DEPARTMENT OF COMMERCE (DOC)

Statement of Regulatory and Deregulatory Priorities

The President’s fiscal year (FY) 2010 Budget details how this Administration plans to lift our economy out of recession and lay a ne w foundation for long-term growth and prosperity. The Department of Commerce (the “Department” or “Comme rce”) is aligning itself to contribute to both of these goals.

Established in 1903, the Department of Co mmerce is one of the oldest Cabi net-level agencies in the Federal Government. The Department’s mission is to create the conditions for economic growth and opportunity by promoting innova tion, entrepreneurship, competitiveness, and environmental stewardship. Commerce has 12 operating units, which are responsible for managing a diverse portfolio of programs and services, ranging from trade promotion and economic development assistance to broadband and the National Weather Service. The Department currently employs approximately 53,000 people around the world, although this workforce doubled temporarily in 2010, due to the decennial census.

The Department touches Americans daily, in many ways--making possibl e the daily weather reports and survey research; facilitating technology that all of us use in the workplace and in the home each day; supporting the development, gathering, and transmission of information essential to competitive business; enabling the diversity of companies and goods found in America's and the world's marketplace; and supporting environm ental and economic health for the communities in which Americans live.

Commerce has a clear and compelling vision for itself, for its role in the Federal Government, and for its roles supporting the America n people, no w and in the future. To achieve this vision, the Department works in partnership with businesses, universities, communities, and workers to:

• Innovate by creating new idea s throu gh cutting-edge science and technology from advances in nanotechnology, to ocean exploration, to broadband deployment, and by protecting American innovations through the patent and trademark system;

• Support entrepren eu rship and commercialization by enabling community development and strengthening minority businesses and small manufacturers;

• Maintain U.S. economic competitiveness in the global marketplace by promoting exports, ensuring a level playing field for U.S. busines ses, and ensuring that technology transfer is consistent with our Nation’s economic and security interests;

• Provide effective management and st ewa rdship of our Nation's resources and assets to ensure sustainable economic opportunities; and

• Make informed policy decisions and enable be tter unde rstanding of the economy by providing accurate economic and demographic data

.

The Department is a vital resource base, a tireless advocate, and Cabinet-level voice for job
creation.

The Reg u latory Plan tracks the most important regulations that implement these policy and
program pr io rities, several of which involve regul ation of the private sect or by the Department.

Responding to the Administration's Regulatory Philosophy and PrinciplesThe vast majority of the Department's progr ams and activities do not involve regulation. Of the Department's 12 primary operating units, only the National Oceanic and Atmospheric Administration (NOAA) will be planning action s that are considered the "most important" significant preregulatory or regulatory actions for FY 2010. During the next year, NOAA plans to publish four rulemaking actions that are desi gnated as Regulatory Plan actions. Further information on these actions is provided below.

The Department has a long-standing policy to prohi bit the issu ance of any regulation that discriminates on the basis of race, religion, gender, or any other suspect category and requires that all regulations be written so as to be understandable to those affected by them. The Secretary also requires that the Department afford the public the maximum possible opportunity to participate in departmental rulemakings, even where public participation is not required by law.

National Oceanic and Atmospheric Administration

NOAA establishes and administers Federal policy for the conservation and management of the Nation's oc ea nic, coastal, and atmospheric re sources. It provides a variety of essential environmental and climate services vital to public safety and to the Nation's economy, such as weather forecasts, drought forecasts, and storm wa rnings. It is a source of objective information on the state of the environment. NOAA plays the lead role in achieving the departmental goal of promoting stewardship by providing assessments of the global environment.

Recognizing that economic growth must go hand-in -ha nd with environmental stewardship, the Department, through NOAA, conducts programs designed to provide a better understanding of the connections between environmental health, economics, and national security. Commerce's emphasis on "sustainable fisheries" is designed to boost long-term economic growth in a vital sector of the U.S. economy while conserving the resources in the public trust and minimizing any economic dislocation necessary to ensure long-t erm economic growth. The Department is where business and environmental interests intersect, and the classic debate on the use of natural resources is transformed into a "win-win" situation for the environment and the economy.

Three of NOAA's major components, the National Marine Fisheries Services (NMFS), the National Ocean Service (NOS), and the National Environmental Satellite, Data, and Information Service (NESDIS), exercise regulatory authority.

NMFS oversees the management and conservati on of the Natio n's ma rine fisheries, protects threatened and endangered marine and anadromous species and marine mammals, and promotes economic development of the U.S. fishi ng industry. NOS assists the coastal States in their management of land and ocean resources in their coastal zones, including estuarine research reserves; manages the Nation's national marine sanctuaries; monitors marine pollution; and directs the national program for deep-seabed minerals and ocean thermal energy. NESDIS administers the civilian weather satellite program and licenses private organizations to operate commercial land-remote s ensing satellite systems.

The Department, through NOAA, has a uniqu e role in promoting steward ship of the global environment through effective management of t he Nation's marine and coastal resources and in monitoring and predicting changes in the Earth's environment, thus linking trade, development, and technology with environmental issues. NOAA has the primary Federal responsibility for providing sound scientific observations, assessments, and forecast s of environmental phenomena on which resource management, adaptation, and other societal decisions can be made.

