[The Regulatory Plan and Unified Agenda of Federal Regulations]
[Department of Commerce Regulatory Plan]
[From the U.S. Government Printing Office, www.gpo.gov]


DEPARTMENT OF COMMERCE (DOC)
Regulatory Plan Overview
Departmental Goals
Sustainable, long-term economic growth is a central focus of the 
President's policies and priorities. The mission of the Department of 
Commerce--ensuring and enhancing long-term economic opportunity and a 
rising standard of living for all Americans--fully supports the 
President's economic policy.
The Department of Commerce plays a critical role in helping the Nation 
meet its economic goals. The Department works primarily with and 
through the private sector, creating partnerships that facilitate job 
creation, international trade, local and regional economic development, 
manufacturing excellence, investment in R&D, environmentally sound 
development, and other activities that contribute to the Nation's 
economic well-being. It is both the representative and the pacesetter 
for the course business must take to be competitive in the new world 
order. The President and the Secretary of Commerce have established a 
clear set of priorities and programs for the Department of Commerce 
that will enable the Department to help create the best possible 
climate for long-term private sector economic growth and development in 
the United States.
The Department's policy and program priorities stress economic growth 
and development through:

 Opening and expanding foreign markets and promoting increased 
            exports of U.S. goods and services in markets with the 
            highest potential for growth and in important growing 
            sectors;
 Promoting increased tourism to the United States;
 Advocating free and fair trade policies and enacting and 
            implementing the first post-Cold War export regime--a 
            regime that facilitates trade while safeguarding our 
            national security;
 Enhancing technological development and commercialization 
            through improved strategies for Government-industry 
            cooperation;
 Providing developmental assistance to distressed communities 
            and minority business;
 Establishing a new economic information infrastructure;
 Promoting stewardship and assessment of the global 
            environment; and
 Creating a more effective, economical, productive and 
            responsive Department of Commerce.
The Department's Regulatory Plan directly tracks these policy and 
program priorities, only a few of which involve regulation of the 
private sector by the Department.
Responding to the Administration's Regulatory Philosophy and Principles
To the extent permitted by law, all preregulatory and regulatory 
activities and decisions adhere to the Administration's statement of 
regulatory philosophy and principles, as set forth in section 1 of 
Executive Order 12866. The Department of Commerce has long been a 
leader in advocating and using market-oriented regulatory approaches in 
lieu of traditional command-and-control regulations when such 
approaches offer a better alternative. All regulations are designed and 
implemented to maximize societal benefits while placing the smallest 
possible burden on those being regulated. When a regulation is no 
longer needed, the Secretary's standing order is to rescind it.
The Secretary has prohibited the issuance of any regulation that 
discriminates on the basis of race, color, religion, gender, sexual 
orientation, national origin, handicap, or age, and requires that all 
regulations be written in simple, plain English and 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.
The vast majority of the Department's programs and activities do not 
involve regulation. Of the Department's 12 primary operating units, 
only six--the Bureau of Export Administration (BXA), the International 
Trade Administration (ITA), the National Oceanic and Atmospheric 
Administration (NOAA), the Patent and Trademark Office, the National 
Telecommunications and Information Administration, and the Technology 
Administration--plan significant preregulatory or regulatory actions 
for the Regulatory Plan year. Many of these regulatory actions do not 
involve new or increased regulation of the private sector. Three of 
these operating units--BXA, ITA, and NOAA--have the most important of 
the Department's significant regulatory actions planned for the 
Regulatory Plan year. These three units are described below, along with 
their regulatory objectives and priorities and how they relate to the 
President's priorities and their most significant planned regulatory 
actions.
In addition, the Department is taking steps to streamline its 
regulatory processes and delivery systems in line with the President's 
directives. In his September 30, 1993, Memorandum for Heads of 
Departments and Agencies, President Clinton stated:

In order to streamline the entire (Federal) rulemaking process, agencies 
must, consistent with any applicable laws, utilize internally the most 
efficient method of developing and reviewing regulations. Accordingly, I 
direct the head of each agency and department to examine its internal 
review procedures to determine whether, and if so, how those procedures can 
be improved and streamlined. In conducting this examination, the agency or 
department shall consider the number of clearances required by its review 
process and whether its review process varies according to the complexity 
or significance of the rule.

