NATIONAL OCEANIC 

AND ATMOSPHERIC 

ADMINISTRATION 

NOAA Needs to Continue 

Streamlining the 

Rulemaking Process and 

Improve Transparency and 

Consistency in Fisheries 

Management 

FINAL REPORT NO. OIG-13-011-I 

JANUARY 16, 2013 

U.S. Department of Commerce 

Office of Inspector General 

Office of Audit and Evaluation 

FOR PUBLIC RELEASE 
UNITED STATES DEPARTMENT OF COMMERCE 

The Inspect or General 

Washington, D.C. 20230 

January 16, 20 13 

MEMORANDUM FOR: 

FROM: 

Dr. Jane Lubchenco 

Under Secretary of Commerce for Oceans and Atmosphere 

~J.J;_ Todd J. Zinser 

SUBJECT: NOAA Needs to Continue Streamlining the Rulemaking Process and 

Improve Transparency and Consistency in Fisheries Management 

Final Report No. OIG-13-0 I 1-1 

Attached is our final report on the controls and processes used by NOAA's Fishery 

Management Councils (FMCs) for fishery rulemaking. We are conducting this review in phases 

and expect to generate reports incrementally. In this first phase, we evaluated the role of 

NOAA and the FMCs in the fishery rulemaking process and the transparency of the rulemaking 

process prescribed under the Magnuson-Stevens Fishery Conservation and Management Act 

(MSA). 

We found that while NOAA's National Marine Fisheries Service (NMFS) has complied with the 

MSA requirements we reviewed and has taken action to improve implementation of the MSA, 

(I) its required financial disclosures for FMC members who vote do little to increase 

transparency and lack effective review, (2) NMFS has not fully implemented several regulatory 

streamlining remedies, and (3) rules packages and administrative records supporting fishery 

management actions are not maintained uniformly at NMFS regional offices. 

On December 18, 2012, we received NOAA's response to our report, which accepted all of 

our recommendations. Where appropriate, we have modified our final report based on this 

response. The formal NOAA response is included as appendix E. The final report will be posted 

on OIG's website pursuant to section 8L of the Inspector General Act of 1978, as amended. 

In accordance with Department Administrative Order 213-5, please provide us with your 

action plan within 60 days of the date of this memorandum. W e extend our thanks to NOAA 

for the courtesies shown our staff during our fieldwork. If you have any questions about this 

report, please contact Ann C. Eile rs at (202) 482-2754 or Andrew Katsaros at (202) 482-7859. 

Attachment 
 

 

 

 

 

Report In Brief 

JANUARY 16, 2013 

Background 

The legislation that directs how 

NOAA manages the nation’s fisheries and the principal law that governs 

the fishery rulemaking process is the 

Magnuson-Stevens Fishery Conservation and Management Act (MSA). 

A primary goal of the MSA is to end 

and prevent overfishing through the 

use of annual catch limits and accountability measures. Eight regional 

Fishery Management Councils 

(FMCs), established by the MSA, 

work with NOAA and the public to 

prepare and maintain fishery management plans for fisheries under 

their authority. Fishery management 

plans are intended to preserve and 

repair fisheries while minimizing adverse effects on dependent communities through a formal process that 

incorporates scientific data, the 

knowledge of council members and 

advisory bodies, and public input. 

Why We Did This Review 

On August 17, 2011, Congressmen 

Barney Frank and John F. Tierney 

asked OIG to review controls and 

processes used by NOAA’s FMCs to 

develop rules for the commercial 

fishing industry—known as fishery 

rulemaking. The request was 

prompted by concerns that NOAA’s 

National Marine Fisheries Service 

(NMFS) had abandoned its core missions of “development of the commercial fishing industry” and 

“increasing industry participation.” 

We are conducting this review of 

rulemaking in several phases and plan 

to generate additional reports. In 

this first phase, we evaluated the role 

of NOAA and the FMCs in the fishery rulemaking process and the 

transparency of the rulemaking 

process prescribed under the 

MSA. Subsequent products will look 

further into NOAA and the FMCs 

and the rules they develop. 

NATIONAL OCEANIC AND ATMOSPHERIC 

ADMINISTRATION 

NOAA Needs to Continue Streamlining the Rulemaking 

Process and Improve Transparency and Consistency in Fisheries 

Management 

OIG-13-011-I 

WHAT WE FOUND 

FMC voting members’ financial disclosures do little to increase transparency and lack 

effective review. We reviewed 72 publicly available disclosure statement forms for 

current voting council members and noted more than 20 instances where 

required information was missing. 

NMFS has not fully implemented regulatory streamlining remedies. In 2003, NMFS 

developed a Regulatory Streamlining Project (RSP) in response to criticisms of 

the fishery management process from Congress and its constituents (such as 

fishers). Although NMFS received $2.5 million in its FY 2005 appropriation for 

the RSP, it has still not been fully implemented. 

Maintenance of rules packages and administrative records needs to be consistent. 

Record-keeping and file organization are not uniform across NMFS regional 

offices, which make it difficult for NMFS headquarters to provide oversight. 

WHAT WE RECOMMEND 

We recommend that the Assistant Administrator for NOAA Fisheries: 

1. strengthen policy guidance on financial disclosure by FMC voting members, 

with emphasis on how NOAA intends to handle specific consequences for 

conflicts or potential conflicts it identifies; 

2. strengthen processes for formal reviews of financial interest disclosures, 

considering the time period that the disclosure covers, how financial interest 

amounts relate to voting restrictions, and when affiliations with outside 

organizations should be reported; 

3. strengthen criteria for identifying conflicts of interest and processes to 

follow up on any conflicts that are identified; 

4. finalize draft Operational Guidelines and provide them to NMFS regional 

offices; 

5. finalize regional operating agreements between NMFS regional offices and 

FMCs; and 

6. develop uniform procedures for the collection, management, and 

maintenance of documents supporting decisions and administrative records 

associated with fishery regulations. 
U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

Contents
 

FINAL REPORT NO. OIG-13-011-I 

 

 

 

..............................................................................................

................................................................................

.............................................................................

......................................

Introduction

Findings and Recommendations

.......................................................................................................................................................

5
 

1
 

....................................................................................................................

I.	 FMC Voting Members’ Financial Disclosures Do Little to Increase Transparency and Lack 

Effective Review......................................................................................................................................5
 

II. NMFS Has Not Fully Implemented Regulatory Streamlining Remedies 6
 

III. Maintenance of Rules Packages and Administrative Records Needs to Be Consistent ..........8
 

Summary of Agency Response and OIG Comments 10
 

Appendix A: Objectives, Scope, and Methodology 11
 

Appendix B: Goals of MSA Reauthorization and NOAA Implementation Priorities..................... 13
 

Appendix C: Simplified Diagram of the Process for Developing (and Amending) FMPs and 

Implementing Regulations Under the MSA 14
 

Appendix D: Fishery Management Actions.............................................................................................. 15
 

Appendix E: Agency Response ................................................................................................................... 16
 
- 

 

 

 

 

 

 

 

 

 

 

 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

Introduction 

On August 17, 2011, Congressmen Barney Frank and John F. Tierney asked OIG to review 

controls and processes used by NOAA’s Fishery Management Councils (FMCs) to develop 

rules for the commercial fishing industry—known as fishery rulemaking. The request was 

prompted by concerns that NOAA’s National Marine Fisheries Service (NMFS) had abandoned 

its core missions of "development of the commercial fishing industry" and "increasing industry 

participation." 1 FMCs are funded through cooperative agreements with NMFS. See figure 1 for 

an overview on fishery rulemaking. 