In the environmental stewardship area, NOAA's goals include: Rebuilding and maintaining strong U.S. fishe r ies by using market-based tools and ecosystem approaches to management;increasing the populations of depleted, threate ned, or endangered species and marine mammals by implementing recovery plans that provide for their recove ry while still allowing for economic and recreational opportunities; promoting healthy c oastal ecosystems by ensuring that economic development is managed in ways that maintain biodiversity and long-term productivity for sustained use; and modernizing navigation and positioning services. In the environmental assessment and prediction area, go als include: Understanding climate change science and impacts, and communicating that understanding to go vernment and private sector stakeholders enabling them to adapt; continually improving the National Weather Service; implementing reliable seasonal and interannual climate forecasts to guide economic planning; providing science-based policy advice on options to deal with very long-term (decadal to centennial) changes in the environment; and advancing and improving short-term warning and forecast services for the entire environment.

Magnuson-Stevens Fishery Conservation and Management Act

Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act)
rulem aki ng s con cern the conservation and mana gement of fishery resources in the U.S. Exclusive Economic Zone (generally 3-200 nautical miles). Among the several hundred rulemakings that NOAA plans to issue in fiscal year 2010, a number of the preregulatory and regulatory actions will be significant. The exact number of such rulemakings is unknown, since they are usually initiated by the actions of eight regional Fishery Management Councils (FMCs) that are responsible for preparing fishery management plans (FMPs) and FMP amendments, and for drafting implementing regulations for each managed fishery. NOAA issues regulations to implement FMPs and FMP amendments. Once a rulemaking is triggered by an FMC, the Magnuson-Stevens Act places stringent deadlines upon NOAA by which it must exercise its rulemaking responsibilities. FMPs and FMP amendments for Atlantic highly migratory species, such as bluefin tuna, swordf ish, and sharks, are developed dire ctly by NOAA, not by FMCs.

FMPs address a variety of issues includi ng maximizing fishing opportu nities o n healthy stocks, rebuilding overfished stocks, and addressing gear co nflicts. One of the problems that FMPs may address is preventing overc apitalization (preventing excess fishing capacity) of fisheries. This may be resolved by market-based systems such as catch shares, which permit shareholders to harvest a quantity of fish and which can be tr aded on the open market. Harvest limits based on the best available scientific information, whether as a total fishing limit for a species in a fishery or as a share assigned to each vessel partici pant, enable stressed stocks to rebuild. Other measures include staggering fishing seasons or lim iting gear types to avoid gear conflicts on the fishing grounds and establishing seasonal and area closures to protect fishery stocks.

The FMCs provide a forum for public debat e a nd, u s ing the b est scientific information available, make the judgments needed to determine optimum yield on a fishery-by-fishery basis. Optional management measures are examined and selected in accordance with the national standards set forth in the Magnuson-Stevens Act. This process, including the selection of the preferred management measures, constitutes the development, in simplified form, of an FMP. The FMP, together with draft implementing re gulations and supporting documentation, is submitted to NMFS for review against the nati onal standards set forth in the Magnuson-Stevens Act, in other provisions of the Act, and other ap plicable laws. The same process applies to amending an existing approved FMP.

Marine Mammal Protection Act

The Marine Mammal Protection Act of 1972 (MMPA) provides the authority for the

con se r vation and management of marine mammals under U.S. jurisdiction. It expressly prohibits, with certain exceptions, the take of marine mammals. Exceptions allow for permitting the collection of wild animals for scientific research or public display or to enhance the survival of a species or stock. NMFS initiates rulemakings under the MMPA to establish a managementregime to reduce marine mammal mortalities and injuries as a result of interactions with fisheries. The Act also established the Marine Mammal Commission, which makes recommendations to the Secretaries of the Departments of Commerce and the Interior and other Federal officials on protecting and conserving marine mammals. The Act underwent significant changes in 1994 to allow for takings incidental to commercial fishi ng operations, to provide certain exemptions for subsistence and scientific uses, and to require the preparation of stoc k assessments for all marine mammal stocks in waters under U.S. jurisdiction.

Endangered Species Act

The Endangered Species Act of 1973 (ESA) provides for the conservati on of species that are determined to be "endange red" or "threatened," and the conservation of the ecosystems on which these species depend. The ESA aut horizes both NMFS and the Fish and Wildlife Service (FWS) to jointly administer the provisions of t he Act. NMFS manages marine and "anadromous" species, and FWS manages land and freshwater species. Together, NMFS and FWS work to protect critically imperiled species from extinction. Of the 1,310 listed species found in part or entirely in the United States and its waters, NMFS has jurisdiction over approximately 60 species. NMFS' rulemaking actions are focused on determining whether any species under its responsibility is an endangered or threatened species and whether those species must be added to the list of protected species. NMFS is also responsible for designating, reviewing, and revising critical habitat for any listed species. In additi on, under the ESA's procedur al framework, Federal agencies consult with NMFS on any proposed ac tion authorized, funded, or carried out by that agency that may affect one of the listed species or designated critical habitat, or is likely to jeopardize proposed species or adversely modify proposed critical habitat that is under NMFS' jurisdiction.

