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DEPARTMENT OF COMMERCE

Veterans Affairs Department

CFR Citation: 50 CFR Part 700

Docket ID: [Docket No. 070824479-8107-02]

RIN ID: RIN 0648-AV53

NOTICE: Part VI

DOCUMENT ACTION: Proposed rule; request for comments.

SUBJECT CATEGORY: Magnuson-Stevens Act Provisions; Environmental Review Process for Fishery Management Actions

DATES: Comments must be received by 5 p.m., EST, on August 12, 2008.

DOCUMENT SUMMARY: This proposed rule would revise and update the NMFS procedures for complying with the National Environmental Policy Act (NEPA) in the context of fishery management actions developed pursuant to the MagnusonStevens Fishery Conservation and Management Act (MSA). These regulations are modeled on the Council of Environmental Quality (CEQ) regulations implementing the procedural provisions of NEPA, 40 CFR parts 15001508, with specific revisions to the existing NMFS procedures made pursuant to the MagnusonStevens Fishery Conservation and Management Reauthorization Act (MSRA). The procedures are designed to conform to the timelines for review and approval of fishery management plans and plan amendments developed pursuant to the MSA. Further, these procedures are intended to integrate applicable environmental analytical procedures, including the timeframes for public input, with the procedure for the preparation and dissemination of fishery management plans, plan amendments, and other actions taken or approved pursuant to the MSA in order to provide for timely, clear, and concise analysis that is useful to decisionmakers and the public, reduce extraneous paperwork, and effectively involve the public.

SUMMARY: Commerce Department, National Oceanic and Atmospheric Administration,

SUPPLEMENTAL INFORMATION

Background

The National Marine Fisheries Service (NMFS) proposes new regulations to establish procedures by which NMFS and the regional Fishery Management Councils (FMCs), established under the Magnuson Stevens Fishery Conservation and Management Act (MSA), will comply with the National Environmental Policy Act (NEPA) when preparing fishery management actions pursuant to the MSA. NMFS issues this proposed rule to comply with the requirements of section 107 of the MagnusonStevens Fishery Conservation and Management Reauthorization Act (MSRA), Pub. L. 109479. NMFS proposes specific provisions in the following areas.

1. Form of documentation: The proposed rule would retain the use of Environmental Assessments (EAs), Findings of No Significant Impact (FONSIs), and Categorical Exclusions (CEs) where appropriate, and would establish two new forms of documentation for actions with potentially significant environmental impacts: the Integrated Fishery Environmental Management Statement (IFEMS) and the Memorandum of Framework Compliance.

2. Roles and Responsibilities: This proposed rule would clarify the roles of the FMCs and NMFS in the development and approval of fishery management measures and actions.

3. Timelines and Flow of Process: The proposed rule would build flexibility into the timelines for complying with NEPA in order to allow for compliance with NEPA within an MSA context.

4. Alternatives to be Analyzed: This proposed rule would clarify what ``reasonable alternative'' and ``no action'' alternative mean in the context of fishery management.

5. Exempted Fishing Permits (EFPs): This proposed rule would establish a new CE for certain types of EFPs where impacts have been analyzed within an overarching analysis.

6. Incomplete or unavailable information: This proposed rule would clarify how NEPA's requirements concerning incomplete and unavailable information and conflicts of interest are applicable to MSA actions.

7. Emergency or interim rules: This proposed rule would allow for programmatic arrangement with the Council on Environmental Quality (CEQ) to address page limits of IFEMS and NEPA requirements for emergency and interim rules.
I. Statutory Overview
A. The MagnusonStevens Fishery Conservation and Management Act

The MSA, 16 U.S.C. 1801 et seq., established a national program to manage and conserve the marine fisheries of the United States. Under this system, the United States exercises sovereign rights and exclusive fishery management authority as provided in 16 U.S.C. 1811. Specifically, the Secretary of Commerce (Secretary), acting through the NMFS, oversees and manages our nation's domestic fisheries through the development and implementation of fishery management plans and actions (e.g., fishery management plans (FMPs), amendments, frameworks, annual specifications, regulations, etc.). For most domestic fisheries, the MSA requires management decisions to be based on recommendations from unique advisory bodies, the FMCs. In certain circumstances, NMFS may develop management measures or actions on its own.

The MSA management system is unique insofar as Congress has authorized the FMCs to develop and recommend fishery management measures and actions to NMFS. Comprised of Federal, state, and territorial fishery management officials, participants in commercial and recreational fisheries, and other individuals with scientific experience or training in fishery conservation and
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management, the FMCs' primary responsibility is to develop and recommend fishery management measures and actions for any fishery under their jurisdiction that is in need of conservation and management. Specifically, MSA section 302(h)(1) (16 U.S.C. 1852(h)(1)) requires FMCs to prepare and submit to NMFS FMPs for fisheries in need of conservation and management. Section 303(c) of the MSA requires FMCs to submit to NMFS regulations that the FMCs deem necessary and appropriate to implement the FMP. The MSA mandates an open, public process for the development of fishery management measures and actions through the FMC system.

The MSA establishes strict timelines and limited discretion for Secretarial review of FMCrecommended measures and actions. For FMPs and FMP amendments, upon receipt of an FMC's complete submission, NMFS must immediately commence a review of the recommendation to determine whether it is consistent with the national standards, other provisions of the MSA, and other applicable law. NMFS is also required immediately (within 5 days) to publish a notice in the Federal Register informing the public that the FMP or FMP amendment is available for a 60day public review and comment period. Thereafter, NMFS evaluates the public comments received during the comment period. NMFS must also complete any necessary consultations with other federal agencies prior to the MSA's deadline for a final decision. If, after undertaking the requisite review, NMFS determines that the recommended FMP or FMP amendment complies with the standards and provisions of the MSA and is consistent with other applicable law, including NEPA, NMFS must approve it on behalf of the Secretary. If the recommendation does not comply with these requirements, NMFS must disapprove or partially approve it and provide the FMC with recommendations for actions the FMC could take to conform the FMP or FMP amendment to the applicable requirements. The MSA does not allow NMFS to substitute a different management alternative for that recommended by the FMC. If NMFS fails to notify the FMC within 30 days of the end of the comment period of the recommendation's approval, disapproval, or partial approval, the plan or amendment takes effect as if approved.

