[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)

Statement of Regulatory Priorities
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;
 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 and/or industry 
            cooperation;
 Providing developmental assistance to distressed communities;
 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.
As the President recently stated, the Commerce Department helps the 
private sector face the trends that affect the world's economy. Markets 
are becoming increasingly global. Competition is fierce and relentless. 
Technology--one of the principal drivers of sustained economic growth--
is constantly changing, knowing neither predetermined home nor 
boundaries. The ability of smaller companies to enter export markets 
and develop and adopt innovations is increasingly vital. In such an 
environment, the American economy depends in large part on our 
companies' abilities to innovate and to survive and prosper in new 
markets abroad and against foreign competition at home.
That is why the President has put forward a national economic strategy, 
with Commerce at center stage, that includes concrete tools to enhance 
investment, to open markets and to promote exports, to encourage 
innovation, and to educate and train our people. In addition, the 
Department of Commerce embraces the Administration's environmental 
strategy that promotes sustainable development and rejects the false 
choice between environmental goals and economic growth. The Department 
of Commerce 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.
The President's recent budget reaffirms the importance he places not 
only on balancing the Federal budget in a way that enhances sustainable 
economic growth, but also on stimulating investment, opening markets, 
and promoting innovation. In fact, Commerce programs help the U.S. 
economy more fully realize its growth potential, thus contributing to 
the incomes and tax revenues that finance these public expenditures.
The Department of Commerce's emphasis on boosting U.S. exports and 
stimulating technological innovation recognizes that open markets and 
technology are critical to our Nation's ability to compete. In both 
areas, the United States must have in place policies and programs that 
work to level the playing field for American businesses and workers. 
Compared with our major trading partners, the United States ranks dead 
last in expenditures for export promotion relative to the size of our 
economy and, compared with Japan and Germany, the United States spends 
less on nondefense R&D as a percentage of gross defense production. 
Through the Department of Commerce, the United States takes as 
seriously as our trading partners the need for public-private 
partnerships that promote economic competitiveness.
For too long, U.S. companies were shut out of lucrative foreign markets 
or repeatedly lost bids for international contracts, while foreign 
governments aggressively promoted the interests of their firms abroad. 
Smaller manufacturers in the United States, unable to modernize quickly 
enough and meet payroll, laid off workers and closed their plants in 
the face of fierce and relentless competition. And report after report 
told us that the United States was losing ground in virtually every 
area of high technology--from automobiles to semiconductors--as the 
Federal Government stood idly by.
This Department of Commerce has instituted the programs and policies 
that mean cutting-edge, competitive, better paying jobs. We work every 
day to boost exports, to deregulate business, to help smaller 
manufacturers battle foreign competition, to advance the technologies 
critical to our future prosperity, to invest in our communities, and to 
fuse economic and environmental goals.
The Department of Commerce is American business' surest ally in job 
creation, serving as a vital resource base, a tireless advocate, and a 
Cabinet-level voice for the private sector.
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, and requires that all regulations be written in simple, 
plain English 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.
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 Economic 
Development Administration (EDA), 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. Four of these operating 
units--BXA, ITA, EDA, and NOAA--have the most important of the 
Department's significant regulatory actions planned for the Regulatory 
Plan year. These four units are described below, along with their 
regulatory objectives and priorities, how they relate to the 
President's priorities, and their most significant planned regulatory 
actions.
The Commerce Department is also reinventing itself by taking into 
account, among other things, the President's regulatory principles. We 
have made bold and dramatic changes, never being satisfied with the 
status quo. Over the past 2 1/2 years we have emphasized, initiated, 
and expanded programs that work in partnership with the American people 
to secure the Nation's economic future. At the same time we have down-
sized, cut regulations, closed offices, and eliminated programs and 
jobs that are not part of our core mission. The bottom line is that, 
after much thought and debate, we have made many hard choices needed to 
make this Department ``state of the art.''
Reinvention at the Department of Commerce has not only meant cutting 
regulations or improving existing services. It has also meant 
purposeful growth, particularly in the areas of trade and technology.
The Secretary believes reinvention should view the entire Federal 
Government as a major corporation, and view the Department of Commerce 
as a critical function within that corporation. A company going through 
a reinvention process may shed jobs and functions, but it will also 
expand and enhance operations that are vital to its long-term growth. 
It is certainly going to build on partnerships with its customers that 
work. The Department believes expansion of essential programs at 
Commerce is vital to economic growth.