NOAA's Regulatory Plan Actions

While most of the rulemakings undertaken by NOAA do not rise to the level nece ssary to be included in the Department's regulatory plan, NMFS is undertaking four actions that rise to the level of "most important" of the Department’s si gnificant regulatory actions and thus are included in this year's regulatory plan. The four action s implement provisions of the Magnuson-Stevens Fishery Conservation and Management Act, as reaut horized in 2006. The first action may be of particular interest to international trading partner s as it concerns the Certification of Nations Whose Fishing Vessels are Engaged in Illegal, Unre ported, or Unregulated Fishing or Bycatch of Protected Living Marine Resources. A description of the four regulatory plan actions is provided below.

1. Certification of Nations Whose Fishing Ve ssels Are Engage d in Illegal, Unre ported, o r Unregulated Fishing or Bycatch of Protected Li ving Marine Resources (0648-AV51). NOAA’s NMFS is establishing a process of identification a nd certification to address illegal, unreported, or unregulated (IUU) activities and bycatch of protec ted species in international fisheries. Nations whose fishing vessels engage, or have been engaged, in IUU fishing would be identified in a biennial report to Congress, as required under section 403 of the Magnuson-Stevens Fishery Conservation and Management Act. NMFS would su bsequently certify whether identified nations have taken appropriate corrective action with resp ect to the activities of its fishing vessels.

2. Pacific Coast Groundfish Trawl Rationalization Program--Program Components Rulemaking (064 8-AY68): Due to the complexity of the fishe ry management measures, NMFS is implementing the Pacific Coast G roundfish Tr awl Rationalization Program through multiple rulemakings. A previous rulemaking (i.e., the Initial Issuance rule) creates and issues quota
share s to qualified participants and establishes an appeals process. The program components rulemaking would implement the second phase of the trawl rationalization program. In particular, this rulemaki ng incl udes requirements for observers and compliance monitors, retentionrequirements, coop permits and agreements, first re ceiver site licenses, vessel accounts and mandatory economic data collection.

3. Designation of Critical Habitat for Cook Inle t Beluga Whale (064 8 -AX50): This rule would designate critical habitat in two areas of Cook In let totaling 3,016 square miles. Critical habitat would include intertidal and subtidal waters near high and medium flow anadromous fish streams. The deadline for publication is October 20, 2010.

4. Critical Habitat for North Atlantic Right Whales ( 06 48-AY54 ) : Northe rn right whales have been listed as endangered since 1973. In 2008, NOAA remo ved Northern right whales from the list of endangered species and replaced it with two separat e species (North Pacific and North Atlantic right whales). NOAA had designated critical habita t for Northern right whales but has not yet designated critical habitat for the new North Atlant ic right whale species. Several environmental groups threaten litigation over the failure to designa te critical habitat for the species listed in 2008. NOAA is discussing a possible schedule for critical habitat designation that would avoid litigation.

At this time, NOAA is unable to determine the aggregate cost of the identified Regu latory Plan actions as several of these acti ons are currently under development.

Bureau of Industry and Security

The Bureau of Industry and Security (BIS) advan ces U.S. natio nal se cu rity, foreign policy, and economic objectives by maintaining and strengthening an adaptable, efficient, and effective export control and treaty compliance systems. BIS al so administers programs to prioritize certain contracts to promote the national defense and to protect and enhance the defense industrial base.

In August 2009, the President directed a br oa d-based inte rag ency review of the U.S. export control system with the goal of strengthening national security and the competitiveness of key U.S. manufacturing and technology sectors by focu sing on the current threats and adapting to the changing economic and technological landscape. In August 2010, the President outlined an approach under which agencies that administer export controls will apply new criteria for determining what items need to be controlled and a common set of policies for determining when an export license is required. The control list crit eria are to be based on transparent rules, which will reduce the uncertainty faced by our Allies, U.S. industry, and its foreign partners, and will allow the government to erect higher walls aro und the most sensitive items in order to enhance national security.

Under the President’s approach, agencies will app l y the criteria and revise the lists of munitions and dual use items that are controlled for export so that they:

• Are “tiered” to distinguish the types of item s that shoul d be su bject to stricter or more permissive levels of control for different destinations, end-uses, and end-users;

• Create a “bright line” between the two current cont rol lis ts to cl arify jurisdictional determinations and reduce government and industry uncertainty about whether particular items are subject to the contro l of the State Department or the Commerce Department; and

• Are structurally aligned so that they potentially can be combined int o a single list of controlled items. BIS’ current regulatory plan action is designed to implement the init ial phase of the Pre sident’s directive.

Major Programs and Activities

BIS administers four sets of regulati o n s. The Export Administ ration Re gulations (EAR) regulate exports and reexports to protect national security, foreign policy, and short supply interests. The EAR also regulate participation of U.S. persons in certain boycotts administered byforeign governments. The National Defense Indust rial Base Regulations provide for prioritization of certain contracts and allocations of resour ces to promote the national defense, require reporting of foreign government imposed offset s in defense sales, and address the effect of imports on the defense industrial base. T he Chemical Weapons Convention Regulations implement declaration, reporting, and on-site in spection requirements in the private sector necessary to meet United States treaty obligations under Chemical Weapons Convention treaty. The Additional Protocol Regulations implem ent similar requirements with respect to an agreement between the United States and t he International Atomic Energy Agency.

BIS also has an enforcement component with eight field offices in the United States. BIS export co ntrol officers are stationed at se vera l U.S. embassies and consulates abroad. BIS works with other U.S. Government agencies to pr omote coordinated U.S. Government efforts in export controls and other programs. BIS participa tes in U.S. Government efforts to strengthen multilateral export control regimes and to promote effective export controls through cooperation with other governments.