For proposed regulations recommended by an FMC to implement an FMP or FMP amendment, the MSA provides NMFS 15 days to review proposed regulations to determine consistency with the underlying FMP or FMP amendment before publishing the proposed regulations for a 1560 day comment period. A final rule must be promulgated within 30 days of the close of the comment period on the proposed rule.

In certain situations, the MSA allows NMFS to develop fishery management measures and actions outside of the FMC process, subject to separate procedural requirements. For example, section 304(c) authorizes NMFS to prepare a Secretarial FMP or FMP amendment if: (1) A fishery is in need of conservation and management and the appropriate FMC fails to develop and submit, after a reasonable time, an FMP or FMP amendment; (2) NMFS disapproves or partially disapproves an FMP or FMP amendment, or disapproves a revised FMP or FMP amendment, and the FMC involved fails to submit a revised or further revised FMP or FMP amendment; or (3) NMFS is given authority to prepare an FMP or FMP amendment under section 304 of the MSA, such as FMPs or FMP amendments pertaining to any highly migratory species (HMS) fishery to which section 302(a)(3) of the MSA applies. Procedures for these types of ``Secretarial'' actions, which are specified in MSA section 304(c), (e) and (g), provide for public and FMC input into their development. Section 305(d) provides additional authority for NMFS, on behalf of the Secretary, to promulgate regulations necessary to carry out its responsibilities under the MSA.

In this proposed rule, the term ``fishery management measure'' refers to management strategies contained in FMPs, FMP amendments and regulations, including but not limited to closed areas, quotas, and size limits as contemplated in MSA section 303(a)(1) (16 U.S.C. 1853(a)(1)). The term ``fishery management action'' refers to actions NMFS takes to implement the measures contained in an FMP, including but not limited to the promulgation of regulations and the establishment of dates of closures as contemplated in MSA section 305(f) (16 U.S.C. 1855(f)). In developing and recommending an FMP, FMP amendment or regulation, FMCs may consider and include both measures and actions. The NEPA provisions described in this proposed rule are intended to cover all such recommendations.

B. NEPA's Relationship to the MSA Process

NEPA is the fundamental national charter for environmental protection. As the Supreme Court has noted, NEPA Section 102 (42 U.S.C. 4332) requires Federal agencies to examine the environmental effects of proposed Federal actions and to inform the public of the environmental impacts considered in an agency's decisionmaking process. See, e.g., DOT v. Public Citizen, 541 U.S. 752, 768 (2004). NEPA does not mandate a particular substantive outcome; rather, NEPA is a procedural statute, the purpose of which is to protect the environment by requiring Federal agencies to carefully weigh environmental considerations in their decisionmaking processes, including alternatives to their proposed actions, before taking final action. An essential element of the NEPA process, as highlighted in CEQ's regulations, is the requirement to make relevant environmental information available to the public and afford the public an opportunity to participate in the agency's decisionmaking process. Ultimately, NEPA is designed to ensure that Federal agencies utilize a sound and public process in making decisions that affect the environment, and to ensure that agencies consider the environmental impacts of, and alternatives to, their proposed actions.

Through these proposed regulations, NMFS seeks to better integrate NEPA into the unique FMC process established by the MSA. For MSA actions, the scope of NMFS's authority to modify FMCrecommended fishery management plans and plan amendments is narrow: NMFS may approve, disapprove, or partially approve a proposed FMP or FMP amendment recommended by the FMC, and the sole basis for disapproval of any such recommendation is that it is not consistent with applicable law, including NEPA, the MSA and its national standards. Applying NEPA solely to the Secretary's limited discretion under the MSA cannot foster the type of informed consideration of the effects of the action in light of reasonable alternatives that NEPA envisions. Because policy recommendations are developed and alternatives narrowed through the public forum of FMC meetings, it is important to integrate the analysis of alternatives and impacts for the NEPA analysis with the FMC's development of recommended management measures and actions. For this reason, NMFS addresses several key issues in this proposed rule: (1) The different roles of FMCs and NMFS under the MSA, as advisory bodies and decisionmaker respectively, as those roles relate to NEPA's requirements; (2) the integration of statutory and regulatory timelines to provide for timely responses to fishery resource management needs; and (3) the
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complexities of defining the appropriate range of alternatives for analysis.
C. MSRA Requires Revised and Updated Agency Procedures to Comply With NEPA

In December 2006, the U.S. Congress acted to amend the MSA through the MSRA, which was subsequently signed into law by the President on January 12, 2007. Pub. L. 109479. The MSRA addresses a number of fisheries issues, but pertinent to this rulemaking is section 107, which imposes a requirement that NMFS better integrate and more closely align applicable environmental analytical procedures with the MSA's fishery management process.

Congress directed the Secretary, acting through NMFS, and in consultation with the FMCs and CEQ, to revise and update agency procedures to comply with NEPA. Congress stated that the procedures shall:
(A) conform to the [MSA's] time lines for review and approval of fishery management plans and amendments under this section; and (B) integrate applicable environmental analytical procedures, including the time frames for public input, with the procedure for the preparation and dissemination of fishery management plans, plan amendments, and other actions taken or approved pursuant to this Act in order to provide for timely, clear and concise analysis that is useful to decision makers and the public, reduce extraneous paperwork and effectively involving the public.

16 U.S.C. 1854(i)(1)(A) and (B).

Moreover, Congress stated that the revised and updated procedures are to be the sole environmental impact assessment procedures for fishery management actions (e.g., FMPs, FMP amendments, or other actions taken or approved pursuant to the MSA) used by the FMCs or NMFS. 16 U.S.C. 1854(i)(2). Finally, Congress authorized and directed NMFS, in cooperation with CEQ and the FMCs, to involve the affected public in the development of the revised procedures.

The MSRA's legislative history reveals Congress' interest in gaining efficiencies in the MSA's environmental review process. Specifically, the Senate Report accompanying the MSRA contained the following language: ``[t]he intent is not to exempt the Magnuson Stevens Act from NEPA or any of its substantive environmental protections, including those in existing regulation, but to establish one consistent, timely, and predictable regulatory process for fishery management decisions * * * [t]he Committee intends section 107 to streamline this environmental review process in the context of fishery management.'' S. Rept. 109229, at 8.
II. NMFS' Implementation Efforts

A. Consultations and Public Outreach

As required by the MSRA, NMFS has consulted with CEQ and the FMCs, and has initiated public involvement in the development of the revised procedures. In the spring of 2007, NMFS and the FMCs conducted two separate forms of outreach. NMFS posted a series of trigger questions on the Internet, soliciting public input on how the process should be revised. At about the same time, the FMCs' Council Coordinating Committee (CCC) developed a strawman proposal for revised procedures. Both the CCC strawman and NMFS' questions were posted on the agency's Web site for a 60day public comment period. Moreover, each of the eight FMCs held public listening sessions at their respective FMC meetings between February and April 2007.

