Bob Zales, II, Panama City Boatmen’s Assoc., Panama City, FL
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The Full Council of the Gulf of Mexico Fishery Management Council convened in the Ballroom C/D/E of the Hilton Houston-Hobby Hotel, Houston, Texas, Thursday morning, June 5, 2008, and was called to order at 8:30 o’clock a.m. by Chairman Tom McIlwain.
CHAIRMAN TOM MCILWAIN: Everybody take their seats, please. I want to call to order the 216th meeting of the Gulf of Mexico Fishery Management Council. My name is Tom McIlwain and as chairman of the council, I welcome you all. Members of the public will be permitted to present oral statements in accordance with the schedule published in the agenda. Please advise the council staff if you desire to address the council. Please give written statements to the council staff, which are sitting over here on my left.
1996 amendments to the Fishery Management Act require all oral or written statements to include a brief description of the background and interests of the persons in the subject of the statement. All written information shall include a statement of the source and date of such information.
It is unlawful for any person to knowingly and willfully submit to the council false information regarding any matter the council is considering in the course of carrying out the Fisheries Act.
If you have a cell phone, pager, or similar device, we ask that you keep them on silent or vibrating mode during the council and committee sessions. A tape recording is used for the public record and therefore, for the purpose of voice identification, each member is requested to identify him or herself, starting on my left.
DR. BOB SHIPP: Bob Shipp, Alabama.
LCDR ELIZABETH KEISTER: Lieutenant Commander Beth Keister, U.S. Coast Guard, 8th District.
MR. BILL TEEHAN: Bill Teehan, State of Florida.
MS. JULIE MORRIS: Julie Morris, Florida.
MR. BOB GILL: Bob Gill, Florida.
MR. CORKY PERRET: Corky Perret, Mississippi.
MS. KAY WILLIAMS: Kay Williams, Mississippi.
DR. BONNIE PONWITH: Bonnie Ponwith, NOAA Fisheries Service.
MR. STEVE BRANSTETTER: Steve Branstetter, NOAA Fisheries Service.
DR. ROY CRABTREE: Roy Crabtree, NOAA Fisheries.
MR. SHEPHERD GRIMES: Shepherd Grimes, NOAA General Counsel, Southeast Region.
MR. HARLON PEARCE: Harlon Pearce, the great state of Louisiana.
MS. KAREN FOOTE: Karen Foote, Louisiana.
MS. SUSAN VILLERE: Susan Villere, Louisiana.
MS. BOBBI WALKER: Bobbi Walker, greater state of Alabama.
MR. VERNON MINTON: Vernon Minton, Alabama.
MR. ROBIN RIECHERS: Robin Riechers, Texas.
MR. MIKE RAY: Mike Ray, Texas.
MR. JOE HENDRIX: Joe Hendrix, Texas.
MR. LARRY SIMPSON: Larry Simpson, Gulf States Marine Fisheries Commission.
EXECUTIVE DIRECTOR WAYNE SWINGLE: Wayne Swingle, Gulf Council staff.
CHAIRMAN MCILWAIN: At this time, I would like to introduce Ms. Karen Foote.
PRESENTATIONS MS. FOOTE: Thank you. I would like to introduce the Assistant Secretary for the Office of Fisheries, Randy Pausina, with Louisiana Wildlife and Fisheries. He is the Governor’s appointee to the Gulf Council and he has delegated me to serve at this time, but we’re going to be working together on the council issues.
MR. PEARCE: He’s from the greatest state of Louisiana.
CHAIRMAN MCILWAIN: Randy, we welcome you and look forward to working with you.
MR. PERRET: Be careful. Ex-assistant secretaries from Louisiana end up in Mississippi.
CHAIRMAN MCILWAIN: If we can get rid of Corky, we’ll have room for you. Before we move into Adoption of the Agenda, we’ve got a couple of presentations that we would like to make to our retiring Executive Director, Mr. Wayne Swingle. Wayne, after all these years of giving away hundreds of these plaques, you didn’t think we would forget you, I don’t believe.
EXECUTIVE DIRECTOR SWINGLE: I’ve got a wall full of them. Thank you.
CHAIRMAN MCILWAIN: This is a Certificate of Service presented by the Gulf of Mexico Fishery Management Council to Wayne Swingle, in recognition and appreciation of the distinguished and dedicated services to the people of the Gulf States, 1976 to 2008. You’ll never see another one that looks like that. Wayne, congratulations.