We are conducting this review of rulemaking in several 

phases, and we expect to generate additional reports. In this 

first phase, we evaluated the role of NOAA and the FMCs in 

the fishery rulemaking process and the transparency of the 

rulemaking process prescribed under the Magnuson-Stevens 

Fishery Conservation and Management Act (MSA).2 

Appendix A includes the objectives, scope, and methodology 

of this phase of the review. 

We found that while NMFS has complied with the MSA 

requirements we reviewed and has taken actions to improve 

implementation of the MSA, (1) its required financial 

disclosures for FMC members who vote do little to increase 

transparency and lack effective review, (2) NMFS has not fully 

implemented regulatory streamlining remedies, and (3) rules 

packages and administrative records supporting fishery 

management actions are not maintained uniformly at NMFS 

regional offices. 

Subsequent products related to our review of fishery 

management will look further into NOAA and the FMCs and 

the rules they develop. 

MSA and Subsequent Reauthorization 

The legislation that directs how NOAA manages the nation’s 

fisheries3

— and the principal law that governs the fishery 

rulemaking process—is the MSA. Since it was first enacted in 

Magnuson Stevens Act 

Reauthorized in 2006 

Fishery Management 

Councils 

With input from stakeholders 

propose fishery management 

alternatives 

Fishery Management Plans 

Required by the MSA to 

manage stocks of fish off the 

U.S. coast 

Fishery Management 

Actions 

Implemented by NMFS 

Figure 1. Fishery 

Management Rulemaking 

Source: OIG 1976, Congress has amended the MSA several times, and as a 

result, fisheries management has undergone significant changes 

in goals and priorities. The requirement to rebuild overfished 

1 August 17, 2011, letter from Congressmen Barney Frank and John F. Tierney to Department of Commerce 

Inspector General.
 2 16 U.S.C. § 1801 et seq.
 3 A fishery refers to the activities involved in catching a species of fish (or shellfish) or a group of species that
 

share the same habitat.
 

FINAL REPORT NO. OIG-13-011-I 1 
 

 

 

 

 

 

-

 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

fisheries within 10 years, subject to certain exceptions, was added to the MSA in 1996. When 

the MSA was last reauthorized in 2007,

4 its rebuilding provisions were amended to require an 

immediate end to overfishing. In addition, new requirements for annual catch limits and 

accountability measures to address overfishing were added. Appendix B summarizes the goals 

of the MSA reauthorization and NOAA’s implementation of the changes. 

Fishery Management Councils 

As shown in figure 2, eight regional FMCs established by the MSA and funded through 

cooperative agreements with NMFS, work with NOAA and the public to prepare and maintain 

fishery management plans for fisheries under their authority. In fiscal year 2012, base programmatic 

funding allocated to the eight FMCs totaled $28 million. 

Figure 2. NOAA Regional Offices and Associated FMCs 

NOAA 

Northeast 

Regional 

Office 

New 

England 

FMC 

Mid 

Atlantic 

FMC 

NOAA 

Southeast 

Regional 

Office 

South 

Atlantic 

FMC 

Gulf of 

Mexico 

FMC 

Caribbean 

FMC 

NOAA 

Pacific 

Islands 

Regional 

Office 

Western 

Pacific 

FMC 

NOAA 

Southwest 

Regional 

Office 

NOAA 

Northwest 

Regional 

Office 

Pacifc FMC 

NOAA 

Alaska 

Regional 

Office 

North 

Pacific 

FMC 

Source: OIG 

FMCs develop fishery management plans and management measures for the fisheries in 

statutorily prescribed areas within the exclusive economic zone (EEZ).

5 They are also 

responsible for developing operating procedures for committee and advisory group meetings 

and for developing fishery management plan amendments. NMFS approves, disapproves, or 

partially approves FMC-developed plans and amendments and implements approved measures. 

There are 114 voting members on the eight FMCs, of which 72 were appointed by the 

Commerce Secretary based on nominations from state governors. Other voting council 

4 Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, Pub. L. No. 109-479 

(2007). 

5 An EEZ generally extends from 3–200 nautical miles offshore. Coastal states are responsible for managing 

fisheries within state waters, which extend out to 3 nautical miles for most states but 9 nautical miles for Florida 

and Texas. 

FINAL REPORT NO. OIG-13-011-I 2 
 

 

 

 

 

 

 

 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

members include representatives from the constituent states and NMFS regional 

administrators. 

Each FMC has an executive director who reports to the council chair or to the head of a 

council executive committee. While council members include nonfederal, federal, and state 

officials, 6 FMC staffs are nonfederal employees. Staff size ranges from 9 (at the Caribbean FMC) 

to 19 (at the Gulf of Mexico FMC). Council staff members provide information for management 

decisions, inform the public about council activities, coordinate meetings, create fishery 

management documents, and assist council advisory groups. 

Fishery Management Plans 

The regulation of U.S. fisheries is based on fishery management plans (FMPs or plans). An FMP 

is a set of management objectives, and strategies for achieving these objectives within a specific 

fishery. The FMCs make decisions within the framework outlined in each plan while NMFS uses 

the plans to issue federal regulations. 

FMPs are intended to preserve and repair fisheries while minimizing adverse effects on 

dependent communities through a formal process that incorporates scientific data, the 

knowledge of council members and advisory bodies, and public input. Once a plan or 

amendment is developed by the FMC, it is submitted to the Commerce Secretary7 who 

approves, partially approves, or disapproves the plan. Currently, the eight regional FMCs and 

NMFS manage 46 FMPs. 

National Standards 

The MSA requires that FMPs are developed and amended using the best scientific information 

available8 and within the boundaries of the MSA’s 10 national standards, which are listed in table 

1.9 The national standards are statutory principles that must be followed when developing, 

amending, and implementing FMPs. The public has an opportunity to comment on FMPs as part 

of the regulation-setting process designed to encourage public involvement and promote 

transparency. Appendix C summarizes FMP development (and amendment) and regulatory 

processes. 

6 Council members are from federal and state governments, commercial and recreational fisheries, academia, the 

conservation community, and Indian tribal governments. Members are appointed to obligatory (state-specific) or 

at-large (region-specific) seats. 7 The authority for certain actions—such as review of the FMP/amendment, supporting documentation, publication 

of proposed regulations, and issuance of the final rule—has been delegated from the Commerce Secretary to 

NOAA officials. 8 NMFS’s National Standard Guidelines state that “scientific information includes, but is not limited to, information 

of a biological, ecological, economic, or social nature. Successful fishery management depends, in part, on the 

timely availability, quality, and quantity of scientific information, as well as on the thorough analysis of this 

information, and the extent to which the information is applied. If there are conflicting facts or opinions relevant to 

a particular point, a Council may choose among them, but should justify the choice.” 50 C.F.R. § 600.315(b)(1). 9 NOAA regulations summarize the Commerce Secretary’s interpretations of the national standards, which are 

guidelines intended to aid the councils in formulating FMPs. 50 C.F.R. §§ 600.305–.355. 