NMFS received a total of 1,660 comments, all but 8 of which were form letters that expressed general disapproval of the CCC strawman. The remaining eight comments were submitted by a variety of environmental and fisheryrelated organizations and reflected a wide range of opinions on the new procedures in general, the CCC strawman, and the trigger questions. The main topics addressed by the commenters were:

1. Need for/Authority to Change Regulations/Guidance. There is disagreement about the legislative intent of the MSRA with regard to revision of the agency's NEPA procedures, the need for changes to the NEPA procedures, the timeframes for public review of NEPA documents, and the adequacy of the existing process to meet NEPA requirements and fishery management needs.

2. Roles of FMCs and NMFS. There are opposing opinions about whether FMCs or NMFS should have the lead on conducting the NEPA process. One environmental organization proposed a specific alternative approach to that set forth in the CCC strawman.

3. Using the FMC Process to comply with NEPA. There is disagreement about the appropriateness of using the FMC process to comply with NEPA. A major concern is whether the public would be adequately included. Many suggestions were provided on how to make the FMC process more accessible.

4. Reasonable Alternatives. There is consensus that reasonable alternatives must be able to achieve the objectives of the management action. In addition, several specific suggestions were offered as to how to further define ``reasonable alternatives.''

5. Tiering/Scaling the Level of Analysis. There is agreement that not every action merits the same level of detail and length in its analysis and that some form of scaling is appropriate, but disagreement as to how to determine the appropriate level of analysis. Some commenters felt that the existing EA/EIS distinction adequately allows for determining the appropriate level of analysis based on an action's degree of significance. Other commenters suggested alternative approaches. Two commenters opposed applying specific criteria to determine the level and detail of analysis and indicated that the circumstances around each action would dictate what level of analysis is appropriate.

6. Eliminating the EA/EIS Distinction. Many commenters support keeping this distinction, although one commenter identified a potential benefit of avoiding litigation over which type of analysis should have been prepared.

7. Reducing the Length of the Comment Period to 30 days. There is disagreement as to whether longer or shorter comment periods are desirable, as well as on the effects of any change on streamlining and process.

8. Scientific Research and Experimental Fishing. The need to improve NEPA's application to scientific research and experimental fishing was pointed out.

At its May 2007 meeting the CCC decided to recommend its strawman to NMFS as the basic approach for the new process and made several additional comments and suggestions. Since May 2007, NMFS has consulted with CEQ and the CCC subcommittee to develop the environmental review procedures proposed in this rule.

B. Alternatives Considered by NMFS

In addition to conducting public outreach, NMFS engaged in an internal scoping process to consider the most appropriate means to revise and update the NEPA procedures to better integrate NEPA and MSA. NMFS examined a number of important issues during this process, which included, but were not limited to: NEPA's role in the fishery management context; ways to integrate the NEPA and MSA process to ensure successful implementation of MSA actions; mechanisms for improving public participation; whether NMFS, the FMCs, or both should prepare environmental analyses; and the type of environmental document and level of analysis applicable to a specific fishery management measure or action. As a
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result, and after careful consideration of public comments on NMFS' trigger questions, the CCC subcommittee Strawman proposal and public input received at each of the Council listening sessions, NMFS developed an array of alternatives intended to achieve the following goals: (1) Ensure compliance with NEPA when developing and implementing fishery management measures and actions under the MSA; (2) Adhere to the principles of public involvement and agency accountability (i.e., requirements that agencies consider and respond to public comment) set forth in the existing CEQ regulations; (3) Integrate NEPA's requirements into the MSA public processes for developing and approving fishery management measures and actions; (4) To the extent appropriate, build on recommendations in the CCC Strawman document; (5) Appropriately align public participation in the NEPA process to reflect differences in the roles of the Regional Fishery Management Councils (FMCs) and NMFS in the development and approval of fishery management measures and actions and conducting the NEPA analysis; and (6) Conform 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.

In developing these proposed procedures, NMFS attempted to determine where fisheryspecific improvements could be gained while supplementing the key elements of the CEQ regulations that ensure opportunities for public participation and agency accountability. Some of the key features of the CEQ regulations centered around the early public scoping process, the opportunity for public comment on a draft analytical document, a revised final document that addresses public comment, a coolingoff period prior to the final decision, and a Record of Decision (ROD) documenting the agency's final decision. NMFS then considered whether the procedural aspects of these elements (such as timing, sequencing, and feedback mechanisms) could be implemented to provide more appropriate opportunities for public participation in the process for developing MSA measures and actions. Specifically, NMFS sought an approach that would: (1) Integrate NEPA's public participation opportunities with the FMC development of analyses and alternatives and NMFS' decisionmaking under the MSA; and (2) allow the MSA decisionmaking process to proceed in a timely manner to address real time fishery management needs.

NMFS identified alternatives for possible fisheriesspecific improvements in several general categories: form of documentation; roles and responsibilities; timing and flow of process; and other elements (experimental fishing, emergencies, page limits, and the range of alternatives to be analyzed).
1. Form of Documentation

a. Single Integrated Document

Pursuant to NEPA, an EIS must be prepared for any major Federal action significantly affecting the quality of the human environment. An EA may be prepared as a first step to inform the determination of whether a proposed action would have a significant effect on the quality of the human environment, thereby requiring an EIS. Generally, the EIS is a more thorough analysis of impacts and alternatives than the EA. For development of FMPs by FMCs, however, this is not always the case. Development of FMPs or amendments under the MSA requires development of a comprehensive analysis that incorporates almost all of the content requirements for an EIS. In many cases, an FMC can relatively easily incorporate the additional EIS content requirements (i.e., cumulative impact analysis and reasonable range of alternatives) into the existing fishery management analysis.