Don’t sit down yet. We’ve got one more presentation from the council that we want to give to you and Dr. Leard is bringing that out right now.
EXECUTIVE DIRECTOR SWINGLE: Thank you all very much for the ovation.
CHAIRMAN MCILWAIN: Wayne, on behalf of the council, we would like to present this beautiful rifle to you. It’s got a plaque on the butt that says “Presented to Wayne Swingle in recognition of his thirty-two years of service to the Gulf of Mexico Fishery Management Council, presented June 5, 2008”.
Wayne, this weapon -- I consulted with your hunting partner and friend, Walter Tatum, and we were trying to find something that we thought you would enjoy and you can enjoy with your grandchildren and this weapon has been made since back in the late 1800s.
EXECUTIVE DIRECTOR SWINGLE: It’s a Henry rifle.
CHAIRMAN MCILWAIN: It is a magnificent piece of work.
EXECUTIVE DIRECTOR SWINGLE: It really is.
CHAIRMAN MCILWAIN: Congratulations and that’s just a small token of our appreciation.
EXECUTIVE DIRECTOR SWINGLE: Just for the council’s information, I’m an avid collector of guns and it’s influenced by a job in the case or two where the groups that were stirring up a little trouble came over to my house and just saw fifteen guns hanging over the --
CHAIRMAN MCILWAIN: Congratulations again and thank you for your service.
EXECUTIVE DIRECTOR SWINGLE: Thank you very much.
CHAIRMAN MCILWAIN: I would like to recognize Roy Crabtree. We’ll get this back to Florida for you.
DR. CRABTREE: Wayne, we’ve got a plaque for you, “Presented to Wayne Swingle for thirty-two years of exceptional service as the Gulf of Mexico Fishery Management Council’s only Executive Director”. You’ve done a great job with the council and no one has been here as long, from the beginning, as you have. Thank you very much, from Jim Balsiger and Bill Hogarth and everyone you’ve worked with over the years. Thank you, Wayne.
CHAIRMAN MCILWAIN: You’ve got one more, Wayne. You’ll have to get a bigger wall.
MR. RIECHERS: Wayne, on behalf of the State of Texas and Mike and Joe and myself and all past council members, we want to present you with a flag that flew over the Texas capitol. It’s a Texas flag and we’re making you an honorary Texan for all the wonderful things you’ve done in the Gulf of Mexico and the conservation that you’ve helped put in place and we certainly appreciate all your years of effort.
EXECUTIVE DIRECTOR SWINGLE: It will fit in right beside my honorary badge as an enforcement officer for the State of Texas.
CHAIRMAN MCILWAIN: You’ve got one more here, Mr. Bob Zales.
MR. BOB ZALES: Wayne, I was going to do this in Baton Rouge, but I missed it and you had to leave on an illness. On behalf of the Panama City Boatmen Association, and I’m sure B.J. is looking down, because he was one of the first council members and he’s the one that got me connected with you, we want to issue this Certificate of Appreciation.
Knowing that you’re educated at that other school in Alabama, I did this in orange and blue, your colors, for you. This is from the members of the Panama City Boatmen Association. We wish to express our sincere appreciation to Wayne Swingle, for his expertise and willingness to help us and work with the fishery management system and his guidance and wisdom in managing the marine resources of the Gulf of Mexico. Wayne, we appreciate it and I appreciate all that you’ve done for me personally and on behalf of our members --
EXECUTIVE DIRECTOR SWINGLE: I would like to indicate, Bob, that I did try to support the Panama City Boatmen Association. In the mid and late 1950s, I fished out of there frequently for snapper grouper and had two-day trips and had great success.
MR. ZALES: You helped deplete the fishery. Thank you very much.
EXECUTIVE DIRECTOR SWINGLE: Thank you very much.
CHAIRMAN MCILWAIN: Wayne, thank you again for your dedicated service. You’ve set a bar that’s exceedingly high and we appreciate it. We’ve been friends for many years and I’ve enjoyed it and I look forward to continuing that friendship into your retirement.
ADOPTION OF AGENDA AND APPROVAL OF MINUTES Let’s move to the agenda. You have a copy of the agenda before you. Are there any additions or deletions?
MS. WILLIAMS: I would like to add two items to Other Business, one being a discussion on state compatibility and a possible preemption letter and two, a discussion on tilefish.