Each preregulatory and regulatory action of the Department is 
undertaken with the concept of streamlining in mind. Methodologies for 
eliminating levels of review and delegating decisionmaking authority 
down to the lowest appropriate level are constantly being tested. 
Further, the Department is employing advanced technology designed to 
create greater responsiveness. For example, the Office of the General 
Counsel is currently working with computer experts within the Commerce 
Department to develop a regulation database and tracking system. This 
system, which is planned to be fully operational this fall, will 
provide decisionmakers with precise, concise, and up-to-the-minute 
information on the substance, status, and history of each of the 
Department's regulatory actions.
Bureau of Export Administration
The Department of Commerce's Bureau of Export Administration (BXA) 
administers and enforces U.S. export controls on certain dual-use 
commodities, software, and technical data, under the Export 
Administration Act of 1979, as amended (EAA), and other laws. BXA also 
implements policies and administers programs under certain provisions 
of the Defense Production Act of 1950 (DPA) designed to assure the 
availability of industrial resources needed for our national security, 
both in peacetime and in time of national emergency. In addition, BXA 
investigates the impact of imports on national security, pursuant to 
the Trade Expansion Act of 1962 (TEA). Finally, BXA administers 
controls on nuclear-related exports under the Nuclear Nonproliferation 
Act of 1978. The regulations of the Bureau of Export Administration are 
the Export Administration Regulations (EARs).
BXA's main programmatic objective is to operate an export control 
program which encourages economic opportunities without compromising 
national security. BXA implements export controls in furtherance of the 
national security and foreign policy objectives of the United States. 
BXA helps achieve the major Departmental goal of advocating free and 
fair trade policies and enacting and implementing the first post-Cold 
War export regime--a regime that will facilitate trade while 
safeguarding our national security.
It is essential that United States have and implement export controls 
that take into account the realities of the post-Cold War world. Strong 
controls will continue to be needed to combat the threat of 
proliferation of weapons of mass destruction and to preserve our 
national security and foreign policy interests. However, long overdue 
reforms are needed to ensure that our export controls do not unfairly 
and unnecessarily burden our important commercial interests.
Streamlining the Export Administration Regulations
While many substantive changes to the EARs must await reauthorization 
of the EAA, BXA's top regulatory priority is to reduce, consistent with 
U.S. national security and foreign policy interests and present law, 
U.S. export regulatory barriers to the export of some of our most 
attractive products--computers and telecommunications--and to clarify, 
simplify, and make more userfriendly the present EARs. This is one of 
the export control reform measures announced by the Administration in 
the first report of the Trade Promotion Coordinating Committee (TPCC), 
``Toward a National Export Strategy,'' (Sept. 30, 1993).The TPCC is a 
19-agency working group chaired by the Secetary of Commerce whose 
report recommendations form an integral part of the Administration's 
economic development strategy for the next several years.
In order to meet the programmatic end described above within the 
regulatory philosophy and principles of E.O. 12866 and the President's 
streamlining goals, BXA is planning to re-organize its regulations in a 
more logical and transaction-oriented order; to make its regulations 
usable by both newcomers and professionals; to remove redundancy, 
overlap, and inconsistency; and to use consistent and easily understood 
drafting style.
Implementing a Revised Export Administration Act
The EAA expired on August 20, 1994. However, on August 19, 1994, the 
President issued Executive Order 12924 invoking the International 
Emergency Economic Powers Act and continuing in effect, to the extent 
permitted by law, the provisions of the EAA and EAR. The EARs will need 
to be amended, in various degrees, to take into account changes made to 
the EAA as part of its reauthorization. At the present time, however, 
we cannot predict with any degree of certainty how the EAA will be 
amended. Both the House and the Senate are presently considering bills 
to reauthorize the EAA.
The Administration seeks amendments to the EAA that will make it show a 
clear preference for multilateral export controls and strengthening 
multilateral regimes. The development of common control lists and 
commitments to comparable procedures between members of a regime are 
essential. The Administration's reauthorization proposal to the 
Congress contains explicit guidelines for effective regimes which 
include: (1) full membership by all supplier countries, (2) effective 
enforcement and compliance procedures, (3) effective implementation 
procedures, and (4) programs to enhance public understanding.
An important goal of the Administration's proposed EAA reauthorization 
legislation is to increase the transparency of our export control 
decisionmaking process. U.S. industry must be able to depend on 
accurate, consistent, and timely licensing decisions. The 
Administration proposes new and broader rights of petition for industry 
to seek relief from export control requirements when it can be 
demonstrated that they place an unfair burden on U.S. business, or when 
specific licensing decisions are clearly inequitable when compared to 
the rules of other nations. Specifically, under the Administration's 
proposal, industry would have the right to petition for relief when: 
(1) there is foreign availability or items are expected to become 
available in the near future, (2) the differences in the control 
imposed by the United States and other governments places the 
petitioner at an unfair competitive disadvantage, or (3) the controls 
are ineffective due to an item's wide domestic availability and the 
inability to enforce the controls effectively.
Before new export restrictions are imposed or existing restrictions 
continued, the costs to the United States in lost jobs and in lost 
export opportunities must be carefully measured. An objective of the 
new EAA must be to recognize this reality and provide for the thorough 
assessment of the economic effect of proposed controls. The 
Administration's legislative proposal, consistent with the philosophy 
and principles of Executive Order 12866, includes the requirement for a 
formal evaluation of the costs and benefits of unilateral controls 
before such controls are imposed and extended.
International Trade Administration
The International Trade Administration (ITA) is responsible for most 
nonagricultural trade promotion and enforcement activities of the 
Federal Government. It works with the Office of the U.S. Trade 
Representative in coordinating U.S. trade policy. A large component of 
ITA's activities do not involve regulation. However, ITA has important 
regulatory authority under a number of U.S. trade laws.
ITA administers programs to strengthen domestic export competitiveness 
and to promote U.S. industry's increased participation in international 
markets. ITA's trade development program includes policy development, 
industry analysis, and promotion organized by industrial sectors such 
as aerospace, automotive vehicles and parts, basic industries, 
chemicals and allied products, energy, and textiles and apparel. Among 
its regulatory activities, ITA issues export trade certificates of 
review providing exporters with limited immunity from liability under 
U.S. antitrust laws.
ITA helps achieve the major Departmental goal of opening and expanding 
foreign markets and promoting increased exports of U.S. goods and 
services in markets with the highest potential for growth, such as Asia 
and Latin America, and in important growing sectors, such as computers, 
telecommunications, and environmental technologies. The report of the 
TPCC outlined more than 60 specific actions to strengthen U.S. export 
promotion efforts. Many of these actions, such as increasing U.S. 
businesses' awareness of sources of, and access to, trade finance and 
the establishment of one-stop U.S. Export Assistance Centers, directly 
involve ITA but do not involve regulation.
ITA also enforces our trade laws to ensure free and fair competition in 
our domestic market between U.S.- and foreign-manufactured goods. It 
administers and enforces the antidumping and countervailing duty laws 
of the United States. It investigates whether exports to the United 
States are subsidized or sold at less than fair value; when it finds 
that they are, and the U.S. International Trade Commission finds that a 
U.S. industry has been injured or threatened with material injury as a 
result, it issues an order to the U. S. Customs Service to impose 
offsetting duties. In addition, ITA administers the Foreign Trade Zone, 
Watch Quota, and Steel Import Stabilization Programs and the 
Educational, Scientific, and Cultural Materials Importation Act, and 
enforces the machine tool voluntary restraint agreements with Japan and 
Taiwan.
Antidumping and Countervailing Duties Regulations
The top regulatory priority of ITA is revising the antidumping and 
countervailing duty regulations to conform to anticipated legislation 
implementing the results of the Uruguay Round multilateral trade 
negotiations.
The newly negotiated Antidumping Agreement and Subsidies/Countervailing 
Measures Agreement (Agreements) establish general principles regarding 
the administration of antidumping and countervailing duty laws. In 
order to facilitate the administration of these laws and to provide 
greater predictability for private parties affected by these laws, it 
will be necessary to promulgate regulations which translate the 
principles of the Agreements and the implementing legislation into 
specific and predictable rules. Revisions also will address matters 
that were the subject of other uncompleted rulemaking proceedings that 
the Department of Commerce has previously withdrawn. By clarifying the 
methodologies and procedures used in administering the antidumping and 
countervailing duty laws, the efficiency and fairness of these laws 
will be enhanced at little, if any, additional cost. The manner in 
which these regulations are drafted could have a significant impact on 
various important sectors of the economy, including steel, lumber and 
bearings.
National Oceanic and Atmospheric Administration
The 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 services vital to public safety and 
to the Nation's economy, such as weather 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 and assessment of the global environment.
Three of NOAA's major components, the National Marine Fisheries Service 
(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 marine mammals, and promotes the economic 
development of the U.S. fishing industries. 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 civil operational land-remote sensing 
satellite systems.
The Administration is committed to an environmental strategy that 
promotes sustainable economic development and rejects the false choice 
between environmental goals and economic growth. The intent is to have 
the Government's economic decisions be guided by a comprehensive 
understanding of the environment. The Department of Commerce 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 the sound scientific observations, assessments and 
forecasts of environmental phenomena on which resource management and 
other societal decisions can be made. The Department of Commerce's 
Economics and Statistics Administration has the primary Federal 
responsibility for providing information about the economy.
In the environmental stewardship area, NOAA's goals include rebuilding 
U.S. fisheries by refocusing policies and fishery management planning 
on increased scientific information; increasing the populations of 
depleted, threatened, or endangered species of 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 
modernizing 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.
Programs that seek to achieve the above goals involve fishery 
management activities under the Magnuson Fishery Conservation and 
Management Act and other statutes, including regulatory, enforcement, 
and conservation actions; endangered species and marine mammal 
protection activities; marine habitat conservation activities under the 
Fish and Wildlife Coordination Act and the Federal Power Act; deep-
seabed mining regulatory activities under the Deep Seabed Hard Mineral 
Resources Act; studies on locating ocean dump sites and disposing of 
toxic waste under the Marine Protection, Research and Sanctuaries Act 
and other laws; and estuarine research reserve and national marine 
sanctuary management activities, including regulatory activities under 
various statutes.
NOAA's principal regulatory objectives are to manage more effectively 
the marine fishery resources under its jurisdiction, to implement the 
designation of the Florida Keys National Marine Sanctuary, and to 
promulgate natural resource damage assessment regulations applicable to 
oil spills.
Magnuson Act Rulemakings
Magnuson Fishery Conservation and Management Act (Magnuson Act) 
rulemakings concern the conservation and management of fishery 
resources in the U.S. 3-to-200-mile Exclusive Economic Zone (EEZ). 
Among the several hundred rulemakings that NOAA plans to issue in the 
Regulatory Plan year, 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 and by other 
circumstances which cannot be predicted. Once a rulemaking is triggered 
by a FMC, the Magnuson Act places stringent deadlines upon NMFS in 
which it must exercise its rulemaking responsibilities. Most of these 
rulemakings will be minor, involving only the opening or closing of a 
fishery under an existing FMP. While no one Magnuson Act rulemaking is 
among the Department's most important significant regulatory actions, 
and therefore none is specifically described below, the sum of these 
actions, and a few of the individual actions themselves, are highly 
significant.
The Magnuson Act, which is the primary legal authority for Federal 
regulation to conserve and manage fishery resources, establishes eight 
regional FMCs, responsible for preparing FMPs and FMP amendments. NMFS 
issues regulations to implement FMPs and FMP amendments. FMPs address a 
variety of fishery matters, including depressed stocks, overfished 
stocks, gear conflicts, and foreign fishing. One of the problems that 
FMPs may use is preventing overcapitalization (preventing excess 
fishing capacity) of fisheries by limiting access to those dependent on 
the fishery in the past and/or by allocating the resource through 
individual transferable quotas which can be sold on the open market to 
other participants or those wishing access. Quotas set on good 
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.
NMFS favors the concept of framework FMPs where applicable. Such FMPs 
provide ranges, boundaries, and decision rules within which NMFS can 
change management measures without formally amending the FMP. Further, 
consistent with the recommendations on improving regulatory systems 
accompanying the Report of the National Performance Review, NMFS favors 
using market-oriented approaches such as marketable limited access 
permits and marketable individual quotas in managing fisheries. Open-
access fisheries are destined to have too many people investing too 
much money in vessels and equipment. Access controls (for example, a 
limited number of permits) represent a rational approach for managing 
fishery resources; they can be used to control fishing mortality levels 
and to prevent overfishing, economic dissipation, and subsequent 
economic and social dislocation. Of course overall quotas will need to 
be set based on the best scientific information available as to such 
things as stock status and optimum yields. At present, adequate 
scientific information is available for only 34 percent of all U.S. 
fishery resources.