Given these requirements, one possible approach would be to eliminate the EA/EIS distinction, ensure that content requirements of an EIS are included in the MSA analysis, and adjust the procedures and timing for completing an EIS through the FMC process. Rather than focusing on whether or not an action is ``significant,'' this approach would undertake the more comprehensive analysis and consideration of alternatives for every action. Among other things, this approach would ensure preparation of EISlevel documents in ``close call'' situations. This approach was recommended by the CCC in their strawman, which would have required a single analytical document labeled an Environmental Impact Analysis (EIA).

However, there was little support for this approach expressed through public comment. One of the most noted concerns expressed by the public focused on the potential difficulty in developing scaling criteria, and how EIAs would be tailored to allow an appropriate scaling of the analysis based on the scope of the proposed action. This approach could result in unnecessary analysis and delay for actions where an EA/FONSI is appropriate.

b. Status Quo

NMFS considered retaining the three main forms of documentation currently provided for in the CEQ regulations: The EIS, EA/FONSI, and CE. While these forms of documentation are familiar to the public, retaining them as they currently exist in the CEQ regulations would negate the opportunity for improvements to the NEPA process for MSA actions as intended by the MSRA.

c. New Forms of Documentation

The preferred alternative, as set forth in this proposed rule, would provide for four types of documentation based on the current EIS/ EA structure, but tailored to address the unique needs of the fishery management process: (1) An IFEMS, which would be similar to an EIS but with more explicit integration of MSRA requirements, (2) an EA/FONSI, (3) a CE, and Determination of Categorical Exclusion, and (4) a Memorandum of Framework Compliance (this would allow NMFS and the FMCs to efficiently implement the NEPA process for actions (e.g., frameworks and annual specifications) that fall within the scope of a prior NEPA analysis). These documents, with the exception of the Memorandum of Framework Compliance, would have content requirements similar to those provided under existing NMFS procedures and caselaw, but with revisions to address specific fisheryrelated needs. In combination with the adjustments to process and timing described below, the intent of these revisions is to retain the flexibility to utilize an EA/FONSI or CE, where appropriate, but to make the process for completing an EISlevel document (i.e., IFEMS), and/or utilizing a Memorandum of Framework Compliance, better integrated with existing MSA timing and decision making requirements.

2. Roles and Responsibilities

NMFS analyzed the MSA and NEPA statutory and regulatory requirements and identified several different ways of viewing the roles and responsibilities of NMFS and the FMCs in an integrated MSA/NEPA process.

a. FMCs Responsible for NEPA Compliance

One option would be to vest sole responsibility for preparing the NEPA analysis with the FMC and require that
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the FMC develop the NEPA analysis during development of MSA management recommendations. This option would give the FMC full responsibility for completing the NEPA analysis. Under this scenario, the NEPA document would be primarily an FMC document. FMCs would be solely responsible for developing the final NEPA document prior to recommending management measures and actions to NMFS. The analysis would be prepared in accordance with the requirements for an EIS. NMFS would not participate substantially in the development of the document. The FMCs would be required to complete all required NEPA procedures, including the coolingoff period, prior to taking the final vote to recommend a measure or action. Because of the MSA's unique structure, based on the FMCs considering public input and making management recommendations to NMFS, and NMFS' subsequent decision to approve, disapprove, or partially approve any recommendation, this approach would effectively align NEPA's consideration of impacts and alternatives with the FMC's consideration of alternatives for recommendation to NMFS. However, NMFS is the Federal action agency ultimately responsible for NEPA compliance, and this option would not give NMFS involvement in the NEPA documentation and process to assure that NMFS satisfies its NEPA obligations.

b. NMFS Solely Responsible for NEPA

NMFS identified two approaches by which NMFS could comply with the mandates of NEPA without involving the FMCs. However, neither of these scenarios would result in the type of information sharing and public participation envisioned by NEPA and these proposed regulations. (i) Separating the NEPA Analysis From the FMC's Process. Under this first scenario, NMFS, as the action agency, would conduct the NEPA analysis and prepare the appropriate NEPA document. NMFS would publish and make available the NEPA document separate from the FMC process, but if practicable NMFS could align its release of the document within the FMC process. NMFS, as a member of the FMC, could recommend NMFS's alternatives and NEPA analysis to the FMC as it considered alternatives prior to its final vote. However, NMFS has only one vote on each FMC and therefore could not ensure the range of alternatives NMFS analyzed in the NEPA document would be considered by the FMC as it developed its recommendation under the MSA. While the Secretary must disapprove a recommendation that does not comply with NEPA, MSRA directed NMFS to revise and update its procedures to integrate NEPA procedures with the procedure for the preparation and dissemination of fishery management plans, amendments, or other actions taken or approved pursuant to the MSA. NMFS did not adopt this alternative because it does not effectively integrate consideration of alternatives and impacts for the NEPA analysis and for the FMCs' development of management
recommendations.
(ii) NMFS Prepares the NEPA Analysis After the FMC Takes Final Action. Under this scenario, NMFS would again conduct the NEPA analysis and prepare the appropriate NEPA document. However, the NEPA process would not commence until after the FMC takes a final vote on its recommendations. This option is based on the theory that there is no proposed Federal action to analyze until the FMC transmits its recommendation and the Secretary is required to take action on the FMC's recommendation. However, this approach does not effectively integrate the analysis of alternatives and impacts for the NEPA analysis with the FMCs' development of recommended management measures and actions. This option would require significant reductions in the amount of time available for public review and comment on the NEPA analysis for all fishery management measures and actions.

c. Preferred Alternative

The third alternative NMFS considered would modify the procedural requirements for conducting the NEPA analysis and preparing the appropriate NEPA document to accommodate the unique relationship between the FMCs and NMFS in the MSA context.

This alternative is intended to better align public input to FMC recommendations and NMFS authority for approval and implementation of fishery management measures and actions and would establish a regulatory requirement that FMCs consider public comments on an IFEMS before taking a final vote. It is based on an understanding of the role of the FMC as an advisory body that narrows alternatives and makes recommendations and which, therefore, should be informed by public comment. This alternative also recognizes that NMFS, after having provided input and guidance to the FMC for the development of the NEPA document, bears ultimate responsibility for compliance with both MSA and NEPA. The requirements of NMFS procedures implementing NEPA would be modified to accommodate the respective roles of the FMCs and NMFS in the NEPA process. This alternative would provide for more explicit integration of NEPA in the MSA decisionmaking process and maximize opportunities for public participation by providing opportunities for review and comment at by both FMC and NMFS, levels, while allowing flexibility to reduce comment periods for FMCs in certain circumstances to meet fishery management need.

