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 new foundation for long-term growth and prosperity. The 

Department of Commerce (the “Department” or “Commerce”) is aligning itself to contribute to both 

of these goals. 

 Established in 1903, the Department of Commerce is one of the oldest Cabinet-level agencies 

in the Federal Government. The Department’s mission is to create the conditions for economic 

growth and opportunity by promoting innovation, 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 possible 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 environmental 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 American people, now and in the future. To achieve this vision, 

the Department works in partnership with businesses, universities, communities, and workers to: 

• Innovate by creating new ideas through 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 entrepreneurship 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. businesses, and ensuring that technology transfer is 

consistent with our Nation’s economic and security interests; 

• Provide effective management and stewardship of our Nation's resources and assets to 

ensure sustainable economic opportunities; and 

• Make informed policy decisions and enable better understanding 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 Regulatory Plan tracks the most important regulations that implement these policy and 

program priorities, several of which involve regulation of the private sector by the Department. 

Responding to the Administration's Regulatory Philosophy and Principles

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 The vast majority of the Department's programs 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 actions 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 designated as Regulatory Plan actions. Further 

information on these actions is provided below. 

 The Department has a long-standing policy to prohibit the issuance 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 oceanic, coastal, and atmospheric resources. 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 warnings. 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-hand 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-term 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 conservation of the Nation's marine fisheries, protects 

threatened and endangered marine and anadromous species and marine mammals, and 

promotes economic development of the U.S. fishing 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 sensing satellite systems. 

 The Department, through NOAA, has a unique role in promoting stewardship of the global 

environment through effective management of the 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 forecasts 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. fisheries by using market-based tools and ecosystem approaches to management; 

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increasing the populations of depleted, threatened, or endangered species and marine mammals 

by implementing recovery plans that provide for their recovery while still allowing for economic 

and recreational opportunities; promoting healthy coastal 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, goals include: Understanding climate change science and 

impacts, and communicating that understanding to government 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) 

rulemakings concern the conservation and management 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, swordfish, and sharks, are developed directly by NOAA, not by FMCs. 

 FMPs address a variety of issues including maximizing fishing opportunities on healthy stocks, 

rebuilding overfished stocks, and addressing gear conflicts. One of the problems that FMPs may 

address is preventing overcapitalization (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 traded 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 participant, enable stressed stocks to rebuild. Other 

measures include staggering fishing seasons or limiting 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 debate and, using the best 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 regulations and supporting documentation, is 

submitted to NMFS for review against the national standards set forth in the Magnuson-Stevens 

Act, in other provisions of the Act, and other applicable 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 

conservation 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 management 

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regime 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 fishing operations, to provide certain exemptions for 

subsistence and scientific uses, and to require the preparation of stock 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 conservation of species that are 

determined to be "endangered" or "threatened," and the conservation of the ecosystems on which 

these species depend. The ESA authorizes both NMFS and the Fish and Wildlife Service (FWS) 

to jointly administer the provisions of the 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 addition, under the ESA's procedural framework, Federal 

agencies consult with NMFS on any proposed action 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 necessary 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 significant regulatory actions and thus are included 

in this year's regulatory plan. The four actions implement provisions of the Magnuson-Stevens 

Fishery Conservation and Management Act, as reauthorized in 2006. The first action may be of 

particular interest to international trading partners as it concerns the Certification of Nations 

Whose Fishing Vessels are Engaged in Illegal, Unreported, 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 Vessels Are Engaged in Illegal, Unreported, or 

Unregulated Fishing or Bycatch of Protected Living Marine Resources (0648-AV51). NOAA’s 

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 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 subsequently certify whether identified nations 

have taken appropriate corrective action with respect to the activities of its fishing vessels. 

2. Pacific Coast Groundfish Trawl Rationalization Program--Program Components Rulemaking 

(0648-AY68): Due to the complexity of the fishery management measures, NMFS is 

implementing the Pacific Coast Groundfish Trawl Rationalization Program through multiple 

rulemakings. A previous rulemaking (i.e., the Initial Issuance rule) creates and issues quota 

shares 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 rulemaking includes requirements for observers and compliance monitors, retention 

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requirements, coop permits and agreements, first receiver site licenses, vessel accounts and 

mandatory economic data collection. 

3. Designation of Critical Habitat for Cook Inlet Beluga Whale (0648-AX50): This rule would 

designate critical habitat in two areas of Cook Inlet 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 (0648-AY54): Northern right whales have been 

listed as endangered since 1973. In 2008, NOAA removed Northern right whales from the list of 

endangered species and replaced it with two separate species (North Pacific and North Atlantic 

right whales). NOAA had designated critical habitat for Northern right whales but has not yet 

designated critical habitat for the new North Atlantic right whale species. Several environmental 

groups threaten litigation over the failure to designate 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 Regulatory Plan 

actions as several of these actions are currently under development. 