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 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 Act, in other provisions of the 
Act, and other applicable laws. The same process applies to amending an 
existing approved FMP.
The Magnuson Act contains seven national standards against which 
fishery management measures are judged. NMFS has supplemented these 
standards with guidelines interpreting each standard. One of the 
national standards requires that management measures, where 
practicable, minimize costs and avoid unnecessary duplication. Under 
the guidelines, NMFS will not approve management measures submitted by 
an FMC unless the fishery is in need of management. Together, the 
standards and the guidelines correspond to many of the Administration's 
principles of regulation as set forth in section 1(b) of Executive 
Order 12866. One of the national standards establishes a qualitative 
equivalent to the Executive Order's ``net benefits'' requirement--one 
of the focuses of the Administration's statement of regulatory 
philosophy as stated in section 1(a) of the Order.
Rulemakings implementing an FMP or amendment cannot be precisely 
scheduled in advance because, for the most part, an FMP or amendment is 
developed and submitted by an FMC. The timing of the submission is 
determined by the FMC, not by NMFS. Upon receiving an FMP or amendment 
and implementing regulations, NMFS is required by the Magnuson Act to 
publish the proposed implementing regulations within 15 days unless, 
after preliminary review, NMFS disapproves the FMP or amendment because 
it is inconsistent with the national standards or too deficient in 
scope and substance to warrant review. Upon completion of the 
preliminary review, if NMFS finds that the FMP or amendment is 
consistent with the national standards and sufficient in scope and 
substance to warrant further review, NMFS must commence such review. 
Upon completion of that review, if NMFS finds that the FMP or amendment 
is consistent with the national standards, the other provisions of the 
Magnuson Act, and any other applicable law, NMFS must approve the FMP 
or amendment and issue final regulations implementing it. If the FMP or 
amendment is not consistent with the Magnuson Act or other applicable 
law, NMFS must disapprove or partially disapprove it within 95 days of 
receipt, and the FMC may submit a revised FMP or amendment.
In order to have the most streamlined process for review and clearance 
of the large volume of Magnuson Act rulemakings in place, NOAA and the 
Department are undertaking a pilot program to test a new, more 
collegial, clearance procedure for NMFS rules.
First, NOAA and the Department participate in a weekly conference call 
to coordinate all regulatory activity.
Next, all NMFS rules are categorized and reviewed according to 
priority:
1. Those rules designated as ``significant or controversial'' are fully 
reviewed at both the NOAA and Departmental level.
2.Those rules designated as ``noncontroversial'' and 
``nondiscretionary'' are reviewed by NOAA, with the Department being 
provided the rule for information and, at the option of the Department, 
comment.
3.Those actions designated as ``nondiscretionary, noncontroversial 
rule-related notices'' are cleared by NOAA, with the Department simply 
monitoring any action through the weekly conference call.
This pilot clearance system was designed with two goals in mind. First, 
the procedures were established to delegate clearance authority to the 
greatest extent possible, thereby streamlining the number of clearances 
required for publication of a particular rule or rule-related document. 
Next, the weekly conference call, where individuals from both 
organizations discuss all regulatory actions, was instituted to foster 
an atmosphere of congeniality and cooperation. In practice, these two 
ideas have meshed into a clearance procedure which is characterized by 
efficient processing of regulatory actions and frank, nonadversarial 
communication between the parties.
Florida Keys National Marine Sanctuary Rulemaking
One of NOAA's most important significant regulatory actions will be the 
proposal by the National Ocean Service of a management plan and 
implementing regulations for the Florida Keys National Marine 
Sanctuary. Mounting threats to the ecological health and future of the 
coral reefs of the Florida Keys from oil drilling, deteriorating water 
quality, vessel groundings, pollution, and intense human use prompted 
Congress to enact the Florida Keys National Marine Sanctuary and 
Protection Act (FKNMSPA) in late 1990. This Act designated a 2,800 
square-nautical-mile area of coastal waters running the entire 220-mile 
length of the Florida Keys as the Florida Keys National Marine 
Sanctuary (Sanctuary). The Act makes NOAA responsible for implementing 
a comprehensive Sanctuary management plan, including a Florida and 
USEPA developed Water Quality Plan, through regulations designed to 
protect Sanctuary resources while facilitating all compatible public 
and private uses of the Sanctuary.
Because of the size of the Sanctuary and the variety of the resources 
it contains, many problems never before presented in sanctuary 
management must be addressed. For example, significant declines in 
water quality and habitat conditions in Florida Bay are threatening the 
health of Sanctuary resources. These conditions are thought to be the 
result of water quality and quantity management in the South Florida 
region. Accordingly, all agencies with responsibility in these areas 
are being incorporated into the continuous process of Sanctuary 
management.
In that approximately 65 percent of the Sanctuary lies within Florida 
State waters, and numerous State and Federal areas of jurisdiction 
overlap or lie adjacent to the Sanctuary, it was imperative that the 
Sanctuary planning process be an interagency effort. Also, due to the 
high level and diversity of public use of the Florida Keys and the 
importance of tourism to the area's economy, it was equally important 
that the public have a strong role in developing the management plan.
Over the past 3 1/2 years, there have been numerous public meetings and 
workshops on management plan development. Almost all agreed that 
deteriorating water quality was the major issue affecting the ecosystem 
of the Keys. In mid-1991, a State, local, and Federal interagency core 
group was established to assess management issues and, in early 1992, a 
Sanctuary Advisory Council, whose members were selected from local, 
State, and Federal agencies, environmental groups, and from the 
citizenry at large, was appointed by the Governor and the Secretary of 
Commerce to assist in developing the comprehensive management plan. 
Clearly the public process being followed is fully consistent with 
National Performance Review's recommendations for increased public 
participation during the rulemaking process and E.O. 12866's call for 
interagency coordination.
A draft management plan and proposed implementing regulations will be 
published that will further the Clinton Administration's objective of 
providing long-term protection for ecologically significant areas while 
maximizing their economic use. The proposed regulations will protect 
Sanctuary resources with the minimum necessary regulatory burden on 
Sanctuary users.
A draft environmental impact statement (DEIS) has been prepared which 
sets forth alternatives for dealing with the problems identified in the 
planning process (for example, boating, fishing, recreation). Five 
alternatives are set forth for each problem ranging from complete 
restriction of uses to maintaining the status quo, with the most 
attention paid to the three midrange alternatives. The DEIS sets forth 
the environmental consequences and the economic and social effects on 
the human environment of the three mid-range alternatives, including 
the groups and industries likely to be impacted under each alternative. 
The DEIS selects the middle alternative as the preferred course of 
action because it best accomplishes the statutory objectives with due 
consideration of impacts on the human environment and costs.
In passing the FKNMSPA, Congress specifically recognized that the 
unique natural and historic environment of the Florida Keys is 
irreplaceable. As such, the benefits of the proposed regulation are 
best seen by looking at what would be lost if the environment were not 
protected. First, the 2.4 million-acre Sanctuary contains one of North 
America's most diverse assemblages of terrestrial, estuarine, and 
marine fauna and flora, particularly the Florida Reef Tract. In 
addition to the reef tract, the Sanctuary boundaries include thousands 
of patch reefs, one of the world's largest seagrass communities 
covering 1.4 million acres, mangrove-fringed shorelines, mangrove 
islands, and various hardbottom habitats. Moreover, these diverse 
habitats provide shelter and food for thousands of species of marine 
plants and animals, including over 50 species of animals identified by 
either Federal or State law as endangered or threatened. Finally, 
because the Keys were at one time a major seafaring center for European 
and American trade routes in the Caribbean, submerged cultural and 
historic resources, that is, shipwrecks, also abound in the surrounding 
waters. Recent information indicates that there may be more 
archaeological resources of pre-European cultures than had previously 
been believed to be the case.
Loss of the unique and distinct marine resources of the Sanctuary would 
not only cost an irreplaceable ecosystem and cultural and historic 
resources, it would also significantly damage the economy of the 
Florida Keys. The abundance of marine resources in the Keys draws 
thousands of visitors each year. As such, the major industry in the 
Florida Keys is tourism, including activities related to the Keys' 
marine resources, such as dive shops, charter fishing and dive boats, 
marinas, as well as hotels and restaurants. More than half (51 percent) 
of the Florida Keys' employment is based in recreation and tourism, 
with about 61 percent of all recreation and tourism activities being 
water-related. About half of the $1.6 billion in total sales for the 
area is related to tourism, with another $16 million spent by Keys 
residents for recreation activities.
The wealth of natural marine resources also supports a large commercial 
fishing sector. With approximately 9 percent of the area work force, 
this industry is the fourth largest source of employment in the Keys.
Finally, the monetary costs of compliance with these regulations borne 
by individuals would be relatively small and arise from the following 
two items. First, those engaged in consumptive fishing will likely need 
to travel farther to fish. Additionally, some activities that were 
previously unregulated, such as treasure salving and coral collecting, 
would be required to obtain permits. However, the amount permitted to 
be charged for a permit may not exceed the cost of administering permit 
issuance.
It should be noted that Congress itself included several prohibitions 
that, by the prevention of income-generating and wealth-generating 
activity, will be quite costly. Specifically, Congress prohibited oil, 
gas and mineral leasing and development. However, since Congress 
prohibited this activity, the regulatory prohibition does not itself 
create this cost. Other than the prohibition of oil, gas and mineral 
leasing, the Sanctuary regulations contain only one Sanctuary-wide 
prohibition, live rock harvest, that may generate costs.
Many issues inherent in Sanctuary regulation are foreclosed by 
prohibitions in the FKNMSPA on tank vessels and on mineral and 
hydrocarbon leasing, exploration, development, and production within 
the Sanctuary.
The regulations being drafted employ water zoning as a means of 
protecting Sanctuary resources and preventing user group conflicts. 
While several regulatory restrictions apply throughout the Sanctuary, 
certain restrictions apply only by zone. For example, all consumptive 
activities would be prohibited within 22 zones, constituting just over 
5 percent of the Sanctuary area, including 90 percent of the heavily 
used, well-developed coral reef formations. This action might engender 
opposition from members of the public whose activities (diving, 
fishing, and boating) would be highly restricted, however it was 
believed that this method was the best approach for achieving the goals 
of the statute.
Natural Resources Damage Assessment Regulations
Another of NOAA's most important significant regulatory activities for 
the Regulatory Plan year is promulgation of final natural resource 
damage assessment regulations applicable to oil spills.
Under the Comprehensive Environmental Response, Compensation and 
Liability Act of 1980, 42 USC 4201 et seq. (CERCLA, also known as 
Superfund) and the Oil Pollution Act of 1990, 33 USC 2701 et seq. 
(OPA), NOAA, in concert with the Department of the Interior (DOI), is 
charged with developing regulations for natural resources damage 
assessment for injury to natural resources as a result of hazardous 
substance release and oil spills. Section 1006(b) of the OPA provides 
for the designation of Federal, State, Indian, and foreign officials to 
act on behalf of the public as trustees of the Nation's natural 
resources. In the event that such natural resources are injured, lost, 
or destroyed as a result of a discharge of oil, these officials are 
authorized to assess the injury to the natural resource and develop and 
implement a restoration plan. Section 1006(e) directs NOAA to take the 
lead for the Federal Government in developing natural resource damage 
assessment regulations for harm resulting from oil spills. Such 
regulations will help fulfill the goal of promoting stewardship and 
assessment of the global environment.
Natural resource damages under both CERCLA and OPA include the cost of 
restoring a resource, the diminution in its value pending restoration, 
and the cost of the damage assessment. Determination of damages made in 
accordance with these regulations by Federal, State or Indian resource 
trustees will have the ``force and effect of a rebuttable presumption'' 
in administrative or judicial proceedings.
The U.S. Court of Appeals for the District of Columbia Circuit has held 
that damages for lost or diminished resource values should include 
losses of both direct use values (for example, commerce or recreation) 
and nonuse (``passive-use'') values, to the extent these damages can be 
reliably measured. ``Passive use'' values are those not linked to 
direct use of the resource. These include ``existence value,'' the 
benefit derived from the existence of a resource even if one never 
intends to make active use of it, and ``bequest value,'' the 
satisfaction of knowing that future generations can make use of the 
resource. Contingent valuation (CV), a survey-based method for 
determining the public's willingness to pay to ameliorate or avoid a 
resource injury, is the only procedure currently available for 
measuring passive use values.
On December 28, 1990, NOAA issued an advance notice of proposed 
rulemaking for these regulations. Following review of the comments 
received, NOAA on January 7, 1994, published proposed regulations. 
Twelve public meetings were held on the proposed regulations in January 
and February, again showing full consistency with the National 
Performance Review's recommendation for increased public participation 
in rulemaking.
A single set of Federal natural resource damage assessment regulations 
will be more cost efficient than having the individual States develop 
separate methodologies. It is expected that the trustees will use the 
procedures contained in the regulations because the Oil Pollution Act 
provides that any determination or assessment of damages made in 
accordance with the regulations shall have the force and effect of a 
rebuttable presumption on behalf of the trustee in an administrative or 
judicial proceeding.
_______________________________________________________________________
DOC--International Trade Administration (ITA)
            ___________________________________________________________
PRERULE STAGE
            ___________________________________________________________
19. ANTIDUMPING DUTIES; COUNTERVAILING DUTIES
Legal Authority:


 19 USC 1671 et seq; 19 USC 1673 et seq; 19 USC 1303


CFR Citation:


 19 CFR 353; 19 CFR 355; 19 CFR ch III


Legal Deadline:


 Other, Statutory, January 1, 1996.


Section 103(b) of the Administration's proposed implementing 
legislation would establish January 1, 1996, as the deadline for 
interim final regulations.


Abstract:


Revisions of the antidumping and countervailing duty regulations will 
be necessary in light of anticipated legislation implementing the 
results of the Uruguay Round multilateral trade negotiations. Revisions 
also will address matters that were the subject of other uncompleted 
rulemaking proceedings that ITA has previously withdrawn. (See April 
1994 Unified Agenda of Federal Regulations.) By clarifying the 
methodologies and procedures used in administering the antidumping and 
countervailing duty laws, the efficiency and fairness of these laws 
will be enhanced at little, if any, additional cost.


Statement of Need:


Regulations will be needed to implement the results of the Uruguay 
Round with respect to the administration of the antidumping and 
countervailing duty laws. The newly negotiated Antidumping Agreement 
and Subsidies/Countervailing Measures Agreement (Agreements) establish 
general principles regarding the administration of these laws. In order 
to facilitate the administration of these laws and to provide greater 
predictability for private parties affected by these laws, it will be 
necessary to promulgate regulations which translate the principles of 
the Agreements and the implementing legislation into specific and 
predictable rules. Revisions also will address matters that were the 
subject of other uncompleted rulemaking proceedings that the Department 
of Commerce has previously withdrawn. By clarifying the methodologies 
and procedures used in administering the antidumping and countervailing 
duty laws, the efficiency and fairness of these laws will be enhanced 
at little, if any, additional cost. The manner in which these 
regulations are drafted could have a significant impact on various 
important sectors of the economy, including steel, lumber and bearings.