3. Timing and Flow of Process

NMFS analyzed different ways to build flexibility and predictability into the timing requirements of the NEPA procedures to assure the appropriate level of NEPA analysis is prepared and to allow for the maximum amount of public participation during the FMCs' development of recommended management measures and actions. a. CCC Strawman (ThreeMeeting Minimum for IFEMS)

The CCC strawman includes a recommended process that would require a minimum of three FMC meetings to develop a management recommendation and associated NEPA documentation. Upon further consideration at its May 2007 meeting, however, the CCC determined that some management recommendations needing to be completed in fewer than three meetings would benefit from and/or require analysis in an EISlevel document and recommended that the revised procedures address this issue. b. Preferred Alternative (TwoMeeting Minimum for IFEMS)

After analyzing the minimum timelines set forth in the CEQ regulations, the statutory timelines of the MSA, and the practical issues surrounding scheduling of FMC meetings and the logistics of completing the necessary steps to develop a fishery management recommendation, NMFS constructed an approach that would allow for the development of an IFEMS through a minimum twomeeting cycle, thus allowing for even the most timeconstrained fishery management needs to be informed by an IFEMS.

This alternative would take into account the statutory structure of the MSA decisionmaking process and the need for the FMC recommendation to move forward through Secretarial review to an ultimate decision in order to respond to realtime fishery management needs. This alternative accommodates the typical FMC process
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for development of a management recommendation with an EISlevel document, which usually involves an iterative process with the public in which several versions of a draft are shared and modified over the course of several FMC meetings prior to a final FMC vote. This alternative also recognizes that in some circumstances certain minimum time periods identified in the CEQ regulations may need to be reduced to allow the completion of an IFEMS in as few as two FMC meetings as described below.

For a smaller subset of fishery management needs, various factors (such as the timing of the availability of fishery statistics, the timing of the opening of the fishing season, judiciallyimposed deadlines, and the schedule of FMC meetings) can interact to constrain the available time between identification of a management need and the time when a management measure needs to be effective. The intent of this proposed rule is to maintain the iterative and deliberative processes of the FMCs as they exist for addressing management needs in a situation not subject to such time constraints, but to allow enough flexibility so that the system can also accommodate an IFEMS in a time constrained situation. This proposed rule (Sec. 700.604) would establish the following considerations for determining the appropriateness of reductions in minimum time periods for public comment:
(1) Whether there is a need for emergency action or interim measures to address overfishing;
(2) The potential long and shortterm harm to the fishery resource;
(3) The potential long and shortterm harm to the marine environment, including nontarget and protected species;
(4) The potential long and shortterm harm to fishing communities; (5) FMC meeting schedules and ability to respond;
(6) Degree of public need for the proposed action, including the consequences of delay;
(7) Time limits imposed on the agency by law, regulations, or Executive Order.

An important component of this approach would be supplementation of the requirement in the CEQ regulations linking the start of minimum time periods for public comments and the delay associated with the cooling off period to the Environmental Protection Agency's (EPA's) publication of the notice of availability (NOA). EPA publishes a notice in the Federal Register each Friday, listing all the EISs that were filed with EPA the previous week. In severely timeconstrained fishery management situations, the time that is lost prior to EPA's weekly filing could be used by NMFS, the FMCs, and the public to complete better documents, to have a few more days of public comment, and/or to be able to complete an IFEMS on a very short deadline. The preferred alternative would allow NMFS to start the clock on the minimum time periods by filing the NOA of the IFEMS in the Federal Register as soon as the IFEMS is available to the public and filed with EPA. In such circumstances, the minimum time period could be calculated from the Federal Register publication date of the NMFS NOA. The EPA notice to follow would state that, pursuant to MSRA and EPA's authority to reduce prescribed periods for timing of agency action (40 CFR 1506.10(d)), EPA has reduce the applicable time according to the number of days provided for in preceding the NMFS NOA.

In addition to providing for time savings in timeconstrained situations, this proposed change would allow NMFS to start the clock on the comment period on the NEPA document simultaneously with the start of the comment period on the proposed fishery management measure or action. Allowing the clocks for the two sets of comment periods to begin and run simultaneously would further integrate the requirements of NEPA and the MSA.
4. Other Elements (Experimental Fishing, Emergencies, Page Limits, and the Range of Alternatives To Be Analyzed)

a. Experimental Fishing

The public raised the issue that NEPA's requirements sometimes hinder the ability of research organizations to obtain EFPs. NMFS considered maintaining the status quo, as well as whether there may be opportunities to improve the current NEPA procedures with regard to EFPs. The preferred alternative would specify that, where experimental fishing activities proposed to be conducted under an EFP, and where the fish to be harvested have been accounted for in other analyses of the fishery such as by factoring a research setaside into the allowable biological catch (ABC), optimum yield (OY), or fishing mortality, the activities could be eligible for a CE, as appropriate. Activities that are truly ``scientific research,'' as defined by 50 CFR 600.10, are not subject to regulation under the MSA and thus not subject to this rulemaking.

b. Emergencies and Interim Actions Pursuant to the MSA

NMFS possesses authority under section 305(c) of the MSA to promulgate emergency rules or interim measures. NMFS's must be able to respond quickly to emergency or overfishing situations while accommodating NEPA's requirements to ensure adequate public involvement and prepare the requisite analyses for a particular measure or action.

As part of this proposed rulemaking, NMFS considered two options to comply with NEPA in the context of section 305(c) emergency and interim actions. One option would have allowed NMFS to prepare an abbreviated NEPA analysis for the measure or action. The scope and degree of analysis would have been determined in light of the nature and timeframe in which to address the emergency. Further, if good cause existed to waive the requirements for notice and opportunity for public comment on the proposed rule under the Administrative Procedure Act, NMFS would have afforded an opportunity for public comment on the NEPA document after implementation of the emergency or interim measures. The preferred option, as described in Sec. 700.701, would establish the option of developing programmatic alternative arrangements for NEPA compliance with CEQ for emergency or interim actions that may result in significant impacts. The intent is to limit such arrangements to specific types of emergency or interim actions that necessitate immediate attention and for which public involvement or detailed analyses would interfere with NMFS' ability to control the immediate impacts of the emergency. While this alternative would still allow for the use of ad hoc approaches where appropriate, it would allow flexibility to prepare planned and managed approaches that would avoid the inefficiencies and uncertainties of reactive, situationspecific arrangements.