CHAIRMAN MCILWAIN: Tilefish was the other one?
MR. WILLIAMS: Yes, tilefish.
CHAIRMAN MCILWAIN: Are there any other additions or changes?
DR. LEARD: I don’t know if it made it into your last briefing book, but we would like to have the council consider co-sponsoring a Law Enforcement AP workshop, probably next month, co-sponsored with the Gulf States Marine Fisheries Commission, to consider working on the strategic plan.
CHAIRMAN MCILWAIN: Okay, Dr. Leard, that is on the agenda. Any other comments on the agenda? Do I hear a motion to adopt the agenda?
MR. GILL: Move to adopt as modified.
CHAIRMAN MCILWAIN: We have a second. All those in favor of adopting the agenda as amended say aye; opposed. The agenda is adopted. The next item of business is Approval of Minutes.
MR. GRIMES: Amanda did a fine job, but there are just a few things. Page 8, line 40, insert the word “give” between the words “can” and “some”. Page 87, line 48, the first “a” should be “in”. Page 91, line 48, the first word should be “secretarial” and not “council” and that is all, Mr. Chairman, and thank you.
CHAIRMAN MCILWAIN: Thank you. Any other additions or deletions or corrections?
MS. FOOTE: Move the minutes.
CHAIRMAN MCILWAIN: It’s been moved and seconded that we adopt the minutes as corrected. All those in favor say aye; opposed. The minutes stand adopted. The next item on our agenda is a presentation by Ms. Marian Macpherson on the Proposed Rule Integrating Magnuson-Stevens Act with the NEPA Act. This just came out in the last couple of weeks and, Marian, we look forward to your presentation.
PROPOSED RULE INTEGRATING MAGNUSON-STEVENS ACT AND NEPA MS. MARIAN MACPHERSON: Thank you. Thank you for having me here to talk about some of the highlights of our proposed rule. As you probably all know, in January of 2007, Congress signed the Magnuson-Stevens Reauthorization Act.
One of the provisions in the reauthorization was a requirement for NMFS to revise and update its procedures for complying with NEPA, the National Environmental Policy Act, to ensure that the timelines for complying with NEPA were integrated into the Magnuson-Stevens Act timelines to ensure that there were adequate opportunities for public involvement and to ensure compliance with both laws.
There were some deadlines for getting that done. We were required to have the proposed rule out last July and we’ve just gotten it out. On May 14th, it published. There’s also a mandatory ninety-day comment period and so our comment period will run from May 14th through August 12th. We’re in the middle of it now and we’re going to be doing some outreach during the comment period, trying to get as much public input as possible. You guys are one of our first council meetings where we’re giving this presentation.
Up there on the PowerPoint screen -- Steve Leathery is giving some more presentations this week in Alaska. He’s the NEPA Coordinator for NOAA Fisheries. I work in the Office of Sustainable Fisheries and we’re kind of working as a team on this rule. It’s got both Magnuson and NEPA implications.
Our goals, in complying with that mandate to revise and update our procedures, we started with a set of internal goals, number one, to comply with both of the statutes, NEPA and the Magnuson Act, and then we also wanted to make sure we adhered to the principles in the Council on Environmental Quality’s regulations for implementing NEPA.
That Council on Environmental Quality is the organization vested with oversight authority for all of NEPA and they’ve got regulations that have been in place since 1978 that prescribe the procedures we’ve been using all this time, including the draft environmental impact statement, the forty-five day comment period. All of those technical procedures come from the regulations.
We wanted to adhere to the principles of those regulations as much as possible when creating our own process and then, of course, integrate NEPA into the existing public processes that we already have, that we’re in right now for instance, and build on the recommendations on the CCC strawman.
Last spring, a subcommittee of the Council Coordinating Committee put together a draft proposal of what they would like to see in the revised procedures and one of the key features of that approach was to eliminate the distinction between environmental assessment, finding of no significant impacts, and environmental impact statement and just always do a full-blown analysis on every action, which in a way made a lot of sense, because the Magnuson Act requires so much analysis already.
You guys are already doing so much of the work, but one of the issues with that proposal that we ended up getting feedback from at the CCC meeting in New Orleans last May was that it would have required a three council meeting process for all actions and we were hearing from some of the regions and councils that there are times when they need to implement an action in fewer than three meetings.