FINAL REPORT NO. OIG-13-011-I 3 
 

 

 

 

 

 

 

 

 

e

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

Table I. National Standards of the MSAa 

Conservation and management measures shall: 

 1 Prevent overfishing while achieving optimum yield. 

 2 Be based upon the best scientific information available. 

 3 Manage individual stocks as a unit throughout their range, to the extent practicable; interrelated stocks shall 

be managed as a unit or in close coordination. 

 4 Not discriminate between residents of different states; any allocation of privileges must be fair and 

quitable. 

 5 Where practicable, consider efficiency, except that no such measures shall have economic allocation as its 

sole purpose. 

 6 Take into account and allow for variations among and contingencies in fisheries, fishery resources, and 

catches. 

 7 Minimize costs and avoid duplications, where practicable. 

Take into account the importance of fishery resources to fishing communities to provide for the sustained 

 8 participation of, and minimize adverse impacts to, such communities (consistent with conservation 

requirements). 

9 Minimize bycatchb or mortality from bycatch. 

10 Promote safety of human life at sea. 

Source: NMFS
 a

Listed here are summaries of the National Standards set forth in section 301(a) of the MSA. Additional 

information and the Commerce Secretary’s guidance on the National Standards are set forth in 50 C.F.R. 600.305 

et seq.
 b

The term bycatch means fish that are harvested in a fishery, but not sold or kept for personal use, and includes
 

economic discards and regulatory discards. Such term does not include fish released alive under a recreational
 

catch and release fishery management program.
 

Types of Fishery Management Actions 

Table 2 shows fishing regulations and related announcements that NMFS has adopted since 

2009 under the MSA rulemaking process. Types of fishery management actions include 

proposed rules, final rules, in-season actions that implement previously published regulations, 

emergency rules, and notices to the public of various actions affecting the fisheries. Appendix D 

describes the different types of fishery management actions. 

Table 2. Summary of NOAA Fishing Regulations Under the Magnuson-Stevens Fishery 

Conservation and Management Act 

Type of Fishery Management Action 2011 2010 2009 

Proposed rules 75 50 60 

Final rules 86 61 62 

In-season actions 155 161 162 

Emergency rules and interim measures 7 15 3 

Notices 82 55 44 

Source: OIG with statistics provided by NMFS Office of Sustainable Fisheries 

Note: Regulations may take more than 1 year to complete; thus, the numbers in the table only illustrate general 

levels of regulatory action from year to year. 

FINAL REPORT NO. OIG-13-011-I 4 
 

 

 

 

 

 

 

 

 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

Findings and Recommendations 

I. FMC Voting Members’ Financial Disclosures Do Little to Increase Transparency 

and Lack Effective Review 

To meet the financial disclosure requirements stated in the MSA,10 NOAA asks that the voting 

council members and council member nominees disclose financial interests on a Statement of 

Financial Interests form.

11 The MSA does not require FMC staff to submit financial disclosure 

forms. 

We reviewed 72 publicly available disclosure statement forms for current voting council 

members and noted more than 20 instances where required information was missing (see table 

3).12 The omissions indicate ineffective review, and thus, information disclosed may be 

inaccurate or incomplete. 

Table 3. Information Missing from Statements of Financial Interests 

Missing Required Information Instances Noted 

Degree of ownership (e.g., percentage) 3 

Start date of financial interest 5 

Address of organization 6 

Fisheries of interest 2 

Relationship to interest (e.g., marketing, guide, or charter) 2 

Acknowledgment of no financial interests to disclose 4 

Total 22 

Source: OIG 

Instructions on NOAA’s Statement of Financial Interests are, at times, ambiguous. For example, 

in one area, the instructions explain that conflicts of interests between council-related actions 

and activities must be reported; another area instructs that if there are “no financial interests to 

disclose,” simply check the appropriate box and fill out the last page (which only requires 

general information and a signature). This type of instruction allows each council member to 

judge what information to disclose and how to disclose it. When council members interpret the 

instructions differently, the standard is blurred, which may lead to inconsistent reporting. 

On the Statement of Financial Interests, NOAA instructs that the amount of financial interest is 

not required to be disclosed. However, without this information, NOAA, individual FMCs, and 

the public are unable to properly determine if the reported financial interests exceed the 

10 The MSA states that “Each affected individual must disclose any financial interest held by— (A) that individual; 

(B) the spouse, minor child, or partner of that individual; and (C) any organization (other than the council) in which 

that individual is serving as an officer, director, trustee, partner, or employee; in any harvesting, processing,
 

lobbying, advocacy, or marketing activity that is being, or will be, undertaken within any fishery over which the 

Council concerned has jurisdiction, or with respect to an individual or organization with a financial interest in such 

activity.” 16 U.S.C. § 1852(j)(2).
 11 NOAA Form 88-195 (Sept. 1993).
 12 In 9 instances, the “nothing to disclose” box was checked, but information was disclosed.
 

FINAL REPORT NO. OIG-13-011-I 5 
 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

thresholds and whether the council member should be excluded from voting on issues that 

conflict with financial interests. 

Each council member subject to the MSA financial disclosure requirements is responsible for 

ensuring information on the form is complete and accurate. According to NMFS officials, the 

NMFS Office of Sustainable Fisheries reviews the disclosures but does not independently verify 

the information. 

We also found that instruction provided to FMC executive staffs on how to review for or 

report potential red flags on disclosure forms in their jurisdiction is limited and informal. In one 

instance, we spoke with an executive director who suspected misreporting by a council 

member yet felt there was no available recourse or means to discover whether a misreporting 

had actually occurred. Review by council leadership can be a valuable tool if review methods 

and escalation procedures are in place. However, the general perception of executive staffs 

seems to be that, aside from meeting the requirements of the MSA, very little value comes 

from completion of these forms. 

To increase the transparency provided by financial interest disclosures and assist voting FMC 

members in avoiding conflicts between official council duties and private financial interests or 

affiliations, the Assistant Administrator for NOAA Fisheries should strengthen financial 

disclosure requirements and procedures. 

Recommendations 

We recommend that the Assistant Administrator for NOAA Fisheries strengthen: 

1.	 policy guidance on financial disclosure by FMC voting members, with emphasis on how 

NOAA intends to handle specific consequences for conflicts or potential conflicts it 

identifies; 

2.	 processes for formal reviews of financial interest disclosures, considering the time 

period that the disclosure covers, how financial interest amounts relate to voting 

restrictions, and when affiliations with outside organizations should be reported; and 

3.	 criteria for identifying conflicts of interest and processes to follow up on any conflicts 

that are identified. 

II. NMFS Has Not Fully Implemented Regulatory Streamlining Remedies 

In 2003, based on direction from Congress and as a result of regulatory challenges and court 

cases that NOAA faced related to fishery management, NMFS developed a Regulatory 

Streamlining Project (RSP). The RSP responds to criticisms of the fishery management process 

from Congressional members, their constituents (such as fishers), and other knowledgeable 

individuals. Criticisms include a lack of clarity in responsibilities among NMFS regional offices, 

science centers, and the FMCs and disconnected processes between NMFS and the FMCs. 

