Research Council. 1998. Improving Fish Stock Assessments. Washington, D.C. National
Academy Press.
Summary: This study responds to a request by NMFS to conduct a broad review of U.S. stock
assessment methods and models. Five different models are evaluated: a production model, a
delay-difference model, and three age-structured models. The publication reviews data collection
and assessment methods, model performance, use of harvest strategies, peer review of
assessments and assessment methods, and education and training of stock assessment scientists.
It concludes with recommendations for new approaches.
Laws and Regulations
National Marine Fisheries Service, Pacific Islands Regional Office. August 2004. NEPA: A Planning
Tool for Effective Project Management. A Hand book for National Environmental Policy Act Compliance
(Draft).
Summary: This handbook describes the NMFS directives, policies, and guidelines for
implementing NEPA, CEQ NEPA Regulations and NOAA21 6-6 Environmental Review Procedures
for Implementing NEPA. It brings together the legal requirements and describes how to apply
them to the NMFS program areas, including FMPs. It also presents and summarizes other related
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environmental laws and E.O.sthatshould be addressed in NMFS NEPA Documents, and provides
additional clarification regarding NOAA216-6.
NEPA Task Force. September 2003. NEPA Task Force Report to the Council on Environmental
Quality. Modernizing NEPA Implementation.
Summary: This report represents the professional expertise of the task force members and their
collective thinking and deliberation of how NEPA implementation can be improved, particularly
with respect to: technology and information management and security; Federal and
intergovernmental collaboration; programmatic analyses and tiering; adaptive management and
monitoring; CEs; and EAs. The report includes only recommendations (in many cases for
additional guidance) ratherthan findings, however it is probably worth referencing in the guidance
document, and there may be some tidbits of use to include in the guidance relating to upcoming
guidance and/or recommended approaches to Federal and intergovernmental collaboration,
programmatic analyses and tiering, and adaptive management and monitoring since these are
all relevant to fisheries management.
National Marine Fisheries Service (U.S. Department of Commerce). May 1, 1997 (Revised).
Operational Guidelines Fishery Management Plan Process.
Summary: Detailed overview and guidelines describing the applicable laws and regulations, and
responsibilities involved in the planning, preparation, review, and implementation of the FMPs by
the Fisheries Management Councils and NMFS.
National Oceanic and Atmospheric Administration (U.S. Department of Commerce). Issued 06/03/99;
Effective 05/20/99. Environmental Review Procedures for Implementing the National Environmental
Policy Act- NAO216-6.
Summary: Thisorderdescribes NOAA's policies, requirements, and proceduresforcomplying with
NEPA and implementing regulations issued by the CEQ (40 C.F.R. 1500-1508) and regulations
issued by the DOC. It provides guidance on the relationship between the FMP and the EIS,
including format issues. NAO 21 6-6 requires that environmental documents accompany other
decision documents in the decision process.
On-line version: http://www.rdc.noaa.gov/~nao/216-6.html and http://www.nepa.noaa.gov
[formatted document].
U.S. Department of Commerce, National Oceanic and Atmospheric Administration. October 11,
1996. Magnuson-Stevens Fishery Conservation and Management Act; Public Law 94-265 - As
amended through October 11, 1996; To provide for the conservation and management of the
fisheries, and for other purposes.
Summary: Magnuson-Stevens Act, an amended version of the SFA (P.L. 104-297), calls for direct
action to stop or reverse the continued loss of fish habitats essential to managed species and
measures to conserve and enhance this habitat. It also includes a mandate that the Regional
Fishery Management Councils amend each FMP to include a description of EFH which is defined
as those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to
maturity.
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Online version: http://www.nmfs.noaa.gov/sfa/magact/
Fisfiing Gear Impacts
NMFS EFH website at http://www.nmfs.noaa.gov/habitat/habitatprotection/
Summary: This website provides links to several important documents related to fishing gear
impacts on EFH [link to "Essential Fish Habitat" and then link to "Literature on EFH and the Effects
of Fishing" on EFH web page]
Morgan, Lance E. and Ratana Chuenpagdee. 2003. Shifting Gears, Addressing the Collateral Impacts
of Fishing Methods in the U.S. Waters. PEW Science Series.
Summary: Report documents and ranks the collateral impact of various fishing gear classes.
Integrates information on bycatch and habitat damage for all major commercial fishing gears,
gauge the severity of these local impacts, and compare and rank the overall ecological damage
of these gears. In particular, Figure 3 (Descriptions of Fishing Gears) and Table 1 (Overview of
Bycatch and Habitat Damage by Gear Class) from this report could be particularly useful to EPA
reviewers.
Online version: A pdf file of this report can be downloaded from the Marine Conservation Biology
Institute website: http://w1 .adhost.com/mcbi/ShiftingGears/SG download.htm/
Essential Fish Habitat (EFH)
U.S. Department of Commerce, National Marine Fisheries Service. January 17, 2002.
Magnuson-Stevens Act Provisions; Essential Fish Habitat (EFH); Final Rule - 50 C.F.R. 600; Docket No.
Docket No. 961030300-1007-05.
Summary: This final rule revises the regulations implementing the EFH provisions of the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and
establishes guidelines to assist the Regional Fishery Management Councils (Councils) to develop
EFH sections of FMPs (identify adverse impacts from fishing and non-fishing activities, and identify
actions required to conserve and enhance EFH) and establish procedures to be used by NOAA
Fisheries and other agencies to consult and coordinate regarding Federal and State agency
actions that may adversely affect EFH, including providing recommendations on Federal and State
actions that may adversely affect EFH. The intended effect of the rule is to promote the protection,
conservation, and enhancement of EFH.
On-line version: www.nmfs.noaa.gov/habitat/habitatprotection/efhfinalrule.pdf
U.S. Department of Commerce, National Marine Fisheries Service, South Atlantic Region. February
2002 (Revised date). Essential Fish Habitat: A Marine Fish Habitat Conservation Mandate for Federal
Agencies - Habitat Conservation Division.
Summary: This document was prepared by the Southeast Regional Office of the NMFS to provide
an overview of the EFH provisions of the MSFCMA. Document provides a brief legislative and
regulatory background, introduces the concept of EFH, and describes consultation requirements.
Document also identifies FMPs/managed species for the South Atlantic Region, species managed
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under the Federally-implemented FMPs, EFH identified in FMP Amendments of the south and
Mid-Atlantic FMCs, geographically defined habitat areas of particular concern in FMP
amendments affecting the South Atlantic Area, and a summary of EFH requirements for species
managed by the South Atlantic FMC.
U.S. Department of Commerce, National Marine Fisheries Service. January 2001. Guidance for
Integrating Magnuson-Stevens Fishery Conservation and Management Act - EFH Consultations with
Endangered Species Act - Section 7 Consultations.
Summary: Integrating EFH consultations and ESA consultations. ESA Consultation Requirements.
If the action will have no effect, then no consultation is necessary. If proposed action may affect
listed species or critical habitat, then the Federal action agency must request Section 7
consultation with NMFS. If NMFS finds that the proposed action may affect but is not likely to
adversely affect listed species or critical habitat, NMFS provides the Federal action agency with
a concurrence letter and consultation is complete (50 C.F.R. 402.1 3(a)). If the proposed action
is likely to adversely affect, then the agency must request initiation of formal consultation and
provide the information outlined in 50 C.F.R. 402.14. NMFS issues a BO (50 C.F.R. 402.14(h)),
including in most cases an incidental take statement with RPMs to minimize the impact of
incidental take of listed species (50 C.F.R. 402.14(i)).
On-line version: http://swr.nmfs.noaa.gov/hcd/quidance1 .pdf
NMFS EFH website at http://www.nmfs.noaa.gov/habitat/habitatprotection/
Summary: This website is a comprehensive source of information and issues related to EFH.
Information includes, but is not limited to: Background information, EFH defined, EFH
Terminology, EFH Contents, EFH Habitat Divisions, EFH EISs, Fact Sheets, etc.
Legal/Social and Economic Aspects
Buck, Eugene H. April 21, 1995. Social Aspects of Federal Fishery Management. Congressional
Research Service.
Summary: At issue is whether the Federal Government should examine its approach to the social
aspects of fishery management. This report examines historic and current references to the social
aspects of fishery management as they appear in legislation, and discusses the importance of
considering these issues.
On-line version: http://www.cnie.org/nle/crsreports/marine/mar-7.cfm
The H. John Heinz III Center for Science, Economics and the Environment. 2000. Fishing Grounds -
Defining a New Era for American Fisheries Management.
Summary: This book offers a comprehensive assessment of the legal, social, economic, and
biological context of marine fisheries management in the U.S. Drawing on the interviews with
more than 77 stakeholders, the authors of this book sought out common ground and points of
unresolved controversy among several groups in reference to the various interests and viewpoints
related to fisheries management. The book also cites the involvement of NEPA in relation to
fisheries management.
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National Academy of Public Administration, Panel: Mary A. Gade; Terry Garcia, Jonathan B. Howes,
Theodore M. Schad, Susan Shipman. July 2002. Courts, Congress, and Constituencies - Managing
Fisheries by Default.
Summary: A report by a Panel of the National Academy of Public Administration for the Congress
and the U.S. Department of Commerce, National Marine Fisheries Service. The Panel preparing
this document was composed of legal and scientific professionals with extensive background,
expertise, and insight in environmental policy issues; as well as individuals with experience in
government management. This document focuses on the fisheries management system, its
regulatory process, litigation analysis through 2001, constituent relations, and NMFS' program
budget and science activities.
On-line version: http://www.napawash.org/Pubs/NMFS July 20Q2.pdf?OpenDocument
National Environmental Justice Advisory Council Indigenous Peoples Subcommittee (Federal Advisory
Committee to the U.S. EPA), November 2000. Guide on Consultation and Collaboration with Indian
Tribal Governments and the Public Participation of Indigenous Groups and Tribal Members in
Environmental Decision Making.
Summary: A report that addresses concerns raised about the lack of effective consultation and
collaboration between Federal agencies, American Indian and Alaska Native tribal governments.
The Guide is intended to help EPA and other interested stakeholders better understand the
necessity and principles for effective consultation with tribal governments and the meaningful
involvement of tribal communities and tribal members in the public participation process.
On-line version: www.epa.gov/compliance/resources/publications/ej/ [link to publications by
NEJAC and then to document - pdf fild].
Office of Sustainable Fisheries, NMFS, NOAA Fisheries. August 1 6, 2000. Guidelines for Economic
Analysis of Fishery Management Actions.
Summary: The overall purpose of this document is to provide guidance on understanding and
meeting the procedural and analytical requirements of E.O. 1 2866 and the Regulatory Flexibility
Act (RFA) (5 U.S.C. 601 et. Seq.) for regulatory actions of Federally managed fisheries. However,
much of the guidance provided in this document is relevant for other types of regulatory actions
that are subject to E.O. 12866 and RFA. Appendix B of this document is especially useful in
describing the typical regulatory processes of how the council typically works.
On-line version: http://www.nmfs.noaa.gov/sfa/RFA%20Guidelines.PDF
Fishery Management Councils
US Department of Commerce, National Marine Fisheries Service. January 2002. 2001 Report on
Apportionment of Membership on the Regional Fishery Management Councils (RFMCs) - Pursuant to
Section 302(b)(2)(B) of the Magnuson-Stevens Fishery Conservation and Management Act.
Summary: Introduction to the Regional Fishery Management Councils including contacts and a
detailed summary of the FMPs which the Councils produce. Appendix includes statistical fisheries
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data for each Council (e.g., species/species group, landings, vessels, gear, fishing areas/seasons,
and processing)
On-line version: www.nmfs.noaa.gov/sfa/reg svcs/Report Congress01.pdf
Reviewing EISs and Writing Comment Letters
U.S. Environmental Protection Agency, Office of Federal Activities. May 1999. Consideration of
Cumulative Impacts in EPA Review of NEPA Documents.
Summary: Guidance document to assist EPA reviewers of NEPA documents in providing accurate,
realistic, and consistent comments on the assessment of cumulative impacts. Cumulative impacts
[to other fisheries] is one of the major areas of concern in review of FMP EISs.
U.S. Environmental Protection Agency. October 3, 1984. Policy and Procedures for the Review of
Federal Action Impacting the Environment.
Summary: This document is a manual that establishes policies and procedures for carrying out
the EPA's responsibilities to review and comment on Federal actions affecting the quality of the
environment. In addition to establishing the policies and procedures for the Environmental Review
Process, the manual also assigns specific responsibilities and outlines mechanisms for resolving
problems that arise in the Environmental Review Process.
Council on Environmental Quality, Executive Office of the President. January 1997. Considering
Cumulative Effects - Under the National Environmental Policy Act.
Summary: This document presents the results of research and consultations by the CEQ
concerning the consideration of cumulative effects in analyses prepared under NEPA. It introduces
the complex issues of cumulative effects, outlines general principles, presents useful steps, and
provides information on the methods of cumulative effects analysis and data sources.
Other
U.S. Environmental Protection Agency. 2001. National Coastal Condition Report. EPA620/R-01-005.
Sept 2001 (available online at www.epa.gov/owow/oceans/nccr/)
Summary: This report compiles several available data sets from different agencies and areas of
the country and summarizes them to present a broad baseline picture of the condition of coastal
waters. The Report, primarily evaluates estuaries. Indicators of coastal conditions were derived
from data on water quality, sediment quality, biota, habitat, and ecosystem integrity, as they relate
to ecological and human health. Report also highlights several exemplary programs at Federal,
state, tribal and local levels that show coastal condition at various regional scales. Good
reference/resource material to reference in guidance document.
National Science and Technology Council. 1 997. Integrating the Nation's Environmental Monitoring
and Related Research Networks and Programs.
Summary: Cooperative venture involving all Federal agencies that have major environmental
monitoring and related research networks. Effort to allow comprehensive evaluation of our
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Reviewing Environmental Impact Statements for Fishery Management Plans
environmental resources and its ecological systems. It will provide an integrated scientific
information base to support natural resource assessment and decision-making. Integration will
add value to existing programs by linking broad-based survey, inventory, and monitoring
information to research on environmental processes.
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Bibliography
Certain information cited in the guidance was obtained from Internet sites maintained by government
agencies or other reliable sources. The Internet citations (uniform resource locators, or URLs) were accurate
at the time the data were collected. However, websites change frequently due to changes in data
availability or reorganization of information, and the cited URLs may not work in the future. If this occurs,
"backing up" to a less specific web address may allow retrieval of the information.
Buck, Eugene H. April 21,1 995. Social Aspects of Federal Fishery Management. Congressional Research
Service.
CEQ. See Council on Environmental Quality
Coral Reef Task Force. November 1 999. Oversight of Agency Action Affecting Coral Reef Protection -
Interim Policy Adopted by the U.S. Coral Reef Task Force.
Council on Environmental Quality, Executive Office of the President. January 1997. Considering
Cumulative Effects - Under the National Environmental Policy Act.
EPA. See U.S. Environmental Protection Agency
Hogarth, William T.. May 9, 2002. Testimony of Dr. William T. Hogarth Assistant Administrator of
Fisheries, National Oceanic and Atmospheric Administration before the Subcommittee on Oceans,
Atmosphere and Fisheries Commerce, Science, and Transportation Committee - U.S. Senate, Washington,
DC.
Larson, James. Natural Resources Defense Council, Inc., et al., Plaintiffs, v. Donald Evans, Secretary of
Commerce, etal., Defendants; United States District Court; Northern District of California; Order granting
partial summary judgment for plaintiffs and defendants - Case No. C 01 -0421 JL.
Morgan, Lance E. and Ratana Chuenpagdee. 2003. Shifting Gears, Addressing the Collateral Impacts
of Fishing Methods in the U.S. Waters. PEW Science Series.
NAPA. See National Academy of Public Administration.
National Academy of Public Administration. July 2002. Courts, Congress, and Constituencies -
Managing Fisheries by Default.
National Environmental Justice Advisory Council Indigenous Peoples Subcommittee (Federal Advisory
Committee to the U.S. EPA). November 2000. Guide on Consultation and Collaboration with Indian
Tribal Governments and the Public Participation of Indigenous Groups and Tribal Members in
Environmental Decision Making.
U.S. Environmental Protection Agency
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National Marine Fisheries Service. 2003. Implementing the Sustainable Fisheries Act. Achievements from
1996 to the Present. June.
National Marine Fisheries Service. 2002. National Oceanic and Atmospheric Administration (U.S.
Department of Commerce). Office of Sustainable Fisheries. Toward Rebuilding America's Marine
Fisheries - Annual Report to Congress on the Status of U.S. Fisheries as Mandated by the SFA
Amendments to the MSFCMA of 1 996. April.
National Marine Fisheries Service. February 2002. National Oceanic and Atmospheric Administration
(U.S. Department of Commerce). South Atlantic Region. February 2002. Essential Fish Habitat: A
Marine Fish Habitat Conservation Mandate for Federal Agencies - Habitat Conservation Division.
National Marine Fisheries Service. 2002. National Oceanic and Atmospheric Administration (U.S.
Department of Commerce). 2001 Report on Apportionment of Membership on the Regional Fishery
Management Councils (RFMCs) - Pursuant to Section 302(b)(2)(B) of the Magnuson-Stevens Fishery
Conservation and Management Act. January.
National Marine Fisheries Service. January 1 7, 2002. National Oceanic and Atmospheric Administration
(U.S. Department of Commerce). Magnuson-Stevens Act Provisions; Essential Fish Habitat (EFH); Final
Rule - 50 C.F.R. 600; Docket No. Docket No. 961 030300-1007-05.
National Marine Fisheries Service. 2001. National Oceanic and Atmospheric Administration (U.S.
Department of Commerce). Salmon Recovery Science Review Panel - Report for the meeting held August
27-29, 2001. Northwest Fisheries Science Center. Seattle, Washington.
National Marine Fisheries Service. January 2001. National Oceanic and Atmospheric Administration (U.S.
Department of Commerce). Guidance for Integrating Magnuson-Stevens Fishery Conservation and
Management Act - EFH Consultations with Endangered Species Act - Section 7 Consultations.
National Marine Fisheries Service. November 1 999. National Oceanic and Atmospheric Administration
(U.S. Department of Commerce). National Success Criteria Policy National Marine Fisheries Service.
National Marine Fisheries Service. April 1 999. National Oceanic and Atmospheric Administration (U.S.
Department of Commerce). Ecosystem Principles Advisory Panel. Ecosystem-based Fishery Management
- A Report to Congress as Mandated by the Sustainable Fishery Act Amendments to the Magnuson-Stevens
Fishery Conservation and Management Act of 1 996.
National Marine Fisheries Service. 1999. National Oceanic and Atmospheric Administration (U.S.
Department of Commerce). Our Living Oceans - Report on the status of US living marine resources.
National Marine Fisheries Service. 1998. National Oceanic and Atmospheric Administration (U.S.
Department of Commerce). Managing the Nation's Bycatch: Priorities, Programs and Actions for the
National Marine Fisheries Service.
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National Marine Fisheries Service. 1997. National Oceanic and Atmospheric Administration (U.S.
Department of Commerce). Operational Guidelines Fishery Management Plan Process (Revised). May
1.
National Oceanic and Atmospheric Administration (U.S. Department of Commerce). 2004. Evaluating
Bycatch: A National Approach to Standardized Bycatch Monitoring Programs. NOAA
Tech. Memo. NMFS-F/SPO-66, 108 p. On-line version,
http://www.nmfs.noaa.gov/by catch/SPO final rev 12204.pdf.
National Oceanic and Atmospheric Administration (U.S. Department of Commerce). September 2003b.
National Marine Fisheries Service Alaska Region. Alaska Groundfish Fisheries Draft Programmatic
Supplemental Environmental Impact Statement. September.
National Oceanic and Atmospheric Administration (U.S. Department of Commerce). May 23, 2002.
NOAA Fisheries Requests Shrimp Trawlers in South Atlantic Waters to Use Modified Turtle Excluder
Devices (TEDs) to Protect Migrating Endangered Leatherback Sea Turtles.
National Oceanic and Atmospheric Administration (U.S. Department of Commerce). 2001. Pacific
Islands Area Office, Southwest Region (Charles Karnella) and the Western Pacific Regional Fishery
Management Council. Final Fishery Management Plan for Coral Reef Ecosystems of the Western Pacific
Region. October.
National Oceanic and Atmospheric Administration (U.S. Department of Commerce). Office of
Sustainable Fisheries. August 16, 2000. Guidelines for Economic Analysis of Fishery Management
Actions.
National Oceanic and Atmospheric Administration (U.S. Department of Commerce). 1999. (Issued
06/03/99; effective 05/20/99). Environmental Review Procedures for Implementing the National
Environmental Policy Act - NAO 216-6.
National Oceanic and Atmospheric Administration (U.S. Department of Commerce), Office of Public and
Constituent Affairs. September 2, 1 999. Turning to the Sea: America's Ocean Future.
National Oceanic and Atmospheric Administration (U.S. Department of Commerce), National Marine
Fisheries Service. September 30, 1 997. Final Environmental Assessment and Finding on No Significant
Impact for the Magnuson-Stevens Act Provisions; Essential Fish Habitat (EFH) -An Environmental Review
under the National Environmental Policy Act.
National Oceanic and Atmospheric Administration (U.S. Department of Commerce). October 11,1 996.
Magnuson-Stevens Fishery Conservation and Management Act; Public Law 94-265. As amended through
October 11, 1996.
National Research Council. 1999. Sustaining Marine Fisheries.
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National Research Council. 1998. Improving Fish Stock Assessments. National Academy Press;
Washington, DC.
National Resource Defense Council v. Daley, 209 F.3d 747(D.C. Cir. 2000).
New England Fishery Management Council. 2003. Heading Toward Recovery. Proceedings of the New
England Bycatch Workshops. A Report on the Sea Grant Regional Fisheries Education Workshop Series -
2002-2003.
NEJAC. See National Environmental Justice Advisory Council.
Northeast Region Essential Fish Habitat Steering Committee. Workshop on the Effects of Fishing Gear on
Marine Habitats off the Northeaster United States, October 23-25, 2001, Boston, Massachusetts.
NMFS. See National Marine Fisheries Service.
NOAA. See National Oceanic and Atmospheric Administration.
NRDC. See National Resource Defense Council.
Pew Oceans Commission. 2003. America's Living Oceans: Charting a Course for Sea Change, A
Report to the Nation: Recommendations for a New Ocean Policy. June.
Roady, Stephen E. February 28, 2002. [Oceana] Petition for Rulemaking to Establish Program to Cap,
Count, and Control Bycatch in US Fisheries.
Speir, J. (ed.). 1998. Sustainable Fisheries for the 21st Century. New Orleans, LA: Tulane Institute for
Environmental Law and Policy.
The H. John Heinz III Center for Science, Economics and the Environment. 2000. Fishing Grounds -
Defining a New Era for American Fisheries Management.
U.S. Commission on Ocean Policy. September 2004. An Ocean Blueprint for the 21st Century.
U.S. Department of Commerce. 2003. National Bycatch Strategy.
U.S. Environmental Protection Agency. December 2000. Estuarine and Coastal Marine
Waters - Bioassessment and Biocriteria Technical Guidance. EPA Document # EPA 822-B-00-024.
U.S. Environmental Protection Agency, Office of Federal Activities. May 1999. Consideration of
Cumulative Impacts in EPA Review of NEPA Documents.
U.S. Environmental Protection Agency. October 3, 1 984. Policy and Procedures forthe Review of Federal
Action Impacting the Environment.
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Wallace, Richard, and K. M Fletcher. 2001. Understanding Fisheries Management - A Manual for
Understanding the Federal Fisheries Management Process, Including Analysis of the 1996 Sustainable
Fisheries Act (second edition). Published by Mississippi-Alabama Sea Grant.
Washington Post. May 6, 2002. East Coast Fishermen Protest New Restrictions.
Zilly, Thomas S., 1999. Greenpeace, et al., Plaintiffs, v. National Marine Fisheries Service et al.,
Defendants; No. C98-492Z; United States District Court for the Western District of Washington - LEXSEE
1 999 us dist lexis 1 641 8; 55 F. Supp. 2d 1 248; 1 99 U.S. Dist LEXIS 1 641 8; 48 ERC (BNA) 2035. July.