That proposal also would have been implemented as a NOAA administrative order and we wanted to make sure that our new procedures are on equal footing with the Council on Environmental Quality regulations and so our first step was to start at the regulatory level and then if there’s additional work we need to do at the administrative order level, we’ll follow up with that subsequently.
A big thing that we wanted to do was to clarify the areas of responsibility of the councils and NMFS, because Magnuson sets up a process for councils and NEPA, technically, applies to NMFS and so how do we align those responsibilities and get the public comment into the appropriate forum, at a time when decisions are being developed and alternatives identified? That was something we were struggling with and we’ve got a recommended approach in this rule and I’ll talk a little bit about it more in a few minutes.
Then we wanted to make sure that there was enough flexibility to allow for a rapid response in situations where there is a management need that required speedier attention than maybe a longer deliberative ideal process under NEPA could have allowed. We wanted to maximize public input while allowing resource needs to be addressed, as necessary.
The approach we took, we started with the Council on Environmental Quality’s regulations and tried to retain as much of them intact as possible, except where we saw hurdles. For instance, some of their timelines that don’t start until after a DEIS is published, how do those align with council meeting schedules and Magnuson Act review processes?
I do want to point out that working with CEQ has been very helpful. They helped us realize that the CEQ regulations themselves do contain areas of flexibility that allow individual agencies to come up with their own procedures that do modify timelines and so working within those parameters, we’ve established a definition of how far down we would go with reducing timelines.
As I said earlier, if we go forward with this, we can continue to improve it and refine with additional internal guidance, once we get past the regulatory steps.
The key changes I’m going to talk about that are in your materials have to do with the content requirements of the environmental impact statement, the forms of documentation that we use to prove our compliance with NEPA and how we provide for public involvement, comment periods and responses, and then some modifications to minimum time periods that are in the CEQ regulations.
The content requirements -- Basically for an environmental impact statement, we try to keep as much as possible, as I said, without losing anything -- We made some tweaks to certain areas that were causing confusion in a fishery management context. One big issue that was identified by the CCC and also has been raised through the public is the issue of how do you define a reasonable range of alternatives.
This is something that is required by the CEQ regulations for an environmental impact statement, but for fisheries, we’ve had questions of well -- No action is one of the alternatives that we’re required to consider and what does that mean?
If you’ve created a regulation that sunsets and you take no action, literally you could have an open access fishery or a completely closed fishery and people didn’t find that useful or meaningful to necessarily always be analyzed if really what’s more reasonable is to look at the baseline of current management and how that would differ from what’s being proposed.
We worked on that issue, defining the no action alternative for fisheries management. How do we deal with incomplete and unavailable information? I’ll talk more about that in a minute and we’ve got another slide on it, but that’s a current requirement of the CEQ regulations. If there is information that’s necessary to a reasoned analysis and you don’t have it, CEQ regulations require you to go out and get it, unless the costs are exorbitant. We wanted to clarify how that fit with our National Standard 2 requirements and other provisions of the Magnuson Act and congressional appropriations issues and so we added some language on those points.
Finally, the cumulative impacts analysis, this is something that is logically implied to be required in an EIS by the regulations and courts have stated that it’s required, but we just went ahead, for clarity, and added that as a specific provision in our list of components and so that’s actually a new specification of the mandatory components of an environmental impact statement.
As I was just mentioning, what is a reasonable alternative? This is an issue that we tried to address. The CEQ regulations require that an environmental impact statement considers all reasonable alternatives.
We’ve heard input from some of the councils, especially up in the North Pacific, that this requirement to consider all can be one of the factors contributing to our 7,000 page documents, just when you’re dealing with complex especially allocation schemes. There’s so many variables and so many ingredients you can mix around that this is an unnecessarily burdensome requirement.
That suggestion was to eliminate the word “all” and through consultations with the Council on Environmental Quality, they felt that “all” is an important word to keep in there and we can deal with that problem through a better statement of our purpose and need. That’s how it ended up in the proposed rule and we’re expecting to get some comment on that point.
We defined the word “reasonable” to be derived from the statement of purpose and need and so we’re hoping that maybe we can get some training on how to narrow that down and help narrow that statement. We hope that narrowing that statement will help us have tighter, more concise documents.
Then we added some language indicating that an alternative is not reasonable if it’s consistent with the Magnuson Act and the National Standards. It’s not reasonable if it’s impractical or ineffective and it’s not reasonable if it fails to achieve our stated goals.