Table 4 summarizes the progress NMFS has made in implementing changes described in the 

RSP. 

FINAL REPORT NO. OIG-13-011-I 6 
 

 

 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

Table 4. Changes NMFS Proposed in the RSP and Status of Implementation 

Proposed Changes Implemented Partially 

Implemented 

Front-loading the NEPA process X 

Revising the Operational Guidelines for the 

Fishery Management Process 

Establishing a national training program X 

Hiring environmental policy coordinators X 

Improving the administrative process X 

Improving the fishery management process X 

Addressing science issues X 

Workforce organization/prioritization X 

Unimplemented 

X 

Source: OIG and Regulatory Streamlining Report to Congress13 

Note: NEPA = National Environmental Policy Act.14 

NMFS described the RSP as proposals that are the result of years of activities, which led to a 

larger effort to improve fishery management. As NMFS developed and began implementing its 

RSP, it also cautioned that more staff and funding would be needed to fully implement it. NMFS 

received $2.5 million in its FY 2005 appropriation for the RSP. As of 2012, the RSP has not 

been fully implemented. 

One of the many components of the RSP was revision of the Operational Guidelines for the 

Fishery Management Process. The guidelines identify past problems in developing FMPs and 

managing fisheries, such as delays and inefficiencies, and explain how NOAA and the Councils 

will work together to integrate the many statutory requirements that apply to the development 

of fishery management actions. The current Operational Guidelines, dated August 2005, remain 

in draft form. Although the guidelines are available to NMFS employees through their 

Regulatory Services intranet page, the guidance has not been finalized, and several NMFS 

employees we interviewed were unaware of or only vaguely aware of the guidelines. 

Additionally, elements of the draft guidelines that could help to improve fishery management 

processes have not been fully implemented. One example is the regional operating agreement 

between each NMFS regional office and its FMCs. The purpose of the agreement is to provide a 

clear understanding of roles, responsibilities, and obligations between FMCs and NMFS regional 

offices. As of summer 2012, only one of the eight councils had a regional operating agreement 

with its NMFS regional office. 

When questioned about why the guidelines were not finalized, NMFS officials explained that 

National Environmental Policy Act (NEPA) requirements, reauthorization of the MSA, and 

demands on Office of General Counsel staff affected the review and approval process for the 

Operational Guidelines and regional operating agreements. In 2005, NMFS officials indicated 

13 NMFS submitted the “Report to Congress on the Regulatory Streamlining Project” on December 16, 2002, with
 

a stated goal to improve the efficiency and effectiveness of NMFS operations and increase compliance with all 

procedural requirements.
 14 National Environmental Policy Act of 1969, 83 Stat. 852, 42 U.S.C. § 4321et seq.
 

FINAL REPORT NO. OIG-13-011-I 7 
 

 

 

 

 

 

 

 

 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

that the delay in formal issuance of the guidelines had not significantly affected progress in 

implementing regulatory process improvements. 15 

Without the guidelines, expectations that should be clearly defined and communicated early 

on—such as responsibility between NMFS and the FMCs for preparation of documents 

supporting fishery management decisions and designation of which reports need to be 

produced by which entity and with what frequency (e.g., Stock Assessment and Fishery 

Evaluation reports16 and fishery performance reports)—may not be stated and understood. 

There is greater opportunity for miscommunication and frustration in an already complex and 

time-consuming process, especially when staff changes at NMFS and FMCs can lead to practices 

that differ from those followed previously. 

NMFS officials explained to us that they have not finalized the agreements because all of the 

regions have established individual coordination systems;17 however, communicating and 

documenting processes and expectations should give NOAA a better opportunity to identify 

necessary tasks and ensure they are appropriately assigned and completed. 

Recommendations 

We recommend that the Assistant Administrator for NOAA Fisheries: 

1. finalize draft Operational Guidelines and provide them to NMFS regional offices and 

2. finalize regional operating agreements between NMFS regional offices and FMCs. 

III. Maintenance of Rules Packages and Administrative Records Needs to Be 

Consistent 

The role of the NMFS Sustainable Fisheries Division is to collaborate with and advise FMCs in 

their respective jurisdictions by contributing to the development and implementation of FMPs 

and other actions. The Sustainable Fisheries Division in the NMFS regional offices maintains the 

official written records supporting regulations implementing FMPs within their geographical area 

of responsibility. 

However, record-keeping processes and file organization are not uniform across NMFS regional 

offices. Of the four regional offices we visited, one has a records officer, whereas the others 

rely on various staff familiar with the particular regulation to store and maintain the supporting 

15 National Academy of Public Administration, “Improving Fisheries Management: Actions Taken In Response to
 

the Academy’s 2002 Report.” Report for Congress and the NMFS, February 2005.
 16 The Stock Assessment and Fishery Evaluation reports provide to FMCs the most recent biological condition of 

stock and the marine ecosystems in the fishery management unit and the social and economic condition of the 

recreational and commercial fishing interests, fishing communities, and fish processing industries. 50 C.F.R. § 

600.315(e)(1). The reports periodically summarize the best available scientific information concerning the past,
 

present, and possible future condition of the stock, marine ecosystems, and fisheries being managed under federal
 

regulation. The information may be used to update or expand previous environmental and regulatory impact
 

documents and ecosystem and habitat descriptions.
 17 According to NMFS officials, region–FMC pairs have systems for assigning and tracking tasks and responsibilities.
 

The systems are documented in varying formats, including flowcharts, and are often informal.
 

FINAL REPORT NO. OIG-13-011-I 8 
 

 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

documentation. Normally, the information is stored centrally and in a combination of manual 

and electronic or digital formats, including scanned images. The large volume of inconsistently 

maintained documents made our review more complicated. This lack of standardization would 

also make it difficult for NMFS headquarters to provide effective oversight. For example, 

standardization would allow headquarters the opportunity to ensure regional offices sufficiently 

maintained the necessary documentation for each rule in the event of a Freedom of Information 

Act request or a lawsuit. Uniform procedures for managing documentation supporting fishery 

regulations are needed to help ensure that the documentation supporting regulations is 

complete and accessible. For the fishery management actions we examined, we noted that 

NMFS regional offices either submitted proposed rules to the science center18 for review or 

certified in decision memos that the action was consistent with national standard 2, requiring 

the use of the best scientific information available. Table 5 in appendix A contains the final rules 

we reviewed and the date when each was published in the Federal Register. 

Recommendation 

We recommend that the Assistant Administrator for NOAA Fisheries: 

1.	 develop uniform procedures for the collection, management, and maintenance of 

documents supporting decisions and administrative records associated with fishery 

regulations. 

18 NMFS science centers generate scientific information and analyses in support of fishery conservation and 

management. The centers plan, develop and manage NMFS’ scientific research programs related to fisheries. 

FINAL REPORT NO. OIG-13-011-I 9 
 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

Summary of Agency Response and OIG 

Comments 

On December 18, 2012, we received NOAA’s comments on our draft report, which we 

include as appendix E of this report. NOAA did not dispute our findings. Also, NOAA accepted 

all recommendations and had no comments, concerns, or suggestions regarding them. NOAA 

provided clarifications and additional technical information related to implementation of the 

MSA. We considered NOAA’s suggestions in preparing this final report and made several of the 

suggested changes. 