BIS’ Regulatory Plan Actions

As the agency responsible for leading adm ini strati on and e nforcement of the U.S. dual-use export control system, BIS is play ing a central role in the Administration’s efforts to fundamentally reform the export control system. Changing what we control, how we control it and how we enforce and manage our controls will help strengt hen our national security by focusing our efforts on controlling the most critical products and technologies and by enhancing the competitiveness of key U.S. manufacturing and technology sectors. In accordance with the President’s directive to develop a system that is tiered to distinguish the ty pes of items that should be subject to stricter or more permissive levels of control for diffe rent destinations, end-uses, and end-users, BIS is developing a rule to implement an Export Control Ti er Based License Exception. This rule would allow certain dual-use items to be exported and reex ported with conditions to specific countries without a license that woul d otherwise be required.

BIS will also be developing other rules to implement additional aspects of the export control reform as thos e a spects are identified and decided.

International Trade Admi nistration

The International Trade Administration (ITA ) assists in the development of U. S. trade policy in the global e conomy; creates jobs and economic growth by promoting U.S. companies; strengthens American competitiveness across a ll industries; addresses market access and compliance issues; administers U.S. trade laws; and undertakes a range of trade promotion and trade advocacy efforts.

Import Administration

The Import Administration (IA) is the IT A’s lead uni t on enforcing trade laws a nd agreem ents to prevent unfairly traded imports and to safeguar d jobs and the competitive strength of American industry. From working to resolve disputes to im plementing measures when violations are found, we are there to protect U.S. comp anies from unfair trade practices.

The primary role of IA is to enforce effe ctively the U.S. unfair trade laws (i.e., the antidumping duty (AD) an d countervailing duty (CVD) laws) and to develop and implement other policies and programs aimed at countering foreign unfair trade practices. IA also administers the Foreign Trade Zones program, the Statutory Import Prog ram and certain sector-specific agreements and programs, such as the Textiles and Apparel Program and the Steel Import Monitoring and Analysis licensing system.AD proceedings focus on whether foreign producers/exporters are selling their merchandise in the United States at less than fair value. CVD proceedings focus on whether foreign producers/exporters are benefitting from subsidies provided by their governments. Parties who participate in AD/CVD proceedings include U.S. manufacturers, U.S. importers, and foreign exporters and manufacturers, some of w hom are affiliated with U.S. companies.

ITA’s Regulatory Plan Actions

IA is developing a rule entitled, “Antidum ping and Countervailing Duty Proceedings: Electronic Filing Proc ed ures; Administrative Protective Or der Procedures” to implement an electronic filing and records management system called IA’s Anti dumping and Countervailing Duty Centralized Electronic Service System (IA A CCESS). The Department’s regulat ions currently require parties to submit multiple copies of a public documen t, and additional copies if the document contains business proprietary information. Alternatively, under the current regulations, if a document contains business proprietary information, a party must submit one hard copy original and five hard copies of a business proprietary document and three copies of a public version. The proposed rule will require interest ed parties to use IA ACCESS to file submissions electronically, unless an exception for manual, hard copy filing is applicable. If a document must be filed manually, the proposed rule also reduces the requi red number of copies for manual submissions such that only one paper copy of the submis sion will need to be filed with the Department.

In addition to electronic filing, the goal of the IA ACCESS system is to expand the public ’s

acce ss to information in AD/CVD proceedings by making all publicly filed documents available on the internet. It will also allow interested parties to file all submissions (both public and business proprietary) with the Department using an inter net connection. The Department envisions that such a system will create efficiencies in both the process and costs associated with filing and maintaining the documents. T he ease of document submission will increase accessibility of submission to the Department by interested parti es located within and outside the Washington, DC area.

Foreign-Trade Zones Board

The Foreign-Trade Zones (FTZ) Board is an inte ragen cy board comp os ed of the Secretary of Commerce and the Secretary of the Treasury. The Secretary of Commerce is the chairman of
the Board. The FTZ Board administers the Fore ign-Trade Zones Act of 1934, as amended (19 U.S.C. section 81a et seq.) (FTZ Act).

Major Program and Activities

The FTZ Board administers the FTZ progra m of the Unite d States, pursua n t to the FTZ Act and the FTZ regulations, codified at 15 CFR part 400. FTZs are restricted-access sites in or near U.S. Customs and Border Protection (CBP) ports of entry licensed by the FTZ Board and operated under the supervision of CBP. FTZs ar e locations into which foreign and domestic merchandise may be moved for operations involvi ng storage, exhibition, assembly, manufacture, or other processing not prohibited by law. FTZs ar e considered outside of U.S. customs territory, which means that the usual customs entry proc edures and payment of duties are not required on foreign merchandise admitted into an FTZ unless and until that merchandise enters U.S. customs territory for domestic consumption.

The fact that FTZs are considered outside of U.S. customs territory make s them a valuable resource for many businesses. An FTZ user can avoid payment of U.S. customs duties on foreign merchandise admitted into an FTZ and then re-exported after further processing or manufacturing. Further, in some circumstances an FTZ user can admit foreign merchandise into an FTZ for use in manufacturing, and then, upon entry of the manufactured product into the U.S. customs territory, pay customs duties at the rate fo r the manufactured product. This can result insignificant duty savings. Therefore, the FTZ prog ram encourages retention of employment in the United States and promotion of export activity.