c. Page Limits

CEQ's guidance for preparation of EISs states that the text ``shall normally be less than 150 pages,'' and for proposals of unusual scope or complexity ``shall normally be less than 300 pages.'' 40 CFR 1502.7. NMFS and FMCgenerated NEPA documents sometimes exceed these expected page limits. It has been suggested that reducing the number of pages of MSA NEPA documents could improve the overall analytical quality and public accessibility and understanding of the documents. The complexity of the
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alternatives that must be analyzed for fishery management actions and measures and the difficulty of sufficiently analyzing these alternatives in a relatively short document, however, may result in documents exceeding these page limits. NMFS proposes to consult with CEQ on a programmatic basis in those situations where page limits for NEPA analyses are exceeded.

d. The Range of Alternatives To Be Analyzed

A Federal agency's range of alternatives is reasonable if the alternatives meet an agency's stated purpose and need and, if they are consistent with an agency's statutory authorities and policy objectives. Although the range of alternatives should not be so narrowly defined so as to preclude meaningful consideration of alternate ways of accomplishing agency objectives, courts have afforded agencies much discretion to define what they consider to be reasonable in light of the controlling statute or purpose and need for the action. In some cases the lack of precisely drawn alternatives has led to overly complex NEPA documents.

The CCC Subcommittee commented, in the context of MSA fishery management actions, that a literal interpretation of the requirement in CEQ's regulations that the EIS ``rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated,'' results in FMCs and NMFS analyzing alternatives that the FMC would never recommend, requires detailed analysis of every reasonable alternative suggested by the public, and results in an overapplication of NEPA's requirements. The CCC Subcommittee recommended striking the word ``all'' from before ``reasonable alternatives'' and clarifying that the requirement is to consider a ``reasonable range'' of reasonable alternatives. NMFS believes that clear guidance on the range of alternatives in the fishery management context would reduce the overinclusion of alternatives that results in overly complex and voluminous alternatives analyses. The proposed rule would not eliminate the word ``all,'' but would encourage better analysis of an appropriate, not overly inclusive, range of alternatives.

III. Proposed Changes to Existing NEPA Review Procedures

After consulting with the FMCs and CEQ, and carefully considering input from the public, NMFS is proposing to implement new regulations, to be published at 50 CFR part 700, establishing fisheriesspecific procedures for NEPA compliance. This approach would replace the existing NMFS procedures for complying with NEPA in the context of fishery management under the MSA. These specific regulations for implementing NEPA in the context of fishery management under the MSA would supplement the general CEQ regulations implementing the procedural provisions of NEPA. While the CEQ definitions (40 CFR part 1508) and other generally applicable provisions of the CEQ regulations are not paraphrased or repeated, they would remain relevant and applicable. Based on public review and comment on these proposed regulations, CEQ will review the final NMFS regulations for conformity with NEPA. 40 CFR 1507.3.

A. Form of Documentation

The proposed process would utilize four forms of documentation: The IFEMS, the EA/FONSI, the CE, and the Memorandum of Framework Compliance.

1. IFEMS

The IFEMS would be comparable to an EISlevel analysis. As the name indicates, it would integrate applicable environmental analyses into a single document.

The content of the IFEMS would be largely similar to that of an EIS. This proposed rule contains additional specificity concerning what constitutes a reasonable range of alternatives, including the ``no action'' alternative, how incomplete or unavailable information should be treated for purposes of fishery management, and a specific requirement to consider cumulative impacts. The proposed process would also allow for the timing and procedures associated with the IFEMS to be modified from those CEQ has established for EISs.

While the NEPArelated contents of the IFEMS would be similar to the EIS, the procedural requirements would be different. The proposed name change from EIS to IFEMS is intended to make clear that the requirements applicable to an IFEMS are distinct from those applicable to an EIS, especially in terms of procedure and timing, but also regarding the identification of alternatives, how to deal with incomplete information, and the requirement to analyze cumulative impacts. Existing FMPs and EISs would not need to be amended to comply with the new IFEMS requirement. IFEMS would only need to be developed for new actions or to take advantage of new frameworking measures.

This proposed rule would also establish categories of actions that would normally require an IFEMS, such as new FMPs, and FMP amendments with significant impacts (Sec. 700.103). These categories are expected to assist with agency and FMC planning and inform public expectations on the appropriate level of NEPA documentation. For example, when initiating analysis of a new action, an FMC or NMFS would be able to quickly determine which level analysis would most likely be applicable to that type of action. However, the determination of significance for a particular action would still ultimately be based on the application of the significance criteria.

2. EA/FONSI

The EA/FONSI would still be available for use based on the ``significance'' test as is currently the case. In addition, the proposed revisions would establish certain categories of actions that would normally qualify for this level of analysis, such as emergency actions and annual specifications or frameworks not covered by a Memorandum of Framework Compliance as described below. The effect of these categories would also be to assist with agency and FMC planning and inform public expectations. However, the determination of significance for a particular action would still ultimately be based on the application of the significance criteria.

In addition, new Sec. 700.401(d) would authorize the use of a FONSI for an action that may have significant or unknown effects, as long as the significance and effects have been analyzed previously. This provision is intended to address situations such as recurrent annual management measures, the effects of which are significant or unknown, and which therefore do not qualify for a CE, but nevertheless do not require a new EIS every year given the previous analysis. 3. CE (and Determination of Categorical Exclusion (DCE)) (Sec. Sec. 700.105 and 700.702)

The current CEQ guidance defines CEs and encourages agencies to use them. The proposed revisions include a new section on CEs that would establish a new form of documentation (DCE). The proposed revisions would also establish a new CE category for experimental fishing activities permitted under an EFP, where the fish to be harvested have been accounted for in other analyses of the FMP, such as by factoring a research setaside into the
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ABC, OY, or fishing mortality. In addition, the proposed revisions would establish, by regulation, other categories of actions that would qualify for a CE and which are currently contained in NOAA's Administrative Order that provides internal agency guidance on administering NEPA (NOA 2166).
4. Framework Implementation Procedures and the Memorandum of Framework Compliance (Sec. 700.104)

This section would allow the NEPA process for fishery management to be streamlined for measures or actions that have been previously analyzed by the FMCs or NMFS. Specifically, this proposal would allow FMCs or NMFS to establish Framework Implementation Procedures (FIPs), i.e., formal mechanisms to allow actions to be undertaken pursuant to a previously planned and constructed management regime without requiring additional NEPA analysis. In its simplest terms, the goal of a FIP is to provide that, when the environmental impacts of fishery management measures have been analyzed in a broad parent document, subsequent actions to implement these measures, e.g., a framework action, annual specifications, or harvest limits, would not need further NEPA analysis, so long as the impacts of a subsequent action fall within the range of effects considered by the broad parent document.