FINAL REPORT NO. OIG-13-011-I 10 
 

 

 

 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

Appendix A: Objectives, Scope, and 

Methodology 

We initiated this review of controls and processes used by NOAA and the FMCs as related to 

developing rules for the commercial fishing industry, pursuant to a joint request made by 

Massachusetts Congressmen Barney Frank and John Tierney on August 17, 2011. 

This is our first report on FMCs and rulemaking. Our review will be conducted in phases and 

will result in possible additional products produced at several intervals. In this phase of the 

review, our objectives were to evaluate the role of NOAA and the FMCs in the fishery 

rulemaking process and the transparency of the rulemaking process prescribed under the MSA: 

•	 We identified fishery management rules developed by NOAA during the period 2007– 

2011 as a result of the MSA. 

•	 We examined rules packages and administrative records for a selection of fishery 

regulations in four of the six NMFS regions, comparing the process that was followed 

with what was described in the laws and regulations. Table 5 lists the fishery 

management actions we reviewed. 

•	 We collected publicly available information on standard rulemaking practices, including 

practices deployed elsewhere within the Department of Commerce. 

•	 We compared the rulemaking process employed by NOAA with the prescribed 

Administrative Procedure Act19 process.
 

•	 We compiled standard information from the eight regional FMCs, visited three council 

offices (New England, Gulf of Mexico, and Pacific FMCs), and interviewed council 

members and staff (including administrative officers, fishery biologists, economists, and 

an anthropologist). 

•	 We interviewed the eight FMC executive directors. 

19 The Administrative Procedure Act, 5 U.S.C. § 551 et seq., was passed in 1946 to clarify the process of making 

regulations and to allow greater accessibility and participation by the public in the rulemaking process. 

FINAL REPORT NO. OIG-13-011-I 11 
 

 

 

 

 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

Table 5. Summary of Fishery Management Actions Reviewed 

NMFS Regulatory Description Date the Final Rule 

Region ID Was Published in the 

Federal Register 

Northeast 0648-AW72 Implements Amendment 16 to the Northeast 

Multispecies FMP 

4/9/2010 

0648-BA23 Implements the Omnibus Annual Catch 9/29/2011 

Limits/Accountability Measures Amendment 

0648-AY29 Implements measures in Framework Adjustment 44 to 

the Northeast Multispecies FMP 

4/9/2010 

0648-AW87 Secretarial interim action implementing measures to 4/13/2009 

reduce fishing mortality and maintain stock rebuilding at 

the Northeast Multispecies Fishery 

Southeast 0648-AV14 Revises allowable bycatch reduction devices for the Gulf 

of Mexico Shrimp Fishery 

11/18/2008 

0648-AY55 Implements amendments to the Queen Conch and Reef 12/30/2011 

Fish FMPs of Puerto Rico and the U.S. Virgin Islands 

(fisheries of the Caribbean, Gulf of Mexico, and South 

Atlantic) 

0648-BA54 Regulatory Amendment to the FMP for the reef fish 

resources of the Gulf of Mexico (GOM) to implement a 

2011 total allowable catch for GOM red snapper 

4/29/2011 

0648-AY11 Amendments to the Snapper–Grouper FMP 12/30/2010 

Southwest 0648-AW50 Initiates collection of a permit fee for vessel owners 

participating in commercial and charter recreational 

fishing for highly migratory species 

7/28/2009 

0648-BA49 Revises vessel identification requirements for fishing 11/29/2011 

vessels with west coast highly migratory species permits 

0648-AU26 Implements Amendment 12 to the Coastal Pelagic 

Species FMP, prohibiting harvest of all species of krill off 

the West Coast (i.e., California, Washington, and 

Oregon) 

7/13/2009 

Northwest 0648-AY68 Implements Amendments 20 and 21 to the Pacific Coast 10/1/2010 

Groundfish FMP (Trawl Rationalization Program) 

Source: OIG 

We conducted this evaluation from January 2012 to July 2012, under the authority of the 

Inspector General Act of 1978, as amended, and Department Organization Order 10-13, dated 

August 31, 2006, as amended. We conducted the evaluation in accordance with the Quality 

Standards for Inspection and Evaluation, January 2011, issued by the Council of the Inspectors 

General on Integrity and Efficiency. 

FINAL REPORT NO. OIG-13-011-I 12 
 

 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

Appendix B: Goals of MSA Reauthorization and 

NOAA Implementation Priorities 

The MSA is the predominant legislation for U.S. conservation and management of fisheries. 

Over the years in an attempt to improve implementation of the requirements of the MSA and 

to promote more effective decision making and fishery management, Congress revised the 

MSA. Table 6 outlines the goals of the most recent revisions to the act and NOAA’s priorities 

for implementing them. 

Table 6. Overview of the Goals of the Reauthorized MSA 

Goals of MSA Reauthorization NOAA Implementation Priorities 

 More stringent requirements to end and 

prevent overfishing 

 Expansion of management tools 

 Increased use of science 

 Improved international cooperation 

 Develop and expand annual catch limits 

 Improve data on recreational fishing 

 Address bycatch, illegal, unreported, and 

unregulated fishing 

 Streamline MSA and National 

Environmental Policy Act requirements 

Source: NMFS 

A primary goal of the reauthorized MSA was to end and prevent overfishing through the use of 

annual catch limits and accountability measures, which were required to be implemented by 

2010 for stocks subject to overfishing and by 2011 for all others (with the exception of those 

limited by annual life cycles or international agreements). FMCs use various tools—including 

annual catch limits and limited access privilege programs (LAPPs), as well as general catch limits, 

trip limits, seasons, gear restrictions, and bag limits—to prevent overfishing. LAPPs involve 

transferable permits, which specify the amount of catch that may be harvested during a given 

time period. 

To effectively meet MSA goals and use new management tools, FMC decisions must be based 

on timely, reliable scientific information. This creates a need for FMCs to have close 

relationships with their science centers. The MSA requires that FMCs develop 5-year research 

plans outlining their anticipated needs and priorities. One area of scientific data that has 

historically been a challenge to gather is recreational fisheries. Therefore, NOAA has made 

improvement of recreational fishery data a priority. 

The requirements of both MSA and NEPA have a substantial effect on the enactment process of 

fishery management rules. The details of these requirements and effects are substantial and are 

outside the scope of this report. Note, however, that the acts have overlapping, as well as 

individual, requirements and time frame restrictions. Careful planning by both NMFS and the 

FMCs is needed to ensure that every requirement is met in the prescribed time frame. 

FINAL REPORT NO. OIG-13-011-I 13 
U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

 

Appendix C: Simplified Diagram of the Process 

for Developing (and Amending) FMPs and 

Implementing Regulations Under the MSA 

Fishery Management Plan Regulations Process 

(FMP) Process 

ries

 

 

 

 

 

 

2b. Proposed rules 

are developed 

either by the FMC, 

NMFS, or 

collaboratively. 

2a. FMC holds 

public meetings 

and develops (or 

drafts an amendment to) an FMP. 