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Acronyms/Glossary
7.1 Acronyms
AAF - NOAA Administrator for Fisheries (NMFS Director)
ABC - Allowable Biological Catch
ACCSP - Atlantic Coastal Cooperative Statistics Program
ALWTRP - Atlantic Large Whale Take Reduction Plan
AFA - American Fisheries Act
Amend - Amendment
Amendment - Amendment to Fishery Management Plan
AO - Annual Operating Plan
AP - Advisory Panel
APA - American Procedure Act
ASMFC - Atlantic States Marine Fisheries Commission
B - Biomass
BA - Biological Assessment
BO - Biological Opinion
Bmsy - Biomass at MSY-levels
Bo - Virgin Stock Biomass
BRD - Bycatch Reduction Device
BSAI - Bering Sea Aleutian Islands
C/E - Catch-Per-Unit-Effort
CE - Categorical Exclusion
CEQ - Council on Environmental Quality
CFMC - Caribbean Fishery Management Council
CFR - Code of Federal Regulations
Council - Fishery Management Council
CPUE - Catch-Per-Unit-Effort
CWA - Clean Water Act
CZMA - Coastal Zone Management Act
DAS - Days-at-sea
DEIS - Draft Environmental Impact Statement
DOC - Department of Commerce
DOCS - Documents
DRIR - Draft Regulatory Impact Review
DSEIS- Draft Supplemental Environmental Impact Statement
EA - Environmental Assessment
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EC - Environmental Concerns
EEZ - Exclusive Economic Zone
EFH - Essential Fish Habitat
EIS - Environmental Impact Statement
EMAP - Environmental Monitoring and Assessment Program
EO - Environmental Objections
E.O. - Executive Order
EPA - U.S. Environmental Protection Agency
ERC - Environmental Review Coordinator
ESA - Endangered Species Act
EU - Environmentally Unsatisfactory
FCZ - Fishery Conservation Zone
FEIS - Final Environmental Impact Statement
FMP - Fishery Management Plan
Fmsy - Fishing morality rate at MSY- levels
FOG - Fisheries Obligation Guarantee or Fishing Vessel Obligation Guarantee Program
FONSI - Finding of No Significant Impact
FR - Federal Register
FRIR - Final Regulatory Impact Review
FSEIS - Final Supplemental Environmental Impact Statement
FTE - Full Time Equivalent
FWS - U.S. Fish and Wildlife Service
GC - General Counsel
GCF - Office of General Counsel for Fisheries
GIS - Geographic Information System
GMFMC - Gulf of Mexico Fishery Management Council
GOA - Gulf of Alaska
GSMFC - Gulf States Marine Fisheries Commission
HAPC - Habitat Areas of Particular Concern
HMS - Highly Migratory Species
HQ - Headquarters
IFQ - Individual Fishing Quota
IPHC - International Pacific Halibut Commission
IIP - Incidental Take Permit
ITS - Incidental Take Statement
IVQ - Individual Vessel Quota
IRFA - Initial Regulatory Flexibility Analysis
LO - Lack of Objections
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LOF - List of Fisheries
LOA - Letter of Authorization
M - Natural Mortality Rate
MBTA - Migratory Bird Treaty Act
MEY - Maximum Economic Yield
MFC - Marine Interstate Fisheries Commission
MFMT - Maximum Fishing Morality Threshold
MAFMC - Mid Atlantic Fishery Management Council
MMPA - Marine Mammal Protection Act
MPA - Marine Protected Areas
MSA - Magnuson-Stevens Fishery Conservation and Management Act
MSFCMA - Magnuson-Stevens Fishery Conservation and Management Act
MSST - Minimum Stock Size Threshold
MSY - Maximum Sustainable Yield
NAO - NOAA Administrative Order
NAPA - National Academy of Public Administration
NCER - National Center for Environmental Research
NEFMC - New England Fishery Management Council
NEP - National Estuary Program
NEPA - National Environmental Policy Act
NMFS - National Marine Fisheries Service, also knows as NOAA Fisheries
NMSA - National Marine Sanctuaries Act
nm - Nautical Mile
NOA - Notice of Availability
NOAA - National Oceanic and Atmospheric Administration
NOI - Notice of Intent to prepare an Environmental Impact Statement
NOS - Notice of Scoping Meetings
NPFMC - North Pacific Fishery Management Council
NPOA - National Voluntary Plan of Action
NRDC - Natural Resource Defense Council
OEA - Office of External Affairs
OFA - Office of Federal Activities
OMB - Office of Management and Budget
OPR - Office of Protected Resources
ORD - Office of Research and Development
OY - Optimum Yield
PBR - Potential Biological Removals
PEIS - Programmatic Environmental Impact Statement
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PFMC - Pacific Fishery Management Council
PRA - Paperwork Reduction Act; draft PRA is statement in support of new or revised information collection
(record keeping or reporting requirements)
PRO - Protected Resources Division
PREE - Preliminary Regulatory Economic Evaluation
PSC - Pacific Salmon Commission
PSMFC - Pacific States Marine Fisheries Commission
RA - Regional Administrators
Regs - Regulations
RFA - Regulatory Flexibility Act
RIR - Regulatory Impact Review
ROD - Record of Decision
RPA - Reasonable and Prudent Alternatives
RPM - Reasonable and Prudent Measures
RSP - Regulatory Streamlining Project
S - Survival Rate
SAFE - Stock Assessment and Fishery Evaluation
SAFMC - South Atlantic Fishery Management Council
SBA - Small Business Administration
Sec - Secretary
Secretary - Secretary of Commerce
SEIS - Supplemental Environmental Impact Statement
SFA - Sustainable Fisheries Act
SFD - Sustainable Fisheries Division
SIA - Social Impact Assessment
SSC - Scientific and Statistical Committee
TAG - Total Allowable Catch
TED - Turtle Excluder Device
TIA - Takings Implications Assessment
TIP - Trip Interview Program
TRT - Technical Review Team
U.S. - United States
VPA - Virtual Population Analysis
VTR - Vessel Trip Report
WO - Weigh Out
WPFMC- Western Pacific Fishery Management Council
YPR - Yield-per-recruit
z - Intrinsic Rate of Increase
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Z - Total Mortality
7.2 Glossary
Acceptable Biological - TheABCisa scientific calculation of the sustainable harvest level of a fishery, and is used
Catch to set the upper limit of the annual total allowable catch. It is calculated by applying the
estimated (or proxy) harvest rate that produces maximum sustainable yield to the
estimated exploitable stock biomass (the portion of the fish population that can be
harvested).
Advisory Panel (AP) - A group of people appointed by a fisheries management agency who review information
and provide advice. Members are usually not scientists, but most familiar with the fishing
industry or particular fishery.
Allocation - Direct and deliberate distribution of the opportunity to participate in a fishery among
identifiable, discrete user groups or individuals. Shares are sometimes based on historic
harvest amounts.
Allowable Biological - The range of allowable catch/sustainable harvest level, as determined by a scientific
Catch (ABC) calculation, for a species or species group which is determined by Federal fisheries
biologist. The agency then takes the ABC estimate and sets the annual total allowable
catch (TAG).
Amendment - A change to a management plan or regulation required by various statutes such as the
Magnuson-Stevens Act (MSA) and the National Marine Sanctuaries Act (NMSA). A
management plan amendment could b prepared to achieve a specific goal for a fishery
or a marine sanctuary. Amendments may include regulations necessary to carry out
management objectives. A regulatory amendment could clarify the intent of a Regional
Fishery Management Council established by the Magnuson-Stevens Act or interpret broad
terms or measures contained in existing FMPs. Amendments must go through standard
rulemaking procedures under the Administrative Procedure Act (APA) and must include
the appropriate environmental analysis under NEPA..
Anadromous - Fishthatspendtheiradultlife in the sea but swim up river to freshwater spawning grounds
in order to reproduce (e.g., salmon).
Annual Mortality (A) - The percentage of fish dying in one year due to fishing and natural causes.
Aquaculture - The raising of fish or shellfish under some controls. Ponds, pens, tanks, or other
containers may be used. Feed is often used. A hatchery is also aquaculture but the fish
are released before harvest size is reached.
Benthic - Refers to organismsthatlive on orinthe ocean floororhabitatfoundonthe ocean floor.
Biological Opinion - A scientific assessment issued by the NMFS or USFWS, as required by the Endangered
(BiOp or BO) Species Act for listed species. Determines the likelihood of an action to jeopardize the
existence of a species listed under the Endangered Species Act.
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Biomass(B) -The total weight of a stock offish. Measured in terms of total weight, spawning capacity,
or other appropriate units of production. Amount of living matter per unit of water surface
or volume expressed in unit weight.
Biomass at MSY- - The biomass that allows maximum sustainable yield to be taken. Long term average
levels (Bmsy) exploitable biomass that would be achieved if fishing at a constant fishing mortality rate
equal to Fmsy. For most stocks Bmsy is about V£ of the carrying capacity. The proposed
overfishing definition control rules call for action when biomass is below 1 /4 or V£ Bmsy,
depending on the species.
Bycatch -The Magnuson-Stevens Fishery Conservation and Management Act defines bycatch as
"fish which are harvested in a fishery, but which are not sold or kept for personal use, and
includes economic discards and regulatory discards... [but not] fish released alive under
a recreational catch and re lease fishery management pro gram." Examples a re blue crabs
caught in shrimp trawls or sharks caught on a tuna longline. Bycatch is sometimes called
incidental catch. Bycatch plus landed catch equals the total catch or total estimated
fishing mortality.
Bycatch Reduction - Devices (such as finfish excluders) incorporated into fishing gears designed to reduce the
Device (BRD) take of non-target species.
Catch - Catch, take or harvest includes, but is not limited to, any activity that results in killing any
fish or bringing any live fish onboard a vessel. Catch refers to the total number or
poundage offish captured from an area over some period of time. This includes fish that
are caught but released or discarded instead of being landed.
Categorical Exclusion - Decisions granted to certain categories of actions that individually or cumulatively do not
(CE) have the potential to pose significant impacts on the quality of the human environment
and are therefore exempted from both further environmental review and requirements to
prepare environmental review documents (40 C.F.R. 1508.4). The main text of NAO
216-6 presents specific actions and genera I categories of actions found to warrant a CE.
CEs may not be appropriate when the proposed action is either precedent-setting or
controversial, although such a determination must be made on a case-by-case basis.
Catch-Per-Unit-Effort - See CPUE (Catch-Per-Unit-Effort).
(C/E)
Catch-Per-Unit-Effort - The quantity of fish caught (in number of weight) with one standard unit of fishing effort.
(CPUE) For example, the number of fish taken per 1,000 hooks per day, orthe weight of fish, in
tons, taken per hour of trawling. CPUE is often considered an index of fish biomass (or
abundance). Sometimes referred to as catch rate. CPUE may be used as a measure of
economic efficiency of fishing as well as an index of fish abundance. Typically, effort is
a combination of gear type, gearsize, and length of time the gear is used. Also referred
to as C/E.
Community - A federal fisheries program that involves coalitions of communities who have formed six
Development Quota regional organizations. The program allocates a portion of the Bering Sea and Aleutian
Island harvest amounts to groups.
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Council -One of the eight Regional Fishery Management Councils established bytheMagnuson
Stevens Act.
Days at Sea (DAS) -The total days, including steaming time that a boat spends at sea to fish.
Disappearance (Z') -Measures the rate of decline in numbers of fish caught as fish become less numerous or
less available. Disappearance is most often calculated from catch curves.
Discard -Release or return fish to the sea, whether or not such fish are brought fully onboard a
fishing vessel. Discards are fish that are caught but not kept.
Economic Discard - Fish which are the target of a fishery, but which are not retained because they are of an
undesirable size, sex, or quality, or a species for which no market exists, or for other
economic reasons.
Endangered Species - The Federal law, enacted by Congress in 1 973, to provide protection for, and promote
Act (ESA) the recovery of, animal and plant species considered as threatened or endangered
because of natural or anthropogenic conditions.
Environmental -One of the alpha categories used by EPA reviewers to rate a DEIS. An EO rating means
Objections (EO) The review has identified significant environmental impacts that should be avoided in
orderto adequately protect the environment. Corrective measures may require substantial
changes to the preferred alternative or consideration of some other project alternative
(including the no action alternative or a new alternative).
The basis for Environmental Objections can include situations:
1 . Where an action might violate or be inconsistent with achievement or maintenance
of a national environmental standard;
2. Where the Federal agency violates its own substantive environmental requirements
that relate to EPA's areas of jurisdiction or expertise;
3. Where there is a violation of an EPA policy declaration;
4. Where the re a re no applicable standards or where applicable standards will not be
violated but the re is potential for significant environmental degradation that could be
corrected by project modification or other feasible alternatives; or
5. Where proceeding with the proposed act ion would set a precedent for future actions
that collectively could result in significant environmental impacts.
See also: LO, EC, and EU.
Environmental -One of the alpha categories used by EPA re viewers to rate a DEIS. An EC rating means
Concerns (EC) that the review has identified environmental impacts that should be avoided in order to
fully protect the environment. Corrective measures may require changes to the preferred
alternative or application of mitigation measures that can reduce the environmental
impact. See also: LO, EO, and EU.
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Environmentally - One of the alpha categories used by EPA reviewers to rate a DEIS. An EU rating means
Unsatisfactory (EU) that the review has identified adverse environmental impacts that are of sufficient
magnitude that EPA believes the proposed action must not proceed as proposed. The
basis for an environmentally unsatisfactory determination consists of identification of
environmentally objectionable impacts as defined above and one or mo re of the following
conditions:
2. The potential violation of or inconsistency with a national environmental standard is
substantive and/or will occur on a long-term basis;
3. There are no applicable standards but the severity, duration, or geographical scope
of the impacts associated with the proposed action warrant special attention; or
4. The potential environmental impacts resulting from the proposed action are of
national importance because of the threat to national environmental resources or to
environmental policies.
See also: EC, LO, and EO.
Essential Fish Habitat - Those waters and substrate necessary to fish for spawning, breeding, feeding or growth
(EFH) to maturity.
Exclusive Economic - The zone established by Presidential Proclamation 5030, 3 C.F.R. 22, dated March 1 0,
Zone (EEZ) 1 983, and is that area adjacent to the United States which, except where modified to
accommodate international boundaries, encompasses all waters from the seaward
boundary of each of the coastal states to a line on which each point is 200 nautical miles
(370.40 km) from the baseline from which the territorial se of the United States is
measured.
Fecundity - The potential to produce offspring; a measurement of the egg-producing ability of a fish.
Fecundity may change with the age and size of the fish.
Federal Waters - See Exclusive Economic Zone.
Federal Register (FR) - The official daily publication for Rules, Proposed Rules, and Notices of Federal agencies
and organizations, as well as Executive Orders and other Presidential Documents.
Fish - Finfish, mollusks, crustaceans, and all other forms of marine animals and plant life other
than marine mammals and birds.
Fishery - One or more stocks of fish that can be treated as a unit for purposes of conservation and
management and that are identified on the basis of geographic, scientific, technical,
recreational, or economic characteristics, or method of catch; or any fishing for such
stocks.
Fishery resource - Any fish, any stock of fish, any species of fish, and any habitat of fish.
Fish stock - A population of a species of fish from which catches are taken in a fishery. Use of the
term "fish stock" usually implies that the particular population is more or less isolated
form other stocks of the same species, and hence self-sustaining.
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Fisheries Obligation - Loan guarantees under the Fisheries Obligation Guarantee (FOG) Program to help
Guarantee or Fishing restructure existing debt ($1 million). The $1 million that NOAA applied to the FOG
Vessel Obligation program effectively leveraged $20 million in loan guarantees for the purposes of
Guarantee Program refinancing and restructuring mortgage debt, as well as for the retrofitting and re-
(FOG) equipping of fishing vessels and shoreside facilities.
Fishery Conservation - The Federal law that originally created the Regional Councils and is the Federal
and Management Act government's basis for fisheries management in the FEZ. Now known as (see also) the
Magnuson Stevens Act.
Fishery Management - A fisheries management body established bythe Magnuson-Stevens Fishery Conservation
Council (FMC) and Management Act to manage fishery resources in designated regions of the United
States. Membership varies in size depending on the number of states involved. There are
eight regional Councils.
Fishery Management - A plan, and its amendments, that contains measures for conserving and managing
Plan (FMP) specific fisheries and fish stocks. It is developed by a regional fishery management
Council, or the Secretary of Commerce/NOAA, to manage a fishery resource in the
Exclusive Economic Zone pursuant to the Magnuson-Stevens Fishery Conservation and
Management Act. It includes data, analyses and management measures for a fishery.
Fishery - (a)Oneormore stocks offish which can be treated as a unit for purposes of conservation
and management and which are identified on the basis of geographical, scientific,
technical, recreational, and economic characteristics; and (b) any fishing forsuch stocks.
Fishing morality rate - A fishing mortality rate that would produce MSY when the stock biomass is sufficient for
at MSY- levels (Fmsy) producing MSY on a continuing basis.
Fishing Mortality Rate - Instantaneous fishing mortality rate. A measurement of the rate of removal of fish from
(F) a population by fishing. Fishing mortality can be reported as either annual or
instantaneous. Annual mortality is the percentage of fish dying in one year.
Instantaneous is that percentage offish dying at any one time. The acceptable rates of
fishing mortality may vary from species to species.
Full Time Equivalent - Total number of workers, including part-time, in an area as the equivalent of full-time
(FTE) positions.
General Linear Model - A mathematical formula that relates one biological factor to another. Once a
(GLM) mathematical relationship is established, scientists use the formula to predict one factor
over another.
Ghost Fishing - The capture of fish or other living marine resources by lost or discarded fishing gear.
Gillnetting - A gillnet is a curtain of netting that hangs in the water, suspended from floats. Gillnets
are almost invisible to marine life and rely on this fact to catch fish. The spaces in the net
are designed to be big enough for the head of a fish to go through but not its body. As
the fish startles and backs out, its gills get caught in the net.
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Groundfish - Fish that lives on or near the sea bottom part of the time. Some examples of groundfish
are: Atlantic cod, haddock, walleye pollock, Pacific cod, rock sole, flatfish, rockfish,
sablefish, among others.
Growth Model - A mathematical formula that describes the increase in length or weight of an individual
fish with time.
Habitat areas of - Subsets of essential fish habitat containing pa rt icula rl y sens it iveorvulnerable habitats that
particular concern serve an important ecological function, are particularly sensitive to human-induced
(HAPC) environmental degradation, are particularly stressed by human development activities, or
comprise a rare habitat type.
Harvest - The total number or poundage of fish caught and kept from an area over a period of
time.
High Seas - All waters beyond the territorial sea of the United States and beyond any foreign nation's
territorial sea, to the extent that such sea is recognized by the United States.
Highly Migratory - Tuna species, marlin, ocean sharks, sailfishes, and swordfish. These fish are managed
Species (HMS) by the National Marine Fisheries Service HMS Division.
Incidental Catch of - See also Bycatch. Species caught when fishing for the primary purpose of catching a
species different species. For fishermen, this term also means that these catches can be sold or
kept if allowed under certain fishery plan regulations.
Individual Fishing - Established by MSA, it is the annual catch limit for a person who has a permit to harvest
Quota (IFQ) a specific portion of the Total Allowable Catch of a species. A Federal permit under a
limited access system to harvest a quantity offish, expressed by a unit or units representing
a percentage of the total allowable catch of a fishery that may be received or held for
exclusive use by a person.
Individual - A form of limited entry that gives harvest rights to fishermen by assessing a fixed share of
Transferable Quota the catch to each fishermen. A type of quota (a part of a total allowable catch) allocated
to individual fishermen or vessel owners and which can be transferred (sold, leased) to
others.
Intrinsic Rate of - The change in the amount of harvestable stock. It is estimated by recruitment increases
Increase (z) plus growth minus natural mortality.
Lack of Objections - One of the alpha categories used by EPA reviewers to rate a DEIS. A LO rating means
(LO) that review has not identified any potential environmental impacts requiring substantive
changes to the preferred alternative. The review may have disclosed opportunities for
application of mitigation measures that could be accomplished with no mo re than minor
changes to the proposed action. See also EO, EC, and EU.
Landings - The number or poundage offish unloaded at a dock by commercial fishers or brought
to shore by recreational fishers for personal use. Landings are reported at the points at
which the fish are brought to shore.
Length Frequency - A breakdown of the different lengths of a kind of fish in a population or sample.
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Length-Weight - Mathematical formula for the weight of a fish in terms of its length. When only one is
Relationship known, the scientist can use this formula to determine the other.
Limited Entry - A program that changes a common property resource like fish into private property for
individual fishermen. A fishery for which a fixed number of permits have been issued in
order to limit participation. License limitation and the individual transferable quota (ITQ)
are two forms of limited entry.
Long I in ing - Central fishing line strung with many smaller lines holding baited hooks; line I eft to "soak"
for a time to attract fish and then catch is hauled in. Pelagic longlining takes place near
the surface targeting midwater fishes like swordfish and tuna; demersal or "bottom"
longlining targets fishes that linve closer to the seafloor, like cod, halibut and sablefish.
NOAA requires large circle style hook in both Atlantic and Pacific Oceans to help reduce
turtle bycatch in longline fishing.
Magnuson Stevens - Magnuson Stevens Fishery Conservation and Management Act, as amended (16 U.S.C.
Act (MSA) 1801 efseq.), formerly known as the Magnuson Act. See also Magnuson-Stevens Fishery
Conservation and Management Act (MSFCMA) or Fishery Conservation and
Management.
Magnuson Stevens - The Federal law that created the Regional Councils and is the Federal government's basis
Fishery Conservation for fisheries management in the FEZ. See also Magnuson-Stevens Act (MSA).
and Management Act
(MSFCMA)
Marine Recreational - An annual survey by the National Marine Fisheries Service (NMFS) to estimate the
Fishery Statistics number, catch, and effort of recreational fishermen, and to estimate the impact of
Survey (MRFSS) recreational fishing on marine resources. It serves as a basis for many parts of fisheries
management plans.
Marine Mammal - An established moratorium, with certain exceptions, on the taking or Harassment of
Protection Act marine mammals in U.S. waters and by U.S. citizens on the high seas, and on the
(MMPA) importing of marine mammals and marine mammal products into the United States.
Passed in 1972 and reauthorized in 1994.
Marine Interstate - One of three compacts of states (Atlantic, Gulf and Pacific) that cooperatively addresses
Fisheries Commission fishery management issues in state jurisdictions.
(MFC)
Maximum Fishing - This is the reference point for determining if overfishing is occurring.
Morality Threshold
(MFMT)
Maximum Sustainable - An estimate of the largest annual catch or yield that can be continuously taken over a
Yield (MSY) long period from a stock under prevailing ecological and environmental conditions. This
is used as a management goal. Since MSY is a long-term average, it need not be
specified annually, but may be reassessed periodically based on the best scientific
information available.
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Minimum Stock Size - A threshold biomass used to determine if a stock is overfished.
Threshold (MSST)
National - Passed by Congress in 1969, NEPA requires Federal agencies to consider the
Environmental Policy environment when making decisions regarding their programs. Section 1 02(2)(C)
Act (NEPA) requires Federal agencies to prepare an Environmental Impact Statement (EIS) before
taking major Federal Actions that may significantly affect the quality of the human
environment. The EIS includes: the environmental impact of the proposed action, any
adverse environmental effects which cannot be avoided should the proposed action be
implemented, alternatives to the proposed action, the relationship between local short-
term uses of the environment and long-term productivity, and any irreversible
commitments of resources which would be involved in the proposed action should it be
implemented.
National Marine - A Division of the U.S. Department of Commerce, National Oceanic and Atmospheric
Fisheries Service Administration ( NOAA). NMFS is responsible for conservation and management of
(NMFS) offshore fisheries (and inland salmon). The NMFS Regional Directors are voting members
of the respective Councils. NMFS also oversees the actions of the eight regional Fishery
Management Councils.
National Standards -The ten National Standards for fishery conservation and management set forth in Section
301 of MSA.
Natural Mortality Rate - A measurement of the rate of death from all causes other than fishing such as predation,
(M) disease, starvation, and pollution. Commonly expressed as an instantaneous rate (M). The
rate of natural mortality varies from species to species. The natural mortality rate can also
be expressed as a conditional rate (termed n and not additive with competing sources of
mortality such as fishing) or as annual expectation of nature I death (termed vand additive
with other annual expectations on death).
Observer -Any person required or authorized to be carried on a vessel for conservation and
management purposes by regulations or permits under MSA.
Optimum Yield (OY) -The amount of fish that will pro vide the greatest overall benefit to the Nation, particularly
with respect to food production and recreational opportunities, and taking into account
the protection of marine ecosystems. The OY is developed on the basis of the Maximum
Sustainable Yield (MSY) from the fishery, as reduced by any re levant economic, social and
ecological factors. In the case of overfished fisheries, the OY provides for rebuilding to
a level that is consistent with producing the MSY for the fishery.
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Overfishing/ - Overfishing and Overfished, according to MSA, mean a rate or level of fishing mortality
overfished that jeopardizes the capacity of a fishery to produce the mzximum sustainable yield on a
continuing basis. The PFMC defines "overfishing" as fishing at a rate or level that
jeopardizes the capacity of a stock or stock complex to produce MSY on a continuing
basis. Mo re specifically, overfishing is defined as exceeding a maximum allowable fishing
mortality rate. "Overfished" is any stock or stock complex whose size is sufficiently small
that a change in management practices is required to achieve an appropriate level and
rate of rebuilding. The term generally describes any stock or stock complex determined
to be below its overfished/rebuilding threshold. The default proxy is generally 25% of its
estimated unfished bio mass, however, other scientifically valid values a re also authorized.
Pelagic - Inhabiting the water column as opposed to being associated with the sea floor; generally
occurring anywhere from the surface tol 000 meters.
Predator-Prey - The interaction between a species (predator) that eats another species (prey). The stages
Relationship of each species' life cycle and the degree of interaction are important factors.
Processing - The preparation or packaging of fish to render it suitable for human consumption, retail
sale, industrial uses, or long-term storage, including but not limited to cooking, canning,
smoking, salting, drying, filleting, freezing, or rendering into meal or oil, but not heading
and gutting unless additional preparation is done.
Programmatic - Comprehensive document in which the agency considers a number of related actions or
Environmental Impact projects being decided within one program; looks to the environmental consequences of
Statement (PEIS) a program as a whole.
Purse Seining - Large net that encircles a school of fish. Bottom of net is strung with a line that the crew
can pull closed. Small boats move out from a mother ship to surround the fish with
netting. The bottom of the net is then pulled closed, like a purse, and raised up, trapping
the fish inside it. Traditionally used to capture sardines, herring and mackerel, but also
used for catching tuna.
Quota - A specified numerical harvest objective, the attainment (or expected attainment) of which
causes closure of the fishery for that species or species group.
Rebuilding Plan - Plan that describes policy measures that will be used to rebuild a fish stock that has been
declared overfished.
Recovery Plan - Plan for the conservation and survival of threatened and endangered species; plan
describes necessary site-specific management actions, measurable criteria to determine
when the species should be removed from the list, and estimates of the time required to
carry out those measures as well as their cost.
Regulatory Discards - Fish harvested in a fishery which fishermen are required by regulation to discard whenever
caught, or are required by regulation to retain but not sell.
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Stock Assessment -The process of collecting and analyzing biological and statistical information to determine
the changes in the abundance of fishery stocks in response to fishing, and, to the extent
possible to predict future trends of stock abundance. Stock assessments are based on
resource surveys; knowledge of the habitat requirements, life history, and behavior of the
species; the use of environmental indices to determine impacts on stocks; and catch
statistics. Stock assessments are used as a basis to "assess and specify the present and
probably future condition of a fishery" (as required by MSA), and are summarized in the
Stock Assessment and Fishery Evaluation or similar document. If the stock assessment
reveals that the stock is overfished, scientists then conduct a rebuilding analysis. The
rebuilding analysis uses information from the stock assessment to describe the probability
that a stock will rebuild within a given timeframe under a particular management regime.
Stock Assessment and - A report prepared bythe Councils that provides a summary of the most recent biological
Fishery Evaluation condition of species in a fishery management unit, and the social and economic condition
(SAFE) of the recreational and commercial fishing industries, including the fish processing sector.
It summarizes, on a periodic basis, the best available information concerning the past,
present, and possible future condition of the stocks and fisheries managed in the FMP.
The report provides information to the Federal Fishery Management Councils for
determining harvest levels.
Stock -A relatively discrete and identifiable unit of fish or other exploited species, often referring
to a management unit. A stock of fish means a species, subspecies, geographical
grouping, or other category of fish capable of management as a unit.
Supplemental EIS -An EIS prepared by an agency 1) to document substantial changes in a proposed action
(as described in an original EIS) that are relevant to environmental concerns or 2) when
there are significant new circumstances or information relevantto environmental concerns
or bearing on the proposed action or its impacts. Supplemental EISs may also be
prepared when an agency determines that the purposed of NEPA would be furthered by
doing so.
Survival Rate (S) -Rate of survival expressed as the fraction of a cohort surviving a period compared to
number alive at the beginning of the period (# survivorsattheend of the year/numbers
alive at the beginning of the year).
Territorial Sea -The area from average low-water mark on the shore out to three miles for each of the
coastal states, except out to nine miles for Texas and the west coast of Florida and the
Commonwealth of Puerto Rico. The shore is not always the baseline from which the three
miles are measured. In such cases, the outer limit can extend further than three miles
from the shore.
Total Allowable Catch -The recommended catch for a species or species group in a given time period, usually a
year. The Regional Council sets the TAC from the range of allowable biological catch
(ABC).