Bureau of Industry and Security

 The Bureau of Industry and Security (BIS) advances U.S. national security, foreign policy, and 

economic objectives by maintaining and strengthening an adaptable, efficient, and effective 

export control and treaty compliance systems. BIS also 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 broad-based interagency 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 focusing 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 criteria 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 around the most sensitive items in order to enhance 

national security. 

 Under the President’s approach, agencies will apply 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 items that should be subject to stricter or more 

permissive levels of control for different destinations, end-uses, and end-users; 

• Create a “bright line” between the two current control lists to clarify jurisdictional 

determinations and reduce government and industry uncertainty about whether particular 

items are subject to the control of the State Department or the Commerce Department; and 

• Are structurally aligned so that they potentially can be combined into a single list of controlled 

items. 

BIS’ current regulatory plan action is designed to implement the initial phase of the President’s 

directive. 

 

Major Programs and Activities

 BIS administers four sets of regulations. The Export Administration Regulations (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 by 

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foreign governments. The National Defense Industrial Base Regulations provide for prioritization 

of certain contracts and allocations of resources to promote the national defense, require 

reporting of foreign government imposed offsets in defense sales, and address the effect of 

imports on the defense industrial base. The Chemical Weapons Convention Regulations 

implement declaration, reporting, and on-site inspection requirements in the private sector 

necessary to meet United States treaty obligations under Chemical Weapons Convention treaty. 

The Additional Protocol Regulations implement similar requirements with respect to an 

agreement between the United States and the International Atomic Energy Agency. 

 BIS also has an enforcement component with eight field offices in the United States. BIS 

export control officers are stationed at several U.S. embassies and consulates abroad. BIS 

works with other U.S. Government agencies to promote coordinated U.S. Government efforts in 

export controls and other programs. BIS participates 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 administration and enforcement of the U.S. dual-use 

export control system, BIS is playing 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 strengthen 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 types of items that should be subject to stricter 

or more permissive levels of control for different destinations, end-uses, and end-users, BIS is 

developing a rule to implement an Export Control Tier Based License Exception. This rule would 

allow certain dual-use items to be exported and reexported with conditions to specific countries 

without a license that would otherwise be required. 

 BIS will also be developing other rules to implement additional aspects of the export control 

reform as those aspects are identified and decided. 

International Trade Administration 

 The International Trade Administration (ITA) assists in the development of U.S. trade policy in 

the global economy; creates jobs and economic growth by promoting U.S. companies; 

strengthens American competitiveness across all 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 ITA’s lead unit on enforcing trade laws and agreements 

to prevent unfairly traded imports and to safeguard jobs and the competitive strength of American 

industry. From working to resolve disputes to implementing measures when violations are found, 

we are there to protect U.S. companies from unfair trade practices. 

 The primary role of IA is to enforce effectively the U.S. unfair trade laws (i.e., the antidumping 

duty (AD) and 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 Program and certain sector-specific agreements and 

programs, such as the Textiles and Apparel Program and the Steel Import Monitoring and 

Analysis licensing system. 

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 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 whom are affiliated with U.S. companies. 

ITA’s Regulatory Plan Actions

 IA is developing a rule entitled, “Antidumping and Countervailing Duty Proceedings: Electronic 

Filing Procedures; Administrative Protective Order Procedures” to implement an electronic filing 

and records management system called IA’s Antidumping and Countervailing Duty Centralized 

Electronic Service System (IA ACCESS). The Department’s regulations currently require parties 

to submit multiple copies of a public document, 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 interested 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 required number of copies for manual submissions 

such that only one paper copy of the submission 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 

access 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 internet connection. The Department envisions that 

such a system will create efficiencies in both the process and costs associated with filing and 

maintaining the documents. The ease of document submission will increase accessibility of 

submission to the Department by interested parties located within and outside the Washington, 

DC area. 

Foreign-Trade Zones Board 

 The Foreign-Trade Zones (FTZ) Board is an interagency board composed 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 Foreign-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 program of the United States, pursuant 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 are locations into which foreign and domestic 

merchandise may be moved for operations involving storage, exhibition, assembly, manufacture, 

or other processing not prohibited by law. FTZs are considered outside of U.S. customs territory, 

which means that the usual customs entry procedures 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 makes 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 for the manufactured product. This can result in 

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significant duty savings. Therefore, the FTZ program encourages retention of employment in the 

United States and promotion of export activity. 

 The FTZ Board reviews and approves applications for authority to establish FTZs and to 

conduct certain activity within FTZs. It has the authority to restrict or prohibit activity in FTZs. 

Under the FTZ Act, FTZs must be operated under public utility principles and provide uniform 

treatment to all that apply to use the FTZ. The 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 proposed rule entitled, “Foreign-Trade 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 for 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 utilities 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 other aspects of the FTZ 

program, such as the FTZ Board’s statutory fining authority. 

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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 a

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proposal 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 certain

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fisheries 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 ) 

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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-AY68

Regulations.gov Monday, December 20, 2010 The Regulatory Plan

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 View 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 32994 

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First 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

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