4a. FMC transmits 

proposed 

FMP/amendment 

to NMFS. 

3. OMB reviews 

listing documents 

for proposed rules 

and determines 

whether they are 

significant, based 

on Executive Order 

(EO) 12866a 

criteria. 

1. FMC and NMFS 

identify a need for 

conservation and 

management in a 

fishery. 5b. Within 5 days after transmittal 

of a proposed rule, NMFS must 

initiate a review to determine 

whether the rule is consistent 

with the MSA, the FMP, and other 

applicable laws. 

5a. Within 5 days of transmittal, 

NMFS notifies the public of the 

FMP/amendment via the Federal 

Register for a 60-day public 

comment period. 

7b. NMFS reviews and responds to public comments in the 

final rules. NMFS submits final rules to the Federal Register 

for publication. The Administrative Procedure Act provides 

that final rules generally do not take effect until 30 days 

after publication. 

7a. NMFS considers public comment and reviews proposed 

FMP/amendment to determine compliance with national 

standards, other MSA provisions, and other applicable law, 

including EO 12866, the Regulatory Flexibility Act, 

b the ESA,c 

and the NEPA. The Secretary must approve, disapprove, or 

partially approve the FMP/amendment within 30 days after 

the end of the 60-day notice and comment period. 

6. Within 15 days of initiating the evaluation 

under 5b, NMFS must complete the initial 

review and, if the determination is 

affirmative, must publish the proposed rule 

in the Federal Register for a comment period 

of 15–60 days. 

8. If judicial review is 

sought, it must be 

instituted within 30 

days of publication in 

the Federal Register. 

During a judicial 

review, final rules are 

still effective. 

4b. FMC transmits 

proposed 

regulatory text to 

NMFS. 

Source: OIG with input from NMFS Office of Sustainable Fisheries a

Exec. Order No. 12866, 58 Fed. Reg. 51,735 (Oct. 4, 1993). 

b

Regulatory Flexibility Act, 5 U.S.C. § 601 et seq.20 

Endangered Species Act, 16 U.S.C. § 1531 et seq. c

The Regulatory Flexibility Act requires federal agencies to consider the effects of their regulatory actions on 

small businesses and other small entities and to minimize any undue disproportionate burden. The chief counsel 

for advocacy of the U.S. Small Business Administration is charged with monitoring federal agencies' compliance 

with the act and with submitting an annual report to Congress. 

20 

FINAL REPORT NO. OIG-13-011-I 14 
 

 

 

 

 

 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

Appendix D: Fishery Management Actions 

Proposed rules – Announcements of agencies’ plans to manage fishing activities and 

implement objectives stated in FMPs that give interested persons an opportunity to submit 

comments to improve the final regulation. 

Final rules – Regulations that have gone through the rulemaking process, are approved by the 

Commerce Secretary, and have final legal effect. The codified text is published in the Code of 

Federal Regulations. 

In-season actions – Regulatory actions taken pursuant to, or implementing, regulations that 

have been published in the Federal Register. Examples include closing or reopening a fishery and 

transferring quota. (These do not make changes to the Code of Federal Regulations.) 

Emergency rules and interim measures – Regulations issued in response to events or 

problems that require immediate action, such as a public health emergency or oil spill. 

Emergency rules are limited to 180 days and can be extended for an additional 180 days if 

public comment has been taken. 

Notices – Non-rulemaking documents, which do not have regulatory effect, used to inform 

and involve the public. Examples include notices of availability (of FMPs and FMP amendments), 

notices of permit issuances and applications, notices of stock status determinations, notices of 

intent to prepare National Environmental Policy Act documents, and corrections. 

FINAL REPORT NO. OIG-13-011-I 15 
U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL 

Appendix E: Agency Response
 

FINAL REPORT NO. OIG-13-011-I 16 
U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL
 

FINAL REPORT NO. OIG-13-011-I 17 

Department of Commerce 

National Oceanic and Atmospheric Administration 

Comments on the Draft OIG Report Entitled 

"KOAA Needs to Continue Streamlining the Rulemaking Process and Improve 

Transparency and Consistency in Fisheries Management" 

General Comments 

In general, NOAA Fisheries feels the inforrnaLion and feedback contained in the draft report are 

both accurate and constructive, and we look forward to the development of an action plan to 

address the recommendations. Outlined below are comments NOAA believes will further 

enhance and improve the accl.lfacy and clarity of the final report. 

Your cover memo notes your appreciation for the assistance from NOAA staff during the review. 

NOAA would also like to extend our appreciation to your staff for their effort to understand fully 

the complexity of the regulatory process and their dedication to completing this comprehensive 

rev1ew. 

Recommended Changes for Factualffechnical Information 

Page I, paragraph 3. 

Some of the requirements mentioned are not specifically required by the MSA. For clarity, 

1\0AA offers the following amendmentto the first sentence so it is revised to read:"--- complied 

with certain MSA requirements and taken additional actions to improve implementation, (1) its 

required finam;ial disdosures .... " 

Page 1. Footnote 2. 

The reference should be to 1Q U.S.C. 1801, et seq., not "6 U.S.C." 

Page I, Footnote 3. 

This footnote defines "fishery" more narrowly than the f'v1SA. Hased on MSA definitions of 

"fishery" and "stock offish" at 16 U.S.C. §§ 1802(13) and (42), we offer the following language 

to better conform with these definitions: "A fishery refers to fishing for a species, subspecies or 

other grouping offish (which includes shellfish) that can be treated as a unit for conservation and 

management purposes and identified based on geographical, scientific, technical, recreational, 

and economic characteristics." 

Page I, last sentence, continuing on topuge 2. 

Note that MSA section J04(e) sets forth rebuilding requirements and section 303(a)(l5) sets 

torth requirements for annual catch limits and accountability measures. 16 U.S.C. §§ 1854(e) 

and 1853(a)(15). For clarity about tl1e timeline of changes to these MSA provisions, we offer the 

following language (starting changes with the second sentence of the paragraph): 

"Since it was fust enacted in 1976, Congress has amended the MSA several times and as 

a result fisheries management has undergone significant changes in goal and priorities. 

The requirement to rebuild overfished fisheries \vi thin 10 years, subject to certain 

exceptions, \Vas added to tbe MSA in 1996. When the MSA was last reauthorized in 
FINAL REPORT NO. OIG-13-011-I 18 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL
 

2007, 1 its rebuilding provisions were amended to require ending overfishing 

'immediately.' In addition, new requirements for annual catch limits and accountability 

measures to address overfishing were added." 

Page 2, third paragraph, line 2 

In lieu of the words, "within their exclusive economic zone (EEZ)," we offer the following 

language to be more accurate: "within statutorily-prescribed areas within the exclusive 

economic zone (EEZ)." See 16 U.S.C. § 1852(a)(l) (describing geographical areas of 

responsibility for each regional fishery management council). 

Page 2, Footnote 5. 