Here’s a little more detail on that no action alternative. This rule comes out and states that no action does not mean the literal no action if it’s not a reasonable alternative on its own. It does mean continued management of the fishery as it’s being managed currently at the time of initiation of the analysis, with reasonable assumptions.
The key point is to provide a baseline for comparison. One thing to point out to you is I’m hearing from the Northeast that they like analyzing the no action as the literal no action sometimes in their environmental assessment documents and their only two alternatives will be no action, which means a closure or an open access, versus the proposed action. I’m just going to highlight that for you. I don’t know if it raises issues for you here. That’s why we’re in the comment period, to identify if there are things in here that are going to cause problems for people.
I was talking about the incomplete and unavailable information. As I said, this is a current requirement in the CEQ regulations, to require that information, if the costs are not exorbitant. We added language in our preamble explaining how you determine exorbitance and there’s that list up there.
It has to include consideration of the availability of appropriated funds, the research priorities identified by the SSCs under the new MSRA and the cost of delay. Exorbitance is not just measured in money, but it can be measured in time as well and also in light of the inherent uncertainties in fisheries management.
Then if the unavailable information -- If the risk of not including it has already been analyzed, then there’s no need to redo that. You can cite back to the previous analysis where that was analyzed and we’ve specified that in our regulations.
Cumulative impacts, as I mentioned, there would be an additional item in the list of required components and your EIS level analysis, which the name would be changed, and I’ll get to that on the next slide, to IFEMS. This hopefully should not be a new burden. I think in real life we’re all doing this already, but we would just have that added in for clarity into our list of what an EIS level document must have.
As I mentioned, the CCC had proposed eliminating the EA/EIS distinction and always doing the EIS level analysis and they would have changed the name to the environmental impact assessment and that’s the language that the MSRA uses as well, but we had some resistance to that proposal and a lot of public comment we received -- We had posted some trigger questions and this issue of whether to eliminate the EA distinction just raised a lot of concern.
People were worried about having to do voluminous analyses on miniscule actions that really should be easily dealt with with a FONSI and there were questions that if every action were subject to an EIS level analysis that how would you know how to scale your document so you could do a complete analysis on a smaller action and how would you know when it was okay?
In the proposed rule, we’ve retained that ability to use EA/FONSI, but we’ve tried to make it much easier to proceed to the EIS level or the IFEMS as the default and the things that we’ve done to make it easier, as I mentioned, are adding flexibility into the timelines and aligning the areas of public comment and so hopefully we’ll be able to take advantage of the idea of doing more EIS level analyses and not being constrained into, because of timing issues, having to mitigate down our proposed action in order to reach that finding of no significant impact. We’re trying to get away from those situations.
Anyway, the terminology that we came up with through consultations with CEQ, the EIS level action would be titled the Integrated Fishery Environmental Management Statement, or IFEMS. That follows the mandate of the MSRA to have a single integrated process for all of the environmental considerations for Magnuson Act actions.
Then we retained that EA/FONSI with additional guidance and actually have a new procedure spelled out in the proposed rule and it’s an optional procedure and the intent of this new procedure, it would be a sort of framework type procedure for your NEPA analysis and if the councils opted to go this way, they would be able to build into their FMPs their own rules for how to do NEPA frameworks and their own rules for what are the criteria that triggered the need to supplement that framework and how do you respond when there’s a need to supplement your framework? Do you have to stop managing or can management continue while you go ahead and supplement your analysis?
I think it’s not in anyone’s interest to have management stop while we analyze and so this would be an optional tool and it would be documented by a memorandum of framework compliance and then the DCE is a new form of documentation that just specifies how we will document when we’ve done a categorical exclusion. It would just be a very simple memo to the file. It’s something we could have done before.
This slide is a little bit more information about the framework implementation procedures. It’s NMFS or the FMCs. That “or” is in there for HMS and secretarial fisheries and FMPs and so whoever is running the FMP can establish this framework implementation procedure within the FMP and what it is is a formal mechanism to allow your actions to be undertaken pursuant to a previously planned management regime without a new analysis.
Just the same way you would build your Magnuson Act FMP to allow certain actions to happen in the future, without a new FMP amendment, you should be able to do the same thing for NEPA, but your FMP would just need to include more specific information about how that would work.
