# Presentation: 761689

## Proposed Rule to Streamline the NEPA Process

- Steve Leathery, NMFS NEPA Coordinator
- Marian Macpherson, Office of Sustainable Fisheries

## Goals

- Comply with NEPA and MSA
- Adhere to the principles of public involvement and agency accountability in the CEQ regulations
- Integrate NEPA into MSA public processes
- Build on recommendations in the CCC Strawman
- Clarify the responsibilities of FMCs and NMFS, and align public participation appropriately
- Allow rapid response, while providing meaningful
-      public input into policy decisions.

**Notes:**
When I presented this, I grouped together the third through fifth bullets.  I think they all go to point about NEPA’s relationship to the MSA process.  Here is where I would respond to Dinah’s repeated suggestion that the proposal pushes too much of the process down to the Councils.  Without specifically mentioning her contentions, I suggest we emphasize in presenting this slide that the Secretary retains ultimate responsibility for compliance with NEPA but that the proposal was designed to satisfy the direction of the MSRA section 107 to integrate NEPA into the MSA and to recognize the unique roles of the councils in the fishery management process.  The intent was to enhance the utility of NEPA in the context of fishery management by enhancing the timeliness and relevance of public input.  It ensures alternatives are identified and analyzed at the council level where fishery policy is shaped.  As a result decision-making will be better informed about environmental impacts.
Ensure compliance with NEPA when developing and implementing fishery management actions under the MSA.  
Adhere to the principles of public involvement and agency accountability set forth in the CEQ regulations
Integrate NEPA’s requirements into the MSA public processes for developing and approving fishery management actions
Build on recommendations in the CCC Strawman
Clarify how the deliberative and decision-making responsibilities of FMCs and NMFS differ, and appropriately align public participation and accountability measures to reflect these differences.  
Streamline the MSA and NEPA timelines to achieve greater efficiencies in fisheries management and allow rapid response to fishery management needs, while providing the public meaningful opportunity to influence policy decisions.

## Approach

- Started with CEQ regulations as a basis and proposed changes only where necessary to address problems; reorganized for clarity
- Works within parameters of CEQ regulations allowing flexibility; establishes limits on flexibility
- The need for additional internal guidance will be assessed in light of the final regulatory changes if any

**Notes:**
Changed as little as possible -- If it's not broken, don't fix it.  Per Ted’s email, the proposal is consistent with NEPA, the CEQ NEPA regulations, and all applicable case law interpreting NEPA and the NEPA regulations. 
Reorganized but key language still intact

40 CFR 1507.3 -  allows agencies to develop their own procedures, may provide other periods of time where necessary to comply with other statutory mandates (1507.3(d)).

40 CFR 1506.10(d) -- allows EPA to reduce minimum time periods for compelling reasons of national policy

## Key Changes

- Content:  Retains basic content requirements for analyses with modifications to address fisheries issues
- Documentation:  Retains EA/FONSIs and CEs; new forms of documentation to maximize flexibility and encourage tiering, frameworking, and integration of analyses
- Public Involvement:  Adapts comment and response requirements to align with FMC and NMFS policy development
- Timelines:  Allows modification of timelines to fit within MSA processes

## Content Requirements

- Applies content requirements for EISs set forth at 40 CFR 1502 with certain clarifications
- Alternatives
- Incomplete/Unavailable Information
- Cumulative Impacts Analysis

**Notes:**
The content requirements for analysis of environmental impacts as set forth in 40 CFR 1502 have been retained with the following modifications; requirements regarding the range of alternatives have been clarified to address fisheries-specific issues; provisions regarding unavailable information have been clarified to highlight their relationship to the MSA’s national standard 2 and provisions regarding research priorities; and a requirement to include a cumulative impacts analysis has been added. 