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Total Mortality (Z) -A measurement of the rate of removal of fish from a population by both fishing and
natural causes. Total mortality can be reported as either annual or instantaneous.
Annual mortality is the percentage offish dying in one year. Instantaneous mortality is
that percentage of fish dying at any one time. The rate of total mortality may vary from
species to species. The instantaneous rate of total mortality The components of Z are
additive (i.e., Z = F + M).
Total Allowable Catch - Total Allowable Catch is calculated by applying a target fishing mortality rate to
(TAC) exploitable biomass.
Traps and Pots - Baited cages used to attract the catch and hold it alive until the fisherman returns; often
used for lobster, crabs and shrimp; also occasionally used to catch bottom-dwelling fish
such as sablefish or West Coast rockfish. Made of wire or wood. Many traps usually laid
out attached in a line. Fishermen return in 3-4 days and haul pots aboard, releasing
animals that are too small, too large, or not the right species.
Trawling -Trawlers drag a cone-shaped net behind a boat. Different types of trawl nets are used to
fish in midwater (pelagic) and along the seafloor. During fishing the trawl entrance or
opening must be kept open. For example, with beam trawls and dredges this is done by
mounting the trawl bag on a rigid frame or beam. Beam trawls mainly used for catching
flatfishes such as plaice and sole as well as for different species of shrimp. Dredges are
commonly used for harvesting scallops, clams, and mussels. Demersal otter and pair
trawls are used to catch variety of species like cod, haddock, as well as shrimps. Pelagic
trawls are used for various pelagic target species like herring, mackerel, blue whiting and
pollock.
Vessel Monitoring -A satellite communications system used to monitor fishing activities - for example, to
System ensure that vessels stay out of prohibited areas. The system is based on electronic devices
(transceivers), which are installed onboard vessels. These devices automatically send out
data to a shore-based "satellite" monitoring system.
Virgin Stock Biomass - The long term average biomass value expected for the stock in absence of fishing.
(Bo)
Virtual Population - A type of analysis that uses the number offish caught at various ages or lengths and an
Analysis (VPA) estimate of natural mortality to estimate fishing mortality in a cohort. It also provides an
estimate of the number of fish in a cohort at various ages.
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APPENDICES
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Appendix A
Regional Council FMPs
As indicated previously, the focus of this guidance is on FMPs/Amendments prepared under the authority
of MSA. A current list of FMPs prepared by the Regional Fishery Management Councils or NMFS is
provided below. For a more detailed listing of the titles, dates of approval and/or implementation, and
contents for all FMPs and FMP Amendments, please refer to the Councils' individual websites. Council
contact information is provided in Section 5.1. Further information on the two NMFS FMPs may be found
at NMFS's Highly Migratory Species Division website (http://www.nmgs.noaa.gov/sfa/hms).
An excellent resource for detailed information regarding the stock status for all species contained in the
FMP's management units is the NMFS Annual Report to Congress on the Status of U.S. Fisheries. The
2003 Report (entitled "Sustaining and Rebuilding - National Marine Fisheries Service - 2003 Report to
Congress - the Status of the U.S. Fisheries) provides stock status determinations for those stocks subject
to overfishing, that are overfished, or that are approaching an overfished condition (status determinations
based on fishing mortality and stock biomass criteria). Stocks are identified within each Council's
geographic area of authority and are listed according to their FMP. The Report is accessible on the
Internet at http://www.nmfs.noaa.gov/sfa/reports.html.
In addition to the annual Report to Congress on the Status of the U.S. Fisheries, NMFS has made
available a database providing (a) full status determinations for all stocks subject to management under
the MSA, (b) information related to necessary management actions to be taken, and (c) information on
progress being made in rebuilding overfished stocks. This information may be found at the same agency
website as referenced above for the Report to Congress. It is noted that this website also provides greater
detail on overfishing definitions, stock assessment methodology, species-specific assessments, and a guide
to acronyms used throughout the Report.
Current FMPs by Council
New England Fishery Management Council (ME, NH, MA, Rl, CT)
7 FMPs:
Atlantic Sea Scallop
Northeast Multispecies
Northeast Skate
Atlantic Herring
Red Crab
Monkfish (prepared jointly with Mid-Atlantic Council)
Atlantic Salmon
A Hagfish FMP is under development.
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Mid-Atlantic Fishery Management Council (NY, NJ, DE, MD, VA, NC, PA)
6 FMPs:
Summer Founder, Scup and Black Sea Bass
Atlantic Bluefish
Atlantic Mackerel, Squid and Butterfish
Atlantic Surf Clam and Ocean Quahog
Tilefish
Spiny Dogfish (prepared jointly with the New England Council)
South Atlantic Fishery Management Council (NC, SC, GA, eastern FL)
8 FMPs:
South Atlantic Golden Crab
South Atlantic Shrimp
South Atlantic Snapper Grouper
Atlantic Coast Red Drum
Coral, Coral Reefs, and Live/Hard Bottom Habitats of the South Atlantic Region
Pelagic Sargassum Habitat of the South Atlantic Region
Gulf of Mexico/South Atlantic Spiny Lobster (prepared jointly with Gulf Council)
Dolphin-Wahoo of the Atlantic
A Calico scallop FMP is under development.
Gulf of Mexico Fishery Management Council (TX, LA, MS, AL, western FL)
7 FMPs:
Gulf of Mexico Stone Crab
Gulf of Mexico Shrimp
Reef Fish Resources of the Gulf of Mexico
Gulf of Mexico Red Drum
Coral and Coral Reefs of the Gulf of Mexico
Spiny Lobster
Coastal Migratory Pelagics of the Gulf of Mexico and South Atlantic (prepared jointly with the South
Atlantic Council)
Caribbean Fisheries Management Council (U.S. Virgin Islands and Commonwealth of Puerto Rico)
4 FMPs:
Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands
Spiny Lobster Fishery of Puerto Rico and the U.S. Virgin Islands
Queen Conch Resources of Puerto Rico and the U.S. Virgin Islands
Corals and Reef Associated Invertebrates of Puerto Rico and the U.S. Virgin Islands
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Pacific Fishery Management Council (WA, OR, CA, ID)
4 FMPs:
Coastal Pelagic Species
West Coast Salmon
Pacific Coast Groundfish
U.S. West Coast Fisheries for Highly Migratory Species FMP9
Western Pacific Fisheries Management Council (HI, Territory of American Samoa, Territory of
Guam, Commonwealth of the Northern Marinas Islands, U.S. Pacific Island Possessions)
5 FMPs:
Western Pacific Pelagics
Western Pacific Crustaceans
Western Pacific Precious Corals
Bottomfish and Seamount Groundfish of the Western Pacific
Coral Reef Ecosystems of the Western Pacific Region
North Pacific Fishery Management Council (AK, WA, OR)
5 FMPs:
Gulf of Alaska Groundfish
Bering Sea and Aleutian Islands (BSAI) Groundfish
Bering Sea and Aleutian Islands King and Tanner Crab
Alaska Weathervane Scallops
Alaska High Seas Salmon
Pacific halibut is managed jointly with the International Pacific Halibut Commission.
NMFS
2 FMPs:
Atlantic Billfish
Atlantic Tunas, Swordfish and Sharks
9While that FMP was approved by the Secretary of Commerce on February 4, 2004, it was not fully implemented
by NMFS until May 7, 2004.
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Appendix B
Other Fishery Management Authorities
In addition to the eight regional Councils, other bodies have responsibility for conservation and
management of U.S. fish stocks.
It should be noted that this guidance relates only to the review of plans for
fisheries managed by the Councils and NMFS. However, it is important to be
aware of the plans developed by other authorities to the extent that their actions
may impact those fisheries managed by NMFS and the Councils.
States have authority to manage fisheries in their marine waters, which generally extend three miles from
shore (nine miles for Texas, Florida Gulf Coast, and Puerto Rico). States are represented on the Councils
and participate in Council discussion to ensure that interstate and Federal waters is coordinated. States
also are involved with three commissions to manage interstate marine fisheries. The three regional
interstate fishery commissions that have been established by Federal law include the (1) Atlantic States
Marine Fisheries Commission (ASMFC), (2) Gulf States Marine Fisheries Commission (GSMFC), and (3)
Pacific States Marine Fisheries Commission (PSMFC).
Historically, the commissions have had little power, but recently they were charged by Congress to
promote and encourage management of interjurisdictional marine resources. This new initiative did not
give the commissions any regulatory power but created a stronger process for coordinating regulations
among states. This means that regulations proposed at the state level could have originated at one of
the interstate fishery commissions.
Passage of the Atlantic Coastal Fisheries Cooperative Management Act in 1 993 gave the ASMFC new
powers. The ASMFC is required to adopt FMPs for coastal fisheries (Maine through Florida) caught
predominantly in state waters and under state regulations: some are jointly developed with the Councils
and NMFS. Each state promulgates its own regulations to achieve FMP objectives adopted by the
commission. FMPs developed by the commission may recommend complimentary regulatory actions in
the FEZ. States must comply with the plans or face a "non-compliance" finding, subjecting them to a
fishing moratorium (imposed by the Secretary) on the applicable fisheries until they comply.
The ASMFC was formed by the fifteen Atlantic Coast states (Maine through Florida including Pennsylvania)
in 1942 to assist in managing and conserving their shared coastal fishery resources, including marine,
shell and anadromous species. This Commisssion coordinates the management of 22 Atlantic coastal
fish species through its Interstate Fisheries Management Program, including lobster, herring, menhaden,
bluefish, northern shrimp, red drum, scup, and striped bass. For species that have significant fisheries in
both state and Federal waters (e.g., Atlantic herring, summer flounder, Spanish mackerel), the
Commission works jointly with the relevant East Coast Regional Councils to develop FMPs. The
Commission also works with NMFS to develop compatible regulations for the Federal waters of the FEZ.
The FWS and NMFS are also represented on the Commission. In addition to interstate fisheries
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management, the other four core ASMFC programs include research and statistics, recreational fisheries,
habitat and law enforcement.
The GSMFC is an organization of five states (Texas, Louisiana, Mississippi, Alabama, and Florida) whose
coastal waters are the Gulf of Mexico. It coordinates the management of striped bass, Spanish mackerel,
blue crab, oyster, black drum, striped mullet, and menhaden. Jurisdiction of the coastal states is defined
as within 3 miles except for the Florida Gulf Coast and Texas which are 9 miles.
The PSMFC, authorized by Congress in 1947, represents California, Oregon, Washington, Idaho and
Alaska. Although the Commission does not have management authority, it serves as a coordinator of
research and as a forum for discussion and liaison between state and Federal authorities for issues that
fall outside state or regional fishery management Council jurisdiction. It also provides a communication
exchange between the Pacific and North Pacific Fishery Management Councils, a mechanism for Federal
funding of regional fishery projects, and information in the form of data services for various fisheries.
NOAA's role in building cooperative partnerships to strengthen marine fisheries management and
conservation at the state, interregional and national levels is performed by the Division of State-Federal
Fisheries. To accomplish this goal, they provide national policy and oversight for NOAA Fisheries
interaction with 30 coastal states and island territories/commonwealths, the three interstate marine
fisheries commissions, and national groups.
Chesapeake Bay fisheries are managed separately by Pennsylvania, Maryland, Virginia and the District
of Columbia, with guidance from several Fishery Management Councils. Chesapeake Bay FMPs are
developed to provide compatible, coordinated management for the conservation and wise use of the
Bay's fishery resources. The 1 987 Chesapeake Bay Agreement mandated the development of FMPs for
commercially, recreationally, and ecologically valuable aquatic species. More than 1 5 FMPs have been
developed jointly by the states in the watershed and now provide guidance to Bay states for coordinated,
baywide management of fisheries. The Strategy for the Restoration and Protection of Ecologically Valuable
Species goes a step further, requiring that habitat requirements for the species be incorporated into each
FMP. More information on Chesapeake Bay FMPs can be found at
http://www.chesapeakebay.net/info/fishman.cfm.
The International Pacific Halibut Commission (IPHC) was established by the Convention for the
Preservation of the Halibut Fishery signed in 1923 to conserve and manage the halibut stocks in the
waters off the west coasts of the U.S. and Canada, including the southern and western coasts of Alaska,
under the exclusive fisheries jurisdiction of either the U.S. or Canada. The main functions of the
Commission are to coordinate scientific studies relating to the halibut fishery and to formulate regulations
designed to develop the stocks of halibut to those levels which permit optimum utilization. Measures
recommended by the Commission are submitted to the two governments for approval, and upon
approval, the regulations are enforced by the appropriate agencies of both governments. Membership
in this Commission is limited to the U.S. and Canada.
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The Pacific Salmon Commission (PSC) was established in 1985 by the Treaty between the U.S.
Government and the Government of Canada concerning pacific Salmon. The Commission was designed
to enable the U.S. and Canada to prevent overfishing and provide for optimum production and to allow
each party to receive benefits equivalent to the production of salmon originating in its waters. However,
the U.S. and Canada have not been able to agree fully on long-term, coast-wide salmon fishing
management regimes since 1 992 because of differing philosophical and technical approaches to equity
and salmon conservation issues.
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Appendix C
Related Statutes and Executive Orders
The formulation and implementation of all Federal fishery management policies and measures must be
consistent with requirements stipulated in the body of Federal statutes and E.O.s described below. Some
of these mandates speak directly to the conservation and management of fishery resources; some address
rulemaking requirements generally; and some ensure, in particular, that potential environmental,
economic, and social effects of a proposed action are assessed and considered before the action is taken.
For marine fisheries resources, the Executive branch's responsibility for compliance with these mandates
resides primarily with the Secretary and has been largely delegated down to NOAA and NMFS.
A listing of major Federal mandates (statutes and E.O.s) affecting the conservation and management of
marine fishery resources is provided below based on the following information sources: NMFS
Operational Guidelines - Fishery Management Process, May 1, 1 997; NOAAAdm/n/sfraf/Ve Order216-6:
Environmental Review Procedures for Implementing the [National] Environmental Policy Act, May 20,1 999;
recent FMP EISs; and NMFS/NOAA websites, as noted under certain mandates.
Related general rulemaking statutes and E.O.s include the APA, PRA, RFA, and E.O.s 12114
(Environmental Effects Abroad of Major Federal Actions), 12630 (Government Actions and Interference
with Constitutionally Protected Property Rights), 12866 (Regulatory Planning and Review), 12898
(Environmental Justice), 13132 (Federalism), and 13175 (Consultation and Coordination With Indian
Tribal Governments). The remaining statutes and E.O.s are fishery resource related.
For more information on these statutes and E.O.s, one resource available to EPA reviewers is the NOAA
website which includes various links to statutes and programs, such as:
• Protected species/ESA - http://www.nmfs.noaa.gov/prot res/overview/es.html
• National Marine Sanctuaries - http://www.sanctuaries.nos.noaa.gov/oms/oms.html (with links
to each sanctuary).
• NOAA NEPA Coordination website - http://www.nepa.noaa.gov (links to various E.O.s)
• NOAA Coral Conservation program - http://www.coralreef.noaa.gov.
• Marine Protected Areas (NOAA and Department of Interior website) - http://www.mpa.gov/
Nofe that references to relevant websites are also provided in this appendix. While the internet citations
(uniform resource locators, or URLs) were accurate at the time the data were collected, websites change
frequently due to changes in data availability or reorganization. The cited URLs may not work in the future.
If this occurs, "backing up" to a less specific web address may allow retrieval of the information.
C.I Related Statutes
Administrative Procedure Act (APA): 5 U.S.C. 551 efseq.
Paperwork Reduction Act (PRA) 44 U.S.C 3501 ef seq.
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Regulatory Flexibility Act (RFA), 5 U.S.C. 601 efseq.
Atlantic Striped Bass Conservation Act: 16 U.S.C. 5151 efseq.
Atlantic Coastal Fisheries Cooperative Management Act: 16 U.S.C. 5101 efseq.
American Fisheries Act (AFA), PL 105-277 (46 U.S.C. 12102 efseq.)
Coastal Zone Management Act (CZMA), 16 U.S.C. 1451 efseq.
Endangered Species Act (ESA), 16 U.S.C. 1531 efseq.
Fish and Wildlife Coordination Act, 16 U.S.C., 661 efseq.
Marine Mammal Protection Act (MMPA), 1 6 U.S.C. 1 37 ef seq.
Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703, efseq.
National Marine Sanctuaries Act (NMSA), 16 U.S.C. 1431 efseq.
National Environmental Policy Act (NEPA), 42 U .S.C. 4321 efseq.
C.2 Related Executive Orders
Executive Order 12114: Environmental Effects Abroad of Major Federal Actions
Executive Order 12630: Government Actions and Interference with Constitutionally Protected Property
Rights
Executive Order 12866: Regulatory Planning and Review
Executive Order 12898: Environmental Justice
Executive Order 13089: Coral Reef Protection
Executive Order 13112: Invasive Species
Executive Order 13132: Federalism
Executive Order 13158: Marine Protected Areas (MPA)
Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
Executive Orders 131 78 and 13196: The Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve
[E.O. 131 78 established the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve; E.O. 13196
modified the earlier E.O. by revising some of the conservation measures and making the Reserve
Preservation Areas permanent].
Executive Order 13186: Protection of Migratory Birds.
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Appendix D
Essential Fish Habitat (EFH)
The 1 996 amendments set forth a new mandate for NMFS, Regional Councils, and other Federal
agencies to identify and protect important marine and anadromous fish habitats. Specifically, the
Councils, with assistance from NMFS, are required to identify and describe EFH in FMPs or FMP
Amendments for all Federally managed fisheries, minimize to the extent practicable adverse effects on
such habitat caused by fish ing, and identify other actions to encourage the conservation and enhancement
of such habitat.
Congress defined EFH as "those waters and substrate necessary to fish for spawning, breeding, feeding,
or growth to maturity" (1 6. U.S.C. 1 802(10)) [author's emphasis]. The EFH regulations further interpret
the EFH definition as follows:
1. Wafers - include aquatic areas and their associated physical, chemical, and biological
properties that are used by fish and may include aquatic areas historically used by fish
where appropriate;
2. Subsfrafe - includes sediment, hard bottom, structures underlying waters, and
associated biological communities;
3. Necessary - means the habitat required to support a sustainable fishery and the
managed species' contribution to a healthy ecosystem; and "spawning, breeding, feeding,
or growth to maturity" covers a species' full life cycle.
These EFH identifications and descriptions must be based on the best available science regarding the
habitat requirements of each managed species and are developed through the public process. A listing
of identifications and descriptions for EFH for each Council can be found on the NMFS habitat protection
website at: http://www.nmfs.noaa.gov/habitat/habitatprotection/ with a direct link to the "essential fish
habitat" website:
http://www.nmfs.noaa.gov/habitat/habitatprotection/essentialfishhabitat.htm
From the EFH homepage, there are additional links to information on EFH EISs (by region) as well as
scoping documents, and comprehensive information and issues (and links) related to EFH in general.
Information includes, but is not limited to: Background information, EFH definitions, EFH Terminology,
EFH Laws and Regulations, Regional Habitat Conservation Divisions, EFH EISs, Effects of Fishing, EFH
Guidance Documents, Fact Sheets, etc. In particular, the EFH guidance documents include EFH
Consultation Guidance, EFH Assessment Guidance, a report on approaches to identify and protect
HAPCs, and guidance for integrating consultation requirements associated with ESAand EFH. Links from
NMFS' EFH homepage to each of the regional offices provide access to EFH identifications and
descriptions for each individual fish species managed by that region. The most recent addition to the
website is a second section on EFH descriptions and identifications by Council. A section summarizing
the EFH consultation process will be developed in the near future.
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Guidance and procedures for implementing the 1 996 amendments were provided through interim final
rules, as revised by final rules published by the NMFS on January 17, 2002 (50 C.F.R. 600.805-
600.930). These rules specify that FMP Amendments be prepared to describe and identify EFH, and
identify appropriate actions to conserve and enhance those habitats. As new FMPs are developed, EFH
for newly managed species will be defined as well.
Currently, NMFS and many Councils are preparing new EISs for the EFH components of many FMPs. In
response to a court order, NMFS will prepare EISs to evaluate the designation of EFH, the identification
of Habitat Areas of Particular Concern, and the minimization of the adverse effects of fishing on EFH. The
court order stemmed from a lawsuit filed by seven environmental groups and two fishing associations.
The suit covered FMP Amendments developed by the New England, Gulf of Mexico, Carribean, Pacific
and North Pacific Councils. Each new EIS will evaluate a range of alternatives to designate EFH and
Habitat Areas of Particular Concern and to minimize, to the extent practicable, adverse effects on EFH
from fishing, using the best available scientific information. Some of these analyses will be combined with
evaluations of other issues associated with the particular fisheries. A list of (and links to) the relevant EISs
can be found at the EFH homepage.
Ongoing efforts include the incorporation of habitat protection objectives into the development of new
FMPs and implementing alternatives for minimizing the adverse effects of fishing gear. For example, a
1 80-square nautical mile marine reserve has been established in the Dry Tortugas. Fishing and anchoring
of fishing vessels has been prohibited in the reserve, which includes Riley's Hump, the sole spawning
ground for Mutton snapper. In New England, the use of "street sweeper" gear has been banned since
1 999. New England trawl fishermen had previously attached the stiff-bristled brush cylinders from street
sweepers to their trawls, allowing them to catch fish more efficiently, but potentially damaging bottom
habitats in the process. Additional measures will be considered as more research data on fishing gear
impacts becomes available.
With respect to the effects of fishing gear on fish and sensitive habitats, NMFS has dedicated significant
effort to studying the effects of various fishing gears as they relate to decreased productivity, survival, or
recruitment of managed fish species, and harm to sensitive habitats. Examples of adverse effects from
fishing practices can include alteration of the physical terrain from bottom-tending gear, chemical
modifications to the sediment and over-lying water column, and biological changes to the benthic
community, such as removal of prey species. NMFS is engaged in numerous research projects to improve
understanding of the effects of fishing on EFH, including impacts from mobile gears, such as trawls and
dredges, and from certain types of fixed gears, such as fish traps. See also Appendix E.
EFH Consultation
Once EFH has been identified, Federal agencies must consult with the Secretary (NMFS) and any Federal
or state agency concerning any activity or proposed activity authorized, funded, or undertaken by the
agency that may affect EFH. Councils may also comment and make recommendations to Federal
agencies regarding their actions that may, in the view of the Councils, adversely affect the habitat,
including EFH, of a fishery resource under its authority. If NMFS receives information that a Federal action
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would adversely affect EFH, it must recommend measures to conserve and enhance such habitat. Within
30 days, the action agency must respond to NMFS (and the regional Council(s)) with a description of
measures that will be taken to avoid, mitigate, or offset the impact of the activity on the habitat. If the
response is inconsistent with the recommendations of NMFS, the reasons must be explained. In the case
of FMPs, NMFS as the action agency must consult with itself regarding an action that may adversely affect
EFH.
EFH consultations may be streamlined in future planning for a large number of Federal actions through
programmatic consultations or in existing consultation processes through findings. Programmatic
consultations described under 50 C.F.R. 600.920(j) provide a means for NMFS and a Federal agency
to consult regarding a potentially large number of individual actions that may adversely affect EFH. NMFS
may find that existing action agency environmental review processes can be combined with the EFH
consultation process if they meet the criteria under 50 C.F.R. 600.920(f)(l). For exam pie, NMFS finds that
the ESA Section 7 consultation process may be used by NMFS and any Federal action agency to satisfy
the MSA EFH consultation requirements, provided consultations are implemented consistent with recent
NMFS' guidance (February 28, 2001). This guidance includes recommended procedures for integrating
MSA EFH consultations with ESA Section 7 consultations in cases where a Federal agency must consult
under both statutes and NMFS determines that combining the two consultations improves efficiency. With
respect to fisheries management actions, note that NMFS consults within itself on EFH and ESA for those
managed and protected species under NMFS' jurisdiction. A copy of the guidance is available on the EFH
homepage (link to EFH Guidance Documents and then to EFH/ESA Guidance).
EFH in State Waters
Although the regional Council's jurisdiction over fisheries is limited to Federal waters, the EFH provisions
of MSA apply throughout the range of managed species, often extending into state waters for some life
stages. The Councils FMP Amendments identify and describe EFH in both state and Federal waters and
recommend conservation measures to minimize threats to EFH in both state and Federal waters. However,
the consultation and regulation provisions apply differently. While Federal agencies must consult with
NMFS on actions that may adversely effect EFH, state agencies are not required to notify NMFS even
though NMFS must still provide conservation recommendations. States also do not have to respond to
any conservation recommendations received from NMFS. When dealing with the effects of fishing
activities that may affect EFH, the regulatory authority of the Councils and NMFS under MSA applies only
to fishing impacts in Federal waters.
NOAA/NMFS EFH contact information is included in Section 5.1.
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Appendix E
Fishing Gear Primer
The type of fishing gear utilized to collect/catch various fish species may have effects on the environment
that must be considered when conducting a review of the DEIS. Just as recently as March 2002, the
National Research Council released a report, Effects of Trawling and Dredging on the Seafloor Habitat,
which discusses potential environmental impact, but emphasizes that still much needs to be learned about
the impacts of not only trawls and dredges, but stationary fishing gear such as pots and longlines. This
report can be viewed online at:
http://books.nap.edu/books/0309083400/html/index.html.
Fishing gear descriptions in this section have been adapted from a new website titled the Fisheries Global
Information System (FIGIS), a global network of integrated fisheries information maintained by the Food
and Agriculture Organization of the United Nations (FAO). The FAO website for fisheries can be viewed
at: http://www.fao.org/fi/default.asp/. Access to the Fisheries Global Information System (FIGIS) also can
be obtained through the FAO website. FIGIS contains a wealth of information on aquatic species, marine
resources, marine fisheries, and fishing technologies (including fishing techniques, geartypes, and fishing
vessel types). At the time of this document was written the website profiled over 80 types of fishing gear,
including pictures of the gear, specifics on handling equipment, types of fishing vessels using the gear,
locations used, environmental effects, and target species. Note that the gear descriptions included in this
document are general and not representative of all gear used (i.e., specific examples of all geartypes are
not included). Finally, the reviewer is also referred to the following website of NOAA photographs at:
http://www.photolib.noaa.gov/collections.html^ which includes photos of various fishing techniques and
other fish illustrations [under link to "Fisheries"].
The main categories of fishing gear, according to the International Standard Statistical Classification of
Fishing Gears (ISSCFG) classification, are described below. Further details on gear types, target species,
and environmental impacts can be searched at: http://www.fao.org/fi/fiqis/tech/qears l.jsp.
Dredges [DR]
This category includes: Boat and Hand Dredges
These are gears which are dragged along the bottom to shellfish and
molluscs (e.g., mussels, oysters, scallops, clams). They consist of a
mouth frame to which a holding bag constructed of metal rings or
meshes is attached. There are two main types (categories) of dredges;
heavy dredges towed by boats (boat dredges), and lighter ones operated
by hand in shallow waters (hand dredges).