Summary of the Legal Basis:


The Secretary of Commerce is responsible for administering the 
antidumping and countervailing duty laws pursuant to authority 
contained in several legislative enactments, See 19 USC 1671 et seq.; 
19 USC 1673 et seq.; 19 USC 1303. These laws conform to the existing 
Subsidies Code and the Antidumping Code (Codes) of the General 
Agreement on Tariffs and Trade (GATT) and reflect internationally 
agreed rules regarding unfair trade. The Secretary, acting through the 
Import Administration of the International Trade Administration, is 
responsible for processing petitions from firms that allege they have 
been harmed by unfair competition from imports, making preliminary and 
final determinations about whether such competition was subsidized or 
benefitted from ``dumping,'' and conducting periodic administrative 
reviews of antidumping and countervailing duty orders. Merchandise 
found to be benefitting from subsidies or to have been ``dumped'' is 
subject to duties in the amount of the dumping or subsidization.


Alternatives:


U.S. objectives in the Uruguay Round antidumping negotiations were to 
improve transparency and due process in antidumping proceedings, 
develop rules regarding the circumvention of antidumping measures, and 
ensure that the antidumping rules continue to provide an effective tool 
to combat injurious dumping. The Agreement substantially achieves these 
objectives.


The Subsidies Agreement establishes clearer rules and stronger 
disciplines in the subsidies area while also making certain subsidies 
nonactionable, provided they are subject to conditions designed to 
limit distorting effects. The Agreements create three categories of 
subsidies and remedies: (1) prohibited subsidies; (2) permissible 
subsidies which are actionable if they cause adverse trade effects; and 
(3) permissible subsidies which are nonactionable if they are 
structured according to criteria intended to limit their potential for 
distortion.


Anticipated Costs and Benefits:


The Uruguay Round Agreements are anticipated to create hundreds of 
thousands of high-wage, high-skilled jobs in the United States. 
Further, economists estimate that the Uruguay Round will increase trade 
and will add between $100 and $200 billion to the United States economy 
after the round is fully implemented. Finally, the Agreements create an 
effective set of rules for the prompt settlement of disputes by 
eliminating shortcomings in the current system which allow parties to 
prolong the process and block adverse determinations.


The costs of administering the antidumping/countervailing duty system 
will be increased pursuant to the new rules established in the Uruguay 
Round. The new Codes dictate a number of new obligations in the 
investigation of petitions and the conduct of administrative reviews. 
Binding GATT dispute settlement will also increase legal costs because 
substantially more challenges to ITA determinations will be brought to 
the GATT forum.


Timetable:
_______________________________________________________________________
Action                                 DFR Cite

_______________________________________________________________________
ANPRM                                                          10/00/94
Interim Final Rule                                             01/00/95
Small Entities Affected:


None


Government Levels Affected:


None


Additional Information:


The Department of Commerce has had a variety of rulemaking proceedings 
outstanding in various stages of completion, some of these proceedings 
dating back to 1989. In many instances, work on these proceedings was 
suspended pending the outcome of the Uruguay Round trade negotiations. 
With the completion of the Round and the likelihood of implementing 
legislation, the Department plans on withdrawing these outstanding 
rulemaking proceedings and addressing the subject matter of those 
proceedings in the context of this new rulemaking proceeding. The 
Department withdrew RINs 0625-AA29, 0625-AA31, 0625-AA35, 0625-AA36, 
0625-AA39, 0625-AA41, and 0625-AA42.


Agency Contact:
William D. Hunter
Counselor to the Chief Counsel for Import Administration
Department of Commerce
International Trade Administration
Room 3622
14th Street & Constitution Avenue NW.
Washington, DC 20230
202 482-4224
RIN: 0625-AA45
_______________________________________________________________________
DOC--Bureau of Export Administration (BXA)
            ___________________________________________________________
FINAL RULE STAGE
            ___________________________________________________________
20. SIMPLIFICATION OF THE EXPORT ADMINISTRATION REGULATIONS
Legal Authority:


 18 USC 2510 et seq; 30 USC 185; 42 USC 6212; 10 USC 7240; 10 USC 
7430(e); 50 USC 1710 et seq; 22 USC 3201 et seq; 42 USC 2139(a); 43 USC 
1354; 50 USC app 2401 et seq; 46 USC 466(c); EO 11912; EO 12058; EO 
12735


CFR Citation:


 15 CFR 768 to 779; 15 CFR 785 to 791; 15 CFR 799


Legal Deadline:


None


Abstract:


The Bureau of Export Administration is undertaking a comprehensive 
review of the Export Administration Regulations. This review is 
intended to simplify, clarify and make the export control regulatory 
requirements more user-friendly.


Statement of Need:


It is essential that the United States have and implement export 
controls that take into account the realities of a post-Cold War world. 
Strong controls will continue to be needed to combat the threat of 
proliferation of weapons of mass destruction and to preserve our 
national security and foreign policy interests. However, long overdue 
reforms are needed to ensure that we do not unfairly and unnecessarily 
burden our important commercial interests.


Two forces are driving the development of export control regulations in 
the near term as BXA tries to meet these objectives--reauthorization of 
the Export Administration Act (EAA) and simplification of the Export 
Administration Regulations (EAR) as recommended by the Trade Promotion 
Coordinating Committee (TPCC).


a. Export Administration Act. The EAA expired on August 20, 1994. 
However, on August 19, 1994, the President issued Executive Order 12924 
invoking the International Emergency Economic Powers Act and continuing 
in effect, to the extent permitted by law, the provisions of the EAA 
and EARs. The EARs will need to be amended, in various degrees, to take 
into account changes in the EAA once it is reauthorized. At the present 
time, however, we cannot predict with any degree of certainty how the 
regulations will need to be amended. Both the House and the Senate will 
consider bills to reauthorize the EAA prior to the end of their current 
session.


A primary objective of a new EAA is to show a clear preference for 
multilateral export controls and to support strengthening the 
multilateral regimes. The development of common control lists and 
commitments to comparable procedures between members of a regime are 
essential. The Administration's reauthorization proposal contains 
explicit guidelines for effective regimes which include: (1) full 
membership by all supplier countries, (2) effective enforcement and 
compliance procedures, (3) effective implementation procedures, and (4) 
programs to enhance public understanding. Regulatory implementation of 
many of these objectives will be necessary.


b. Trade Promotion Coordinating Committee. On September 30, 1993, the 
first report of the Trade Promotion Coordinating Committee (TPCC), 
``Toward a National Export Strategy,'' was issued. This report outlined 
more than 60 specific actions to strengthen United States export 
promotion efforts. An important recommendation of the TPCC report was 
to clarify and simplify United States export control regulatory 
requirements. On February 10, 1994, a notice was published in the 
Federal Register inviting comments on areas that should be the focus of 
our simplification process.


Summary of the Legal Basis:


The legal authority to regulate exports of dual-use products stems from 
the Export Administration Act, 50 USC app. 2401, et seq. The EAA 
authorizes three types of controls: (1) national security controls 
which cover high technology items of strategic significance, (2) 
foreign policy controls used to achieve various foreign policy 
objectives, and (3) short-supply controls restricting the export of 
commodities that are in domestic short supply.


Section 201 of the Export Enhancement Act of 1992, PL 102-429, commands 
the President to establish the TPCC. The law requires, among other 
things, that the TPCC issue an annual report to Congress on the 
country's exports and export promotion efforts. The statute designates 
the Secretary of Commerce as the chairperson of the TPCC, with 
representatives from the Departments of State, Treasury, Agriculture, 
Energy, and Transportation, the U.S. Trade Representative, Small 
Business Administration, Agency for International Development, Overseas 
Private Investment Corporation, Export-Import Bank, the Trade and 
Development Agency, and such other agencies as the President determines 
to be necessary.