The FTZ Board reviews and approves applic ations for auth o rity to establish FTZs and to conduct certain activity within FTZs. It has the au thority to restrict or prohibit activity in FTZs. Under the FTZ Act, FTZs must be operated under p ublic utility principles and provide uniform treatment to all that apply to use the FTZ. T he FTZ Board ensures that FTZs are operated in the public interest.

The FTZ Board’s Regulatory Plan Actions

The FTZ Board is in the process of revising its regulations, which have been in effect since 1990, in a pro posed rule en titled, “Foreign-Tr ade Zones in the United States.” The new proposed rule was sent to OMB for review on August 31, 2010 (RIN 0625-AA81). The proposed rule will streamline application procedures and improve access to FTZs. For example, the FTZ Board is proposing to eliminate the need fo r advance Board approval of many types of manufacturing operations. This will allow businesses, including small businesses, to take advantage of manufacturing opportunities in FTZs more quickly and more in keeping with the pace of modern business, because they will not need to wait through the sometimes lengthy application process. Further, the proposed rule will provide guidance on the FTZ Act’s requirements that FTZs be operated as public utilitie s with uniform access to all users. This aspect of the proposed rule will improve access to the job-retention and export-promotion benefits of FTZs. The proposed rule also will provide greater clarity on various ot her aspects of the FTZ program, such as the FTZ Board’s statutory fining authority.The 4 Actions Described in the Regulatory Plan

Title Regulation Identifier Number Rulemaking Stage

Designation of Critical Habitat for the North Atlantic Right Whale 0648-AY54 Proposed Rule Stage

Certification of Nations Whose Fishing Vessels Are Engaged in Illegal, Unreported, and Unregulated Fishing or Bycatch of Protected Living Marine Resources 0648-AV51 Final Rule Stage

Critical Habitat Designation for Cook Inlet Beluga Whale Under the Endangered Species
Act 0648-AX50 Final Rule Stage

Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Amendments 20 and 21; Trawl Rationalization Program 0648-AY68 Final Rule Stage

Department of Commerce (DOC) National Oceanic and Atmospheric Administration ( NOAA ) RIN: 0648-AY54

View Related Documents

Title: Designation of Critical Habitat for the North Atlantic Right Whale

Abstract: In June 1970, the Northern right whale was listed as endangered under the Endangered Species Conservation Act, the precursor to the Endangered Species Act (ESA)(35 FR 8495; codified at 50 CFR 17.11). Subsequently, right whales were listed as endangered under the ESA in 1973, and as depleted under the Marine Mammal Protection Act (MMPA) the same year. In 1994, NMFS designated critical habitat for the Northern right whale, a single species thought at the time to include right whales in both the North Atlantic and the North Pacific. In 2006, NMFS published a comprehensive right whale status review that concluded that recent genetic data provided unequivocal support to distinguish three right whale lineages (including the southern right whale) as separate phylogenetic species (Rosenbaum et al. 2000). Rosenbaum et al. (2000) concluded that the right whale should be regarded as the following three separate species: (1) The North Atlantic right whale (Eubalaena glacialis) ranging in the North Atlantic Ocean; (2) the North Pacific right whale (Eubalaena japonica), ranging in the North Pacific Ocean; and (3) the southern right whale (Eubalaena australis), historically ranging throughout the southern hemisphere's oceans. Based on these findings, NMFS published a proposed and final determination listing right whales in the North Atlantic and North Pacific as separate endangered species under the ESA (71 FR 77704, December 27, 2006; 73 FR 12024, March 6, 2008). Based on the new listing determination, NMFS is required by the ESA to designate critical habitat separately for both the North Atlantic right whale and the North Pacific right whale. In April 2008, a final critical habitat determination was published for the North Pacific right whale (73 FR 19000; April 8, 2008). At this time, NMFS is preparing a proposal to designate critical habitat for the North Atlantic right whale.

Priority: Other Significant Agenda Stage of Rulemaking: Proposed Rule Major: No Unfunded Mandates: No

CFR Citation: 50 CFR 226; 50 CFR 229 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 16 USC 1361 et seq; 16 USC 1531 to 1543 Legal Deadline: None

Regulatory Plan:

Statement of Need: In June 1970, the Northern right whale was listed as endangered under the Endangered Species Conservation Act, the precursor to the Endangered Species Act (ESA)(35 FR 8495; codified at 50 CFR 17.11). Subsequently, right whales were listed as endangered under the ESA in 1973 and as depleted under the Marine Mammal Protection Act (MMPA) the same year. In 1994, NMFS designated critical habitat for the Northern right whale, a single species thought at the time to include right whales in both the North Atlantic and the North Pacific. In 2006, NMFS published a comprehensive right whale status review that concluded that recent genetic data provided unequivocal support to distinguish three right whale lineages (including the southern right whale) as separate phylogenetic species (Rosenbaum et al. 2000). Rosenbaum et al. (2000) concluded that the right whale should be regarded as the following three separate species: (1) The North Atlantic right whale (Eubalaena glacialis) ranging in the North Atlantic Ocean; (2) the North Pacific right whale (Eubalaena japonica), ranging in the North Pacific Ocean; and (3) the southern right whale (Eubalaena australis), historically ranging throughout the southern hemisphere's oceans. Based on these findings, NMFS published a proposed and final determination listing right whales in the North Atlantic and North Pacific as separate endangered species under the ESA (71 FR 77704, December 27, 2006; 73 FR 12024, March 6, 2008). Based on the new listing determination, NMFS is required by the ESA to designate critical habitat separately for both the North Atlantic right whale and the North Pacific right whale. In April 2008, a final critical habitat determination was published for the North Pacific right whale (73 FR 19000; April 8, 2008). At this time, NMFS is preparing aproposal to designate critical habitat for the North Atlantic right whale.