Dredges are generally operated not too far from the coastline always
hard" contact with the bottom in both inland and in marine waters
n
Dredges might also be used for harvesting sea bed farmed mussels. A
Sample pictures of dredges.
From FIGIS.
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dredge may give rise to various degree of impacts to the sea floor and the benthic organisms living
there.
Gillnets and Entangling Nets [GE]
This category includes: Set gillnets; Driftnets;
Encircling gillnets; Trammel gillnets; Fixed gillnets
(on stakes); Combined gillnets-trammel nets.
Gillnets or entangling nets consist in single or, less commonly, double
(both are known as "gillnets", strictly speaking) or triple netting (known
as " trammel net") wall mounted together on the same frame ropes.
Gillnets are set near the surface, in midwater, or on the bottom and
have floats on the upper line (headrope) and weights on the ground-line
(footrope). Several types of nets may be combined in one gear (for
example, trammel net combined with gillnet). These nets can be used
either alone or, as is more usual, in large numbers placed in line ('fleets'
of nets). The gear can set, anchored to the bottom or left drifting, free Sample pictures of GE.
or connected with the vessel. From F/G/S.
According to their design, ballasting and buoyance, these nets may be used to fish near to the surface,
in midwater or at the bottom, either in inland and sea waters. Real gillnets, at least those with a single
netting, are, in general, considered as having a high degree of selectivity, in terms of fish species, as well
as size of the fish which directly depends on the size of the mesh. Incidental catch of a number of
endangered species such as turtles, sharks, marine mammals or seabirds, in certain areas is a matter of
growing concern. Research is being conducted to reduce this risk. "Ghost fishing" due to lost (or
discarded) gillnets is also a serious concern. For the above mentioned reasons, the United Nations
banned, in 1 991, the use of large scale high seas driftnets over 2.5 kilometers long. From the point of
view of environment, in general, it is also worth noting the low energy consumption forfishing with gillnets.
Grappling and Wounding Gears [GAW]
This category includes: Harpoons [HAR]; Clamps;
Rakes; Tongs; Spears; and Wrenching Gears.
As in hunting, man has extended the range of his arm by using long-handled implements, which can be
pushed, thrown or shot for killing, wounding or grappling fish or molluscs. These gears are commonly
operated, by hand, in shallow waters, from the shore or from a boat, more common in inland waters but
also in the sea. In certain areas, harpooning is also carried out offshore. In many countries the use of
wounding gears is banned as a prey can be hurt by the gear and die after escaping.
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Hooks and Lines [LL]
This category includes: Vertical Lines; Set Longlines;
Drifting Longlines; Trolling Longlines; Pole and Lines.
nr Trrrrr
Hooks and lines are gear where the fish is attracted by a natural or
artificial bait (lures) placed on a hook fixed to the end of a line or snood,
on which they get caught. Hooks or metallic points (jigs) are also used
to catch fish by ripping them when they pass in its range of movement.
Hook and line units may be used singly or in large numbers. Hooks and
lines are generally operated in a very wide range of depths, either in Sample pictures of hooks and
inland and sea waters. With line fishing it is possible to catch fish on lines setups. From F/G/S.
rough ground, even in their hiding places between the rocks. This
category of gear is mainly used to catch Pelagic, demersal and benthic species.
Lift Nets [LN]
This category includes: Portable hand lift nets;
Boat-operated lift nets; and Shore operated
stationary lift nets.
Used to catch Small pelagic species, fish and squid, lift nets are horizontal netting panels or bag shaped
like a parallelepiped, pyramid orcone with the opening facing upwards.
These nets are submerged at a certain depth and light or bait to attract
fish over the opening. After a predetermined amount of time the nets
are lifted out of the water.
The impact of the use of lift nets depends on how selective is the
attraction above the lift net opening, mainly attraction to the light.
Certain species or smaller sizes of fish can be attracted, at the same
time, in addition to target species (a bycatch which is some time Sam picture of a lift net.
discarded).
From F/G/S.
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Surrounding Nets [LN]
This category includes: Lampara nets; Purse Seines;
and Ring Nets.
Surrounding nets are large netting walls set for surrounding aggregated
fish both from the sides and from underneath, thus preventing them
from escaping by diving downwards. Apart from a few exceptions, these
are surface nets. The netting wall is framed by lines: a float line on top
and lead line at the bottom. Surrounding nets are the most important
and most effective gears to catch aggregated pelagic species both large
(tuna and tuna-like species) and small ones (for small pelagic fish,
midwater trawling in a good alternative in many cases). Apart from a
few exceptions, surrounding nets are surface nets which can, in
principle, be used everywhere, in both marine and inland areas (as long surrounding net. From F/G/S.
as there is enough space for the operation of a large net). The only
limitation could be in too shallow waters where the water depth is less than the height of the surrounding
net during the fishing operations making a risk of damage to the fishing gear. Incidental capture of
dolphins by tuna purse seiners is regarded as an irresponsible fishing practice. Special techniques have
been developed to reduce bycatch of dolphins; the Medina paneland "back down" operation, which
ensure that encircled dolphins are released alive. The increasingly used practice of encircling floating
objects, including man-made FADs increases the capture of small sized and immature aggregating around
such devices.
Sample pictures of a
Traps [FN]
This category includes: Pots; Fyke Nets; Stow Nets;
Barriers, Fences, Weirs, Corrals, etc.; Ariel Traps;
Stationary Uncovered Pound Nets.
Traps, large stationary nets or barrages or pots, are gears in which the
fish are retained or enter voluntarily and will be hampered from
escaping. They are designed in such manner that the entrance itself
became a non-return device, allowing the fish to enter the trap but ,«>•'%
making it impossible to leave the catching chamber. Traps may or may
not be baited. Pieces of fish are often used as bait. Artificial baits are
also used. Other types of traps are provided with large guiding panels Examples of Pots. From F/G/S.
made from netting to lead the fish into the catching chamber. Different
materials are used for building a trap; wood, split bamboo, netting wire are some examples. Traps are
operated in a very wide range of depths, either in inland, in estuarine and sea waters. Large traps
(stationary nets or barrages) are set in coastal waters; pots can be anywhere up to several hundred meters
depth. Traps have low negative environmental impact because caught juveniles or undersized species can
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be released alive. Mesh size in the trap can also be used to release small sized individuals. Lost pots will
continue to fish and thus "ghost fish" but, in more and more fisheries, a regulation requires that a pot
includes some escapement window/panel. Large stationary nets or barrages are used to catch migrating
fish (pelagic and demersal). Pots are used for catching lobster, crabs, shrimps, octopus, eels, and all kinds
of reef fish and euryhaline species.
Trawl Nets [TN]
This category includes:
Bottom; Midwater, and Otter Twin.
Used to catch bottom, demersal and pelagic species, the trawl nets are
cone-shaped net (made from two, four or more panels) which are towed,
by one or two boats, on the bottom or in midwater (pelagic). The cone-
shaped body ends in a bag or coded. The horizontal opening of the
gear, while it is towed is maintained by beams, otter boards or by the
distance between the two towing vessels (pair trawling). Floats and
weights and/or hydrodynamic devices provide for the vertical opening.
Two parallel trawls might be rigged between two otter boards (twin
trawls). The mesh size in the codend or special designed devices is used SamPle Picture of a trawl net'
to regulate the size and species to be captured. The major potential rom
detrimental impact of trawling on species can be the capture and removal from the ecosystem of small
sized organisms and non-target species, which frequently are discarded at sea. Such impact can be
mitigated by using larger meshes in the codends and/or devices in the trawl that reduce capture of small
and unwanted organisms.
Seine Nets [SE]
This category includes:
Beach seines and Boat seines.
A seine net is a very long net, with or without a bag in the center, which
set either from the shore or from a boat for surrounding a certain area
and is operated with two (long) ropes fixed to its ends (for hauling and
herding the fish).
Used mainly to catch demersal species, the potential negative impact
may consist in the bycatch/discards (undersize specimens, no marketable
specimens, non target species, etc.).
Sample picture of a seine net.
From F/G/S.
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The reviewer is also referred to NMFS' Annual Report to Congress on the Status of U.S. Fisheries that
includes a breakout of fisheries by region and type of gear used (available in 2001 report) (NMFS 2001).
Another potential source on fishing gear and its impacts, particularly relating to bycatch and habitat, is
a report entitled Shifting Gears, Addressing the Collateral Impacts of Fishing Methods in U.S. Waters, by
Lance E. Morgan and Ratana Chuenpagdee. This report was made available at the November 2003
Fisheries Management Conference in Washington, DC. In particular, Figure 3 (Descriptions of Fishing
Gears) and Table 1 (Overview of Bycatch and Habitat Damage by Gear Class) from this report could be
particularly useful to EPA reviewers. A pdf file of this report can be downloaded from the Marine
Conservation Biology Institute website: http://w1 .adhost.com/mcbi/ShiftingGears/SG download.htm/
Other websites with fishing gear information include:
(1) Chapter 2, "Use of Technical Measures in Responsible Fisheries: Regulation of Fishing Gear" - from
Report entitled: Fishery Management Guidebook Management Measures and Their Applications, Kevin
Cochrane 2002, FAO Fish, Technical paper T424) - looks at passive and active fishing gears, as well as
gear selectivity and the ecosystem effects of fishing, and includes recommended reading list; can be
viewed at http:/www.fao.org/DOCREP/005/Y3427E/y3427e04.htm];
(2) Through the Monterey Bay Aquarium and Seafood Watch, at (looks at gillnetting, harpooning, hook
and line, longlining, purse seining, traps and pots, trawling/dragging, and trolling) and can be viewed
at: http:/www.mbayaq.org/cr/cr_seafoodwatch/sfw_fear.asp; and
(3) International Pacific Halibut Commission report on Fishing Gear and Hook Removal Techniques used
in the Longline Fisheries in Alaskan Waters; a discussion paper (can be viewed at:
http://www.iphc.washington.edu/staff/stevek/basic2.htm)
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Appendix F
NAO216-6. Environmental Review
Procedures for Implementing the National
Environmental Policy Act
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NOAA Administrative Order Series 216-6 May 20, 1999
ENVIRONMENTAL REVIEW PROCEDURES
FOR IMPLEMENTING
THE NATIONAL ENVIRONMENTAL POLICY ACT
Table of Contents
SECTION 1. PURPOSE -1-
1.01 Founding Legislation. -1-
1.02 Subiects Addressed by this Order. -1-
1.03 Revisions. -2-
SECTION 2. BACKGROUND -2-
2.01 Authorities and References. -2-
2.02 Responsibilities. -3-
SECTION 3. NOAA POLICIES -4-
3.01 -4-
3.02 -4-
SECTION 4. DEFINITIONS -5-
4.01 -5-
4.02 -10-
SECTION 5. IMPLEMENTING PROCEDURES -10-
5.01 Applying the Environmental Review Process. . . . -10-
5.02 Scoping and Public Involvement. -12-
5.03 General Requirements for Environmental Assessments.
-15-
5.04 General Requirements for Environmental Impact
Statements and Supplemental Environmental Impact
Statements. -18-
5.05 General Requirements for Categorical Exclusions.
-23-
5.06 Emergency Actions. -24-
5.07 Guidance on Transmittal Letters for EAs and EISs.
-26-
5.08 Actions Proposed by Applicants. -26-
5.09 Streamlining Approaches to NEPA Compliance. . . -26-
5.10 Comments on Non-NOAA NEPA Documents. -29-
5.11 Referrals to CEQ of Environmentally Unsatisfactory
Actions. -30-
SECTION 6. INTEGRATING NEPA INTO NOAA LINE OFFICE PROGRAMS.
-30-
6.01 Determining the Significance of NOAA's Actions.
-30-
-i-
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6.02 Specific Guidance on Significance of Fishery
Management Actions. -32-
6.03 Integrating NEPA Into NOAA's Decisionmaking Process.
-33-
SECTION 7. INTEGRATING NEPA WITH OTHER ORDERS -47-
7.01 Integration of E.G. 12114, Environmental Effects
Abroad of Major Federal Actions, in the NOAA
Decisionmaking Process. -47-
7.02 Integration of E.G. 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-
Income Populations, in the NOAA Decisionmaking Process.
-50-
7.03 Integration of E.O. 13112, Invasive Species, in the
NOAA Decisionmaking Process. -50-
7.04 Integration of E.O. 13089, Coral Reef Protection, in
NOAA Decisionmaking Process. -51-
SECTION 8. EFFECT ON OTHER ISSUANCES -51-
Exhibit 1. Acronyms -53-
Exhibit 2. The NEPA Process -54-
Exhibit 3. NOAA Contacts for Common Actions Subject to NEPA
-55-
Exhibit 4. Format for Preparing a Notice of Intent .... -56-
Exhibit 5a. Format for Documenting Categorical Exclusion of
Several Actions -59-
Exhibit 5b. Format for Documenting Categorical Exclusion of
Several Actions -61-
Exhibit 6. Format for EIS Transmittal Letter to Reviewwers
-64-
Exhibit 7. Format for Draft EIS/Final EIS Transmittal to EPA
-65-
Exhibit 8. Format for FONSI Transmittal Letter to Interested
Parties -66-
Exhibit 9. Format for FONSI Transmittal Memorandum (from
appropriate Assistant Administrator, Staff Office or Program
Office Director to NEPA Coordinator) -67-
-11-
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NOAA Administrative Order Series 216-6 May 20, 1999
ENVIRONMENTAL REVIEW PROCEDURES
FOR IMPLEMENTING
THE NATIONAL ENVIRONMENTAL POLICY ACT
Issued 06/03/99; Effective 05/20/99
SECTION 1. PURPOSE.
1.01 Founding Legislation. The National Environmental Policy
Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) is the foundation of
modern American environmental protection in the United States and
its commonwealths, territories, and possessions. NEPA requires
that Federal agency decisionmakers, in carrying out their duties,
use all practicable means to create and maintain conditions under
which people and nature can exist in productive harmony and
fulfill the social, economic, and other needs of present and
future generations of Americans. NEPA provides a mandate and a
framework for Federal agencies to consider all reasonably
foreseeable environmental effects of their proposed actions and
to involve and inform the public in the decisionmaking process.
1.02 Subjects Addressed by this Order.
1.02a. The Order describes NOAA's policies, requirements, and
procedures for complying with NEPA and the implementing
regulations issued by the Council on Environmental Quality (CEQ)
as codified in Parts 1500-1508 of Title 40 of the Code of Federal
Regulations (40 CFR Parts 1500-1508) and those issued by the
Department of Commerce (DOC) in Department Administrative Order
(DAO) 216-6, Implementing the National Environmental Policy Act.
The Order incorporates the requirements of Executive Order (E.O.)
12898, Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations. Also, the Order
reiterates provisions to E.O. 12114, Environmental Effects Abroad
of Major Federal Actions, as implemented by DOC in DAO 216-12,
Environmental Effects Abroad of Major Federal Actions.
1.02b. Certain subjects addressed in this Order warrant special
emphasis at the beginning. The following warrant such emphasis:
1.02b.l. NOAA's policy has been, and continues to be, that the
scope of its analysis will be to consider the impacts of actions
on the marine environment both within and beyond the U.S.
Exclusive Economic Zone (EEZ). (See Sections 3.02 and 7.01 of
this Order.)
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1.02b.2. A proposed action, in conceptual stages, does not
require an environmental review until it has an established goal
and is preparing to make a decision on how to establish that
goal. At that stage, the proposed action is subject to
environmental review.
1.02b.3. This Order addresses any Federal action whose effects
may be major and are potentially subject to NOAA's control and
responsibility. (Examples of such are provided in Sections
4.01m. and 6.Ola. of this Order.)
1.03 Revisions. This issuance is a complete revision and
update to the Order. Major changes include: incorporation of
the requirements of E.O. 12898 and E.O. 13112; addition and
expansion of specific guidance regarding categorical exclusions,
especially as they relate to endangered species, marine mammals,
fisheries, habitat restoration, and construction activities;
expansion of guidance on considering cumulative impacts and
tiering in the environmental review of NOAA actions; and
inclusion of a NOAA policies statement regarding the fulfillment
of NEPA requirements. Revisions also have been made to format
and content to promote clarity and ease of use.
SECTION 2. BACKGROUND.
2.01 Authorities and References.
2.Ola. National Environmental Policy Act (NEPA) of 1969, 42
U.S.C. 4321 et sea.
2.01b. CEQ Regulations for Implementing the Procedural
Provisions of the National Environmental Policy Act, as codified
at 40 CFR Parts 1500 to 1508.
2.01c. E.O. 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations.
2.Old. E.O. 13112, Invasive Species.
2.01e. E.O. 13089, Coral Reef Protection.
2.01f. DAO 216-6, Implementing the National Environmental Policy
Act.
2.01g. E.O. 12114, Environmental Effects Abroad of Major Federal
Actions.
2.01h. DAO 216-12, Environmental Effects Abroad of Major Federal
Actions.
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2.02 Responsibilities.
2.02a. NEPA Coordinator. The NEPA Coordinator, within NCAA's
Office of Policy and Strategic Planning, is responsible for
ensuring NEPA compliance for NCAA. To accomplish, the NEPA
Coordinator shall:
2.02a.l. review and provide final clearance for all NEPA
environmental review documents covered by this Order;
2.02a.2. after providing final clearance, sign all transmittal
letters for NEPA environmental review documents disseminated for
public review;
2.02a.3. develop and recommend national policy, procedures,
coordination actions or measures, technical administration, and
training necessary to ensure NOAA's compliance with NEPA;
2.02a.4. provide liaison between NOAA and the CEQ, including
consulting with CEQ on emergencies and making pre-decision
referrals to CEQ;
2.02a.5. provide liaison with the Environmental Protection
Agency (EPA) on NEPA matters; and
2.02a.6. provide general guidance on preparation of NEPA
documents, which includes: approving criteria regarding the
appropriate document to be prepared; working with Line, Staff,
and Program Offices (LO/SO/PO) and their designated Responsible
Program Managers (RPMs) to establish categorical exclusions;
establishing and/or approving criteria to define "significant";
providing consultation, as requested; coordinating NOAA's
comments on EISs prepared by other Federal agencies; and
monitoring DOC activities for NEPA compliance.
2.02b. Assistant Administrators and SO/PO Directors. Subject to
concurrence by the NEPA Coordinator, the Assistant Administrators
(AAs), SO/PO Directors, or their delegates, through the
designated RPM, are responsible for determining whether Federal
actions undertaken, including those undertaken by Federal, state,
local, or tribal governments in conjunction with the agency, are
assessed in accordance with the NEPA process or are excluded from
that process. The AAs and SO/PO Directors shall:
2.02b.l. designate an RPM for each proposed action subject to
the NEPA process within their functional area, and provide the
NEPA Coordinator with the RPM's name, title, telephone number,
and specific action for which s/he is responsible; and
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2.02b.2. as appropriate, provide the NEPA Coordinator with the
name, title, and telephone number of any individual who has been
delegated signature authority for approving and transmitting
relevant materials to the NEPA Coordinator on behalf of the AA or
SO/PO Director, in accordance with this Order.
2.02c. Responsible Program Manager (RPM). The RPM is the
individual designated by the AA or SO/PO Director to carry out
specific proposed actions in the NEPA process within an assigned
functional area. The RPM may be a Regional Administrator, a
Science Center Director, a Laboratory Director, or a program
director within a Line, or Staff, or Program Office. The
designated RPM, subject to approval of the AA or SO/PO Director
or delegate, and subject to concurrence by the NEPA Coordinator,
shall:
2.02c.l. determine whether Federal actions undertaken, including
those undertaken by Federal, state, local or tribal governments
in conjunction with the agency, are assessed in accordance with
the NEPA process or are excluded from that process; and
2.02c.2. determine the appropriate type of environmental review
needed and submit all NEPA documents and associated letters and
memoranda to the appropriate AA or SO/PO Director or delegate for
transmittal to the NEPA Coordinator in compliance with this Order
and other related authority.
SECTION 3. NOAA POLICIES.
3.01 In meeting the requirements of NEPA, it is NOAA's policy
to:
3.Ola. fully integrate NEPA into the agency planning and
decision making process;
3.01b. fully consider the impacts of NOAA's proposed actions on
the quality of the human environment;
3.01c. involve interested and affected agencies, governments,
organizations and individuals early in the agency planning and
decision making process when significant impacts are or may be
expected to the quality of the human environment from
implementation of proposed major Federal actions; and
3.Old. conduct and document environmental reviews and related
decisions appropriately and efficiently.
3.02 NOAA's policy has been, and continues to be, that the scope
of its analysis will be to consider the impacts of actions on the
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marine environment both within and beyond the U.S. Exclusive
Economic Zone (EEZ).
SECTION 4. DEFINITIONS.
4.01 Much of the terminology listed in this Section and
elsewhere in this Order is derived from the authorities and
references listed in Section 2 of this Order, particularly the
CEQ's NEPA regulations. To ensure full compliance, the CEQ
regulations should be consulted for comprehensive explanations of
the terms. References to relevant CEQ terminology, as codified
in 40 CFR 1500 et seq., are provided after each definition, where
appropriate.
4.Ola. Amendment. A change to a management plan or regulation
required by various statutes such as the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens Act, or MSFCMA)
and the National Marine Sanctuaries Act (NMSA). A management
plan amendment could be prepared to achieve a specific goal for a
fishery or a marine sanctuary. Amendments may include
regulations necessary to carry out management objectives. A
regulatory amendment could clarify the intent of a Regional
Fishery Management Council (RFMC) established by the
Magnuson-Stevens Act or interpret broad terms or measures
contained in existing fishery management plans (FMPs).
Amendments must go through standard rulemaking procedures under
the Administrative Procedure Act (APA) and must include the
appropriate environmental analysis under NEPA.
4.01b. Applicant. Any party who may apply to NOAA for a Federal
permit, funding, or other approval of a proposal or action and
whose application should be accompanied by an environmental
analysis. Depending on the program, the applicant could be an
individual, a private organization, or a Federal, state, tribal,
territorial, or foreign governmental body. RFMCs are not
considered applicants because of their unique status under
Federal law.
4.01c. Categorical Exclusion (CE). Decisions granted to certain
categories of actions that individually or cumulatively do not
have the potential to pose significant impacts on the quality of
the human environment and are therefore exempted from both
further environmental review and requirements to prepare
environmental review documents (40 CFR 1508.4). The main text of
this Order presents specific actions and general categories of
actions found to warrant a CE. CEs may not be appropriate when
the proposed action is either precedent-setting or controversial,
although such a determination must be made on a case-by-case
basis (see Sections 5.06 and 6.01 of this Order).
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4.Old. Council on Environmental Quality (CEQ). Organization
within the Executive Office of the President charged with
monitoring progress toward achieving the national environmental
goals as set forth in NEPA. The CEQ promulgates regulations
governing the NEPA process for all Federal agencies.
4.01e. Cumulative Impacts. Cumulative impacts are those
combined effects on quality of the human environment that result
from the incremental impact of the action when added to other
past, present, and reasonably foreseeable future actions,
regardless of what Federal or non-Federal agency or person
undertakes such other actions (40 CFR 1508.7, 1508.25(a), and
1508.25(c)). Cumulative impacts can result from individually
minor but collectively significant actions taking place over a
period of time.
4.01f. Emergency Action. Circumstances that require an action
with significant environmental consequences be taken without
observing CEQ regulations. In these cases, the Federal agency
taking the action should consult with CEQ regarding alternative
arrangements for substitute environmental review procedures.
4.01g. Environmental Assessment (EA). A concise public document
that analyzes the environmental impacts of a proposed Federal
action and provides sufficient evidence to determine the level of
significance of the impacts. The EA shall include a brief
analysis of the environmental impacts of the proposed action and
its alternatives. An EA will result in one of two
determinations: 1) an EIS is required; or 2) a Finding of No
Significant Impact (FONSI) (40 CFR 1508.9).
4.01h. Environmental Impact Statement (EIS). A detailed written
statement required by NEPA Section 102(2)(C) prepared by an
agency if a proposed action significantly impacts the quality of
the human environment. The EIS is used by decisionmakers to take
environmental consequences into account. It describes a proposed
action, the need for the action, alternatives considered, the
affected environment, the environmental impacts of the proposed
action, and other reasonable alternatives to the proposed action.
An EIS is prepared in two stages: a draft and a final. Either
stage of an EIS may be supplemented (40 CFR 1502.9(c) and Section
4.01y. of this Order).
4.01i. Environmental Review. The analysis undertaken by the RPM
to: 1) identify the scope of issues related to the proposed
action; 2) make decisions that are based on understanding the
environmental consequences of the proposed action; and 3)
determine the necessary steps for NEPA compliance. The
environmental review process could result in the preparation of
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one or more of the NEPA documents discussed in Section 5. of this
Order.
4.01J. Exempted Actions. Certain Federal actions may be
exempted from complying with NEPA if such actions are
specifically exempted by legislation or have been found to be
exempted by the judicial process. For example, listing and
delisting actions under Section 4(a) of the Endangered Species
Act (ESA) have been determined by the judicial system to be
exempt from NEPA.
4.01k. Finding of No Significant Impact (FONSI). A short NEPA
document that presents the reasons why an action will not have a
significant impact on the quality of the human environment and,
therefore, will not require preparation of an EIS. A FONSI must
be supported by the EA, and must include, summarize, attach or
incorporate by reference the EA (40 CFR 1508.13).
4.011. Human Environment. The human environment is defined by
CEQ (40 CFR 1508.14) as including the natural and physical
environment and the relationship of people with that environment.
This means that economic or social effects are not intended by
themselves to require preparation of an EIS. However, when an
EIS is prepared and economic or social and natural or physical
environmental impacts are interrelated, the EIS must discuss all
of these impacts on the quality of the human environment.
4.01m. Major Federal Action. An activity, such as a plan,
project or program, which may be fully or partially funded,
regulated, conducted, or approved by a Federal agency. "Major"
reinforces, but does not have a meaning independent of
"significantly" as defined in Section 4.01.x. and 6.01. of this
Order. Major actions require preparation of an EA or EIS unless
covered by a CE (40 CFR 1508.18). CEQ's definition of "scope"
regarding the type of actions, the alternatives considered, and
the impacts of the action should be used to assist determinations
of the type of document (EA or EIS) needed for NEPA compliance
(40 CFR 1508.25) .
4.01n. Management Plan. A Federal action promulgated under
statutes such as the Magnuson-Stevens Act, NMSA, or other
statutes, that describes a resource or resources, the need for
management, alternative management strategies, changes to
management measures, possible consequences of such alternatives,
and select recommended management measures. Included are FMPs
and marine sanctuary plans prepared or implemented by NOAA. Such
plans may incorporate a NEPA document into a single consolidated
package. Plans not mandated by statute, e.g., habitat
conservation plans and restoration plans, do not have regulations
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associated with them. For purposes of NEPA, their impacts are
analyzed in the same manner as statutory plans.