Alternatives:


At present it is difficult to assess fully all regulatory alternatives 
because reauthorization legislation has not been enacted. However, a 
goal of the Administration's proposed EAA reauthorization legislation 
is to increase the transparency of our export control decisionmaking 
process. U. S. industry must be able to depend on accurate, consistent, 
and timely licensing decisions. The Administration proposes new and 
broader rights of petition for industry to seek relief from export 
control requirements when it can be demonstrated that they place an 
unfair burden on U.S. business, or when specific licensing decisions 
are clearly inequitable when compared to the rules of other nations. 
Specifically, under the Administration's proposal industry would have 
the right to petition for relief when: (1) there is foreign 
availability or items are expected to become available in the 
foreseeable future, (2) the differences in the control imposed by the 
United States and other governments places the petitioner at an unfair 
competitive disadvantage, or (3) the controls are ineffective due to an 
item's wide availability and the inability to enforce the controls 
effectively.


BXA is examining the recommendations in the TPCC report in order to 
clarify and simplify U.S. export control regulatory requirements. 
Because U.S. economic interests will play a key role in implementing 
these changes, action will be taken to increase the rigor of economic 
analysis and data available in the decisionmaking process. With respect 
to the specific directions of the TPCC, the Department will harmonize 
U.S. domestic dual-use controls with multilateral controls to the 
greatest extent possible. This will include circumstances, such as re-
export controls, that unilaterally cause delay, denial of licenses or 
imposition of special license conditions. The changes will eliminate 
unilateral obstacles and controls, unless their continuation is 
essential to overriding national interests or is required by statute. 
To organize U.S. export controls for the long term, there will be a 
comprehensive review of the existing organizational structure. This 
review will examine a wide range of options, including further 
streamlining and expediting the interagency review process.


Anticipated Costs and Benefits:


As BXA considers the imposition of new export restrictions or 
continuing existing restrictions, we must carefully measure the impact 
of these steps on job creation and export opportunities. BXA recognizes 
that, today, to focus on exports is to focus on job creation. Exports 
and imports amounted to more than 11 percent of the gross domestic 
product in 1991, up dramatically from 7.5 percent just 5 years earlier. 
Moreover, exports are vital to the economic health of many key sectors 
of the manufacturing economy. For instance, computers, aerospace, heavy 
earth-moving equipment and farm implements are increasingly dependent 
on export markets.


More than 7 million American jobs are related to exports, and millions 
more depend on the overall economic activity generated by export trade. 
In fact, export growth has accounted for much of the overall job growth 
since 1986, and virtually all of the growth in manufacturing jobs.


An objective of the new EAA must be to recognize these realities and 
provide for the thorough assessment of the economic effect of proposed 
export controls. The Administration's proposal includes the requirement 
for a formal evaluation of the costs and benefits of unilateral 
controls before such controls are imposed and extended.


Timetable:
_______________________________________________________________________
Action                                 DFR Cite

_______________________________________________________________________
ANPRM           59 FR 6528                                     02/10/94
ANPRM Comment Period End                                       03/28/94
Final Action                                                   12/00/94
Final Action Effective                                         00/00/00
Small Entities Affected:


None


Government Levels Affected:


None


Agency Contact:
Patricia Muldonian
Export Administration Specialist
Department of Commerce
Bureau of Export Administration
Washington, DC 20230
202 482-2440
RIN: 0694-AA67
_______________________________________________________________________
DOC--National Oceanic and Atmospheric Administration (NOAA)
            ___________________________________________________________
PROPOSED RULE STAGE
            ___________________________________________________________
21. PROPOSED REGULATIONS FOR THE FLORIDA KEYS NATIONAL MARINE SANCTUARY
Legal Authority:


 16 USC 1431 et seq; PL 101-605


CFR Citation:


 15 CFR 929


Legal Deadline:


 Final, Statutory, May 1993.


Abstract:


These regulations are necessary for the implementation of the 
Congressionally designated national marine sanctuary.


Statement of Need:


Mounting threats to the ecological health and future of the coral reefs 
of the Florida Keys from oil drilling, deteriorating water quality, 
vessel groundings, pollution, and intense human use prompted Congress 
to enact the Florida Keys National Marine Sanctuary and Protection Act 
(FKNMSPA) in late 1990. This Act designated a 2,800-square-nautical-
mile area of coastal waters running the entire 220-mile length of the 
Florida Keys as the Florida Keys National Marine Sanctuary (Sanctuary). 
The Department of Commerce's National Oceanic and Atmospheric 
Administration (NOAA) is made responsible for implementing a 
comprehensive Sanctuary management plan through regulations designed to 
protect Sanctuary resources while facilitating all compatible public 
and private uses of the Sanctuary.


Because of the size of the Sanctuary and the variety of the resources 
it contains, many problems never before presented in sanctuary 
management must be addressed. For example, significant declines in 
water quality and habitat conditions in Florida Bay are threatening the 
health of Sanctuary resources. These conditions are thought to be the 
result of water quality and quantity management in the South Florida 
region. Accordingly, all agencies with responsibility in these areas 
are being incorporated into the continuous process of Sanctuary 
management.


Summary of the Legal Basis:


On November 16, 1990, the Florida Keys National Marine Sanctuary and 
Protection Act, Public Law 101-605, set out as a note to 16 USC 1433, 
became law. The FKNMSPA designated, effective the day of enactment, an 
area of waters and submerged lands, including the living and nonliving 
resources within those waters, the Florida Keys National Marine 
Sanctuary. Congress found that the area encompassed ``spectacular, 
unique, and nationally significant marine environments, including 
seagrass meadows, mangrove islands, and extensive living coral reefs,'' 
with the environments being ``the marine equivalent of tropical rain 
forests in that they support high levels of biological diversity, are 
fragile and easily susceptible to damage from human activities, and 
possess high value to human beings if properly conserved.''


Both Section 7(a) of the FKNMSPA and Title III of the Marine 
Protection, Research and Sanctuaries Act of 1972, as amended, 16 USC 
1431 et seq. authorize NOAA to issue regulations necessary to implement 
the designation, including managing and protecting the conservation, 
recreational, ecological, historical, research, educational and 
aesthetic resources and qualities of the Florida Keys National Marine 
Sanctuary.


Alternatives:


In that approximately 65 percent of the Sanctuary lies within Florida 
State waters, and numerous State and Federal areas of jurisdiction 
overlap or lie adjacent to the Sanctuary, it was imperative that the 
Sanctuary planning process be an interagency effort. Also, due to the 
high level and diversity of public use of the Florida Keys and the 
importance of tourism to the area's economy, it was equally important 
that the public have a strong role in developing the management plan.


Over the past 3 1/2 years, there have been numerous public meetings and 
workshops on management plan development. Almost all agreed that 
deteriorating water quality was the major issue affecting the ecosystem 
of the Keys. In mid-1991, a State, local, and Federal interagency core 
group was established to assess management issues. The core group 
included representatives from NOAA, EPA, U.S. Department of Interior 
(both the National Park Service and Fish and Wildlife Service), the 
Executive Office of the Governor of Florida, the Florida Departments of 
Community Affairs and of Environmental Protection, the South Florida 
Water Management District, and the Monroe County Growth Management 
Division. During the development of the draft comprehensive management 
plan the Core Group met monthly. While the draft management plan is 
undergoing NOAA review, the Core Group has met less frequently. 
However, before the draft environmental impact statement and management 
plan are disseminated to the public, the Core Group will meet again to 
coordinate public outreach efforts during the review and comment 
period. Further, in early 1992, a Sanctuary Advisory Council, whose 
members were selected from local, State, and Federal agencies, 
environmental groups, and from the citizenry at large, was appointed by 
the Governor and the Secretary of Commerce to assist in developing the 
comprehensive management plan.


The comprehensive Sanctuary management plan is to include a Florida and 
EPA developed Water Quality Plan. To develop the water quality 
protection program, EPA and the state of Florida convened an 
interagency Steering Committee which included NOAA representation. In 
the 1992 reauthorization of the Marine Protection, Research and 
Sanctuaries Act, Congress codified this Committee and added citizen 
participation. NOAA also included staff representatives from EPA and 
the state water quality agency on the core group charged with 
developing the overall sanctuary management plan.


