# Presentation: 865528

## 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.

## 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

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

## 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

## 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

## 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

## 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

## 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  |

## 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.

## Next Steps

- May 14 - Aug 12 Comment Period
- June - Aug - FMC Meetings
- Public Meetings
- St. Petersburg, FL July15
- Seattle, WA July 24
- Washington, DC June 25

## 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/)_