4.01o. Mitigation. Mitigation measures are those actions
proposed to: avoid environmental impacts altogether; minimize
impacts by limiting the degree or magnitude of the action;
rectify the impact by repairing, rehabilitating, or restoring the
affected environment; reduce or eliminate the impact over time by
preservation; and/or compensate for the impact.
4.01p. NEPA Document. An EA, FONSI, draft EIS (DEIS),
supplement to a DEIS, final EIS (FEIS), supplement to a FEIS, or
a Record of Decision (ROD). Consistent with NCAA's practice of
issuing a memorandum to document the CE decision for many NCAA
actions, the memorandum issued documenting the CE is considered a
NEPA document.
4.01q. Non-indigenous species. Any species or other viable
biological material that enters an ecosystem beyond its historic
range, including any such organism transferred from one country
to another. Non-indigenous species include both exotics and
transplants.
4.01r. Notice of Intent (NCI). A short Federal Register
announcement of agency plans to prepare an EIS. The notice may
be published separately or combined with other announcements,
e.g., with an Advanced Notice of Proposed Rulemaking or with an
RFMC meeting notice ( Exhibit 4 to this Order and 40 CFR
1508.22). The NCI shall: 1) describe the proposed action and
possible alternatives; 2) describe the proposed scoping process,
including whether, when and where any scoping meetings will be
held; and 3) state the contact to whom questions should be
addressed regarding the action and the EIS.
4.01s. Project. A Federal action such as a grant, contract,
loan, loan guarantee, vessel capacity reduction program, land
acquisition, construction project, license, permit, modification,
regulation, or research program that involves NCAA's review,
approval, implementation, or other administrative action.
4.01t. Record of Decision (ROD). A public document signed by
the agency decisionmaker following the completion of an EIS. The
ROD states the decisions, alternatives considered, the
environmentally preferable alternative(s), factors considered in
the agency's decisions, mitigation measures that will be
implemented, and whether all practicable means to avoid or
minimize environmental harm have been adopted (40 CFR 1505.2).
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4.01u. Responsible Program Manager (RPM). The person with
primary responsibility to determine the need for and ensure the
preparation of any NEPA document (see Section 2.02c. of this
Order).
4.01v. Rulemaking. A prescribed procedure for implementing
regulations or management measures authorized under Federal laws
such as the Magnuson-Stevens Act, ESA, Marine Mammal Protection
Act (MMPA), or Coastal Zone Management Act (CZMA). Rules may be
promulgated independent of plans and permits. Examples include
regulations for turtle excluder device, approaches to right
whales and protection of sea lion rookeries. Rulemaking
procedures must be in accordance with any specific guidelines
established under the authorizing law and with the APA.
Rulemaking actions are also subject to the provisions of other
statutes, such as NEPA.
4.01w. Scoping. An early and open process for determining the
scope of issues to be addressed and identifying the significant
issues related to a proposed action (40 CFR 1501.7).
4.01x. Significant Impact. A measure of the intensity and the
context of effects of a major Federal action on, or the
importance of that action to, the human environment (40 CFR
1508.27). "Significant" is a function of the short-term,
long-term, and cumulative impacts, both positive and negative, of
the action on that environment. Significance is determined
according to the general guidance in Section 6.01 of this Order.
Specific criteria (Section 6.02 (a) - (i) of this Order) are
established to expand the general conditions for determining the
significance and the appropriate course of action.
Determinations of non-significance will be made by the RPM but
reviewed by the NEPA Coordinator prior to clearance. All
additional criteria for "significant" must be approved by the
NEPA Coordinator and published in the Federal Register as
amendments to this Order (40 CFR 1508.27).
4.01y. Supplemental Environmental Impact Statement (SETS). A
NEPA document prepared to amend an original EIS when significant
change in the action is proposed beyond the scope of
environmental review in the original EIS, or when significant new
circumstances or information arise that could affect the proposed
action and its environmental impacts (40 CFR 1502.9 (c)) . SEISs
may also be necessary when significant changes to an action are
proposed after a FEIS has been released to the public.
4.01z. Tiering. Tiering refers to the coverage of general
matters in broader EISs (such as a national program or policy
statement) with subsequent narrower statements or environmental
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reviews (such as regional or area-wide program environmental
statements or ultimately site-specific statements) incorporating
by reference the general discussions in the broad statement and
concentrating solely on the issues specific to the statement
subsequently prepared. Use of tiering is an alternative approach
to NEPA analysis (Section 5.09c. of this Order).
4.02 Refer to Exhibit 1 for a list of the acronyms used
throughout this Order.
SECTION 5. IMPLEMENTING PROCEDURES.
5.01 Applying the Environmental Review Process.
5.Ola. General. Environmental review is the process undertaken
by the RPM to identify the scope of environmental issues related
to the proposed action, to make decisions that are based on
understanding the environmental consequences of the proposed
action, and to determine the necessary steps for NEPA compliance
(40 CFR 1500.2). Such an analysis must be undertaken for any
major Federal action that is subject to NEPA. A similar analysis
must be undertaken under E.O. 12114 for certain proposed major
Federal actions not otherwise subject to NEPA with environmental
effects outside U.S. jurisdiction. See Section 7.01 of this
Order for guidance on NEPA compliance for international treaties,
commissions, and compacts. The procedures for NEPA compliance
with domestic laws, regulations, executive orders, and
administrative orders may differ depending on whether the
proposed action is a management plan or amendment, a research
project, a construction project, regulation, or an emergency
action. Section 6. of this Order addresses these differences in
detail.
S.Olb. Process.
5.01b.l. The environmental review process includes all of the
actions required by CEQ in 40 CFR 1502 and 1503 for compliance
with NEPA ( Exhibit 2 to this Order). The process involves the
following series of actions accomplished by or under the
direction of the RPM:
5.01b.l(a) define the proposed action;
5.01b.l(b) consider the nature and intensity of the potential
environmental consequences of the action in relation to the
criteria and guidance provided in this Order to determine whether
the action requires an EIS, EA, or CE;
5.01b.l(c) prepare a CE memorandum, as appropriate;
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5.01b.l(d) prepare an EA or initiate planning and for an EIS
where an EIS is known to be appropriate;
5.01b.l(e) prepare a FONSI (which ends the NEPA environmental
review process for actions found not to have a significant impact
on the quality of the human environment) or initiate planning for
an EIS/SEIS based on the EA;
5.01b.l(f) publish a NOI to prepare an EIS/SEIS and formally
scope key issues in the EIS;
5.01b.l(g) conduct the scoping process to determine relevant
issues;
5.01b.l(h) prepare a draft EIS/SEIS;
5.01b.l(i) publish a Notice of Availability (NOA) and distribute
the draft EIS/SEIS for 45-day public comment period;
5.01b.l(j) hold a public hearing(s), if appropriate, on the
draft EIS/SEIS;
5.01b.l(k) incorporate public comments and responses to comments
in a final EIS/SEIS;
5.01b.l(l) publish a NOA and distribute the FEIS/SEIS for a
30-day "cooling off" period and public comment; and
5.01b.l(m) release a ROD to the public.
5.01b.2. To provide the maximum help in guiding the
environmental review and decision process, the environmental
review is to be coordinated by the RPM and initiated as early as
possible in the planning process, regardless of whether the RPM
anticipates the need for an EA or EIS. In the case of
uncertainty regarding either preparation of the proper NEPA
documents, or coordinating environmental analyses required by
other statutes, early consultation with the NEPA Coordinator will
assist the RPM in determining the best means for NEPA compliance.
Consultation with the NEPA Coordinator during the early stages of
document preparation should facilitate review and clearance at
later stages of the decisionmaking process.
5.01b.3. In those cases where programs or actions are planned by
Federal or non-Federal agency applicants as defined in Section
4.01b. of this Order, the RPM will, upon request, supply
potential applicants with guidance on the scope, timing, and
content of any required environmental review prior to NOAA
involvement (see Section 5.08 of this Order for more
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information). A listing of some programs and actions commonly
involving NEPA-related matters, and their corresponding NOAA
contact for obtaining further NEPA guidance, is found in Exhibit
3 to this Order.
5.01b.4. RPMs should consult with this Order when their
involvement is reasonably foreseeable in an action or program
proposed by a state or local agency or by an Indian tribe that
could be a major Federal action.
S.Olb.5. RPMs should consult with the NEPA Coordinator and this
Order before communicating with other Federal agencies regarding
whether, and to what extent, NOAA will become involved in
developing proposals for such agencies, or in the preparation of
NEPA documents and associated environmental reviews initiated by
such agencies.
5.01b.6. When a proposed action involves several organizational
units in NOAA, the RPMs of each unit should jointly determine
which RPM should take the lead coordinating role in preparing
environmental reviews and in assuming responsibility for
preparation of any NEPA documents. The NEPA Coordinator will
assist RPMs in developing a coordinated process for the action.
S.Olb.7. Where disagreements arise regarding NOAA's NEPA
procedures for any action, the NEPA Coordinator will make the
final decision. A complete statement of the NEPA Coordinator's
authorities and functions is presented in Section 2.02a. of this
Order.
S.Olc. Terminating the Process. The environmental review
process may be stopped at any stage if action or program goals
change, support for a proposed program or action diminishes, the
original analysis becomes outdated, or other special
circumstances occur. Should an EIS be terminated after
publication of a DEIS, the EPA or CEQ, as appropriate, must be
notified (see Section 5.04C.8. of this Order).
5.02 Scoping and Public Involvement.
5.02a. Purpose. The purpose of scoping is to identify the
concerns of the affected public and Federal agencies, states, and
Indian tribes, involve the public early in the decisionmaking
process, facilitate an efficient EA/EIS preparation process,
define the issues and alternatives that will be examined in
detail, and save time by ensuring that draft documents adequately
address relevant issues. The scoping process reduces paperwork
and delay by ensuring that important issues are addressed early.
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5.02b. Public Involvement. Public involvement is essential to
implementing NEPA. Public involvement helps the agency
understand the concerns of the public regarding the proposed
action and its environmental impacts, identify controversies, and
obtain the necessary information for conducting the environmental
analysis. RPMs must make every effort to encourage the
participation of affected Federal, state, and local agencies,
affected Indian tribes, and other interested persons throughout
the development of a proposed action and to ensure that public
concerns are adequately considered in NOAA's environmental
analyses of a proposed action and in its decisionmaking process
regarding that action.
5.02b.l. Public involvement may be solicited through: public
hearings or public meetings, as appropriate; solicitation of
comments on draft and final NEPA and other relevant documents;
and regular contacts, as appropriate. The RPM should encourage
the RFMCs to include the NEPA document with the RFMC's public
hearing documents to solicit early public review and involvement.
The RPM must provide public notice of NEPA-related hearings,
public meetings, and the availability of NEPA documents so as to
inform interested or affected parties (40 CFR 1506.6).
Interested parties may obtain information and status reports on
EAs, EISs, and other elements of the environmental analysis
process from the RPM or the NEPA Coordinator. Public involvement
is encouraged in the review of EAs, which may not otherwise get
adequate public input. To the extent possible, EAs should be
published or made available in conjunction with proposed rules
and plans subject to public review and comment.
5.02b.2. RPMs will be guided by 40 CFR 1506.6 in providing
adequate public involvement in the environmental review process.
In particular, RPMs should use state "single points of contact"
designated under E.G. 12372. A current list of these contacts
may be obtained from the NEPA Coordinator.
5.02c. Scoping Process. Scoping is usually conducted shortly
after a decision is made to prepare an EIS. However, scoping is
also encouraged during the EA process when the need for an EIS is
undetermined. As part of the requirements of the scoping
process, the actions described in 40 CFR 1501.7(a), must be
fulfilled when appropriate.
5.02c.l. Formal scoping officially begins with publication in
the Federal Register of a NOI to prepare an EIS (40 CFR 1501.7),
but may in practice begin in the early stages of project
development (Section 5.02d of this Order).
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5.02c.2. To the maximum extent practicable, comprehensive public
involvement and interagency and Indian tribal consultation should
be sought to ensure the early identification of significant
environmental issues related to a proposed action. Early
consultation is an important opportunity to identify planning
efforts and environmental reviews done by others (e.g., other
agencies, applicants, RFMCs) that may provide important
information for NOAA's environmental review process.
5.02c.3. The scoping process should include, where relevant,
consideration of the impact of the proposed action on:
5.02c.3(a) floodplains and sites included in the National Trails
and Nationwide Inventory of Rivers, as required by Presidential
Directive, August 2, 1979;
5.02c.3(b) sites nominated or designated by the Advisory Council
on Historic Preservation, as required by 36 CFR 800;
5.02c.3(c) any national marine sanctuary or national estuarine
research reserve;
5.02c.3(d) habitat as described in: 1) the National Marine
Fisheries Service's 1983 habitat conservation policy; and 2) the
National Habitat Plan, "A Plan to Strengthen the National Marine
Fisheries Service National Habitat Program", August 30, 1996;
5.02c.3(e) affected state Coastal Zone Management Plans;
5.02c.3(f) the environmental and health impact on low-income and
minority populations as required by E.G. 12898, Federal Actions
to Address Environmental Justice in Minority Populations and
Low-Income Populations;
5.02c.3(g) the American Indian Religious Freedom Act;
5.02c.3(h) ESA Section 7 (16 U.S.C. 1531 et seq.);
5.02c.3(i) Section 305(b) of the MSFCMA (16 U.S.C. 1855 et seq.)
regarding adverse effects on essential fish habitat; and other
appropriate laws and policies; and
5.02c.3(j) nonindigenous species, including any direct impacts
on living resources.
5.02C.4. Scoping may be satisfied by many mechanisms, including:
planning meetings and public hearings; requests for public
comment on public hearing documents; discussion papers, and other
versions of decision and background environmental documents.
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Scoping meetings should inform interested parties of the proposed
action and alternatives and solicit their comments. 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 can be substituted for the scoping meeting
component in NOAA's environmental review procedures.
5.02d. Notice of Intent. The NOI to prepare an EIS or to hold a
scoping meeting should be published in the Federal Register as
soon as practicable after the need for an EIS has been
determined.
5.02d.l. The notice must include (40 CFR 1508.22):
5.02d.l(a) the proposed action and possible alternatives;
5.02d.l(b) a summary of NOAA's proposed scoping process,
including logistics for any meetings to be held; and
5.02d.l(c) the name and address of the RPM for further
information about the proposed action and the EIS.
5.02d.2. Written and verbal comments must be accepted during the
identified comment period after publication of the NOI and must
be considered in the environmental analysis process. This period
should be at least thirty (30) days to provide an adequate
opportunity for the public to comment.
5.02d.3. When there is likely to be a lengthy period between the
decision to prepare an EIS and actual preparation of the DEIS,
publication of the NOI may be delayed until a reasonable time in
advance of preparation of that DEIS.
5.02d.4. If an RPM decides not to pursue a proposed action after
an NOI has been published, a second NOI must be published to
inform the public of the change.
5.02d.5. The NOI may be combined with similar notices required
for preparation of other documents (e.g., RFMC meeting notices;
Exhibit 4 of this Order). This will minimize redundancy while
still notifying the public of proposed actions.
5.02d.6. Multi-agency NOIs must be coordinated among the
involved agencies. Each agency must clear the NOI prior to
publication.
5.03 General Requirements for Environmental Assessments.
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5.03a. Purpose. The purpose of an EA is to determine whether
significant environmental impacts could result from a proposed
action. An EA is appropriate where environmental impacts from
the proposed action are expected, but it is uncertain that those
impacts will be significant. An EA is also appropriate as an
initial step of the environmental review, where the impacts of
the proposed action may or may not be significant. The EA
(defined at Section 4.01g. of this Order) is the most common type
of NEPA document. For guidance in determining the environmental
significance of a proposed action, consult Sections 4.01w., and
6.01 of this Order. If the action is determined to be not
significant, the EA and resulting FONSI will be the final NEPA
documents required. If the EA concludes that significant
environmental impacts may be reasonably expected to occur, then
an EIS must be prepared.
5.03b. Contents. Because the environmental review in the EA
provides the basis for determining whether or not the proposed
action is expected to have a significant impact on the quality of
the human environment, the EA must address the appropriate
factors as outlined in Section 6.01 of this Order. Additionally,
an EA must analyze the proposed action with respect to the laws
and policies regarding scoping issues listed under the discussion
of scoping under Section 5.02c.3. of this Order. An EA must
consider all reasonable alternatives, including the preferred
action and the no action alternative. Even the most
straightforward actions may have alternatives, often considered
and rejected in early stages of project development that should
be discussed. In addition, the EA and FONSI must clearly state
whether they rely on, or tier off, a previous NEPA document. As
discussed in 40 CFR 1508.9, an EA must contain:
5.03b.l. sufficient evidence and analysis for determining
whether to prepare an EIS or a FONSI, and to facilitate
preparation of any needed EIS;
5.03b.2. a brief discussion of the need for the action;
5.03b.3. alternatives as required by Section 102(2)(E) of NEPA;
5.03b.4. a brief discussion of the environmental impacts of the
proposed action and alternatives;
5.03b.5. a listing of agencies and persons consulted;
5.03b.6. a FONSI, if appropriate.
5.03c. FONSI Determination. An EA that results in a FONSI
completes NEPA analysis for that action. When an EA results in a
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determination that there may be potential significant impacts to
the quality of the human environment, a FONSI determination, by
definition, is an impossibility and shall not be proposed.
Rather, the RPM may proceed directly with preparation of an EIS
without submitting the EA for the NEPA Coordinator's approval.
Early review of draft environmental review documents by the NEPA
Coordinator may help avoid problems and expedite subsequent
review of the EA with a FONSI determination or initiation of an
EIS.
5.03d. Mitigation. Mitigation measures used in determining a
FONSI for an EA may be relied upon only if they are imposed by
statute or regulation or submitted by an applicant or the agency
as part of the original proposed action. As a general rule,
agencies should not rely on the possibility of mitigation as a
means of avoiding preparation of an EIS.
5.03e. NOAA Review and Clearance.
5.03e.l. The RPM must submit, through their AA/SO/PO Director to
the NEPA Coordinator, one copy of the EA, FONSI and original
letter To All Interested Government Agencies and Public Groups
(Section 5.07 and Exhibit 6 of this Order) for review, clearance
and signature prior to public availability. The FONSI, which
must be attached to or incorporated into the final EA, notifies
governmental agencies and the public that the environmental
impacts of the proposed action have been determined by the RPM to
be non-significant on the quality of the human environment under
NEPA, and thus an EIS will not be prepared. The RPM should
solicit input from other NOAA offices with expertise or
jurisdiction prior to submitting the EA for final NEPA
Coordinator clearance. Although some EAs are not generally
distributed to the public, a cover letter must be prepared in
case a copy is requested.
5.03e.2. In cases where the RPM has adequate time and where the
EA would benefit from greater public participation, a thirty (30)
calendar day public review and comment period is encouraged prior
to a FONSI determination. If such review and comment is
utilized, the RPM may issue the EA in draft for public comment,
and later finalize it with the action. The RPM may consult with
the NEPA Coordinator to arrange alternative procedures for
providing public involvement, including various combinations of
notices and mailings (40 CFR 1506.6).
5.03e.3. EAs should be submitted to the NEPA Coordinator at
least three (3) working days prior to the requested clearance
date; less time may be sufficient when the NEPA Coordinator has
reviewed previous versions of the EA. After NOAA's clearance by
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the NEPA Coordinator, the RPM may publish a NOA in the Federal
Register for those EAs with national implications or with broad
interest to the public. In certain circumstances the NEPA
Coordinator, in consultation with the RPM, may require that the
proposed action not be taken until thirty (30) calendar days
after the NOA has been published. This may include circumstances
where consulting agencies or the public have expressed
significant reservations, based on environmental concerns. EAs
need not be transmitted to EPA for filing.
5.04 General Requirements for Environmental Impact Statements
and Supplemental Environmental Impact Statements.
5.04a. Purpose.
5.04a.l. The primary purpose of an EIS is to serve as an
action-forcing device to ensure that the policies and goals
defined in NEPA are infused into the ongoing programs and actions
of the Federal government. An EIS must provide a full and fair
discussion of significant environmental impacts and inform
decisionmakers and the public of the reasonable alternatives
which would avoid or minimize adverse impacts or enhance the
quality of the human environment. As required by NEPA Section
102(2)(C), EISs are to be included in every recommendation or
report on proposals for legislation and for other major Federal
actions whose impacts may have a significant impact to the
quality of the human environment. Federal actions that the RPM
determines are significant require an EIS (defined at Section
4.01h. of this Order) or an SEIS (defined at Section 4.01y. of
this Order) if there is a significant change from an earlier EIS.
Some projects may be required by law to have an EIS completed
for them, regardless of the magnitude of impact. Consult Section
6.01 of this Order for specific descriptions of types of actions
considered significant to warrant an EIS.
5.04a.2. Early public review and involvement in the
environmental review process is encouraged (Section 5.02b. of
this Order). CEQ (40 CFR 1502.25) requires that DEISs be
prepared concurrent and integrated with studies and surveys
required by other Federal statutes. To meet this requirement,
the RPM should recommend that all NOAA programs and RFMCs
integrate the NEPA document with the public hearing documents to
better ensure adequate environmental review and opportunity for
public review of the proposed action as it is developed.
5.04b. Contents. Should the RPM make a determination that
significant impacts to the quality of the human environment could
result from a proposed action, a draft EIS/SEIS must be prepared.
For general guidance on EIS procedures, refer to 40 CFR 1502.
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5.04b.l. As discussed in 40 CFR 1502.10-1502.18, the EIS/SEIS
shall contain:
5.04b.l(a) a cover sheet and table of contents;
5.04b.l(b) a discussion of the purpose and need for the action;
5.04b.l(c) a summary of the EIS, including the issues to be
resolved, and in the FEIS, the major conclusions and areas of
controversy including those raised by the public;
5.04b.l(d) alternatives, as required by Sections 102(2) (C) (iii)
and 102(2)(E) of NEPA;
5.04b.l(e) a description of the affected environment;
5.04b.l(f) a succinct description of the environmental impacts
of the proposed action and alternatives, including cumulative
impacts;
5.04b.l(g) a listing of agencies and persons consulted, and to
whom copies of the EIS are sent;
5.04b.l(h) an ROD, in the case of a FEIS; and
5.04b.l(i) an index and appendices, as appropriate.
5.04b.2. The EIS/SEIS cover sheet must clearly state whether it
is a separate EIS or an EIS consolidated with a management plan
or amendment, and whether the document supplements an earlier
EIS.
5.04b.3. It is NOAA and CEQ (40 CFR 1502.14(e)) policy to
require identification of the preferred alternative(s) in the
draft EIS/SEIS, whenever such preferences exist, and in the FEIS
unless another law prohibits the expression of such a preference.
When preferred alternatives do not exist, the document must
provide a range of alternatives or other indication of the
alternatives most likely to be selected, thus informing the
public of the likely final action and its environmental
consequences. The public is thus able to more effectively focus
its comments.
5.04c. Public Review and Clearance. Environmental review and
procedures should run concurrently with other public review and
comment periods (e.g., the FMP development and review process).
The DEIS should be cleared by the NEPA Coordinator, filed, and
made available for public comment no later than publication of
other required documents (e.g., the public hearing draft
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FMP/amendment). An SEIS must be prepared in certain cases under
40 CFR 1502.9. An SEIS must be prepared, filed, and distributed
for public comment as if it were an initial EIS.
5.04c.1. Preliminary Review. A preliminary version of either
the draft or final EIS/SEIS should be submitted to the NEPA
Coordinator for review and comment at least one week before
submission of the final NEPA review package for clearance. Early
review by the NEPA Coordinator helps to ensure a more efficient
process by avoiding last minute delays. The RPM should solicit
input from other NOAA offices with expertise or jurisdiction
regarding the proposed action prior to submitting the EIS for
final NEPA Coordinator clearance.
5.04c.2. NEPA Review Package. The NEPA review package consists
of the draft or final EIS/SEIS, modified as necessary by the RPM
in response to comments received from the NEPA Coordinator and
other appropriate NOAA offices, and the appropriate transmittal
memoranda. The deadline for the NEPA Coordinator's receipt of
the NEPA review package for final clearance is five days prior to
filing at EPA; less time may be sufficient in those cases where
the NEPA Coordinator has reviewed earlier versions. One copy of
the EIS/SEIS and two letters, one transmitting the document to
all other reviewers and the other filing the document with EPA,
must be prepared by the RPM for the signature of the NEPA
Coordinator. The format and content of these letters are
addressed in Section 5.07 of this Order (see Exhibits 6 and 7 to
this Order.) After the NEPA Coordinator signs the letters, the
originating RPM will take all further actions, including filing
the document at EPA and distributing it to interested parties.
In the case of an SEIS, the transmittal letters to EPA and the
public must state the title and publication date of the initial
EIS to which the SEIS relates.
5.04C.3. Filing at Environmental Protection Agency (EPA). The
deadline for filing at EPA is 3:00 p.m. each Friday for
publication by EPA of an NOA in the Federal Register the
following Friday. Five bound copies of draft and final EISs are
required by EPA headquarters at the time of filing. An
additional three bound copies shall be sent to each affected EPA
region. If the document is a programmatic EIS (an EIS on an
entire program, e.g., deep seabed mining program or the Next
Generation Radar (NEXRAD) program) that could affect a large part
of the nation, more copies are required. Specific guidance on
the number of copies needed for filing is available from the NEPA
Coordinator. An equivalent number of any source documents,
appendices, or other supporting analyses must also be submitted
to EPA headquarters at filing. All EIS copies submitted to EPA
headquarters must be bound and be identical in form and content
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to the copies distributed or made available to the public and
other interested parties.
5.04C.4. Notice of Availability. Once NOAA files an EIS/SEIS
with EPA, EPA will publish an NOA in the Federal Register. As
noted above, all public review and "cooling off" periods begin
the day of publication of the NOA. It is the Office of the
Federal Register's policy that a review period will not end on a
weekend or holiday unless a requirement of law and/or
specifically requested.
5.04C.5. Public Distribution. On the same date as the document
is filed with EPA, copies of each DEIS and transmittal letter to
interested parties must be sent to all Federal, State, and local
government agencies, public groups, and individuals who may have
an interest in the proposed action. Copies of each final
EIS/SEIS must be sent to parties who submitted substantial
comments on the draft EIS/SEIS, interested parties specifically
requesting a copy, and others as determined by the RPM. Source
documents, appendices, and other supporting information should be
made available to the public when the RPM determines that
reviewers would benefit from the additional information. The
EIS/SEIS and related documents must be made available for public
inspection at locations deemed appropriate by the RPM, such as
public libraries or state "single points of contact."
5.04c.6. Public Comment. The public comment period on draft
EIS/SEISs should be at least forty-five (45) days, unless a
specific exemption is granted by EPA, through the NEPA
Coordinator, for a different time period. A final EIS/SEIS must
include all substantive comments or summaries of comments
received during the public comment period of the draft EIS/SEIS.