Streamlining Regulatory Processes
The Department of Commerce has taken a variety of steps to reduce 
regulatory burden by streamlining its regulatory processes. For 
instance, export controls on computers and telecommunications equipment 
have been changed, thereby eliminating the requirement for prior 
approval on over $32 billion worth of exports. Further, the Department 
has proposed the first complete rewrite of the export control 
regulations in 45 years. This will make compliance easier, particularly 
for small firms. In addition, Departmental grants processing time has 
been reduced an average of 25 percent. Finally, the Department has 
simplified its forms, has encouraged electronic filing, and has 
coordinated data sharing with other statistical agencies to reduce 
respondent burden, saving the private sector hundreds of thousands of 
dollars in time and money.
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 developed a regulation database and tracking system. This 
system, which became fully operational in January 1995, provides 
decisonmakers with precise, concise, and up-to-the-minute information 
on the substance, status, and history of each of the Department's 
regulatory actions.
By volume, the greatest number of Commerce Department regulatory 
actions are fisheries-related rules issued under authority of the 
Magnuson Fishery Conservation and Management Act, 16 USC section 1801 
et seq., by the National Marine Fisheries Service (NMFS) of the 
National Oceanic and Atmospheric Administration (NOAA). 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 
this year established a new, more collegial clearance procedure for 
NMFS rules.
First, NOAA, NMFS, 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 copies of 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 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 that is characterized by 
efficient processing of regulatory actions and frank, nonadversarial 
communication between the parties.
Eliminating and Improving Regulations
On February 21, 1995, President Clinton announced his plans for reform 
of the Federal regulatory system. This plan included four steps each 
agency was to undertake in order to achieve meaningful reform. One of 
the points in the President's program directed each agency to undertake 
a page-by-page review of its regulations to determine those that were 
obsolete and could be deleted. In light of the varied activities and 
responsibilities of the Department, each agency reviewed its 
regulations using a methodology most appropriate for its legal 
obligations, organizational structure, and policy priorities. However, 
all agencies were directed to analyze each of their regulations to 
determine if it was necessary and, if so, whether it should be 
rewritten to make it more streamlined and user-friendly. Additionally, 
the regulatory review was conducted by each agency with the 
Department's and Administration's policy and program priorities, as 
well as its own, clearly in mind.
The results of each agency's regulatory review produce a total 
elimination or reinvention of a substantial percentage of the 
Department's regulations. The Department of Commerce has a total of 317 
parts in the Code of Federal Regulations (CFR). Of these, 52 CFR parts, 
16.5 percent of all Commerce Department CFR parts, are slated to be 
eliminated in their entirety. Furthermore, 140 Commerce Department CFR 
parts are proposed to be reinvented so as to streamline, clarify, and 
consolidate the regulations and generally make them more user-friendly. 
Reinvention also includes elimination of regulatory text from these CFR 
parts. The 140 CFR parts being reinvented represent nearly half, 44 
percent, of all current Commerce Department CFR parts.
These changes, represented in terms of CFR pages, break down as 
follows: The Department of Commerce presently has 2,878 pages of 
regulatory text in the CFR. Of this amount 705 pages will be 
eliminated, fully 25 percent of all pages of Commerce Department 
regulations. Further, 1,859 pages of regulatory text, or 66 percent of 
the total Commerce Department pages in the CFR, two-thirds of all 
pages, will be reinvented.
These totals represent the changes proposed by the Department as a 
whole. However, as mentioned above, the regulatory review was conducted 
by the individual agencies of the Department of Commerce, whose 
substantial contribution to these amounts should be noted.
The National Oceanic and Atmospheric Administration (NOAA) proposes to 
reduce the total volume of its regulations by at least 45 percent. In 
addition, NOAA is proposing to reduce the 127 separate parts it 
currently maintains in the CFR to approximately 40. The end result will 
be a new set of NOAA regulations that will be easier for the public to 
read, to comprehend, and comply with. Further, regulations which are no 
longer necessary or obsolete will be eliminated.
Next, an interim final rule of the Economic Development Administration 
(EDA) deletes 200 or more regulations. This represents approximately a 
50 percent reduction in agency regulations.
Finally, on May 11, 1995, following over one year of work, the Bureau 
of Export Administration published a proposed rule, described more 
fully below, to completely revise the Export Administration Regulations 
(EAR). This proposed rule clarified the very technical language of the 
EAR, simplified their application, and generally made the export 
control regulatory regime more user-friendly.