Here’s a little more information about how the FIP structure would work. The idea is that it would be based on early, broad-based analysis that provides a foundation for subsequent actions or categories of actions and then if those subsequent actions are within the scope, there’s no need for an additional analysis. You could simply document that and as I said, each individual FMP would have to specify the criteria that would require updating or supplementing the underlying analysis.
Opportunities for public involvement, this is another one of those big issues we were dealing with. We’ve attempted over the years -- I said previously that NEPA applies to NMFS and Magnuson applies to councils, but we have attempted, over the years, to do as much of the NEPA process through the council process as possible, because it informs your decisions and leads to better management and prevents surprises at the end, but technically, we really needed some more clarity about who is doing what job at what level.
Whereas the CEQ regulations have the process under NEPA of a draft environmental impact statement with a forty-five-day comment period and then a final environmental impact statement with a thirty-day cooling off period, we broke that apart, into the council level document, which we are calling the draft IFEMS, and the NMFS level document, which we’re calling the final.
We’re created comment periods on both of those and there’s something of a tradeoff there, because when we get into the timing, you’ll see that the comment period for council level actions can be reduced to account for urgent management needs, if justified by a list of criteria that we’ve set forth that are spelled out. We don’t expect this to be the default scenario, but the idea was to allow flexibility.
To compensate for that, what might be perceived as loss of time on the initial draft, which actually relates to the council’s development of a recommendation and not actually the agency’s final action, we’ve added a second comment period, beyond what is in the CEQ regulations, at the secretarial level.
There’s a second bite at the apple for the public to comment on the NEPA analysis and that is aligned and synchronized with secretarial review periods on FMPs and regulations.
The proposed rule does specify that comments relating to scope and range of alternatives need to be raised at the council. Because of the way the Magnuson Act is set up, once it’s at the secretarial level, it doesn’t make any sense for us to be changing the NEPA analysis, because we’re evaluating your recommendation on its face at that point.
The time period -- It says the “EPA Time Periods” and it probably should say “CEQ Time Periods”, but we do have some changes with EPA as well, but we retain those minimum time periods as defaults. The comment period on the draft EIS would be presumed to be forty-five days, as I said, unless there was a good reason to reduce that, which might have to do with your meeting schedules and resource needs. There’s a list of the considerations and there are kind of a lot of them, but --
Our goal here, as I said, getting back to how this is different from the CCC proposal, was to allow for completion of the full blown EIS level analysis within a two meeting cycle where necessary. Now, we’re not trying to force the completion within a two meeting cycle.
That would be the minimum, where it was really necessary, but you’re certainly not prevented from proceeding as you do now, with many iterations over several months or years, whatever, taking as much time as you want. That’s certainly wonderful and acceptable, but we just recognize that there may need to be more flexibility in some situations.
The next two slides get into a little bit more detail. I don’t know if you want to walk through all of this, but these timelines are set forth in your materials. I’ll just kind of walk through it.
The first slide is the timeline that happens at the council level and the second slide is going to be after transmittal and what happens at the NMFS level and that one is broken out into timelines for FMPs and amendments and timelines for regulations.
The scoping period, scoping would happen at the council level and under our NAO, our NOAA Administrative Order on NEPA, we have a thirty-day scoping period. This proposed rule would allow that to be reduced down to fourteen days, so that you would publish your scoping notice no later than with your agenda notice. They could go out together and be synchronized if you’re going to do scoping at a council meeting.
If we were proceeding under this minimum two-meeting cycle, at the first meeting, the council would review comments on scoping, select some alternatives and direct their staff to prepare the draft analysis. There’s no minimum timeline for that, but then once that draft is published, there would be a comment period, which would be presumed to be forty-five days, but could be reduced to fourteen if justified.
Then at the second meeting, the council would review the public comment and at that point could take a vote to recommend final action and after that, then the final document would be prepared, prior to transmittal. This process is designed to let things keep moving along and not have NEPA require you to go back and reanalyze.
We also get into the question of we call it voting outside the box or selecting hybrid alternatives or alternatives that are within the range of your raw analysis, but maybe not specifically identified and what needs to happen there, but I’ll get to that after I get through this regular scenario.
Here’s how the timeline shakes out after transmittal and the left column is for FMPs and amendments and the right is for regulations, because the Magnuson Act has different timelines for those.
With your FMP amendment, it basically fits pretty well. You put your NEPA document out there with the Magnuson Act action and the timeline would run concurrently and the cooling off period would run from day sixty to day ninety, just like currently required. There’s a thirty-day cooling off period under the CEQ regulations.