Summaries of comments are allowed when the comments received are
exceptionally voluminous or repetitive Comments must be responded
to in an appropriate manner in the FEIS, as required under 40 CFR
1503.4. A final agency decision on the proposed action may not
be made or recorded less than thirty (30) days after the NOA for
the FEIS is published in the Federal Register (the "cooling off"
period), unless an exception is granted by EPA through the NEPA
Coordinator. Public comment and "cooling off" periods for draft
and final SEISs are the same as for the initial draft and the
final EIS.
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5.04c.7. Record of Decision. The ROD may not be made or filed
until after thirty (30) days from the published date of the NOA
for the FEIS. The ROD must be a separate document from the FEIS,
but may be integrated into other agency decision documents such
as a notice of final regulations or a management plan. The ROD
is a public record and must be made available through appropriate
public notice as required by 40 CFR 1506.6(b); however, there is
no specific requirement for publication of the ROD itself, either
in the Federal Register or elsewhere.
5.04c.8. Terminating the Process. The environmental review
process may be stopped at any stage if action or project goals
change, support for a proposed action diminishes, the original
analysis becomes outdated, or other special circumstances occur.
If a DEIS has already been filed with the EPA, the RPM must
notify the NEPA Coordinator of any contemplated termination of
the environmental review process prior to completion of the FEIS.
If the environmental review process is terminated at this point,
the FEIS will not be prepared. After the RPM's decision to
terminate the environmental review process and NEPA Coordinator
notification, the termination must be announced in the Federal
Register. Project terminations must be explained in writing by
the RPM, through the NEPA Coordinator, to EPA so that EPA may
withdraw the DEIS and close its file on the action. In addition,
for supplemental NEPA documents only, the NEPA Coordinator must
notify CEQ if the process stops after issuance of a draft SEIS
but before issuance of the final.
5.04d. Special Circumstances.
5.04d.l. Legislative EIS. A legislative EIS (LEIS) is a
detailed statement required by law to be included in a
recommendation or report on a legislative proposal to Congress,
and is considered part of the formal transmittal of a legislative
proposal to Congress (see 40 CFR 1506.8). It may, however, be
transmitted up to 30 days after initial transmittal to allow time
for completion of an accurate statement which can serve as the
basis for public and congressional debate. It must be available
in time for Congressional hearings and deliberations.
Preparation of an LEIS must conform to the requirements of an EIS
except as follows:
5.04d.l(a) there need not be a scoping process;
5.04d.l(b) the statement should be prepared in the same manner
as a DEIS, but should be considered the "detailed statement"
required by statute. When any of the conditions identified in 40
CFR 1506.8 exist, both the draft and final EIS on the legislative
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proposal must be prepared and circulated as provided by 40 CFR
1503.1 and 1506.10; and
5.04d.l(c) comments on the LEIS must be given to the lead
agency, which will forward them along with the agency's responses
to the Congressional committees with jurisdiction.
5.04d.2. Shortened public review period. In certain cases,
usually characterized by pending emergencies, by negative
socio-economic impacts, or by threats to human health and safety,
the RPM may request the NEPA Coordinator's assistance in
shortening the public review and "cooling off" periods for EISs,
SEISs or FEISs. Exemptions for EISs and FEISs may be granted
only by EPA, and the CEQ is responsible for granting exemptions
for SEISs. All requests must go through the NEPA Coordinator
prior to referral to EPA or CEQ.
5.05 General Requirements for Categorical Exclusions.
5.05a. Purpose. Categorical exclusions are intended to exempt
qualifying actions from environmental review procedures required
by NEPA. A CE is appropriate where a proposed action falls into
a category of actions that do not individually or cumulatively
have a significant impact on the quality of the human environment
as determined through an environmental review by the agency.
Where a proposed action is new, under extraordinary circumstances
in which normally excluded actions may have a significant
environmental impact, or the potential environmental impacts are
controversial, an EA or EIS is required. RPMs must consider the
cumulative effects of a number of similar actions before granting
a CE.
5.05b. Determining Appropriateness for Use of Categorical
Exclusions. The proposed action should be evaluated to determine
the appropriateness of the use of a CE. That analysis should
determine if: 1) a prior NEPA analysis for the "same action
demonstrated that the action will not have significant impacts on
the quality of the human environment (considerations in
determining whether the proposed action is the "same" as a prior
action may include, among other things, the nature of the action,
the geographic area of the action, the species affected, the
season, the size of the area, etc.); or 2) the proposed action is
likely to result in significant impacts as defined in 40 CFR
1508.27.
5.05c. Exceptions for Categorical Exclusions. The preparation
of an EA or EIS will be required for proposed actions that would
otherwise be categorically excluded if they involve a geographic
area with unique characteristics, are subject of public
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controversy based on potential environmental consequences, have
uncertain environmental impacts or unique or unknown risks,
establish a precedent or decision in principle about future
proposals, may result in cumulatively significant impacts, or may
have any adverse effects upon endangered or threatened species or
their habitats.
5.05d. NOAA Review and Clearance. The RPM should consult with
the NEPA Coordinator while planning actions that may be
appropriate for a CE and notify the NEPA Coordinator of actions
that receive a CE. Documentation of the basis for a
determination of the appropriateness for a CE must be sent to the
NEPA Coordinator no later than three (3) months after the subject
action has occurred. If the action is determined to be a CE, a
brief statement so indicating should be included within an
appropriate decision memorandum (see Exhibits 5a and 5b to this
Order). The RPM and the NEPA Coordinator can require an EA or
EIS for an action normally covered by a CE if the proposed action
could result in any significant impacts as described in Sections
4.01x. and 6.01 of this Order. When appropriate, the RPM should
consult with states while planning actions that may be
appropriate for a CE and notify such states of actions that
receive a CE, as described in Sections 5.09e. of this Order.
5.06 Emergency Actions.
5.06a. Emergency actions may include measures to:
5.06a.l. implement management or regulatory plans or amendments;
5.06a.2. implement rules to protect threatened or endangered
species or marine mammals;
5.06a.3. establish or implement certain restoration projects;
and
5.06a.4. take other actions of an immediate nature (e.g.,
fishery management actions without an FMP).
5.06b. Emergency actions are subject to the same NEPA
requirements as non-emergency actions. Emergency actions are
subject to the environmental review procedures outlined in
Section 5.06 of this Order, requirements for public involvement
and scoping set forth in Section 5.02 of this Order, and
requirements and guidance of Sections 5.03, 5.04, and 5.06 of
this Order concerning the type of environmental review documents
necessary to comply with NEPA. Despite the emergency nature of a
proposed action, RPMs must maintain contact with state government
agencies to ensure that all state concerns are addressed within
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the time constraints of the emergency action. If time
constraints limit compliance with any aspect of the environmental
review procedures, the RPM should contact the NEPA Coordinator to
determine alternative approaches, as discussed in this Section.
5.06c. The RPM should determine whether an EA or an EIS will be
prepared for emergency actions. The emergency action may be
appropriate for a CE if the RPM determines that the action is
below the threshold criteria for "controversial," "major," and
"significant" that apply to "non-emergency" actions (Sections
4.01n. and 4.01w. of this Order). In the event of uncertainty
regarding the necessary NEPA document for an emergency action,
the RPM should consult with the NEPA Coordinator as early as
possible.
5.06d. Because an EA or CE has no statutory time requirement for
public notice or comment, emergency actions that are appropriate
for a CE or require an EA leading to a FONSI should not be
delayed by any time constraints or requirements established by
NEPA or this Order. If the RPM determines that the emergency
action requires preparation of an EIS, the RPM should determine
whether the requirements associated with draft and final EIS
preparation, filing, and public review would delay implementation
of the emergency action and endanger achievement of the
objectives of the action. If preparation of the EIS would not
delay the emergency action sufficiently to prevent attaining its
objectives, an EIS must be prepared according to the
environmental review procedures before the emergency action takes
effect. If the RPM determines that time or EIS preparation may
limit attaining the objectives of the emergency action, the RPM
should ask the NEPA Coordinator to consult CEQ regarding
alternative arrangements for NEPA compliance. Making alternative
arrangements with CEQ is a seldom used practice and the RPM
should make every effort to avoid undertaking this approach.
5.06e. Alternative arrangements for NEPA compliance must satisfy
the CEQ regulations on emergencies (40 CFR 1506.11). Possible
arrangements include shortened public review periods, review
periods concurrent with effective emergency regulations but
completed prior to implementation of final regulations, or staff
assistance from the NEPA Coordinator in preparing necessary
documents. Alternative arrangements with CEQ is a seldom used
approach by federal agencies and the NEPA Coordinator will only
undertake this approach for actions necessary to control the
immediate impacts to the quality of the human environment
resulting from the emergency action. Other actions remain subject
to standard NEPA requirements and review.
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5.07 Guidance on Transmittal Letters for EAs and EISs. EAs and
EISs should adhere to the following guidance for preparation
(examples of transmittal letters are attached as Exhibits 6-9 ):
5.07a. the RPM will prepare all letters on "Office of the Under
Secretary" letterhead;
5.07b. letters will be dated after being signed by the NEPA
Coordinator; and
5.07c. the RPM will fill in all appropriate blanks in the sample
letter formats.
5.08 Actions Proposed by Applicants. Any applicant to NOAA
regarding a proposed action (e.g., permit, funding, license, or
approval of a proposal or action) must consult with NOAA as early
as possible to obtain guidance with respect to the level and
scope of information needed by NOAA to comply with NEPA.
5.08a. The RPM should begin the environmental review process as
soon as possible after receiving the application and shall
evaluate and verify the accuracy of information received from an
applicant.
5.08b. The RPM should complete any NEPA documents, or evaluation
of any EA prepared by the applicant, before making a final
decision on the application.
5.09 Streamlining Approaches to NEPA Compliance.
5.09a. Programmatic Documents. CEQ encourages agencies to use
program, policy, or plan EISs, (i.e., programmatic EISs) to
eliminate repetitive discussion of the same issues (40 CFR
1500.4(1)). A programmatic environmental review should analyze
the broad scope of actions within a policy or programmatic
context by defining the various programs and analyzing the policy
alternatives under consideration and the general environmental
consequences of each. Specific actions that are within the
program or under the policy should be analyzed through
project-specific environmental review documents. A
project-specific EIS or EA need only summarize the issues
discussed in the broader statement with respect to the specific
action and incorporate discussion from that environmental review
by reference. The principal discussion should concentrate on the
issues specific to the subsequent action.
5.09b. Generic Documents. When preparing statements on broad
actions (including proposals by more than one agency), EISs can
be used to group and analyze several actions that have relevant
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similarities, such as common timing, impacts, alternatives,
methods of implementation, or subject matter (40 CFR 1502.4 (c)) .
Appropriate actions could include clear-cutting, gear impacts,
dredging, or other broad activity. For some types of actions, it
may be appropriate to examine cumulative impacts through the use
of a generic EIS, rather than preparing a large number of
project-specific EAs or EISs.
5.09c. Tiering. Tiering (Section. 4.01z) refers to a stepped
approach to environmental review under NEPA. Tiering involves
the review of a broad-scale agency action (such as a national
program or policy) in a general EIS with subsequent narrower
environmental reviews (such as regional or area-wide program
environmental reviews or ultimately site-specific environmental
reviews) that incorporate by reference the general discussions in
the broad environmental review and concentrate solely on the
issues specific to the statement subsequently prepared. Tiering
is appropriate when the sequence of environmental reviews is: (a)
from a program, plan, or policy EIS to a program, plan, or policy
statement or analysis of lesser scope or to a site-specific
environmental review; (b) from an EIS on a specific action at an
early stage to a supplement or a subsequent environmental review
at a later stage. Tiering in such cases is appropriate and
encouraged because it helps the lead agency focus on the issues
that are ripe for decision and exclude from consideration issues
already addressed or those that are premature for review.
5.09d. Incorporation by Reference. CEQ guidance recommends
incorporating other materials by reference when the effect will
be to cut down on the size of an environmental review document
without impeding agency and public review of the action. The
incorporated material shall be cited in the EA or EIS and the
document shall state how the referenced document or material can
be obtained. The contents of the referenced materials should be
briefly described. No material may be incorporated by reference
unless it is reasonably available for inspection by interested
parties within the time allowed for comment in the environmental
review document. Material based on proprietary data that are not
available for review and comment should not be incorporated by
reference. Examples of information that may be incorporated by
reference include: "affected environment" chapters from previous
EISs when the affected environment for the proposed action has
not undergone noticeable changes; and discussions of cumulative
impacts of a proposed action, if such impacts were discussed in a
previous environmental review addressing a similar action (40 CFR
1502.21) .
5.09e. Cooperative Document Preparation. RPMs must cooperate
with other Federal, state and local agencies and Indian tribes to
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the maximum extent practical to reduce duplication in document
preparation.
5.09e.l. Any applicable Federal and state environmental policy
laws must be followed in preparing joint documents. The degree
to which Federal agencies must adhere to local ordinances and
codes is set forth in Public Law 100-678 (40 U.S.C. 601-616).
Cooperation will include, where possible, joint planning,
environmental research, public hearings, and environmental review
documents (40 CFR 1506.2(b)). RPMs should work with the
appropriate state or local agencies as a joint lead agency in
fulfilling the intent of NEPA.
5.09e.2. The CEQ regulations (40 CFR 1501.1(b)) emphasize
cooperative consultation among agencies before an EIS is
prepared, rather than submitting adversarial comments on a
completed document. Upon the request of the lead agency, any
other Federal agency that has jurisdiction by law must be a
cooperating agency. In addition, any other Federal agency that
has special expertise with respect to any environmental issue
that should be addressed in the statement may be a cooperating
agency upon request of the lead agency (40 CFR 1501.5 and
1501.6). An agency may also request to the lead agency that it
be designated as a cooperating agency. If NOAA determines that
its resource limitations preclude any involvement as a
cooperating agency, it must so inform the requesting lead agency
in writing and submit a copy of the letter to CEQ.
5.09f. Adoption of Other Federal Documents.
5.09f.l. The ultimate responsibility for NEPA compliance always
falls on the NOAA program proposing the Federal action, but NOAA
may adopt an EA, DEIS, or FEIS or portion thereof prepared by
another Federal agency if the language satisfies the standards of
the CEQ regulations and this Order.
5.09f.2. When adopting an entire EIS without change, the RPM
should recirculate the document as a FEIS. However, if the
actions covered by the document are changed in a potentially
significant manner, the document should be circulated as a draft
and final (40 CFR 1506.3).
5.09f.3. NOAA programs cannot adopt final decisions presented in
documents prepared by other agencies. RPMs must prepare a new
FONSI if it adopts an EA, or a new ROD if it adopts an EIS.
5.09g. Third Party Documents. Environmental review documents
prepared by an outside contractor must meet all the criteria of
one prepared internally by another Federal agency.
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5.10 Comments on Non-NOAA NEPA Documents.
5.Ida. Requirements and Policy. CEQ regulations (40 CFR 1503)
require that a DEIS be submitted for review to any Federal agency
that has jurisdiction by law or special expertise over the
resources potentially affected. It is NCAA's policy to provide
considered, timely and factual comments on other agency DEISs.
This essential NEPA activity provides the means to exert a
significant positive influence on other Federal agency plans and
projects and to ensure consideration, protection and mitigation
of impacts to NOAA's trust resources.
5.10b. Coordination. The NEPA Coordinator coordinates DOC
review and comments on other agency DEISs and forwards all
comments to the originating agencies. When comments are
requested, copies of the incoming DEIS and a letter noting the
deadline for receipt of comments will be sent by the NEPA
Coordinator to appropriate DOC elements. Guidance in the
preparation of these comments is available in 40 CFR 1503.3 and
from the NEPA Coordinator. In particular, the following
considerations should be observed when preparing comments.
S.lOb.l. Comments should be restricted to areas within the
reviewer's competence, and conclusions must be supportable by
facts. Each comment should be treated as a specialized piece of
scientific writing that must stand up under scrutiny by the
reviewer's peers.
5.10b.2. Comments of an editorial nature, opinions on the merit
of the project, or phrasing that reveals the personal bias of the
reviewer must be scrupulously avoided.
5.1Ob.3. The reviewer should:
5.10b.3(a) call attention to inadequate or missing data that
makes it difficult or impossible to evaluate the conclusions
reached in the DEIS;
5.10b.3(b) specify studies or types of information which will
supply answers to the technical questions that the reviewer has
raised;
5.10b.3(c) recommend modifications to the proposed action and/or
new alternatives that will enhance environmental quality and
avoid or minimize adverse environmental impacts;
5.10b.3(d) discuss environmental interrelationships between the
proposed action and NOAA's trust resources that should be
included in the EIS;
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5.10b.3(e) outline the nature of any particularly appropriate
monitoring of the environmental effects during any phase of the
proposed project; and
5.10b.3(f) suggest ways of assisting the sponsoring agency to
establish and operate monitoring systems.
5.11 Referrals to CEQ of Environmentally Unsatisfactory Actions.
A CEQ referral is a formal, third party arbitration process
initiated when two or more agencies come to a complete impasse
regarding a major environmental issue. It is CEQ's policy that
referrals reflect an agency's careful determination that a
proposed action raises significant environmental issues of
national importance. CEQ referrals are made only after all other
concerted efforts at resolution have failed.
S.lla. RPMs will notify the NEPA Coordinator of actions by other
Federal agencies believed to be environmentally unsatisfactory
(i.e., those that are appropriate for "referral," under 40 CFR
1504.3). The NEPA Coordinator will recommend referrals to the
Under Secretary for Oceans and Atmosphere and Administrator,
NOAA. The NEPA Coordinator will work closely with the RPMs to
prepare the letters and support materials required in the
referral process.
5.lib. Determinations of the kinds of proposals that are
appropriate for referral are based on whether:
S.llb.l. the action is environmentally unacceptable;
5.lib.2. the action raises significant and major environmental
issues of importance; and
5.lib.3. reasonable alternatives (including no action) to the
proposed action exist.
SECTION 6. INTEGRATING NEPA INTO NOAA LINE OFFICE PROGRAMS.
6.01 Determining the Significance of NOAA's Actions. As
required by NEPA Section 102(2)(C) and by 40 CFR 1502.3, EISs
must be prepared for every recommendation or report on proposals
for legislation and other "major Federal actions" significantly
affecting the quality of the human environment. A significant
effect includes both beneficial and adverse effects. Federal
actions, including management plans, management plan amendments,
regulatory actions, or projects which will or may cause a
significant impact on the quality of the human environment,
require preparation of an EIS. Following is additional
explanation per the definitions used in determining significance.
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6.Ola. "Major Federal action" includes actions with effects that
may be major and which are potentially subject to NOAA's control
and responsibility. "Actions" include: new and continuing
activities, including projects and programs entirely or partly
financed, assisted, conducted, regulated, or approved by NOAA;
new or revised agency rules, regulations, plans, policies, or
procedures; and legislative proposals. Refer to 40 CFR 1508.18
for additional guidance.
6.01b. "Significant" requires consideration of both context and
intensity. 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. Intensity refers to the severity of the
impact. The following factors should be considered in evaluating
intensity (40 CFR 1508.27):
G.Olb.l. impacts may be both beneficial and adverse -- a
significant effect may exist even if the Federal agency believes
that on balance the effect will be beneficial;
6.01b.2. degree to which public health or safety is affected;
6.01b.3. unique characteristics of the geographic area;
6.01b.4. degree to which effects on the human environment are
likely to be highly controversial;
6.01b.5. degree to which effects are highly uncertain or involve
unique or unknown risks;
6.01b.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;
G.Olb.7. individually insignificant but cumulatively significant
impacts;
6.01b.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;
6.01b.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
G.Olb.lO. whether a violation of Federal, state, or local law
for environmental protection is threatened.
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G.Olb.ll. whether a Federal action may result in the
introduction or spread of a nonindigenous species.
6.01c. "Affecting" means will or may have an effect (40 CFR
1508.3). "Effects" include direct, indirect, or cumulative
effects of an ecological, aesthetic, historic, cultural,
economic, social, or health nature (40 CFR 1508.8).
6.Old. "Legislation" refers to a bill or legislative proposal to
Congress developed by or with the significant cooperation and
support of NOAA, but does not include requests for appropriations
(40 CFR 1508.17). The NEPA process for proposals for legislation
significantly affecting the quality of the human environment
shall be integrated with the legislative process of the Congress
(40 CFR 1506.8).
6.01e. "Human environment" includes the relationship of people
with the natural and physical environment. Each EA, EIS, or SEIS
must discuss interrelated economic, social, and natural or
physical environmental effects (40 CFR 1508.14).
6.02 Specific Guidance on Significance of Fishery Management
Actions. The following specific guidance expands, but does not
replace, the general language in Section 6.01 of this Order. When
adverse impacts are possible, the following guidelines should aid
the RPM in determining the appropriate course of action. If none
of these situations may be reasonably expected to occur, the RPM
should prepare an EA or determine, in accordance with Section
5.05 of this Order, the applicability of a CE. NEPA document
preparers should also consult 50 CFR 600, Subpart D, for guidance
on the national standards that serve as principles for approval
of all FMPs and amendments. The guidelines follow.
6.02a. The proposed action may be reasonably expected to
jeopardize the sustainability of any target species that may be
affected by the action.
6.02b. The proposed action may be reasonably expected to
jeopardize the sustainability of any non-target species.
6.02c. 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 Magnuson-Stevens Act
and identified in FMPs.
6.02d. The proposed action may be reasonably expected to have a
substantial adverse impact on public health or safety.
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6.02e. The proposed action may be reasonably expected to
adversely affect endangered or threatened species, marine
mammals, or critical habitat of these species.
6.02f. 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.
6.02g. 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) .
6.02h. If significant social or economic impacts are
interrelated with significant natural or physical environmental
effects, then an EIS should discuss all of the effects on the
human environment.
6.02i. A final factor to be considered in any determination of
significance is 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.
6.03 Integrating NEPA Into NOAA's Decisionmaking Process. NEPA
documents prepared in accordance with this Order must accompany
the decision documents in the NOAA decisionmaking process for any
major Federal action. The alternatives and proposed action
identified in all such documents must correspond. Any NEPA
document prepared for a proposal will be part of the
administrative record of any decision, rulemaking, or
adjudicatory proceedings held on that proposal.
6.03a. NEPA Documents for Management Plans and Management Plan
Amendments. NEPA documents for management plans and management
plan amendments require an EA or the RPM may decide to proceed
directly with an SEIS/EIS. If the RPM has doubt concerning
significance, an EA will be used to determine whether a FONSI,
SEIS, or an EIS is appropriate. A management plan amendment may
also come under a CE (Section 6.03a.3. of this Order). Generally,
where an EIS has been completed on a previous management plan or
plan amendment and that EIS or SEIS is more than five (5) years
old, the RPM should review the EIS to determine if a new EIS or
SEIS should be prepared. RPMs may also consider the use of
tiering (40 CFR 1502.20) to reduce paperwork in subsequent
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environmental analyses. The NEPA Coordinator is available for
consultation on these determinations. As a general rule, the
NEPA documents should be prepared at the earliest practicable
time in conjunction with plan documents so that the environmental
review process will run concurrently, and will be integrated into
the plan development process.
6.03a.l. Separate NEPA Documents from Management Plans and Plan
Amendments. With this approach, the NEPA document (EA or EIS) is
prepared as a separate document and is not incorporated into the
related management pian/amendment. Cross references between the
NEPA document and the management pian/amendment are encouraged to
minimize redundancies between texts. However, under this option
the NEPA document must be a stand-alone document. The NEPA
document must comply fully with the CEQ regulations, including
requirements for contents and administrative procedures and
provisions of this Order. The plan and the NEPA document may be
printed under the same cover.
6.03a.2. Consolidated NEPA Documents, Management Plans and Plan
Amendments. NEPA documents may be combined with the contents of
related management plans or amendments to yield a single
"consolidated" document. These documents must still satisfy the
CEQ regulations, but need not be prepared according to the CEQ
recommended outline for NEPA documents. The consolidated
document must contain a detailed table of contents identifying
required sections of the NEPA document. The NEPA Coordinator
must clear the NEPA aspects of each consolidated document since
the document serves as a NEPA document as well as a management
plan or amendment. Similarly, all consolidated documents which
include an EIS must be filed at EPA and follow the normal
administrative procedures for any EIS, including public review.
Comments on a part of a consolidated document that also serves as
part of the EIS must be responded to in the FEIS.
6.03a.3. Categorical Exclusions for Management Plans and Plan
Amendments.
6.03a.3(a) No management plan may receive a categorical
exclusion, i.e., all plans must be accompanied by an EA or EIS.
Management plan amendments not requiring an EIS must be
accompanied by an EA unless they meet the criteria of a CE
(Section 5.05b. of this Order). A CE determination must be made
by the RPM on a case-by-case basis on whether the effects of an
action that normally falls under one of these categories may have
a significant effect on the human environment. In determining
whether the effects are significant, certain factors relevant to
the proposed activity should be considered. These factors
include the degree to which the effects on the quality of the
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human environment are: controversial; unique or involve unknown
risks; precedential or represent a decision in principle about
future consideration; individually insignificant but cumulatively
significant; and/or likely to adversely impact species listed
under the ESA or their habitats.
6.03a.3(b) Management plan amendments may receive a CE.
Examples of CEs for management plan amendments include, but are
not limited to, the following:
6.03a.3(b)(1) a management plan amendment may be categorically
excluded from further NEPA analysis if the action is an amendment
or change to a previously analyzed and approved action and the
proposed change has no effect individually or cumulatively on the
human environment (these determinations must be accompanied by an
individual memo to the record with a copy submitted to the NEPA
Coordinator, and a brief statement within a decision memorandum);
and
6.03a.3(b)(2) minor technical additions, corrections, or changes
to a management plan.
6.03a..4. Special Circumstances. Management plan amendments may
address an action that has been fully analyzed by a previous EIS
or EA. These actions cannot expand the original action and the
alternatives and their impacts must not differ from the
previously reviewed action. Under these circumstances, the
action does not qualify for a categorical exclusion because the
action may have an adverse effect, however duplication of the
previous environmental review is not necessary. These actions
require only a new FONSI statement based on the existing NEPA
document (s) .
6.03b. NEPA Documents for Trustee Restoration Actions under
CERCLA, OPA, and NMSA. NOAA has the responsibility for planning
and implementing restoration under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(CERCLA), the Oil Pollution Act of 1990 (OPA), and the National
Marine Sanctuary Act (NMSA). NOAA should integrate restoration
planning with the NEPA planning process.
6.03b.l. EAs and EISs for Restoration Actions. Restoration
plans require an EA, to determine the significance of the effect
on the human environment, unless the RPM decides to proceed
directly with an EIS. Restoration Plans that are significant
based upon general and specific criteria in Section 6.01 of this
Order require an EIS.