EPA and the state of Florida have submitted their water quality 
protection program for incorporation. The draft comprehensive 
management plan for the Sanctuary now incorporates all of water quality 
protection program elements and, as part of the National Environmental 
Policy Act (NEPA) review, alternatives to each element. As part of the 
public review process of the draft environmental impact statement and 
management plan, NOAA will seek public input on which elements of the 
water quality protection program to include in the management plan. 
After the public comment period, NOAA will decide whether to 
incorporate some or all of the elements of the water quality protection 
program into the management plan.


A draft management plan and proposed implementing regulations will be 
published that will further the Clinton Administration's objective of 
providing long-term protection for ecologically significant areas while 
maximizing their economic use. The proposed regulations will protect 
Sanctuary resources with the minimum necessary regulatory burden on 
Sanctuary users.


A draft environmental impact statement (DEIS) has been prepared which 
sets forth alternatives for dealing with the problems identified in the 
planning process (e.g., boating, fishing, recreation). Five 
alternatives are set forth for each problem ranging from complete 
restriction of uses to maintaining the status quo, with the most 
attention paid to the three mid-range alternatives. The DEIS sets forth 
the environmental consequences and the economic and social effects on 
the human environment of the three mid-range alternatives, including 
the groups and industries likely to be impacted under each alternative. 
The DEIS selects the middle alternative as the preferred course of 
action because it best accomplishes the statutory objectives with due 
consideration of impacts on the human environment and costs.


Anticipated Costs and Benefits:


In passing the FKNMSPA, Congress specifically recognized that the 
unique natural and historic environment of the Florida Keys is 
irreplaceable. The benefits of the proposed regulation are best seen by 
looking at what would be lost if the environment were not protected. 
First, the 2.4 million-acre Sanctuary contains one of North America's 
most diverse assemblages of terrestrial, estuarine, and marine fauna 
and flora, particularly the Florida Reef Tract. In addition to the reef 
tract, the Sanctuary boundaries include thousands of patch reefs, one 
of the world's largest seagrass communities covering 1.4 million acres, 
mangrove-fringed shorelines, mangrove islands, and various hardbottom 
habitats. Moreover, these diverse habitats provide shelter and food for 
thousands of species of marine plants and animals, including over 50 
species of animals identified by either Federal or State law as 
endangered or threatened. Finally, because the Keys were at one time a 
major seafaring center for European and American trade routes in the 
Caribbean, submerged cultural and historic resources, that is, 
shipwrecks, also abound in the surrounding waters. Recent information 
indicates that there may be more archaeological resources of pre-
European cultures than had previously been believed to be the case.


Loss of the unique and distinct marine resources of the Sanctuary would 
not only cost an irreplaceable ecosystem and cultural and historic 
resources, it would also significantly damage the economy of the 
Florida Keys. The abundance of marine resources in the Keys draws 
thousands of visitors each year. The major industry in the Florida Keys 
is tourism, including activities related to the Keys' marine resources, 
such as dive shops, charter fishing and dive boats, marinas, as well as 
hotels and restaurants. More than half (51 percent) of the Florida 
Keys' employment is based in recreation and tourism, with about 61 
percent of all recreation and tourism activities being water-related. 
About half of the $1.6 billion in total sales for the area is related 
to tourism, with another $16 million spent by Keys residents for 
recreation activities.


The wealth of natural marine resources also supports a large commercial 
fishing sector. With approximately 9 percent of the area work force, 
this industry is the fourth largest source of employment in the Keys.


Finally, the monetary costs of compliance with these regulations borne 
by individuals would be relatively small and arise from the following 
two items. First, those engaged in consumptive fishing will likely need 
to travel farther to fish. Additionally, some activities that were 
previously unregulated, such as treasure salving and coral collecting, 
would be required to obtain permits. However, the amount permitted to 
be charged for a permit may not exceed the cost of administering permit 
issuance.


It should be noted that Congress itself included several prohibitions 
that, by the prevention of income-generating and wealth-generating 
activity, will be quite costly. Specifically, Congress prohibited oil, 
gas and mineral leasing and development. However, since Congress 
prohibited this activity, the regulatory prohibition does not itself 
create this cost. Other than the prohibition of oil, gas and mineral 
leasing, the Sanctuary regulations contain only one Sanctuary-wide 
prohibition, live rock harvest, that may generate costs.


Risks:


Issues inherent in Sanctuary regulation are foreclosed by statutory 
prohibitions on tank vessels and on mineral and hydrocarbon leasing, 
exploration, development, and production within the Sanctuary.


The draft regulations employ water zoning as a means of protecting 
Sanctuary resources and preventing user group conflicts. While several 
regulatory restrictions apply throughout the Sanctuary, certain 
restrictions apply only by zone. For example, all consumptive 
activities would be prohibited within 22 zones, constituting just over 
5 percent of the Sanctuary area, including 90 percent of the heavily 
used, well developed coral reef formations. This action might engender 
opposition from members of the public whose activities (diving, 
fishing, and boating) would be highly restricted; however, it was 
believed that this method was the best approach for achieving the goals 
of the statute.


Timetable:
_______________________________________________________________________
Action                                 DFR Cite

_______________________________________________________________________
NPRM                                                           12/00/94
NPRM Comment Period End                                        03/00/95
Small Entities Affected:


None


Government Levels Affected:


State, Local


Agency Contact:
Capt. Francesca Cava
Chief
Sanctuaries and Reserves Division
Department of Commerce
National Oceanic and Atmospheric Administration
1305 East-West Highway (N/0RM2)
Silver Spring, MD 20910
301 713-3125
RIN: 0648-AD85
_______________________________________________________________________
DOC--NOAA
22. NATURAL RESOURCE DAMAGE ASSESSMENT AND RESTORATION REGULATIONS
Legal Authority:


 33 USC 2706


CFR Citation:


 15 CFR 990


Legal Deadline:


 Final, Statutory, August 18, 1992.


Congress required the regulations to be promulgated no later than 2 
years following the enactment of the Oil Pollution Act (OPA).


Abstract:


Section 1006(e) of the Oil Pollution Act requires the President, acting 
through the Under Secretary of Commerce for Oceans and Atmosphere, 
acting through NOAA, to promulgate natural resource damage assessment 
regulations applicable to oil spills. A Federal approach will provide a 
consistent, uniform set of procedures specifically for use in oil 
spills. These procedures will be available to Federal, State, Indian, 
and foreign natural resource trustees. A single Federal solution will 
be more cost efficient than having the individual States develop 
separate methodologies. It is expected that trustees will use the 
procedures contained in the regulations because the Oil Pollution Act 
provides that any determination or assessment of damages made in 
accordance with the regulations shall have the force and effect of a 
rebuttable presumption on behalf of the trustee in an administrative or 
judicial proceeding.


Statement of Need:


Under CERCLA and OPA, DOI and NOAA are charged with developing 
regulations for natural resources damage assessment for injury to 
natural resources resulting from a release or substantial threat of 
release of a hazardous substance or oil. Damages under both CERCLA and 
OPA include the cost of restoring a resource, the diminution in its 
value pending restoration, and the cost of the damage assessment. 
Section 1006(b) of the OPA provides for the designation of Federal, 
State, Indian, and foreign officials to act on behalf of the public as 
trustees of the Nation's natural resources. In the event that such 
natural resources are injured, lost, or destroyed as a result of a 
discharge of oil, these officials are authorized to assess the injury 
to the natural resource and develop and implement a restoration plan. 
Section 1006(e) directs NOAA to take the lead for the Federal 
Government in developing natural resource damage assessment regulations 
for harm resulting from oil spills. Such regulations will help fulfill 
the goal of promoting stewardship and assessment of the global 
environment.