## Alternatives:  What is Reasonable?

- Retains requirement to consider "all" reasonable alternatives
- Defines "reasonable" as derived from statement of purpose and need
- Not reasonable if
- Inconsistent with MSA and N.S.
- Impractical or ineffective
- Fails to achieve stated goals

**Notes:**
In conjunction with ability to eliminate some from detailed study hope to be able to reduce the number and complexity of alternatives

## Alternatives:  "No Action"

- _Does not_ mean the literal "no action" (i.e., _does not mean_ open access or closures due to sunsets)
- _Does_ mean "continued management of the fishery as it is being managed" with reasonable assumptions
- Key is to provide a baseline for comparison

## Incomplete/Unavailable Information

- Retains CEQ requirement to identify this info and obtain it if not "exorbitant"
- Adds relationship to NS 2 and MSA 303(a)(8)
- Preamble sets forth factors to consider in determining "exorbitance"
- Availability of appropriated funds
- Research priorities of the SSCs
- The cost of delay
- The inherent uncertainties in fishery management
- If previously analyzed, may cite prior analyses

## Cumulative Impacts

- Adds a specific requirement for IFEMS to include a cumulative impacts analysis
- This requirement is not set forth in current CEQ regulations, but is acknowledged by caselaw for EISs.

## Forms of Documentation

- IFEMS
- EA/FONSI
- Memorandum of Framework Compliance
- DCE

**Notes:**
Suggest this is where we could address the point that the proposal , to use Ted’s language, is intended to better identify the appropriate level of analysis based on potential environmental effects (CE, EA/FONSI, EIS-level).   
IFEMS - p. 26 of pro rule

EA/FONSI - we know and love them

Memo of Framework Compliance -- New - related to use of a new tool for NEPA frameworking

## Framework Implementation Procedures (FIPs)

- NMFS or FMCs may establish an FIP within an FMP
- FIP:  A formal mechanism to allow actions to be undertaken pursuant to a previously planned and constructed management regime without requiring additional NEPA analysis

## Framework Implementation Procedures (FIPs) cont'd

- Based on early broad-based analysis of management approaches and impacts that provide a foundation that specified subsequent actions, or categories of actions, may rely on.
- If subsequent management actions and their effects fall within the scope of a prior analysis, no additional action-specific analysis would be necessary.
- The individual FMP would specify what criteria would require supplementation and how the fishery would be managed during the supplementation process.

## Opportunities for Public Involvement

- Two Opportunities to comment:
- At FMC level on DIFEMS
- At NMFS level on FIFEMS
- Comments on scope, and alternatives must be raised at FMC level

**Notes:**
I think this slide fully addresses the points about increasing opportunities for public comment.

This proposed rule would establish new duties and opportunities intended to ensure both that public input relevant to the development of alternatives and policy recommendations is provided to the FMC when the FMC is developing its recommendations, and that NMFS considers and responds to comments addressing its decision to approve, disapprove, or partially approve an FMC recommendation, which includes consideration of NEPA compliance.  This proposed rule would establish:  a new requirement for FMCs to consider public comments on draft IFEMSs prior to voting to recommend a measure or action for Secretarial review; flexibility to reduce the public comment period on IFEMSs to fit a two-meeting cycle where necessary; additional requirements for consideration and response to public comments by NMFS (including a new comment period on the Final IFEMS and a new requirement to respond to comments on the Final IFEMS in the ROD, as appropriate); and flexibility for NMFS to reduce the cooling-off period where necessary. 

Because integrating NEPA requirements into the FMC process requires assurances that public input can be considered prior to narrowing the range of alternatives, this proposed rule attempts to balance opportunities for public input with the need for rapid response to management needs. 

## Timelines

- Retains EPA time periods as defaults
- Allows for limited reductions based on specified considerations:
- need to address overfishing; potential harm to the resource, the marine environment, or fishing communities; the ability of the FMC to consider public comments in advance; public need and consequences of delay; external time limits; degree to which affected communities had prior notice; complexity; degree of exigency; and the degree to which the science upon which the action is based is uncertain or missing.
- Allows completion of IFEMS within 2 council meeting cycle

**Notes:**
This goes to the point about reductions in time periods being kept to a minimum.  

## Timelines: FMC Level

- _Minimum Timelines for Two-Meeting Cycle with IFEMS:  FMC Level_
- 1.  Publish NEPA Scoping Notice with Meeting Agenda
- 	↓	14 days (minimum prior to Meeting 1)
- 2.  FMC Meeting 1 – FMC reviews comments, selects alternatives, directs staff to prepare DIFEMS
- 	↓	No minimum time/FMC/staff  discretion
- 3.  Publish NOA of Draft IFEMS/ Initiate Comment Period 1
- 	↓	45 day comment period (may be reduced to
- 	↓	14 if justified)
- 4.  FMC Meeting 2:  FMC reviews public comment.  May take final vote to recommend action.
- 	↓	No minimum timelines
- 5.  FIFEMS is prepared as part of transmittal package by FMC or NMFS. (*consult proposed rule for guidance on when supplementation is necessary and options for supplementing on clock).
- 	↓	 No minimum timelines
- 6.  Transmittal:  NMFS accepts package as complete for review