Legal Basis: Endangered Species Act

Alternatives: Because this rule is presently in the beginning stages of development, no alternatives have been formulated or analyzed at this time.

Costs and Benefits: Because this rule is presently in the beginning stages of development, no analysis has been completed at this time to assess costs and benefits.

Risks: Loss of critical habitat for a species listed as protected under the ESA and MMPA, as well as potential loss of right
whales due to habitat loss.

Timetable:

Action Date FR Cite

NPRM 12/00/2010

Regulatory Flexibility Analysis Required: No Government Levels Affected: No

Small Entities Affected: No Federalism: No Energy Affected: No Agency Contact: Marta Nammack
Office of Protected Resources Department of Commerce National Oceanic and Atmospheric Administration 1315 East-West Highway Silver Spring , MD 20910
Phone: 301 713-1401 Extension: 180
FAX: 301 427-2523 E-Mail: marta.nammack@noaa.gov

Department of Commerce (DOC) National Oceanic and Atmospheric Administration ( NOAA ) RIN: 0648-AV51

View Related Documents

Title: Certification of Nations Whose Fishing Vessels Are Engaged in Illegal, Unreported, and Unregulated Fishing or Bycatch of Protected Living Marine Resources

Abstract: The National Marine Fisheries Service (NMFS) is establishing a process of identification and certification to address illegal, unreported, or unregulated (IUU) activities and bycatch of protected species in international fisheries. Nations whose fishing vessels engage, or have been engaged, in IUU fishing or bycatch of protected living marine resources would be identified in a biennial report to Congress, as required under section 403 of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (MSRA) of 2006. NMFS would subsequently certify whether identified nations have taken appropriate corrective action with respect to the activities of its fishing vessels, as required under section 403 of MSRA.

Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No

CFR Citation: 50 CFR 300 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 16 USC 1801 et seq; 16 USC 1826(d) to 1826(k) Legal Deadline: Report on countries identified as having vessels engaged in IUU fishing.

Action Source Description Date

Other Statutory Report due to Congress 16 USC 1826h 01/12/2011

Regulatory Plan:

Statement of Need: The National Oceanic and Atmospheric Administration (NOAA) National Marine Fisheries Service (NMFS) proposes regulations to set forth identification and certification procedures for nations whose vessels engage in illegal, unregulated, and unreported (IUU) fishing activities or bycatch of protected living marine resources pursuant to the High Seas Fishing Moratorium Protection Act (Moratorium Protection Act). Specifically, the Moratorium Protection Act requires the Secretary of Commerce to identify in a biennial report to Congress those foreign nations whose vessels are engaged in IUU fishing or fishing that results in bycatch of protected living marine resources. The Moratorium Protection Act also requires the establishment of procedures to certify whether nations identified in the biennial report are taking appropriate corrective actions to address IUU fishing or bycatch of protected living marine resources by fishing vessels of that nation. Based upon the outcome of the certification procedures developed in this rulemaking, nations could be subject to import prohibitions on certainfisheries products and other measures under the authority provided in the High Seas Driftnet Fisheries Enforcement Act if they are not positively certified by the Secretary of Commerce.

Legal Basis: NOAA is proposing these regulations pursuant to its rulemaking authority under sections 609 and 610 of the High Seas Driftnet Fishing Moratorium Protection Act (16 U.S.C. 1826j and k), as amended by the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act.

Alternatives: NMFS developed alternatives for the Secretary of Commerce to make a positive certification that a nation, once identified as having vessels engaged in illegal, unregulated, and unreported (IUU) fishing, has taken sufficient corrective action against those vessels or is a member of a regional fishery management organization that has adopted effective measures to address the IUU activities. NMFS also developed alternatives for the Secretary of Commerce to make a positive certification that a nation, once identified as having vessels engaged in bycatch of protected living marine resources (PLMR), has adopted a regulatory program to conserve those PLMR that is comparable in effectiveness to the United States and which collects data to support international assessment and conservation efforts.

Costs and Benefits: Because this rule is under development, NMFS does not currently have estimates of the amount of product that is imported into the United States from other nations whose vessels are engaged in illegal, unreported, and unregulated (IUU) fishing or bycatch of protected living marine resources. Therefore, quantification of the economic impacts of this rulemaking is not possible at this time. This rulemaking has not been determined to be economically significant under E.O. 12866; however, it is considered significant because it raises novel or legal or policy issues arising out of legal mandates, the President's Priorities, and the principles set forth in the Executive order.

Risks: The risks associated with not pursuing the proposed rulemaking include allowing IUU fishing activities and/or bycatch of protected living marine resources by foreign vessels to continue without an effective tool to aid in combating such activities.