For federal fisheries management purposes under the MSA, note that the inner boundary of the 

EEZ is the seaward boundary of each of the coastal States. 16 U.S.C. § 1802(11). Most states' 

seaward boundary is 3 nm offshore. In a few cases, the boundary is 9 nm offshore. Also, please 

note that the MSA allows for State regulation of its fishing vessels outside the boundaries ofthe 

State in ce11ain circumstances, 16 U.S.C. § 1856(a)(3), and provides a process for federal 

management within state waters in certain limited circumstances, 16 U.S.C. § 1856(b). To be 

more accurate, we offer the following revision to Footnote 5 to read as follows: "The EEZ 

generally extends from 3-200 nautical miles offshore. Coastal states are responsible for 

managing fisheries within state waters, which extend out to 3 nautical miles for most states but 9 

nautical miles for Florida and Texas." 

Page 2, third paragraph, 41

h line. 

Please note that NMFS does not always "approve" an FMC's recommendation. NMFS must 

approve, disapprove or partially approve a fishery management plan or amendment based on 

whether the action is consistent with applicable law. 16 U.S.C. § 1854(a)(3). To be more 

accurate, we offer the following language instead: "NMFS approves, disapproves or partially 

approves Coum:il-devdoped plans and amendments and implements approved measures." 

Page 2, last sentence. 

To more accurately refle<:t the representation on the Councils (16 U.S.C. § 1852(b)(1)), we offer 

the follo'\\-i.ng language to replace that sentence: "Other voting council menibers include 

representatives from the constituent states and NMFS regional administrators." 

Page 3, First paragraph, second and fourth sentences. 

Whether an FMC employee is treated as an employee of the Executive Branch is a complex 

issue, and requires an analysis of the particular law (statute, regulation, executive order) at issue. 

For example, FMC staff are not considered federal "employees" under 5 U.S. C.§ 2105; Title 5 

of the U.S. Code sets forth general provisions regarding Government Organization and 

Employees. However, they have been considered "special government employees" for purposes 

of criminal conflict-of-interest statutes set forth at 18 U.S.C. § 207. To be more accurate, we 

offer the following language to replace the independent clause of the second sentence: "the status 

of FMC staffs as Executive Branch employees depends on the particular statute or other law at 

issue." We further offer the suggestion of deleting the word "member" from the fourth sentence 

so as to avoid confusion from the current reference to "Council staff members." 

1 Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of2006, Pub. L. No. 109-479 

(2007). [Note: This is in current draft report as footnote 4]. 
U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL
 

FINAL REPORT NO. OIG-13-011-I 19 

Page 3, First paragraph, /"line. 

We note that rulemaking is an activity conducted by NMFS to implement an approved-FMC 

recommendation. We suggest distinguishing the FMC's role in providing for public input during 

the development of fishery management recommendations (see 16 U.S.C. § 1852(h)(3) (public 

hearings by Council during development of plans and amendments) from NMFS 's provision of 

public participation opportunities during rulemak.ing (see 16 U.S.C. § 1854(b) (rulemak.ing 

action by Secretary)). In order to draw that distinction, we offer the following language to 

replace the words "rulemaking process": "development of management recommendations." 

Page 3, paragraph 3, first sentence. 

The description of FMPs should specifically state the conservation requirements of the YfSA. 

See e.g. 16 U.S.C. §§ 185l(a) (specifying that national standards for FMPs include preventing 

overfishing and minimizing bycatch and bycatch mortality), 1853(a)(15) (requiring FMPs to 

have ammal catch limits such that overfishing does not occur) and 1854(e) (requiring rebuilding 

overfished fisheries). To be a more complete statement, we offer the following rewording to the 

first part of this sentence: "FMPs are intended to rebuild overfished fisheries, end overfishing 

and achieve other conservation and management goals while minimizing adverse effects on ... " 

Page 3, paragraph 3. second sentence. 

As explained above in comments for Page 2, third paragraph. l" line, note that the Secretary's 

approval, disapproval or partial approval is .based on whether an FMP or amendment is 

consistent with applicable law. 

Page 3, 4th paragraph, third sentence. 

We note that the puhlic has opportunities to comment on Fiv1Ps both through the council process 

during development of the FMP, and during the agem.:y review and rulemaking stages tlu:ough 

formal notice and comment We offer the following to replace that sentence in order to identify 

all opportunitjes for puhlic input: "As part of the statutory MSA process, designed to encourage 

public participation and promote transparency, the public hm; ari opportunity to comnl.ent on 

FMPs both during their development at the couneillevel, and then through NMFS's formal 

public review process, and subsequent formal rulemaking process for implementing regulations." 

Page 3, Footnote 9. 

Please note that National Standard Guidelines are "advisory guidelines (which shall not have the 

force and effect oflaw)." 16 CS.C. § 1851(b). To more accurately reflect the status of the 

Guidelines, we offer the following: replace the word "regulations" with the word "guidelines." 

Page 4, note (a). 

Pw·suant to Section 301 (b) of the MSA, the Secretary publishes the National Standard guidelines 

providing the Secretary's interpretation of the Standards. Table 1 summarizes the National 

Standards themselves as set forth inMSA section 30l(a). To be more complete, we offer the 

following to replace the language in note (a):· "Listed here arc summaries of the National 

Standards as set forth in section 301(a) of the \1SA. Additional information and the Secretary's 

guidance on the National Standards is set forth in 50 CFR 600.305 et seq." 

Page 4, note (b). 

We note that. under the MSA, "bycatch" is defined with reference to "fish," and "fish" is defined 

not to include marine rnammals and birds. 16 U.S.C. §§ 1802(2), (12). To draw that distinction, 

we offer the following language: "The term "bycatch" means fish which are harvested in . a 
U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL
 

FINAL REPORT NO. OIG-13-011-I 20 

fishery, but which are not sold or kept for personal use, and includes economic discards and 

regulatory discards. Such term does not include fish released alive under a recreational catch and 

release fishery management program. "Fish" do not include marine mammals or birds." 

Page 4, Table I. 

We offer the following clarifications to track better the text of the MSA National Standards at 16 

U.S.C. § 1851(a)(l), (4), (5), (9) and (10): 

NS 1 --add underlined text: " ... while achieving. on a continuing basis, optimmn yield" 

NS 4 --revise as follows and to add underlined text: " ... different states. Any allocation ... fair 

and equitable; reasonably calculated to promote conservation; and carried out to avoid excessive 

shares 11 

NS 5 --revise to say ''consider11 efficiency instead of "promote" efficiency. This language was 

statutorily revised in 1996. 

NS 9 --revise to add underlined text: "To extent practicable, minimize bycatch and mortality 

from bycatch" 

NS 10 --add "to the extent practicable" at the end. 

Page 4, Table 2. 

NOAA suggests that a note be added associated with the table reminding the reader that 

regulations may take a year or more to complete. Thus comparing the number of regulations 

from year-to-year may be difficult and not reflect increases or decreases in regulations. We offer 

the following language to provide that clarification: "Note: Regulations may take more than one 

year to. complete; thus, the numbers in the table only illustrate general levels of regulatory action 

from year-to-year." 

Page 5, Table 3 

We request clarity on what information was missing from the "Acknowledgement of no fmancial 

interests to disclose." If someone did disclose information on the form, then it would be 

appropriate for the acknowledgement to be left blank. 