Natural resource damages under both CERCLA and OPA include the cost of 
restoring a resource, the diminution in its value pending 
restoration,and the cost of the damage assessment. Determination of 
damages made in accordance with these regulations by Federal, State or 
Indian resource trustees will have the ``force and effect of a 
rebuttable presumption'' in administrative or judicial proceedings. 
Currently, natural resource damages resulting from the discharge of 
oil, or substantial threat of a discharge, are calculated using the 
rules promulgated by the DOI at 43 CFR 11, or under State law.


The U.S. Court of Appeals for the District of Columbia Circuit has held 
that damages for lost or diminished resource values should include 
losses of both direct use values (e.g., commerce or recreation) and 
nonuse (``passive-use'') values to the extent these damages can be 
reliably measured. ``Passive use'' values are those not linked to 
direct use of the resource. These include ``existence value,'' the 
benefit derived from the existence of a resource even if one never 
intends to make active use of it, and ``bequest value,'' the 
satisfaction of knowing that future generations can make use of the 
resource. Contingent valuation (CV), a survey-based method for 
determining the public's willingness to pay to ameliorate or avoid a 
resource injury, is the only procedure currently available for 
measuring passive use values.


Summary of the Legal Basis:


The OPA provides for the prevention of, liability for, removal of and 
compensation for the discharge, or substantial threat of discharge, of 
oil into or upon the navigable waters of the United States, its 
adjoining shoreline or the Exclusive Economic Zone. Section 1006(e)(1) 
of the OPA requires NOAA to promulgate regulations for use by 
authorized Federal, State, or tribal officials, collectively referred 
to as trustees, in the assessment of damages for injury to, destruction 
of, loss of or loss of use of natural resources sustained as a result 
of the discharge of oil.


Alternatives:


As the rulemaking is Congressionally mandated, there is no alternative 
to the rulemaking itself.


Several options have been discussed concerning simplified procedures 
and the valuation of ``passive use.'' NOAA and DOI proposed regulations 
which would allow the use of CV as the measure of passive use values, 
provided the surveys are structured, pretested and carried out 
according to strict guidelines.


With respect to use valuation, the estuarine/marine and inland waters 
compensation formulas described in NOAA's January 7, 1994 proposed rule 
would be applicable to the vast majority of oil discharges. An analysis 
of reported coastal discharges of oil from 1973-1990 shows that 99.8 
percent of the discharges were less than 50,000 gallons and 99 percent 
were less than 10,000 gallons. Compensation formulas could be used for 
most of these relatively small discharges, particularly for those that 
occur in areas where it would be difficult to ascertain precise 
environmental effects, for example, small discharges in open water or 
in areas that are subject to frequent discharges.


These formulas allow an estimate of damages per gallon taking into 
account average restoration costs, plus average lost direct use values 
pending restoration. The formulas assume various levels of natural 
resource effects likely to result from the discharge of oil. These 
assumptions consider the amount and type of oil discharged and region 
and habitat type in which the discharge occurs. The formulas are 
applicable to a wide range of the most commonly discharged oil 
products. This approach allows both a national consistency and regional 
specificity.


NOAA is also working with DOI to develop computer models to determine 
lost-use values. Based upon an initial evaluation, it is likely that 
NOAA will recommend that these computer models be available procedures 
that trustees may choose in calculating lost-use values.


To fulfill the trustee obligations for restoration planning NOAA has 
proposed a process for the development of an administrative record 
documenting all aspects of an incident relevant to the trustee 
obligation to restore, rehabilitate, replace or acquire the equivalent 
natural resources. In NOAA's view an administrative record for injury 
assessment and selection of restoration alternatives achieves four 
important objectives: (1) it provides a central repository, open to the 
public, for all scientific data relevant to the incident; (2) it 
facilitates public participation; (3) it documents trustee 
decisionmaking and selection among alternatives to restore, replace or 
acquire the equivalent; and (4) it minimizes transaction costs by 
encouraging an open, participatory process for the ultimate resolution 
(i.e., restoration of natural resources) of an incident rather than 
resolution through litigation.


Anticipated Costs and Benefits:


NOAA's attempt to minimize transaction costs and discourage complex 
litigation littered with discovery battles and other activities not 
leading to restoration of natural resources is born of the 
unsatisfactory experience of the EXXON Valdez. In that incident all 
parties were criticized by the public for maintaining the 
confidentiality of scientific studies, conducting science for purpose 
of litigation, and then settling the case without providing for the 
release of the scientific data gathered. Clearly, that process did not 
serve the public owners of the injured natural resources very well. 
NOAA and other Federal, State and tribal trustees are now engaged in a 
very public process for restoration, replacement and acquisition of the 
equivalent resources injured in the EXXON Valdez incident. However, it 
is NOAA's view that significantly more fiscal resources might have been 
available for dedication to restoration of the environment had not so 
much been committed to litigation over the nature and extent of the 
injury.


The costs and benefits of the proposed rule can be reviewed using as a 
baseline the existing regulatory framework under CERCLA. The rule 
incorporates the Type A Model currently authorized under CERCLA for 
estimating economic damages associated with relatively minor spills of 
oil or hazardous substances, and includes a procedure very similar to 
the existing comprehensive Type B Damage Assessment which is used in 
connection with relatively large discharges. Significant new costs or 
benefits are therefore not associated with these aspects of the 
proposed rule.


The proposed rule, however, proposes two new procedures or 
methodologies. The first procedure is the use of compensation formulas 
for estimating damages to estuarine and marine environments and for 
inland freshwater environments. The second new procedure is the 
Expedited Damage Assessment for use when certain prespill data are 
known or readily available and certain other conditions exist. On 
balance, these new procedural options tend to produce net benefits not 
only by reducing overall regulatory costs, but by encouraging earlier 
resource restoration or rendering recovery for a greater number of 
smaller spills cost-justified.


The compensation formulas, available for use in lieu of more time-
consuming and expensive alternatives (Type B procedures or Type A 
formulas which would require additional basic data and the use of a 
computer model), tend to reduce the cost of implementing damages 
assessments. Similarly, the Expedited Damage Assessment option will 
substitute in some cases for the more costly and time consuming Type B 
procedure, thus its availability tends to reduce the average cost of 
implementing damages assessments under OPA regulations. Society will 
benefit, and deadweight losses will be decreased, by improving the 
efficiency and scope of recovery for injuries to natural resources.


NOAA also proposes to reaffirm the appropriateness of using the 
Contingent Valuation (CV) Methodology to estimate lost nonuse values of 
natural resources provided certain safeguards are observed. The 
proposed rule would expand to some degree the safeguard procedures to 
be used in connection with CV studies. However, no new categories of 
economic goods or services, nor novel methodologies, are introduced. 
The additional costs associated with the use of CV under these 
regulations are difficult to quantify. However, such costs are clearly 
justified by the benefits of the continued ability of society to 
recover damages for injury to nonuse values of natural resources.


Timetable:
_______________________________________________________________________
Action                                 DFR Cite

_______________________________________________________________________
ANPRM           55 FR 53478                                    12/28/90
Public Meeting S56 FR 8307or 03/20/91                          02/28/91
ANPRM           56 FR 8307                                     04/01/91
ANPRM Comment Pe57 FR 23067ed to 10/01/92                      06/01/92
ANPRM Comment Pe58 FR 4601                                     01/15/93
ANPRM; Release of Report; Extension of Comment Period to January 15, 
        1993    58 FR 4601                                     01/15/93
NPRM            59 FR 1062                                     01/07/94
6 Cooperative Prespilling Planning Meetings Scheduled During January 
        and Febr59 FR 1190                                     01/07/94
6 Public Meeting59 FR 1189d During January and February 1994   01/07/94
NPRM Comment Period End                                        04/07/94
NRPM Comment Per59 FR 32148d to                                10/07/94
Final Action                                                   12/00/94
Final Action Effective                                         01/00/95
Small Entities Affected:


None


Government Levels Affected:


None


Agency Contact:
Linda B. Burlington
Project Manager
Department of Commerce
National Oceanic and Atmospheric Administration
Office of General Counsel
1825 Connecticut Avenue NW., Room 604
Washington, DC 20235
202 606-8000
RIN: 0648-AE13
BILLING CODE 3510-BW-F