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6.03b.2. Categorical Exclusions for Restoration Actions. The
Damage Assessment and Restoration Program policy states that
restoration actions pursuant to CERCLA, OPA, and NMSA constitute
major Federal actions that may pose significant impacts on the
quality of the human environment, and are not per se entitled to
a CE. Restoration actions that do not individually or
cumulatively have significant impacts on the human environment
(e.g., actions with limited degree, geographic extent, and
duration) may be eligible for categorical exclusion (40 CFR
1508.4), provided such actions meet all of the following
criteria:
6.03b.2(a) are intended to restore an ecosystem, habitat, biotic
community, or population of living resources to a determinable
pre-impact condition;
6.03b.2(b) use for transplant only organisms currently or
formerly present at the site or in its immediate vicinity;
6.03b.2(c) do not require substantial dredging, excavation, or
placement of fill; and
6.03b.2(d) do not involve a significant added risk of human or
environmental exposure to toxic or hazardous substances.
6.03b.3. Examples of Restoration Actions Eligible for a CE.
Restoration actions likely to meet all of the above criteria and
therefore be eligible for CE include the following.
6.03b.3(a) On-site, in-kind restoration actions (actions in
response to a specific injury) such as:
6.03b.3(a)(1) revegetation of habitats or topographical
features, e.g., planting or restoration of seagrass meadows,
mangrove swamps, salt marshes, coastal dunes, streambanks, or
other wetland, coastal, or riparian areas;
6.03b.3(a)(2) restoration of submerged, riparian, intertidal, or
wetland substrates;
6.03b.3(a)(3) replacement or restoration of shellfish beds
through transplant or restocking;
6.03b.3(a)(4) structural or biological repair or restoration of
coral reefs; and
6.03b.3(b) Actions to restore historic habitat hydrology, where
increased risk of flood or adverse fishery impacts are not
significant. Examples of such actions include:
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6.03b.3(b)(1) restoration, rehabilitation, or repair of fish
passageways or spawning areas; and
6.03b.3(b)(2) restoration of tidal or non-tidal wetland
inundation e.g., through enlargement, replacement or repair of
existing culverts, or through modification of existing tide
gates).
6.03b.3(c) Actions to enhance the natural recovery processes of
living resources or systems affected by anthropogenic impacts.
Such actions include:
6.03b.3(c)(1) use of exclusion methods (e.g., fencing) to
protect stream corridors, riparian areas or other sensitive
habitats; and
6.03b.3(c)(2) actions to stabilize dunes, marsh-edges, or other
mobile shoreline features (e.g., fencing dunes, use of oyster
reefs or geotextiles to stabilize marsh-edges).
6.03b.4. Consolidated Restoration Plans and Environmental
Documents. EA or EIS contents may be combined with the contents
of related Restoration Plans to yield a single consolidated
document. These documents must still satisfy the CEQ
regulations and all requirements for contents and administrative
procedures, but need not be prepared according to the CEQ
recommended outline for EAs and EISs. The consolidated document
must contain a detailed table of contents identifying required
sections of the EA or EIS. The NEPA Coordinator must clear the
NEPA aspects of each consolidated document since the document
serves as an EA or EIS as well as a Restoration Plan. Similarly,
all consolidated documents must follow the normal administrative
procedures for any EA or EIS, including public review.
6.03b.5. Tiering Regional Restoration Plans. NOAA may identify
existing NEPA documents for regional restoration plans or other
existing restoration projects that may be applicable in the event
of an incident. Regional restoration planning may consist of
compiling databases that identify existing, planned, or proposed
restoration projects that may provide a range of appropriate
restoration alternatives for consideration in the context of
specific incidents. If a regional restoration plan, existing
restoration project, or some component of the plan or project is
proposed for use, NOAA may be able to link or tier the necessary
NEPA analysis to an existing analysis.
6.03c. NEPA Documents for Projects and Other NOAA Actions. NOAA
is involved in certain actions generally categorized as projects,
including: funding and budget decisions; grants; loan guarantee
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programs; vessel capacity reduction programs; research programs;
land acquisition; construction activities; real estate actions;
and permits and licenses. The actual type of document to be
prepared is based on the significance of the action, as described
at Section 6.01 of this Order. Requirements for environmental
analysis for these and similar activities are described below.
6.03c.l. Projects and Other Actions That Require an EA but Not
Necessarily an EIS.
6.03c.l(a) Projects that may have significant impacts are
required to have an EA unless they meet the criteria of a CE or
the RPM determines that an EIS will be prepared. Where an EA
reveals that significant impacts will or may occur, the RPM must
prepare an EIS.
6.03c.l(b) The RPM may prepare either an EA or EIS for the
following types of actions, based on the scope and significance
of the specific proposed action:
6.03c.l(b)(1) financial assistance awards for land acquisition,
construction, or vessel capacity reduction such as those
administered under the Magnuson-Stevens Act, where such actions
may result in significant impacts;
6.03c.l(b)(2) new financial support services at the time of
conception that have not already been analyzed;
6.03c.1(b)(3) acquisition, sale, transfer, construction, or
modification of major new facilities budgeted by NOAA, including
lease-to-buy projects containing at least 20,000 square feet of
occupiable space;
6.03c.l(b)(4) major re-locations of NOAA personnel undertaken
for programmatic reasons; and
6.03c.l(b)(5) other actions, including research, that may as
individual actions or cumulative actions have significant
environmental impacts.
6.03C.2. Projects and Other Actions That Require an EIS. An EIS
is required for major Federal projects or actions determined by
the RPM to be significant. The RPM may proceed directly to an
EIS without preparing an EA. These projects or actions include
the following:
6.03c.2(a) major new projects or programmatic actions that may
significantly affect the quality of the human environment;
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6.03c.2(b) actions required by law to be subject to an EIS, such
as an application for any license for ownership, construction,
and operation of an Ocean Thermal Energy Conversion facility or
for a Deep Seabed Mining license or permit;
6.03c.2(c) research projects, activities, and programs when any
of the following may result:
6.03c.2(c)(1) research is to be conducted in the natural
environment on a scale at which substantial air masses are
manipulated (e.g., extensive cloud-seeding experiments),
substantial amounts of mineral resources are disturbed (e.g.,
experiments to improve ocean sand mining technology), substantial
volumes of water are moved (e.g., artificial upwelling studies),
or substantial amounts of wildlife habitats are disturbed (e.g.,
habitat restoration techniques);
6.03c.2(c)(2) either the conduct or the reasonably foreseeable
consequences of a research activity would have a significant
impact on the quality of the human environment;
6.03c.2(c)(3) research that is intended to form a major basis
for development of future projects (e.g., acoustic thermometry
experiments) which would be considered major actions
significantly affecting the environment under this Order; and/or
6.03c.2(c)(4) research that involves the use of highly toxic
agents, pathogens, or non-native species in open systems; and
6.03c.2(d) Federal plans, studies, or reports prepared by NOAA
that could determine the nature of future major actions to be
undertaken by NOAA or other Federal agencies that would
significantly affect the quality of the human environment.
6.03C.3. Categorical Exclusions. The following categories of
projects or other actions do not normally have the potential for
a significant impact on the quality of the human environment and
therefore usually are excluded from the preparation of either an
EA or an EIS. In all cases, a determination must be made by the
RPM on a case-by-case basis whether the effects of an action that
normally falls under one of these categories may have a
significant impact on the human environment. In determining
whether the impacts are significant, certain factors relevant to
the proposed activity should be considered as described in
Section 5.05b. of this Order.
6.03c.3(a) Research Programs. Programs or projects of limited
size and magnitude or with only short-term effects on the
environment and for which any cumulative effects are negligible.
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Examples include natural resource inventories and environmental
monitoring programs conducted with a variety of gear (satellite
and ground-based sensors, fish nets, etc.) in water, air, or land
environs. Such projects may be conducted in a wide geographic
area without need for an environmental document provided related
environmental consequences are limited or short-term.
6.03c.3(b) Financial and Planning Grants. Financial support
services, such as a Saltonstall-Kennedy grant, a fishery loan or
grant disbursement under the Fishermen's Contingency Fund or
Fisheries Obligation Guarantee Program, or a grant under the CZMA
where the environmental effects are minor or negligible. New
financial support services and programs should undergo an EA or
EIS at the time of conception to determine if a CE could apply to
subsequent actions.
6.03c.3(c) Minor Project Activities. Projects where the
proposal is for a minor amelioration action such as planting dune
grass or for minor project changes or minor improvements to an
existing site (e.g., fences, roads, picnic facilities, etc.),
unless such projects in conjunction with other related actions
may result in a cumulative impact (40 CFR 1508.7) .
6.03c.3(d) Administrative or Routine Program Functions. The
following NOAA programmatic functions that hold no potential for
significant environmental impacts qualify for a categorical
exclusion: program planning and budgeting including strategic
planning and operational planning; mapping, charting, and
surveying services; ship support; ship and aircraft operations;
fishery financial support services; grants for fishery data
collection activities; basic and applied research and research
grants, except as provided in Section 6.03b. of this Order;
enforcement operations; basic environmental services and
monitoring, such as weather observations, communications,
analyses, and predictions; environmental satellite services;
environmental data and information services; air quality
observations and analysis; support of national and international
atmospheric and Great Lakes research programs; executive
direction; administrative services; and administrative support
advisory bodies.
6.03c.3(e) Real Estate Actions. The following NOAA real estate
actions with no potential for significant environmental impacts
are categorically excluded from preparation of an EA or EIS:
repair, or replacement in kind, of equipment and components of
NOAA owned facilities; weatherization of NOAA facilities;
environmental monitoring; procurement contracts for NEPA
documents; architectural and engineering studies and supplies;
routine facility maintenance and repair and grounds-keeping
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activities; acquisitions of space within an existing previously
occupied structure, either by purchase or lease, where no change
in the general type of use and minimal change from previous
occupancy level is proposed; acquisition of less than 5,000
square feet of occupiable space by means of Federal construction,
lease construction, or a new lease for a structure substantially
completed prior to solicitation for offers and not previously
occupied; lease extensions, renewals, or succeeding leases;
relocation of employees into existing Federally-owned or
commercially leased office space within the same metropolitan
area not involving a substantial number of employees or a
substantial increase in the number of motor vehicles at a
facility; out-lease or license of government-controlled space, or
sublease of government-leased space to a non-Federal tenant when
the use will remain substantially the same; various easement
acquisitions; acquisition of land which is not in a floodplain or
other environmentally sensitive area and does not result in
condemnation; and installment of antennas as part of site plan of
the property.
6.03c.3(f) Construction Activities. Minor construction
conducted in accordance with approved facility master plans and
construction projects on the interiors of non-historic NOAA-owned
and leased buildings, including safety and fire deficiencies, air
quality, interior renovation, expansion or improvement of an
existing facility where the gross square footage is not increased
by more than 10 percent, and the site size is not increased
substantially, and minor repair/replacement of existing piers or
floats not exceeding 80 feet in length.
6.03c.3(g) Facility Improvement or Addition. Minor facility
improvement or addition where ground disturbance is limited to
previously disturbed areas (i.e., previously paved or cleared
areas) .
6.03c.3(h) NEXRAD Radar Coverage. Change in NEXRAD radar
coverage patterns which do not lower the lowest scan elevation
and do not result in direct scanning of previously non-scanned
terrain by the NEXRAD main beam.
6.03c.3(i) Other Categories of Actions Not Having Significant
Environmental Impacts. These actions include: routine operations
and routine maintenance, preparation of regulations, Orders,
manuals, or other guidance that implement, but do not
substantially change these documents, or other guidance; policy
directives, regulations and guidelines of an administrative,
financial, legal, technical or procedural nature, or the
environmental effects of which are too broad, speculative or
conjectural to lend themselves to meaningful analysis and will be
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subject later to the NEPA process, either collectively or
case-by-case; activities which are educational, informational,
advisory or consultative to other agencies, public and private
entities, visitors, individuals or the general public; actions
with short term effects, or actions of limited size or magnitude.
6.03d. NEPA Documents for Actions taken under the
Magnuson-Stevens Act. To the extent possible documents developed
to support FMPs, FMP amendments, regulatory amendments, letters
of acknowledgment of scientific research, authorization of
educational activities, exempted fishing permits, and other
fishery regulatory actions developed under the Magnuson-Stevens
Act should be integrated with the required NEPA document to
produce one combined document. The provisions of Section 6.02a.
are applicable to FMPs and FMP amendments. The National Marine
Fisheries Service (NMFS) and the RFMCs should attempt to develop
and integrate the NEPA document with FMP public hearing documents
at the earliest possible stage to provide the public and decision
makers with an assessment of environmental impacts of the
proposed actions prior to RFMC decisions. The NEPA analysis and
the analysis required under the Magnuson-Stevens Act may be
similar, but the scope of the NEPA analysis must include a
discussion of the broader impacts of the fishery as a whole on
the human environment. Specific guidance on determining
significance for fisheries actions and the scope of environmental
analyses required under NEPA is provided under Section 6.02 of
this Order, and in the 1991 memorandum to the Regional Directors
from the NMFS Assistant Administrator (Fox, 1991) .
6.03d.l. Fisheries Actions that Require an EA. EAs are the most
common NEPA documents prepared for FMP amendments and regulatory
actions. If NMFS or the RFMCs cannot make an initial
determination that significant impacts are likely to occur from
the proposed action or that the action is eligible for a CE, an
EA should be prepared which includes sufficient information to
determine whether the action is significant under NEPA and an EIS
need be prepared, or a FONSI can be concluded. Examples of EAs
on past FMP amendments may be obtained from the NEPA Coordinator.
6.03d.2. Fisheries Actions that Require an EIS. When developing
a new FMP for a previously unregulated species, the RFMC or NMFS
should conduct an EIS on the proposed plan. An EIS must also be
prepared for all FMP amendments and regulatory actions when the
RFMC or NMFS determines that significant beneficial or adverse
impacts are reasonably expected to occur. Consideration of
cumulative impacts must also be taken into account when
considering whether to prepare an EIS. In particular, the RPM
must consider the cumulative impacts of connected management
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measures implemented under other FMPs, MMPA actions, or ESA
management actions.
6.03d.3. Framework Actions for Fisheries Management Plans.
Framework actions must be given the same consideration under NEPA
as are FMP amendments. The essence of the framework concept is
the adjustment of management measures within the scope and
criteria established by the FMP and implementing regulations to
provide real time management of fisheries. Framework measures
may be "open" measures that provide managers a given set or limit
of options to apply to a fishery through a regulatory amendment
process, or more traditional "closed" measures such as closures,
seasons, or gear restrictions. Closed measures are implemented
through in season rulerelated notices. Analysis for FMP
amendments and regulatory amendments that establish or implement
frameworks should, to the extent possible, assess the full range
of impacts resulting from the options allowed under the
framework. This will reduce the scope of analysis required for
subsequent actions established under the framework. Closed
management measures fully analyzed by a framework analysis
require no further action.
6.03d.4. Categorical Exclusions for Fisheries Management
Actions. Fisheries management actions may qualify for a CE
pursuant to Section 9.03a.3. of this Order if the actions
individually and cumulatively does not have the potential to pose
significant effects to the quality of the human environment.
These determinations must be documented by a memorandum to the
record which states the specific rationale behind why the action
qualified for a categorical exclusion. In determining whether
the effects of the fisheries management action are significant,
the factors identified in Section 5.05b. of this Order for the
appropriateness of a CE relevant to the activity should be
considered along with the specific guidance on significance
provided in Section 6.02 of this Order. If an action is
determined to be CE under Section 5.05b. of this Order, a brief
statement so indicating shall be included within an appropriate
decision memorandum and submitted to the NEPA Coordinator.
Actions that may receive a categorical exclusion may include:
6.03d.4(a) ongoing or recurring fisheries actions of a routine
administrative nature when the action will not have any impacts
not already assessed or the RPM finds they do not have the
potential to pose significant effects to the quality of the human
environment such as: reallocations of yield within the scope of a
previously published FMP or fishery regulation, combining
management units in related FMP, and extension or change of the
period of effectiveness of an FMP or regulation; and
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6.03d.4(b) minor technical additions, corrections, or changes to
an FMP.
6.03e. NEPA Documents For Actions taken under the Endangered
Species Act. NOAA has numerous responsibilities under the ESA
that include listing species as threatened or endangered,
designating critical habitat, preparing recovery plans,
monitoring species that have been removed from the endangered
species list, issuing scientific and enhancement permits, and
issuing incidental take permits.
6.03.e.l. Special Circumstances For ESA Listing Determinations.
Determinations that a species is threatened or endangered,
determinations that a species should be delisted, and
determinations that a species should be reclassified as
threatened or endangered, are exempt from NEPA compliance.
Pursuant to legislative history accompanying the 1982 amendments
to the ESA, and Pacific Legal Foundation v. Andrus, these actions
are exempt from NEPA and are not categorically excluded, which
implies that NEPA is still applicable to these actions. Actions
found to be exempt from NEPA are not the same as actions found to
qualify as categorical exclusions, as those actions are subject
to environmental impact considerations under NEPA.
6.03e.2. ESA Actions That Require an EA but Not Necessarily an
EIS.
6.03e.2(a) Promulgation of special management rules pursuant to
Section 4(d) of the ESA requires an EA (see Section 6.03e.3.(a)
for guidance on NEPA compliance for preparation of recovery
plans). Section 4(d) rules may require an EIS, but that finding
will be determined on a case-by-case basis or after an EA is
completed on the action.
6.03e.2(b) Implementation of recovery actions, including actions
identified in recovery plans require an EA unless covered by
Section 6.03e.3.(a) of this Order. Some recovery actions, such
as reintroductions or establishment of experimental populations,
may require an EIS, but that finding will be determined on a
case-by-case basis or after an EA is completed on the action.
6.03e.2(c) Issuance of permits for scientific purposes or to
enhance the propagation or survival pursuant to Section
10(a)(1)(A) of the ESA for hatchery activities requires an EA
(see Section 6.03e.3.(b) for guidance on NEPA compliance for
other permits issued pursuant to this section of the ESA).
Modifications to these permits may qualify for a CE, but that
finding will be determined on a case-by-case basis or after an EA
is completed on the action.
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6.03e.2(d) Issuance of incidental take permits pursuant to
Section 10(a)(1)(B) of the ESA must be accompanied by an EA
unless covered by Section 6.03e.3(d) of this Order and may
require an EIS. The cumulative impacts of the total number of
permit actions must be considered in determining whether a FONSI
is appropriate. NEPA documents prepared for these permits must
pay particular attention to the direct, indirect and cumulatively
beneficial and adverse impacts to the environment (which includes
listed species) from these permits.
6.03e.2(e) Establishment of experimental populations pursuant to
Section 10(j) of the ESA requires an EA (see Section 6.03e.3.(a)
of this Order for guidance on NEPA compliance for preparation of
recovery plans). Establishment of some experimental populations
may require an EIS, but that finding will be determined on a
case-by-case basis or after an EA is completed on the action.
6.03e.2(f) Promulgation of enforcement and protective
regulations pursuant to Section 11(f) of the ESA requires an EA
(see Section 6.03e.3.(a) of this Order for guidance on NEPA
compliance for preparation of recovery plans).
6.03e.3. Categorical Exclusions for ESA Actions. The following
actions may be appropriate for categorical exclusion:
6.03e.3(a) Preparation of Recovery Plans. Preparation of
recovery plan pursuant to Section 4(f)(1) of the ESA is
categorically excluded because such plans are only advisory
documents that provide consultative and technical assistance in
recovery planning. However, implementation of specific tasks
themselves identified in recovery plans may require an EA or EIS
depending on the significance of the action (see Section
6.03e.2.(b) for guidance on NEPA compliance for implementation of
recovery actions).
6.03e.3(b) Scientific Research and Enhancement Permits. In
general, permits for scientific purposes or to enhance the
propagation or survival of listed species issued pursuant to sec.
10(a)(1)(a) of the ESA qualify for a CE (except for permits
covered in Section 6.03e.2.(c)). The factors listed in Section
5.05b. of this Order must be considered in all CE determinations
on permits. The RPM must also consider the cumulative impact on
the listed species from the total amount of permits issued with
CEs, and take into account any population shifts with the subject
species.
6.03e.3(c) Critical Habitat Designations. The RPM will
determine on a case-by-case basis whether NEPA analysis is
required for the designation of critical habitat under Section
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4(a)(3) of ESA. In general, the designation of critical habitat
reinforces the substantive protections resulting from listing.
To the extent that a designation overlaps with listing
protections, it is unlikely to have a significant affect on the
human environment and may qualify as a categorical exclusion
under Section 8.05 of this Order. NMFS may decide as a matter of
policy or otherwise to prepare an EA for certain critical habitat
designations, such as those determined to be highly
controversial, even when it is determined that the designation
meets the requirements of a categorical exclusion. In the case
of critical habitat designations that include habitat outside the
current occupied range of a listed species, the potential for
economic and/or other impacts over and above those resulting from
the listing exists; therefore, in general, a categorical
exclusion will not apply.
6.03e.3(d) "Low Effect" Incidental Take Permits. The issuance
of "low effect" incidental take permits under Section 10(a)(1)(B)
of ESA permits actions that individually or cumulatively, have a
minor or negligible effect on the species covered in the habitat
conservation plan. A CE is generally appropriate for this type
of action.
6.03f. NEPA Documents for Actions Taken under the MMPA. NOAA is
involved in a number of actions within their responsibility under
the MMPA. These include permits for the taking of marine mammals
under sec. 104 of MMPA for purposes of public display, scientific
research, survival and recovery, and photography for educational
or commercial purposes; permits or authorizations under sec.
101(a)(5)(E) and Section 118 for takings incidental to the course
of commercial fishing operations; incidental harassment
authorizations for small takes under MMPA sec. 101(a)(5)(A);
grants for research; activities conducted under the General
Authorization for Scientific Research; and take reduction plans.
6.03f.l. MMPA Actions That Require an EA but Not Necessarily an
EIS. Authorization for the intentional lethal take of
individually identified pinnipeds under sec. 120 of the MMPA
requires an EA. Take reduction plans and other activities to
govern the interactions between marine mammals and commercial
fishing operations generally require an EA. Permits and
authorizations for incidental, but not intentional taking of
ESA-listed marine mammals under Section 101(a) (5) (E) or sec. 118
of the MMPA require an EA.
6.03f.2. Categorical Exclusions.
6.03f.2(a) In general, scientific research, enhancement,
photography, and public display permits issued under
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sectionlOl(a)(1) and 104 of the MMPA, and letters of confirmation
for activities conducted under the General Authorization for
Scientific Research established under Section 104 of the MMPA,
qualify for a CE. The factors listed in Section 5.05b. of this
Order must be considered in all CE determinations on permits.
The RPM must also consider the cumulative impact on the protected
species from the total amount of permits issued with CEs, and
take into account any population shifts with the subject species.
Research activities conducted under the General Authorization for
Scientific Research will be reviewed periodically for cumulative
impact.
6.03f.2(b) Small take incidental harassment authorizations under
Section 101(a)(5)(a), tiered from a programmatic environmental
review, are categorically excluded from further review. The
small take incidental harassment authorizations are part of an
expedited process to take small numbers of marine mammals by
harassment without the need to issue specific regulations
governing the taking of marine mammals for each and every
activity. If an authorization under 101(a)(5)(a) does not tier
from a programmatic environmental review, that action may require
an EIS, EA, or CE, based on a case-by-case review.
6.03f.2(c) In cases such as those authorized by Section 109(h)
of the MMPA (i.e., taking of marine mammals as part of official
duties), such actions are not exempt from NEPA, nor are they
categorically excluded from environmental review, and alternative
measures are necessary. Under these conditions, a programmatic
review may be the appropriate means for meeting NEPA
requirements.
SECTION 7. INTEGRATING NEPA WITH OTHER ORDERS.
7.01 Integration of E.G. 12114, Environmental Effects Abroad of
Major Federal Actions, in the NOAA Decisionmaking Process.
7.Ola. Scope. This section applies to NOAA activities, or
impacts thereof, which occur outside the United States, or which
may affect resources not subject to the management authority of
the United States, that are subject to E.O. 12114 and DAO 216-12
other than those activities addressed pursuant to NEPA.
Specifically, E.O. 12114 directs agencies to establish
environmental impact review procedures in the following
categories of actions.
7.01a.l. Major Federal actions significantly affecting the
environment of the global commons outside the exclusive
jurisdiction of any nation (e.g., the oceans, the atmosphere, the
deep seabed, or Antarctica).
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7.Ola.2. Major Federal actions significantly affecting the
environment of a foreign nation not participating with the United
States and not otherwise involved in the action.
7.Ola.3. All other major Federal actions significantly affecting
the environment of a foreign nation, including, but not limited
to, those that provide to that nation:
7.Ola.3(a) a product and/or a principal product, emission, or
effluent which is prohibited or strictly regulated by Federal law
in the United States because its toxic effects on the environment
create a serious public health risk;
7.Ola.3(b) a physical project which is prohibited or strictly
regulated by Federal law in the United States to protect the
environment against radioactive substances.
7.Ola.4. Major Federal actions outside the United States, its
territories and possessions which significantly affect natural or
ecological resources of global importance designated for
protection by the President under the provisions of E.G. 12114,
or, in the case of resources protected by international agreement
binding on the United States, by the Secretary of State. In this
context, the phrase "outside the United States" refers to the
area beyond the 200-mile exclusive economic zone and continental
shelf of the United States.
V.Olb. Special Efforts. Certain activities having environmental
impacts outside the United States require special efforts because
of their international environmental significance. These include
activities which:
V.Olb.l. threaten natural or ecological resources of global
importance or which threaten the survival of any species;
V.Olb.2. may have a significant impact on any historic,
cultural, or national heritage or resource of global importance;
or
V.Olb.3. involve environmental obligations set forth in an
international treaty, convention, or agreement to which the
United States is a party.
V.Olc. Constraints.
V.Olc.l. Environmental documents on actions subject to this
section should be as complete and detailed as possible under the
circumstances. However, in analyzing activities or impacts which
occur outside the United States, it may on occasion be necessary
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to limit the circulation, timing, review period, or detail of an
EA or EIS for one or more of the following reasons:
V.Olc.l(a) diplomatic considerations;
V.Olc.l(b) National security considerations;
V.Olc.l(c) relative unavailability of information;
V.Olc.l(d) commercial confidentiality; and
V.Olc.l(e) the extent of NCAA's role in the proposed activity.
V.Olc.2. When full compliance with this Order is not possible,
consideration may be given to the preparation of:
7.01c.2(a) bilateral or multilateral environmental studies,
relevant or related to the proposed actions, by the United States
and one or more foreign nations, or by an international body or
organization in which the United States is a member or
participant; and
7.01c.2(b) concise reviews of the environmental issues involved,
including EAs, summary environmental analyses, or other
appropriate documents.
V.Olc.3. RPMs, in consultation with the NEPA Coordinator and the
NOAA Office of General Counsel, will decide whether an EA or EIS
should be prepared on an action under this section.