Page 7, Table 4 

Vv'e suggest that "Revising the Operational Guidelines for the Fishery Management Process" be 

considered partially implemented, rather than unimplemented. While the 2005 revisions to the 

operational guidelines remain in Draft, aspects of those guidelines are being used, such as 

frontloading and interdisciplinary plan teams. 

Page 7, second paragraph. 

We offer the following language to replace the second paragraph to clarify the relationship 

between the RSP and the Operational Guidelines and the current status and function of the 

Operational Guidelines: "The RSP identified past problems, such as delays and inefficiencies, in 

developing FMPs and managing fisheries. One of the many actions included in the RSP was 

revision of the Operational Guidelines for the Fishery Management Process. The Operational 

Guidelines are an internal NMFS docmnent that explains how NOAA and the Councils will work 

together to integrate the many statutory requirements that apply to the development of fishery 

management actions. The guidelines currently in effect were last updated in 1997. NMFS 

developed draft revi~ed Operational Guidelines in 2005 ami they remain in draft fonn. Although 

the 2005 draft is available to NMFS employees through their Regulatory Services Intranet page, 

the guidance has not been finalized, and several NMFS employees we interviewed were unaware 

or only vaguely aware ofthe 2005 draft. While some elements of the 2005 draft are being 
U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL
 

FINAL REPORT NO. OIG-13-011-I 21 

applied, such as the use of interdisciplinary plan teams and frontloading, additional elements of 

the draft guidelines that could help to improve fishery management processes have not been fully 

implemented. One example is the regional operating agreement between each NMFS regional 

office and its FMC. The purpose of the agreement is to provide a clear understanding of roles, 

responsibilities, and obligations between FMCs and NMFS regional offices. As of summer 

2012, only one of the eight councils had a regional operating agreement with its NMFS regional 

office." 

Pa;;e 7, third parawaph. 

This paragraph does not fully reflect NMFS's explanation of why the 2005 draft Operational 

Guidelines were not finalized. We offer the following language to replace the third paragraph to 

clarify the reasons for why the 2005 draft Operational Guidelines were not fmalized: "Wilen 

questioned about why the guidelines were not finalized, NMFS officials explained that 

reauthorization of the MSA, which included a requirement for NMFS to revise and update its 

procedures for complying with the National Environmental Policy Act (NEPA), affected the 

application of the 2005 draft Operational Guidelines, which also addressed the application of 

NEPA to fishery management actions. In addition, early efforts to implement provisions in the 

2005 draft on a test basis revealed that some features placed unworkable demands on the Office 

of General Connsel staff and created undesirable redundancies. In 2005, NMFS officials 

indicated that the delay in formal issuance of the guidelines had not significantly affected 

progress in implementing regulatory process improvements." 

Page 9, first paragraph 

As written, this paragraph appears to assume that NMFS compiles discrete administrative 

records as each fishery management action is being developed. Although documents and other 

materials related to fishery management actions are retained consistent with requirements under 

the Federal Records Act, given the Large volume of actions taken NMFS only compiles 

administrative records in those instances where litigation challenging a regulation is filed or, 

sometimes, where litigation is expected. Further, it is not feasible to have a uniform practice for 

compiling an administrative record. Tn some cases, NMFS may take joint action with another 

agency that utilizes a different approach to assembling administrative records, or controlling 

legal precedent or other litigation considerations may dictate a different approach. 

Page 12, first paragraph after the table, first and second sentences. 

As written, the first and second sentences confuse the actions required generally to end and 

prevent overfishing (16 U.S.C. § 1853(a)(l5) (annual catch limits)) with those required when a 

stock is declared overfished (16 U.S.C. § 1854(e) (overfished fisheries)). To clarify these 

sentences, we offer the following language to replace the first and second sentences of this 

paragraph: "A primary goal of the reauthorized MSA was to end and prevent overfishing through 

the use of annual catch limits and accountability measures, which were required to be 

implemented by 2010 for stocks subject to overfishing and by 2011 for all others." 

Page 12, first paragraph after the table, line 4. 

Councils use many management tools to address overfishing. See 16 U.S.C. §§ 1853(a)(15) 

(requiring annual catch limits), 1853a (providing that Conncil may develop a LAPP) and 1S53(b) 

(providing other discretionary provisions, such as gear restrictions and time and area closures, 

that Council muy use in FMPs or arnemlments). To be more complete, we offer the the 

following additional language. After "FMCs use", insert "various tools including", and after 
"(LAPPs)", insert "as well as general catch limits, trip limits, seasons, gear restrictions, and bag 

limits,". 

Page 13, box 3. 

Section 3(t) of Executive Order 12866 sets forth 4 criteria for determining whether an action is 

"significant." See next comment for text of the criteria. Economic impact is not the only test. 

To be accurate, we otler as a suggestion striking the word "economically" from this box. 

PaKe 13, footnote a. 

If more information about the determination of "significance," is desired, we offer the following 

language after the citation to accomplish that objective: "A regulatory action is significant under 

the EO if it is likely to result in a mle that may: 1. Have an annual effect on the economy of 

$100 million or more or adversely affect in a material way the economy, a sector of the 

economy, productivity, competition, jobs, Lhe environment, public health or safdy, or Stale, 

local, or tribal governments or communities; 2. Create a serious inconsistency or otherwise 

interfere with an action taken or planned by another agency; 3. Materially alter the budgetary 

impact of entitlements, grants, user fees or loan programs or the rights and obligations of 

recipients thereof; or 4. Raise novel legal or policy issues arising out oflegal mandates, the 

President's priorities, or the principles set forth in the EO. See E.O. 12866 § 3(f)." 

Page 13, box 8. 

To track the MSA' s judicial review provision, specifically 16 U.S.C. § 1855(f)(l )-(2), we offer 

the following in lieu of the current language in the box: "If judicial review is sought, a complaint 

must be filed within 30 days after a final rule is promulgated or an action taken under regulations 

is published in the Federal Register. A final rule or action remains in effect pending resolution 

of the case." 

Page 13, footnote 20, lines I and 2. 

To be more accurate, we offer the following language to replace the first sentence: "The 

Regulatory Flexibility Act requires federal agencies to conduct analyses for regulatory actions 

that may have a significant economic impact on a substantial number of small entities, including 

consideration of significant alternatives that minimize any such impact and meet the objectives 

of applicable statutes. See 5 U.S.C. §§ 603, 604 and 605(b)." l\ote that sections 603 and 604 set 

· forth requirements for initial and final regulatory flexibility analyses. Section 605(b) provides 

that lhuse analyses are not required for a proposed or final rule if an agency certifies that it will 

not "have a significant economic impact on a substantial number of small entities. 

Editorial Comments 

The statement in the cover memo and on page 1 that NMFS has cumplieu with "certain" MSA 

requirements contains a negative inference that may understate NOAA's compliance. 

~OAA Response to OIG Recommendations 

All of the OIG Recommendations in this draft report pertain to and can be implemented by 

NOAA Fisheries. NOAA Fisheries accepts all of the recommendations and has no comments, 

concerns or suggestions regarding these recommendations. We will develop a detailed action 

plan to implement each recommendation upon the report being finalized. 

U.S. DEPARTMENT OF COMMERCE OFFICE OF INSPECTOR GENERAL
 

011200000138 

FINAL REPORT NO. OIG-13-011-I 22