Something else in the regulations that’s kind of neat that may not be a big deal to you, but it might be for staff, agency staff, whoever is doing the actual writing and scheduling, but the way things work now, when we have an EIS that we’re ready to share or a draft EIS that we’re ready to file, and the publishing in the Federal Register is what starts these timelines, we have to file it with the EPA.
The EPA has its own system for starting a clock. They publish in the Federal Register once a week, on Fridays, and what they publish is the documents that they received from the week before and so that can result in a two-week lag period and for us, in some situations, that is a problem.
What’s in this proposed rule is that we, NOAA, would be able to file in the Federal Register our Notice of Availability of our NEPA documents at the same time we file the Notice of Availability of our Magnuson Act documents and get those two timelines synchronized and save a little time. Hopefully that will be something that’s helpful.
Then over on the regulatory track, the timelines are a little bit different. There’s a little more of a challenge in synchronizing the cooling off period, especially if you’re doing a fifteen-day comment period on a rule and you want to implement it sooner than thirty days after publishing the proposed, which is a pretty tight turnaround and presumably if you’ve got to do an EIS on it, you might need more time than that, but anyway, that’s the -- That’s not a new burden, but it’s just something that we couldn’t completely get around in this proposed rule. There’s that and I’m not going to spend too much more time on those.
Moving on to supplementation and so this supplementation, what does this mean? This means what do you do if you’ve considered your draft environmental impact statement and you get public comment at your council meeting and all of that information leads you to pick an alternative that was not specifically laid out in the analysis, do you have to go back and have another analysis and have another vote or how do you move the process forward?
The proposed rule tries to clarify how things would work in that situation and the rule states that for hybrid alternatives, which are combinations of alternatives that were analyzed in your analysis or for new alternatives that were within that range of your analysis, that you don’t have to go back and start over.
You can go ahead and make your final and transmit and then the additional comment period at the secretarial level would satisfy the requirements for comment on that. However, if something completely new and different comes up that you’ve never thought of before, there would be a need to go back and do a new analysis and put it back out for public comment.
Then the question is do you have to open up your vote again and we’re leaving that option up to you. Maybe you want to revote, based on the public comment, and retain control of that document or maybe you’re in a hurry and you just want to do the analysis and keep things moving and get it into secretarial review and so that is an option.
There’s even an option for extremely time sensitive situations where you go ahead and you do your supplemental analysis and you transmit it before even circulating for public comment and so the public comment period on that supplemental draft would run on the Magnuson Act clock.
We’ve written this in here as an option for people to look at and to see how it would flow. It’s a backbreaking schedule for staff to try to do this and hit all the timelines, but that’s a possibility and I’m hoping we’ll get some feedback on that as well.
Here’s just some more information on how supplementation on the clock would flow. The supplemental would be submitted with the transmittal package. For the FMPs, the comment period would be reduced, to forty-five, and then the final would have to be published by day sixty for the second comment period to take place.
Then for regulations, there are just even more complications, because the final rule has to be published within thirty days of the end of the comment period on the proposed and so the comment period on the supplemental would have to be short enough to allow for all of that work to be done and the cooling off period to run and still make that thirty-day deadline. That’s really tight and I don’t know if it would be helpful or used, but we spelled it out, what it would look like.
As I said, we’ve got this rule out for public comment. The comment period will close August 12th. What we’re doing this summer is a lot of outreach. We’re trying to hit as many council meetings as possible and I really appreciate you having me here and we’re also going to be hosting three agency-sponsored meetings, one in Seattle, one in St. Petersburg, and one in Washington, this summer. We’ve got a Federal Register notice out on that and I can get you dates, if you’re interested, and more information there.
I’ve included this slide just as a quick reference guide, if anybody wants a little cheat sheet to help you walk through the proposed rule. These are the sections where some of our major revisions are that might just help you focus your comment.
I’ll just wrap it up by saying that we think the proposed rule has a lot of promise for streamlining our process and allowing the process to move forward while still getting public input and getting the public input at the appropriate points in the process. Our key approach is to utilize flexibility while defining minimums, minimum parameters, that we’re going to adhere to and retaining the content requirements.
That link up there is just a link to our MSRA implementation site and there’s a lot of NEPA information up there and they’re posting -- Every time we have new information, we’re posting it there. That’s the quick run-through and if anybody has questions, I would be glad to take a crack at answering them.