The proposed use of FIPs would allow FMCs and NMFS to integrate NEPA's requirements into an existing MSA management tool that provides for advance planning and rapid response to realtime fishery management needs. Many FMPs include provisions, known as ``frameworks,'' that permit a class of actions to be undertaken pursuant to procedures described under the FMP without requiring an amendment to the underlying FMP. The FMP or FMP amendment that establishes these procedures often includes extensive analysis of a range of measures and actions that are anticipated to be taken in the future through the use of these framework procedures. The FIP provisions proposed in this rule would allow an FMC or NMFS to utilize the same sort of advance planning for analysis of environmental impacts. FIPs could be used for a variety of fishery management measures and actions, including traditional framework actions, annual specifications, and other fishery management actions, as appropriate.

To establish a FIP, the FMCs or NMFS would include procedures in an FMP that comply with the requirements specified in Sec. 700.104(a) of the proposed regulations. For example, the FIP would need to specify criteria that would trigger the requirement to supplement a prior analysis if a new IFEMS or EA for the subsequent fishery management action would be needed.

This proposed rule would also establish a Framework Compliance Evaluation process to evaluate whether a fishery management action taken pursuant to an FIP established under an FMP requires additional actionspecific analysis. At a minimum, the Framework Compliance Evaluation would serve two purposes: First, to identify the applicable underlying NEPA document(s) for the subsequent fishery management action; and second, to determine whether the underlying NEPA document(s) can support the action (i.e., whether the action and its anticipated effects fall within the scope of the prior analysis) or whether the NEPA analysis requires supplementation due to new information or because the effects of the subsequent action have not been previously analyzed.

The Framework Compliance Evaluation would result in one of two outcomes, as specified in Sec. 700.104(c) and (d): (1) The development of a Memorandum of Framework Compliance that documents briefly how the fishery management action taken pursuant to a FIP falls within the scope of a prior NEPA analysis; or (2) the determination that supplementation of the prior NEPA analysis is needed to satisfy NMFS's NEPA obligation for the subsequent fishery management action. B. The Role of the FMCs and NMFS in the NEPA Process

The proposed approach recognizes that the MSA created a unique structure for Federal fisheries management, under which both the FMCs and NMFS have important roles. The FMCs are advisory bodies that develop management alternatives and make recommendations that NMFS must approve or partially approve unless they are inconsistent with applicable law. Given the primary role FMCs play in the development of fishery management measures and actions, FMC decisions should be directly informed by public comment, and the MSA's public process requirements address this need. For its part, NMFS has the authority to approve and implement fishery management measures and actions and bears ultimate responsibility for compliance with the MSA and NEPA. To account for these different roles, portions of the proposed procedures would differ from the current NMFS procedures with respect to the requirements for public participation and consideration of and responses to public comment by NMFS and the FMCs.

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 coolingoff period where necessary.

In light of the important role the FMCs play in the MSA process, public comment regarding scope of analysis, alternatives, and impacts should appropriately be directed to the FMCs during the development of recommended management measures and actions. However, NMFS recognizes that this requirement could affect the FMCs' ability to respond rapidly to a fishery management need in some cases. 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. Therefore, this proposed rule includes modifications to timing and process as discussed further in section C below.

C. Timing and Process

This proposed rule would establish a process for conducting the necessary NEPA analyses within the context of the FMC process. For EAs and CEs, the procedures currently used by the FMCs would not be affected. Likewise, there would not be significant changes to the existing process for Secretarial and HMS actions. Therefore, this discussion focuses on the proposed process by which an IFEMS would be prepared for an FMCinitiated action.

The key concept behind the proposed changes in procedure is that the opportunities for public participation
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and the requirements for comment and response have been revised to align with the MSA process and to reflect the respective roles of the FMCs and NMFS under the MSA, as discussed above. To allow the process to flow, as envisioned under the MSA, from FMC recommendation to an ultimate final agency action by NMFS, flexibility would be built into the procedural timelines.

As described in the discussion of roles in section B. above, this proposed rule strikes a balance between creating additional NEPA procedures required for the FMCs and where appropriate allowing for reductions of time for public review and input. While it imposes new duties on the FMCs to consider public input before voting, it does so in a manner intended to allow the process to continue moving forward to a decision point at the NMFS level. It is vital that FMCs and NMFS retain the ability to respond rapidly to fishery management needs. It is important to note that the public would be given as much time to review the draft as the FMC members and that any reduction in time must be supported by one of the criteria enumerated in these proposed regulations.

To offset any potentially shortened public review period on the draft during the development of FMC recommendations, this proposed rule would add additional public input requirements for NMFS. This would include a new comment period on a Final IFEMS, and a new requirement to respond to comments on the Final IFEMS in the ROD.

The goal of the proposal is to make the process flexible enough to allow adequate public involvement, but to allow for adjustments when necessary to meet a timesensitive resource management need. The minimum time period in which an FMC recommendation supported by an IFEMS could be completed under the proposed regulations would be over the course of two FMC meetings.

For FMCinitiated actions, the process would flow as follows: 1. Scoping

The basic scoping approach for FMCinitiated actions would be based on the MSA process. Generally, the initial scoping notice would be published in the Federal Register as part of an FMC's meeting agenda notice, and no less than 14 days in advance of the FMC meeting. This provision would not limit the ability of an FMC or NMFS to publish a scoping notice earlier in the process. In addition to the FMC meeting, other scoping activities could also be conducted by the FMC or NMFS. NMFS would have to ensure that the scoping process meets the purposes of scoping as proposed to be set forth at Sec. 700.108. The scoping notice would be required to be titled and formatted in a manner that provides the public with adequate notice of the NEPArelated scoping process. For NMFSinitiated actions, including HMS actions, NMFS would initiate scoping via a Federal Register notice and would provide notice of scoping activities, if any, conducted in conjunction with HMS Advisory Panel meetings or other meetings held by NMFS.