Timetable:

Action Date FR Cite

ANPRM 06/11/2007 72 FR 33436

ANPRM Comment Period End 07/05/2007

NPRM 01/14/2009 74 FR 2019

NPRM Comment Period End 05/14/2009

Final Action 12/00/2010

Regulatory Flexibility Analysis Required: Business Government Levels Affected: No

Federalism: No Energy Affected: No International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise
be of international interest.

Related RINs: Related to 0648-AV23 Related Agencies: Common: AFA Agency Contact: Christopher Rogers
Division Chief Department of Commerce National Oceanic and Atmospheric Administration 1315 East-West Highway Silver Spring , MD 20910
Phone: 301 713-9090 Extension: 117
FAX: 301 713-9106 E-Mail: christopher.rogers@noaa.gov

Department of Commerce (DOC) National Oceanic and Atmospheric Administration ( NOAA ) RIN: 0648-AX50

View Related Documents

Title: Critical Habitat Designation for Cook Inlet Beluga Whale Under the Endangered Species Act

Abstract: The National Marine Fisheries Service (NMFS) listed the Cook Inlet beluga whale Distinct Population Segment as endangered under the Endangered Species Act on October 17, 2009. NMFS is required to designate critical habitat no later than one year after the publication of a listing. NMFS intends to publish a proposed rule by October 17, 2009.

Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No

CFR Citation: 50 CFR 226 (To search for a specific CFR, visit the Code of Federal Regulations )Legal Authority: 16 USC 1531 et seq Legal Deadline: None

Regulatory Plan:

Statement of Need: The National Marine Fisheries Service (NMFS) listed the Cook Inlet beluga whale Distinct Population Segment as endangered under the Endangered Species Act on October 17, 2009. NMFS is required to designate critical habitat no later than one year after the publication of a listing. NMFS intends to publish a proposed rule by October 17, 2009.

Legal Basis: Endangered Species Act

Alternatives: Alternative 1. No action (status quo): NMFS would not designate critical habitat (CH) in Cook Inlet, Alaska, for the Cook Inlet beluga whale. Conservation and recovery of the listed species would depend exclusively upon the protections provided under the "jeopardy" provisions of Section 7 of the ESA. Alternative 2. Designate Area 1 and Area 2, which encompass all of upper-Cook Inlet, north of a line at 60° 25' north latitude, and portions of mid- and lower-Cook Inlet, extending south along the west side of the Cook Inlet, following the tidal flats into Kamishak Bay to Douglas Reef, between MHHW and waters within two nautical miles of shore. It further includes all waters of Kachemak Bay, eastward of 151° 30' west longitude and seaward of MHHW.

Costs and Benefits: The post-designation incremental costs are estimated to range from $187,000 to $571,000, in present value terms, at a 3 percent discount rate, and from $157,000 to $472,000 at a 7 percent discount rate. Approximately six Federal action agencies for section 7 consultations are anticipated to bear 70 percent ($398,000) of these costs, while 26 percent ($148,000) are expected to accrue to NMFS, as the consulting agency. The remaining four percent ($25,000) of these costs may be borne by third parties, during the consultations. Of the total costs to Federal action agencies, the DOD is anticipated to bear approximately 76 percent ($302,000). This is followed by USACE (9 percent; $37,000), NMFS (7 percent; $28,000), FERC (7 percent; $28,000), EPA (1 percent; $3,000), and FHWA (less than 1 percent; less than $1,000). Benefits are qualitative: Area more attractive to workers in various industrial sectors; anticipated conservation and recovery species; and the general stability in associated environs should provide increases in welfare to tourists, recreationists, wildlife watchers, Cook Inlet Ferry passengers, and future cruise ship passengers. This should result in higher revenues for relevant businesses. Other wildlife and fish species will benefit, resulting in overall improvements in commercial, recreational, personal use, and subsistence uses. The increase in Cook Inlet beluga whale populations, in the longer term, will provide more frequent subsistence harvest opportunities to the Alaska Natives and allow future generations to practice their traditional ways. It will enhance passive-use benefits among those who value this species and the myriad elements and aspects of the natural habitat that sustains it. Finally, as the ESA is carried out, there are expected to be scientific and educational benefits to the Nation.

Risks: Loss of critical habitat for the Cook Inlet beluga whale Distinct Population Segment and connected loss of Cook Inlet beluga whale members.

Timetable:

Action Date FR Cite

ANPRM 04/14/2009 74 FR 17131

ANPRM Comment Period End 05/14/2009

NPRM 12/02/2009 74 FR 63080

NPRM Comment Period Extended 01/12/2010 75 FR 1582

NPRM Comment Period End 02/01/2010

Final Action 12/00/2010

Regulatory Flexibility Analysis Required: Business; Governmental Jurisdictions; Organizations Government Levels Affected: Federal; Local; State;
Tribal

Federalism: No Energy Affected: No Agency Contact: Marta Nammack
Office of Protected Resources Department of Commerce National Oceanic and Atmospheric Administration 1315 East-West Highway Silver Spring , MD 20910
Phone: 301 713-1401 Extension: 180
FAX: 301 427-2523 E-Mail: marta.nammack@noaa.gov

Department of Commerce (DOC) National Oceanic and Atmospheric Administration ( NOAA ) RIN: 0648-AY68View Related Documents

Title: Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Amendments 20 and 21; Trawl Rationalization Program

Abstract: The trawl rationalization program creates an individual fishing quota (IFQ) program for the shore-based trawl fleet; and cooperative (coop) programs for the at-sea trawl fleet in the Pacific Coast Groundfish Fishery. This rulemaking includes regulations to implement Amendments 20 and 21 to the Pacific Coast Groundfish Fishery Management Plan (FMP). Amendment 20 creates the structure and management details of the trawl rationalization program, which would be a limited access privilege program (LAPP) under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), as reauthorized in 2007. Amendment 21, intersector allocation, allocates the groundfish stocks between trawl and non-trawl
fisheries.