**Notes:**
Could note here that while the opportunity to reduce Comment Period 1 to 14 days is less than the traditional 45 days under the CEQ regs, this is not really a reduction because the CEQ regs do not provide this opportunity to comment; rather it is a new comment opportunity to ensure public input regarding environmental analysis is considered in the council process where alternatives are narrowed and selected.  The public will still have an opportunity to comment to the Secretary.  In this sense, the overall opportunity for public comment is increased.

## Timelines:  NMFS Level

| FMPs/Amendments
↓ 5 days | Regulations
↓ 15 days |
| --- | --- |
| 7.  Comment Period:  NMFS publish NOA on FIFEMS with NOA on FMP or amendment for 
↓   60 day comment on FIEMS and FMP/Am Includes NEPA 30-day cooling off period  | 
NMFS publish NOA on FIFEMS with pro. rule  
↓   15 – 60 day comment period on  FIFEMS and proposed rule runs concurrently  |
| 8.  Cooling Off Period:  30 day NEPA Cooling off period runs concurrently with 60 day comment period above

        0 additional days  | 30-day NEPA cooling off period runs with comment period except where comment period is 15 days, and there is a need to make a final decision sooner than a 30 day cooling off period would allow.  Cooling off could be reduced by 15 days.
↓   0 – 15 additional days |
| 9.  Decision Day:  Day 90 after NOA, deadline for final MSA decision and NEPA ROD  | ↓    0- 30 additional days :  Day 30 after close of public comment on proposed rule is deadline for
      publication of final rule and ROD. |
| 10.  Effective Date  | ↓   30 days:  APA delay in Effectiveness
      Effective 30 days after publication  |

**Notes:**
8.  for Regs: 30-day NEPA cooling off period runs concurrently with comment period on proposed rule and IFEMS except where comment period is 15 days, and there is a need to make a final decision sooner than a 30 day cooling off period would allow.  Cooling off could be reduced by 15 days.

*This table assumes no supplements

## Supplementation

- Hybrid alternatives or new alternatives within the range of the analysis do not require new analysis
- If FMC votes for alternative outside the range analyzed, supplementation is required to analyze new alternative
- Options for Circulating Supplemental Analysis for Public Review
- Public Comment may occur at FMC level; additional vote at FMC's discretion
- Public Comment may occur at Secretarial level after transmittal to Secretary; no additional FMC vote

## Supplementation on MSA Clock:  FMPs

- SIFEMS submitted with transmittal package
- For FMP/AM, SIFEMS has 45 day comment period (FMP - 60 days)
- Publish FIFEMS by Day 60
- 30 -day cooling off period complete on Day 90

## Supplementation on Clock: Regs

- Final rule must publish within 30 days cpe for the Proposed rule:  Comment period on IFEMS must be short enough to allow for conversion to Final and minimum 15 day Cooling Off prior to MSA publication deadline
- This may require comment period on SIFEMS to be shorter than comment on proposed Rule.

**Notes:**
This makes the point about the need for reductions in some cases where there is a supplemental.

## Next Steps

- May 14 - Aug 12 Comment Period
- June - Aug - FMC Meetings
- Public Meetings
- St. Petersburg, FL
- Seattle, WA
- Washington, DC

## Quick Reference Guide

- Alternatives:  700.212
- Cumulative Impacts:  700.214(b)
- Incomplete/Unavailable Info:  700.220
- Forms of Documentation (including IFEMSs and FIPs) 700.102-.105
- Scoping:  700.108
- Timing, Flow, and Supplementing:  700.203(b)(5), 700.207(c)
- Comment and Response:  700.302-.305
- Minimum time periods:  700.604

## Conclusion

- New tools for streamlining
- Allows process to move forward from FMC to NMFS for final decision
- Directs public participation to appropriate points in the process
- Utilizes flexibility while defining minimum procedural  parameters and retaining core requirements
- Link: _[http://www.nmfs.noaa.gov/msa2007/](http://www.nmfs.noaa.gov/msa2007/)_