While the intent is to utilize the existing FMC processes to the extent practicable, the proposed regulations would allow scoping to be satisfied by many different mechanisms, including: FMC or NMFS planning meetings and public hearings; requests for public comment on public hearing documents; discussion papers; and other versions of decision and background environmental documents. Scoping meetings should adequately inform interested parties of the proposed action and alternatives to facilitate substantive participation in the development of the management measures and environmental document. 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 may be used as part of meeting the scoping components of these environmental review procedures.

Note that, in order to get the scoping notice out as early as possible, the FMC may not identify alternatives prior to publication of the notice. In this case, it would be sufficient to indicate that alternatives will be identified through the FMC process and that the public will have an opportunity to provide input through the FMC process.

NMFS, working with the FMCs, will develop guidance on the appropriate format and content for scoping notices.

In addition, the proposed rule includes a requirement at Sec. 700.112 that, with respect to any responsibilities not clearly assigned by this rule, NMFS and the FMC would assign these responsibilities prior to completion of the scoping process.

2. Draft IFEMS

The draft IFEMS would be circulated for public comment for at least 45 days prior to the FMC voting to recommend an action to NMFS, unless any of the considerations in Sec. 700.604(b)(2) are met. The FMC would be required to consider public comment on the IFEMS prior to voting to recommend the action. At a minimum, the notice of its availability would be required to be published no later than with the agenda notice for the upcoming FMC meeting at which FMC action would take place.

Under the proposed rule, the allowable public comment period on a draft IFEMS might, in extraordinary circumstances, be only 14 days, compared to CEQ's required minimum time period of 45 days for public comment on draft EISs (DEISs). It is important to note, however, that the draft IFEMS informs the FMCs in their development of recommended management measures and actions. In light of the unique role the FMCs play, the draft IFEMS would be specifically designed to link NEPA's considerations to the FMC process of developing recommended management measures and actions under the MSA.

3. Public Comment

In order to ensure that the public has a meaningful opportunity to participate in the NEPA process as the FMC develops its recommended management measures and actions, as well as ensure that the FMC is wellinformed when making its MSA recommendations, the FMC would be required to consider public comment on the draft IFEMS prior to voting to make a final recommendation to the Secretary. Because FMC meetings are public meetings and transcripts are kept, there would be a record of how the FMC addresses comments. The FMC's vote would also provide evidence of how the FMC responded to comments. In addition, this proposed rule would require the final IFEMS to document how both the FMC and NMFS responded to comments on the draft (Sec. 700.304).

Likewise, the commenting public would need to raise comments pertinent to the FMC's analysis, such as the scope of the analysis, the alternatives considered, and the expected environmental impacts, to the FMC prior to its vote. The proposed regulations state that NMFS is not obligated to respond to comments relevant to the draft IFEMS that are raised for the first time during Secretarial review. (See Sec. 700.305(d)). The proposed regulations are intended to encourage the public to seek any change in the policy recommendation or alternatives considered before the FMC's vote when this can and should appropriately be done via the FMC process. Therefore, the proposal highlights the obligations of the interested public to raise pertinent comments at appropriate points in the
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process. As discussed below, comments relevant to the draft IFEMS raised for the first time when the action is under MSA Secretarial review will be considered only in light of the Secretary's decision on the proposal's ultimately approvability, which includes compliance with NEPA and other applicable law.

4. Vote

The FMC would vote to recommend action. Depending on the outcome of the vote, either a final IFEMS or a supplemental IFEMS could be prepared. A final IFEMS could be prepared and submitted with the transmittal package to begin Secretarial review if the FMC voted to recommend: (1) An alternative considered and analyzed in the draft IFEMS; (2) a hybrid of the alternatives analyzed in the draft; or (3) another alternative not specifically analyzed in the draft IFEMS, but otherwise within the range of the alternatives analyzed in the draft. If, however, the FMC voted to recommend a completely new alternative (``outside the box'' alternative) that was not previously analyzed, there would be a requirement for additional analysis, but the proposed approach would offer some flexibility in determining how to proceed as described below.

5. Supplemental IFEMS

Section 700.203(b)(5) is intended to address the question of how to allow the FMC's recommended action to move forward towards submission to NMFS for decision, while assuring meaningful opportunity for the public to comment on the NEPA analysis both as the FMC develops its recommendation and as NMFS reviews the recommended action. Because the FMC process culminates in a vote from the FMCs, the FMCs rarely have a preferred alternative fully fleshed out prior to their vote. At FMC meetings, after hearing public testimony, an FMC may vote to recommend an action that is a modification of alternatives or combinations of alternatives specifically analyzed. Unless the impacts are beyond the scope of the analysis the FMC considered, these types of changes should not require a new draft IFEMS, but rather can be fully assessed in a final IFEMS and distributed for additional public comment before NMFS's final decision. The intention is to prevent the FMC from becoming trapped in a cycle of preparing a revised analysis to address the new alternative and conducting another vote, which again results in a completely new alternative, leading to yet another round of analysis and voting. On occasion, this cycle can lead to gridlock such that necessary and appropriate conservation and management measures or actions are inordinately delayed. If, however, the FMC selects a completely new alternative beyond the scope of the draft IFEMS, the public must be provided an opportunity to review a supplemental IFEMS.

As described below, the proposed approach would give the FMCs and NMFS some flexibility in determining how to proceed when an unanalyzed alternative is selected by the FMC. The FMC could choose to take public comment on the supplemental IFEMS through the FMC process or to transmit the supplemental IFEMS to NMFS and have NMFS take public comment on it during Secretarial review of the proposed action.

The FMC could decide to supplement the analysis, take public comment at the FMC level, and then submit the final IFEMS to NMFS with the transmittal package for the MSA recommendation(s). The supplemental document would be distributed to the public as another ``draft'' IFEMS and would comply with timing and commenting provisions regarding drafts. This approach would allow the FMC to maintain control of their analysis in the MSA process, and would allow a new vote at the FMC level prior to Secretarial review in the event that the supplemental analysis identified impacts that caused the FMC members to change their votes.

Alternatively, the supplemental IFEMS could be prepared and submitted with the transmittal package for the MSA recommendation(s). NMFS would then req

FOR FURTHER INFORMATION CONTACT Marian Macpherson at 251-751-0650, e- mail: Marian.Macpherson@noaa.gov.