7.Old. Consultation. In preparing an environmental document for
an activity which may affect another country or which is
undertaken in cooperation with another country and will have
environmental effects abroad, the RPM should consult with the
NEPA Coordinator both in the early stages of document preparation
(in order to determine the scope and nature of the environmental
issues involved) and in connection with the results and
significance of such documents. The NEPA Coordinator and the
NOAA Office of General Counsel will consult, as appropriate, with
other offices in the DOC, CEQ, and Department of State when the
proposed action or its environmental consequences are likely to
involve substantial policy considerations. When consulting with
foreign officials, every effort must be made to take into account
foreign sensitivities and to understand that one of NOAA's
objectives in preparing environmental documents in cases
involving effects abroad is to provide environmental information
to foreign decisionmakers, as well as to responsible NOAA
officials. Finally, NOAA's efforts in preparing these
environmental documents will be directed, in part, toward
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strengthening the ability of other countries to carry out their
own analyses of the likely environmental effects of proposed
actions.
7.02 Integration of E.G. 12898, Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations, in the NOAA Decisionmaking Process. E.G. 12898
requires agencies to analyze the effects of their actions on
low-income and minority populations. The consideration of E.G.
12898 should be specifically included in the NEPA documentation
for decisionmaking purposes. Unlike NEPA, the trigger for
analysis under E.G. 12898 is not limited to actions that are
major or significant and Federal agencies are mandated by E.G.
12898 to identify and address, as appropriate, disproportionately
high and adverse human health or environmental effects of its
programs, policies, and activities on minority populations and
low-income populations. Thus, when applicable, environmental
justice should be addressed in activities that require NEPA
analysis, and also in instances where the activity is not
considered major or significant, and therefore does not require
NEPA analysis beyond a CE determination.
7.02a. Analyzing E.G. 12898 in EA and EIS Documents. When
applicable, each NOAA EA and EIS shall include a discussion of
the environmental effects of the proposed Federal action
including human health, economic and social effects on minority
and low-income communities. The analysis may be integrated into
the environmental consequences and social/economic sections of
the documents or a separate section specifically addressing E.G.
12898 may be included. If the information is integrated into an
EA or EIS, the document should identify that the analysis meets
the goals and intent of E.G. 12898.
7.02b. Mitigation Measures in NEPA Documents for E.G. 12898.
Whenever feasible, mitigation measures outlined or analyzed in an
EA, EIS, or record of decision should address significant and
adverse environmental effects on minority and low income
communities. Beneficial impacts of the project may also be
identified.
7.03 Integration of E.G. 13112, Invasive Species, in the NOAA
Decisionmaking Process.
E.G. 13112 requires agencies to use authorities to prevent
introduction of invasive species, respond to and control
invasions in a cost effective and environmentally sound manner,
and to provide for restoration of native species and habitat
conditions in ecosystems that have been invaded. E.O. 13112 also
provides that agencies shall not authorize, fund, or carry out
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actions that are likely to cause or promote the introduction or
spread of invasive species in the United States or elsewhere
unless a determination is made that the benefits of such actions
clearly outweigh the potential harm; and that all feasible and
prudent measures to minimize the risk of harm will be taken in
conjunction with the actions. The consideration of E.G. 13112
should be included in the NEPA documentation for decisionmaking
purposes when appropriate. Actions subject to such analysis
include, but are not limited to, intentional introduction of
organisms into ecosystems outside of their native range,
activities which could result in the unintentional introduction
of nonindigenous species, and activities that could promote the
spread of nonindigenous species that have already been
introduced.
7.04 Integration of E.G. 13089, Coral Reef Protection, in NOAA
Decisionmaking Process.
E.G. 13089 requires agencies to (a) identify actions that may
affect U.S. coral reef ecosystems, (b) utilize their programs and
authorities to protect and enhance the conditions of such
ecosystems, and (c) ensure that any actions they authorize, fund
or carry out will not degrade the conditions of coral reef
ecosystems. Agencies whose actions affect U.S. coral reef
ecosystems shall provide for implementation of measures needed to
research, monitor, manage, and restore affected ecosystems,
including but not limited to, measures reducing impacts from
pollution, sedimentation and fishing. To the extent not
inconsistent with statutory responsibilities and procedures,
these measures shall be developed in cooperation with the U.S.
Coral Reef Task Force and fishery management councils and in
consultation with affected States, territorial, commonwealth,
tribal, and local government agencies and non-governmental
stakeholders. The consideration of E.O. 13089 should be included
in the NEPA documentation for decision making purposes when
appropriate. Actions subject to such analysis include, but are
not limited to, fishery management plans and/or other actions
impacting fisheries or non-fisheries species of coral reef
ecosystems, inland and/or coastal development, dredging and/or
harbor development, actions impacting coastal water quality, and
other activities which could result in the intentional or
unintentional degradation of U.S. coral reef ecosystems.
SECTION 8. EFFECT ON OTHER ISSUANCES.
This Order supersedes NAO 216-6, dated August 6, 1991, and NOAA
Administrator's Letter No. 17, dated April 3, 1978.
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SIGNED,
Under Secretary for Oceans and Atmosphere Administrator
Attachments: Exhibits
Office of Primary Interest:
Office of Policy and Strategic Planning
202
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(May 20, 1999)
Exhibit 1. Acronyms
The following acronyms are used in this Order:
AA Assistant Administrator
APA Administrative Procedure Act
CE Categorical Exclusion
CERCLA Comprehensive Environmental Response, Compensation, and Liability Act
CEQ Council on Environmental Quality, Executive Office of the President
CFR Code of Federal Regulations
CZMA Coastal Zone Management Act
DAO Department Administrative Order
DEIS Draft Environmental Impact Statement
DOC U.S. Department of Commerce
EA Environmental Assessment
EEZ U.S. Exclusive Economic Zone
EIS Environmental Impact Statement
E.O. Executive Order
EPA U.S. Environmental Protection Agency
ESA Endangered Species Act
FEIS Final Environmental Impact Statement
FMP Fishery Management Plan
FONSI Finding of No Significant Impact
LEIS Legislative Environmental Impact Statement
MMPA Marine Mammal Protection Act
MSFCMA Magnuson-Stevens Fishery Conservation and Management Act
NAO NOAA Administrative Order
NEPA National Environmental Policy Act
NEXRAD Next Generation Radar
NMSA National Marine Sanctuaries Act
NOA Notice of Availability
NOI Notice of Intent
NOAA National Oceanic and Atmospheric Administration
OPA Oil Pollution Act
PO Program Office
RFMC Regional Fishery Management Council
ROD Record of Decision
RPM Responsible Program Manager
SEIS Supplemental Environmental Impact Statement
SO Staff Office
U.S.C. United States Code
203
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-54-
(May 20, 1999)
Exhibit 2. The NEPA Process
f Categorical } ( Environmental ^
Exclusion (CE) Assessment
V J \_ (EA) _y
>
Pre{
Memo
>
1 Notice of Intent (NOI) j
for Environmental
llmpact Statement (EISV/
1 1
Scoping
(optional)
I
Draft EA
1^^^
Public Hearing
f (optional)
)are T /
for File /
Final EA
> r
FONSI
f
Implementation Impementation
204
Scoping
I
EA
(optional^
>k.
Draft EIS
r
1
Public Hearing
(optional)
1
FEIS with
Notice of
Availablility
1
Record of
Decision (RO
))
IrrJprlementation
-------
-55-
(May 20, 1999)
Exhibit 3. NOAA Contacts for Common Actions Subject to NEPA
Program
Application
NOAA Contact
Coastal Zone
Management Programs
(Sec. 306, CZMA)
Coastal States,
Territories and
Commonwealths
National Ocean
Service, Office of
Ocean and Coastal
Resources Managment
(OCRM)
National Marine
Sanctuaries (Title
III, (NMSA))
States, private
individuals and
organizations
National Ocean
Service, OCRM
Estuarine
Sanctuaries Beach
Access Acquisition
(Sec. 315, CZMA)
States
National Ocean
Service, OCRM
Fishery Management
Plans (Sec. 305,
MSFCMA)
Regional Fishery
Management Councils
or NMFS
National Marine
Fisheries Service
Headquarters
Regulations,
Permits and Waivers
under the MMPA
[Sees. 101(a)(2),
101(a)(3), and
MMPA]
Private parties,
scientific
institutions, and
foreign nations
National Marine
Fisheries Service,
Office of Protected
Species and Habitat
Deep Seabed Mining
Licenses and
Permits (DSM)
Private Industry
National Ocean
Service, OCRM
Ocean Thermal
Energy Conversion
Licenses (OTEC)
Private Industry
National Ocean
Service, OCRM
205
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_56- (MaY 20< 1999)
Exhibit 4. Format for Preparing a Notice of Intent
Billing Code: 3510-22-F
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[I.D. 021596A]
Environmental Impact Statement (EIS) for the Proposed
Consolidation of NOAA Facilities in Juneau, AK
AGENCY: National Marine Fisheries Service (NMFS), National
Oceanic and Atmospheric Administration (NOAA), U.S. Department of
Commerce.
ACTION: Notice of intent to prepare an EIS; request for
comments.
SUMMARY: NOAA announces its intention to prepare an EIS in
accordance with the National Environmental Policy Act of 1969 for
the proposed consolidation of NOAA/NMFS facilities in Juneau, AK.
The University of Alaska may also develop facilities as part of
the proposed consolidation.
DATES: Written comments on the intent to prepare an EIS will be
accepted on or before March 25, 1996. Scoping meetings are
scheduled as follows:
1. March 29, 1996, 1 p.m., Federal Building, Juneau, AK.
2. May 24, 1996, 1 p.m., Federal Building, Juneau, AK.
3. May 24, 1996, 5 p.m., Centennial Hall, Juneau, AK.
ADDRESSES: Written comments on suggested alternatives and
potential impacts should be sent to John Gorman, Responsible
Program Manager, National Marine Fisheries Service, Alaska
Region, P.O. Box 21668, Juneau, AK 99802-1668 or to Robb Cries,
Contract Office Technical Representative, NOAA, Facilities and
Logistics Division, 7600 Sand Point Way NE, BIN C15700, Seattle,
WA 98115.
Scoping meetings will be held as follows:
1. NOAA/NMFS personnel - Friday, March 29, 1996, 4th Floor
Conference Room, Federal Building, 709 West 9th Street, Juneau,
AK, 1-4 p.m.
206
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_57- (MaY 20' 1999)
Exhibit 4. (continued)
2. NOAA/NMFS personnel - Friday, May 24, 1996, 4th Floor
Conference Room, Federal Building, 709 West 9th Street, Juneau,
AK, 1-4 p.m.
3. Open to the public - Friday, May 24, 1996, Centennial Hall,
101 Egan Drive, Juneau, AK, 5 p.m.-10 p.m.
SUPPLEMENTARY INFORMATION:
The proposed action would involve consolidation of NOAA/NMFS
offices, laboratory, and enforcement facilities in Juneau, AK.
NOAA operations are currently in four space assignments in the
Federal Building and at an aging, overcrowded Commerce-owned
laboratory facility at Auke Bay. The NOAA/NMFS portion of the
facility will be about 91,628 net square ft (8,512.5 square
meters) in size and constructed on 28 acres (11.3 hectares (ha))
of Commerce-owned property at Auke Cape. The 28 acre (11.3 ha)
site is situated on saltwater (Auke Bay) and will require access
and utility improvements. Approximately 273 NOAA/NMFS related
personnel would be housed in the consolidated facilities. The
University of Alaska School of Fisheries and Ocean Sciences is
interested in collocating 22,000 net square ft (2,044 square
meters) of laboratory, classroom, and office space with NOAA/NMFS
at Auke Cape. The University of Alaska space would house about
90 faculty, staff, and students. The EIS will examine three
alternative locations for the proposed consolidation and also
evaluate the proposed action with and without University of
Alaska participation. The no action alternative will also be
evaluated. The agency's preferred alternative is to locate on
approximately 28 acres (11.3 ha) of agency-owned land at Auke
Cape/Indian Point on Auke Bay.
To identify the scope of issues that will be addressed in
the EIS and to identify potential impacts on the quality of the
human environment, public participation is invited by providing
written comments to NMFS and attending the scoping meeting.
Public Information Meetings:
Additional public information meetings and community
workshops on the proposed project will be held in Juneau
beginning in March. These meetings will be held in various
locations and will be advertised in local Juneau newspapers.
Special Accommodations:
The meetings are physically accessible to people with
disabilities. Requests for sign language interpretation or
207
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_58- (MaY 20< 1999)
Exhibit 4. (continued)
other auxiliary aids should be directed to John Gorman or Robb
Cries (see ADDRESSES) at least 5 days prior to the meeting date.
Dated: February 15, 1996
Richard W. Surdi
Acting Director
Office of Fisheries Conservation and Management
National Marine Fisheries Service
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_59- (May 20, 1999)
Exhibit 5a. Format for Documenting Categorical Exclusion of
Several Actions
MEMORANDUM FOR: THE RECORD
FROM: Donna Marino
Construction Staff
SUBJECT: Categorical Exclusion, Oxford Cooperative
Laboratory
NAO 216-6, Environmental Review Procedures, requires all proposed
projects to be reviewed with respect to environmental
consequences on the human environment.
The proposed project is to renovate and expand the existing main
structure at the research facility known as The Cooperative
Oxford Laboratory, Oxford, Maryland. The scope of the proposed
project is:
Renovation of 10,000 Gross Square Feet (GSF) and
construction of a 7,000 GSF expansion to the main
structure at the Cooperative Oxford Laboratory.
Renovation work will consist of removal and replacement of
either partial or whole components of existing mechanical,
electrical, and architectural features. Expansion work
will consist of construction of a slab foundation, brick
super structure, and a wood trussed and asphalt shingled
roof, and build out of interior components.
Expansion and renovation involves furnishing materials, tools,
equipment, supervision, and incidentals by the Federal
Government. In a cost sharing arrangement with the State of
Maryland, the state will provide the funds for labor as required.
All work will be conducted by state employees or licensed
contractors in conformance with applicable conventional
engineering and construction practices. Work will be performed
on site, in one location at Oxford, Maryland.
This proposed project represents repair, renovation, and
expansion activities to an existing Federal facility. Expansion
of the facility will occur. Appropriate State and Federal
agencies with jurisdictions over waterfront and shore lands have
been advised of the proposed project. A copy of the Maryland
State Department of Natural Resources May 9, 1995, memorandum of
Federal Consistency with the State's Coastal Zone Management
Program, as are required by Section 307 of the Federal Coastal
Zone Management Act of 1972, is attached. Also attached is the
Maryland State Department of
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_60-
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_61- (May 20, 1999)
Exhibit 5b. Format for Documenting Categorical Exclusion of
Several Actions
MEMORANDUM FOR: THE RECORD
FROM: F/SF1 - Rebecca Lent
SUBJECT: Proposed Atlantic Bluefin Tuna Trade
Restrictions B Categorical Exclusion Under
NEPA
The National Marine Fisheries Service (NMFS), under the authority
of the Atlantic Tunas Convention Act (ATCA), is proposing to
restrict the import of Atlantic bluefin tuna (ABT) from Panama,
Belize, and Honduras. This proposed action would require minor
changes to the existing regulations for the ABT fishery.
After reviewing the proposed rule (copy attached) in relation to
NOAA 216-6, including the criteria used to determine
significance, we have concluded that the proposed action would
not have a significant effect, individually or cumulatively, on
the human environment. Further, we have determined that the
proposed action is categorically excluded from the requirement to
prepare an environmental assessment or environmental impact
statement in accordance with Section 6.03a.3b. of NOAA
Administrative Order 216-6. Specifically, this is an "action of
limited size or magnitude" that does not result in a significant
change in the original environmental action and involves only
minor changes to the regulations.
BACKGROUND
In an effort to conserve and manage North Atlantic bluefin tuna,
the International Commission for the Conservation of Atlantic
Tunas (ICCAT) adopted two recommendations at its 1996 meeting
requiring its Contracting Parties to take the appropriate
measures to the effect that the import of Atlantic bluefin tuna
and its products in any form from Belize, Honduras, and Panama be
prohibited.
ICCAT has been concerned about the status of North Atlantic
bluefin tuna for many years. The most recent scientific stock
assessment shows that mid-year spawning biomass (age 8+) of the
western management stock in 1995 was estimated to be 13 percent
of the 1975 level (which is considered an appropriate proxy for
the spawning stock biomass level corresponding to maximum
sustainable yield (MSY). Eastern Atlantic bluefin tuna is
estimated to be at 19 percent of the level that would produce
MSY.
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Exhibit 5b. (continued)
The U.S. Atlantic bluefin tuna fishery is managed under ATCA.
Regulation of the fishery is required to implement applicable
ICCAT recommendations and ATCA and Magnuson-Stevens Fishery
Conservation and Management Act (MSFCMA) requirements. Over the
years, ICCAT has adopted numerous conservation and management
measures aimed at addressing the decline in this resource. These
measures have included establishing (1) catch limits and quotas,
(2) time and area closures to protect spawning fish, (3) a
minimum size to protect juvenile fish, (4) the Bluefin Tuna
Statistical Document (BSD) program to track the trade of bluefin
tuna, (5) the Bluefin Tuna Action Plan Resolution that
establishes a process to identify non-Contracting Parties whose
vessels are fishing in a manner that diminishes the effectiveness
of ICCAT's bluefin tuna conservation recommendations, and, after
giving identified counties an opportunity to rectify the
activities of their vessels, can lead to a recommendation of
trade measures, (6) measures to enhance Contracting Party
compliance with ICCAT's bluefin tuna quotas that can result in
quota penalties and, ultimately, trade restrictions.
Environmental assessments, resulting in Findings of No
Significant Impact, were prepared by NMFS for the actions that
resulted in these recommendations. All substantive ABT
regulations to date have been evaluated consistent with NEPA.
This proposed action does not significantly alter those
regulations.
Under the proposed trade restrictions, U.S. dealers would be
prohibited from importing ABT products from Belize, Honduras, or
Panama. No bluefin tuna were imported from Belize, Honduras, or
Panama during 1979-196. It is unlikely that any importers,
wholesalers, or freight forwarders have any significant
dependence on bluefin tuna imports from these three countries and
there are no extraordinary circumstances that would remove this
action from consideration as a categorical exclusion.
Following are the most salient factors contributing to our
determination that a categorical exclusion is appropriate for
this action:
1. The principal effect of the proposed action would be to
penalize, through trade restrictions, countries that do not
support conservation and management measures recommended for ABT
by ICCAT.
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_63- (MaY 20< 1999)
Exhibit 5b. (continued)
2. The action would not, in the United States, result in any
increase in fishing mortality; change any basic fishing practices
(i.e., fishing effort, areas fished, etc.); or pose any
significant threat to the human environment.
3. The action is of "limited size"; requires only minor changes
to existing regulations; and does not result in "a significant
change in the original environmental action." It is intended to
help ensure effective implementation of ICCAT conservation
recommendations for bluefin tuna.
Attachments
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_64- (MaY 20' 1999)
Exhibit 6. Format for EIS Transmittal Letter to Reviewwers
Dear Reviewer:
In accordance with provisions of the National Environmental
Policy Act of 1969, we enclose for your review the NOAA/NMFS
Consolidated Facility Final Environmental Impact Statement
(FEIS) .
This FEIS is prepared pursuant to NEPA to assess the
environmental impacts associated with NOAA proceeding with
development and operation of a consolidated NOAA/NMFS facility.
The facility may also contain space for the University of Alaska
Fairbanks (UAF) School of Fisheries and Ocean Sciences. The FEIS
examines impacts with and without the UAF presence.
Any written comments on the FEIS should be directed to the
responsible official identified below by February 23, 1998. A
copy of your comments should also go to me in Room 5805, OPSP,
U.S. Department of Commerce, Washington, D.C. 20230.
NOAA is not required to respond to comments received as a result
of issuance of the FEIS, however comments will be reviewed and
considered for their impact on issuance of a record of decision
(ROD). The ROD will be printed in the Federal Register some time
after February 23, 1998.
Responsible Person:
John Gorman
National Marine Fisheries Service
Alaska Region
P.O. Box 21668
Juneau, Alaska 99802-1668
Telephone number (907) 586-7641
Facsimile (907) 586-7249
Sincerely,
NEPA Coordinator
Enclosure
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_65- (MaY 20' 1999)
Exhibit 7. Format for Draft EIS/Final EIS Transmittal to EPA
Director, Office of Federal Activities (A-104)
U.S. Environmental Protection Agency
Ariel Rios Bldg.
South Oval Lobby
1200 Pennsylvania Ave., NW
Washington, D.C. 20044
Dear (INSERT NAME):
Enclosed for your consideration are five (VERIFY NUMBER WITH NEPA
COORDINATOR) (APPROPRIATE DOCUMENTS, i.e., DRAFT EIS OR
FINAL EIS) on (TITLE OF PROJECT).
ADDITIONAL PARAGRAPH(S) OR INFORMATION AS NECESSARY
If you have any questions about the enclosed statement, contact
either the official responsible for this program (NAME and
TELEPHONE NUMBER) or me at (202) 482-5181.
Concurrent with this transmittal to EPA, copies of the
(DEIS//FEIS) are being mailed to Federal agencies and other
interested parties.
Sincerely,
(INSERT NAME)
NEPA Coordinator
Enclosures
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Exhibit 9. Format for FONSI Transmittal Memorandum (from
appropriate Assistant Administrator, Staff Office or Program
Office Director to NEPA Coordinator)
MEMORANDUM FOR: (INSERT NAME)
NEPA Coordinator
FROM: (INSERT NAME)
SUBJECT: Finding of No Significant Impact on the
Environmental Assessment on (TITLE OF ACTION
OR PROJECT)-DECISION MEMORANDUM
Based on the subject environmental assessment, I have determined
that no significant environmental impacts will result from the
proposed action. I request your concurrence in this
determination by signing below. Please return this memorandum
for our files.
1. I concur.
Date
2. I do not concur.
Date
Attachment
217
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Reviewing Environmental Impact Statements for Fishery Management Plans
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U.S. Environmental Protection Agency
TO-0008 for contract 68-W-03-029 218 - September 2005
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INDEX
Term
Section
A
Advisory Panel
Allowable Biological Catch
Administrative Procedure Act
Affected Environment
Alternatives
Amendments
American Fisheries Act
Atlantic Coastal Fisheries Cooperative Management Act
Atlantic States Marine Fisheries Commission
Atlantic Striped Bass Conservation Act
2.2.3
3.7
2.1.4,2.2.4, C.I
4.2.4
4.2.3
2.1.2,2.1.4,2.2.1,2.2.4
C.I
App B, C.I
App B
C.I
Biological Opinion
Biomass
Bycatch
C
Categorical Exclusion
Checklist
Clean Air Act
Clean Water Act
Coastal States
Coastal Zone Management Act
Coastal Condition Report
Commissions
Coral Reef Ecosystem
Coral Reef Protection
Council on Environmental Quality
Councils
Cumulative Impacts
2.2.4, 3.3
2.1.1.3, 3.6,4.1,4.2.5
1.2,2.1.1, 3, 3.1, 3.3,
4.1,4.2.5,4.2.6, 5.2
2.2.1
4.2
1.1.1
1.1.2
2.2.3, App B
C.I
5.2
App B
4.2.5,
C.2
1.1.1, 5.2
1.2,2.1,2.2.3.1, 5.1,
5.2, App A, B, C
4.2.5,5.2
D
Direct Impacts
4.2.5
Economic Discard
Economic Efficiency
3.1
2.1.1.1
219
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Ecosystem 3.6
Ecosystem Approach 3.6
Ecosystem-based Management 3.6
Effects Abroad C.2
Emergency Action 2.1.4
Endangered Species Act 3.3, C.I
Enforcement 4.2.6
Environmental Concerns 4.3
Environmental Impact Statement 2.2, 2.2.4
Environmental Objections 4.3
Environmental Justice 5.2, C.2
Environmentally Unsatisfactory 4.3
EPA Comment Letters Sec 4
Essential Fish Habitat 3.2, 5.2, App D
Exclusive Economic Zone 1 .2
Executive Orders C.2
Federalism C.2
Fish and Wildlife Coordination Act C.I
Fish and Wildlife Service C.I
Fisheries Science Centers (NMFS Regional) 2.2.3.2, 5.2
Fishery 2.1.1.1
Fishery Biology 3.7, 5.2
Fishery Management Council (see Council)
Fishery Management Plan 2.1, 2.2, 5.2, App A
Fishing Gear 4.2.5, 5.2, App E
Framework Measure 2.1.3
Framework Action 2.1.3
Front-loading 2.2.5
Future Direction 2.2.5
G
General Counsel 2.2.3.2
Gulf States Marine Fisheries Commission App B
H
Habitat Are as of Particular Concern 3.2.1
Harvest limits 3.2.2
Highly Migratory Species 2.2.3.2, App A
I
Incidental Catch 3.1, App E
Incidental Take 3.1
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Incomplete and Unavailable Information 3.8
Indigenous Fishing 3.5
Indirect Impacts 4.2.5
Individual Fishing Quota 1 .2
Integrating FMPs/Amendments and EISs 2.2.2
Interim Action 2.1 .4
International Pacific Halibut Commission App B
Invasive species C.2
L
Lack of Objections 4.3
Lawsuits/litigation 4.2
M
Magnuson-Stevens Fishery Conservation and Management Act 1 .2
Marine Mammal Protection Act 3.3, C.I
Marine Protected Areas C.2
Maximum Sustainable Yield 2.1.1.1
Migratory Bird Treaty Act 3.3, C.I
Migratory Birds 3.3, C.2
Mitigation 4.2.6
Modeling 5.2
Monitoring 4.2.6
N
National Environmental Policy Act 2.2.1, C.I
National Marine Sanctuaries Act C.I
National Plan of Action 3.3
National Standards 2.1.1.1
NEPA Coordinators 2.2.3.2,2.2.5
No Action Alternative 4.2.3
Notice of Intent 4.2.1
O
Optimum Yield 2.1.1
Overfishing 2.1 .1 .1
P
Pacific Salmon Commission App B
Pacific States Marine Fisheries Commission App B
Paperwork Reduction Act C.I
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Phases in Process 2.2.4
Predator Prey 3.6
Procedural 4.2.7
Protected Species 3.3
Purpose and Need 4.2.2
R
Readability 3.9
Record of Decision 2.2.4
Recreational Fishing 2.1.1.2,3.8
Regulatory Amendment 2.1.4
Regulatory Discard 3.1
Regulatory Flexibility Act C.I
Regulatory Impact Review 2.2.3, 2.2.4
Regulatory Process 2.1,2.2.4
Regulatory Streamlining Project 2.2.5
Research 3.7,3.8
S
Seabirds 3.1, 3.3, C.I, C.2
Secretary of Commerce 2.2.3.2
Scientific and Statistical Committees 2.2.3.1
Steps in Process 2.2.4
Stock 2.1.1.1
Stock Assessment 3.7,5.2
Subsistence Fishing 3.5
Sustainable Fisheries Act 1 .2
T
Take 3.3
Total Allowable Catch 3.1
Tribal 5.2, C.2
Time/Area Closure 3.2.2
Turtle Excluder Device 3.3
V
Virtual Population Analysis 3.7
W
Water Quality 3.4,4.1
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