Priority: Other Significant Agenda Stage of Rulemaking: Final Rule Major: No Unfunded Mandates: No

CFR Citation: 50 CFR 660 (To search for a specific CFR, visit the Code of Federal Regulations ) Legal Authority: 16 USC 1801 et seq Legal Deadline: None

Regulatory Plan:

Statement of Need: The trawl rationalization program is intended to increase net economic benefits, create individual economic stability, provide full utilization of the trawl sector allocation, consider environmental impacts, and achieve individual accountability of catch and bycatch. This rule would establish the key components that would be necessary to implement the trawl rationalization program at the start of the 2011 fishery.

Legal Basis: Section 303A of the Magnuson-Stevens Act.

Alternatives: The Pacific Fishery Management Council (the Council) prepared two environmental impact statement (EIS) documents: Amendment 20—Rationalization of the Pacific Coast Groundfish Limited Entry Trawl Fishery, which would create the structure and management details of the trawl fishery rationalization program; and Amendment 21—Allocation of Harvest Opportunity Between Sectors of the Pacific Coast Groundfish Fishery, which would allocate the groundfish stocks between trawl and non-trawl fisheries. These EISs covered a range of alternatives. The Regulatory Impact Review and Initial Regulatory Flexibility Analysis (RIR/IRFA) for this rule focuses on the two key alternatives—the No-Action Alternative and the Preferred Alternative. By focusing on the two key alternatives (no action and preferred) in the RIR/IRFA, it encompasses parts of the other alternatives and informs the reader of these proposed regulations. Under the no action alternative, the current, primary management tool used to control the Pacific coast groundfish trawl catch includes a system of two month cumulative landing limits for most species and season closures for Pacific whiting. This management program would continue under the no action alternative. The analysis of the preferred alternative describes what is likely to occur as a result of the proposed action. Under the preferred alternative, the existing shore-based whiting and shore-based non-whiting sectors of the Pacific Coast groundfish limited entry trawl fishery would be managed as one sector under a system of IFQs, and the at-sea whiting sectors of the fishery would be managed under a system of sector-specific harvesting cooperatives (coops).

Costs and Benefits: The RIR/IRFA reviewed and summarized the benefits and costs, and the economic effects of the Council's recommendations. The major conclusions of the economic model suggest that (with landings held at 2004 levels), the current groundfish fleet (non-whiting component), which consisted of 117 vessels in 2004, will be reduced by roughly 50 percent to 66 percent, or 40 to 60 vessels under an IFQ program. The reduction in fleet size implies cost savings of $18 to $22 million for the year 2004 (most recent year of the data). Vessels that remain active will, on average, be more cost efficient and will benefit from economies of scale that are currently unexploited under controlled access regulations in the fishery. The cost savings estimates are significant, amounting to approximately half of the costs incurred currently, suggesting that IFQ management may be an attractive option for the Pacific Coast Groundfish Fishery. The increase in profits that commercial harvesters are expected to experience under the preferred alternative may render them better able to sustain the costs of complying with the new reporting and monitoring requirements. The costs of at-sea observers may reduce profits by about $2.2 million, depending on the fee structure. However, the profits earned by the non-whiting sector would still be substantially higher under the preferred alternative than under the no action alternative.

Risks: Under the no action alternative, cumulative landing limits for target species have to be set lower because the bycatch of overfished species cannot be directly controlled. Introducing accountability at the individual vessel level by means of IFQs provides a strong incentive for bycatch avoidance. There will likely be a lower motivation to "race for fish" due to coop harvest privileges. This is expected to result in improved product quality, slower-paced harvest activity, increased yield (which should increase ex-vessel prices), and enhanced flexibility and ability for business planning.

Timetable:

Action Date FR Cite
Notice of Availability 05/12/2010 75 FR 26702
First Proposed Rule 06/10/2010 75 FR 32994First Proposed Rule Correction 06/30/2010 75 FR 37744
First Proposed Rule Comment Period End 07/12/2010
Second Proposed Rule 08/31/2010 75 FR 53379
Second Proposed Rule Comment Period End 09/30/2010

First Final Rule 10/01/2010 75 FR 60868

Second Final Rule 12/00/2010

Regulatory Flexibility Analysis Required: No Government Levels Affected: No

Small Entities Affected: Business; Organizations Federalism: No Energy Affected: No

Related RINs: Related to 0648-AX98 Agency Contact: Barry Thom Regional Administrator, Northwest Region, NMFS Department of Commerce National Oceanic and Atmospheric Administration Building 1, 7600 Sand Point Way NE. Seattle , WA 48115-0070
Phone: 206 526-6150
FAX: 206 526-6426 E-Mail: barry.thom@noaa.gov