On March 16, 1995, President Clinton announced that the Administration 
would implement several additional new policies as part of his 
regulatory reform initiative. Two of these policies concerned 
enforcement of existing regulations and the imposition of penalties on 
small business. Specifically, the President directed agency heads to 
allow for the waiver of up to 100 percent of any punitive fine on a 
small business, if the same sum would be used toward correcting the 
violation leading to the fine and to offer small businesses, found to 
be in violation of regulations, an opportunity to avoid punitive action 
by correcting the violation(s) within a time period appropriate to the 
violation in question.
On April 21, the President issued an Executive Memorandum (EM) 
providing guidance on implementation of these measures. The EM stated 
that the additional policies did not apply to matters related to, among 
other things, national security, foreign affairs, the importation or 
exportation of prohibited or restricted items, and Government duties. 
Nor did they apply to agencies, or components thereof, whose principal 
purpose is the collection, analysis, and dissemination of statistical 
information. For purposes of the Department of Commerce, we interpreted 
these exclusions to apply to the Economics and Statistics 
Administration, the Bureau of Export Administration, and the Import 
Administration.
In light of the noted exclusions, only NOAA, among Department agencies, 
has regulatory enforcement functions subject to the President's 
directive. NOAA, therefore, reviewed every enforcement case that had 
been referred for assessment of monetary penalties. Most of these cases 
resulted from violations of those statutes, and NOAA's implementing 
regulations, pertaining to fisheries conservation and management, 
endangered species and marine mammal protection, and protection of 
marine sanctuaries. In addition to serious natural resource violations, 
there were some minor violations that appeared to have resulted from 
ignorance of the law by otherwise law-abiding citizens and small 
businesses. There also were some technical violations in which the 
violators appeared to have attempted to comply with the applicable 
regulations but fell short.
NOAA is in the process of instituting a ``Fix-it'' ticket program which 
uses compliance procedures for relatively minor violations. Under this 
program, both verbal and written warnings will be used more frequently 
than has been past practice. For example, in the instance of a 
violation of conservation regulations that prohibit the possession of 
certain fish, where there is no evidence of an intent to violate the 
regulations for commercial gain, the appropriate remedy may be to allow 
the inadvertent violator to abandon the unlawfully obtained fish. The 
same remedy may be used in cases involving small-percentage violations 
of fishing-trip poundage limits. In cases where a particular type of 
fishing gear must be used, and the fisherman has not done so, first 
offenses may be forgiven if the fisherman demonstrates that he or she 
subsequently has acquired the proper gear or otherwise corrected the 
problem with the gear.
NOAA has developed a first draft of a plan to extend these new 
enforcement practices within its organization and to its law 
enforcement partners. Implementation will involve cooperation among the 
Office of the General Counsel, the NMFS Enforcement Office, the U.S. 
Coast Guard, and cooperating State fish and game law enforcement 
officers. Additionally, NOAA will amend its penalty schedules to 
reflect a less confrontational approach to first-time violators and 
small businesses. If compliance can be easily obtained at the time a 
violation is detected, then that will be the preferred approach. These 
changes will improve the Agency's image with the regulated public and 
foster voluntary compliance. Moreover, these changes will free up 
enforcement agent and attorney time to allow greater concentration on 
major cases involving deliberate noncompliance for commercial gain.
Description of Agency Regulations
Bureau of Export Administration
The Department of Commerce Bureau of Export Administration's (BXA's) 
main programmatic objective is to operate an export control program 
that encourages economic opportunities without compromising national 
security. Over the last 7 years, U.S. exports of goods and services 
accounted for one-third of U.S. economic growth, and export-related 
jobs grew six times faster than total employment. The Department of 
Commerce has primary responsibility in advocating for U.S. exports and 
international economic affairs. 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.
Export Controls and Related Programs
BXA oversees the administration and enforcement of U.S. export controls 
on items that have both civil and military uses. Pursuant to the Export 
Administration Act (EAA), the Nuclear Non-Proliferation Act, and other 
statutes, BXA seeks to promote and protect U.S. security, foreign 
policy, and nonproliferation interests without imposing unnecessary 
burdens on exporters.
Further, BXA administers and enforces export controls on commodities 
that are in short supply as provided for by the EAA, the Forest 
Resources Conservation and Shortage Relief Amendments Act, and other 
statutes.
BXA also implements the antiboycott provisions of the EAA to ensure 
that U.S. firms do not cooperate with the Arab economic boycott of 
Israel or other international economic boycotts that are contrary to 
U.S. law.
Defense Industrial Base Programs
Pursuant to the Defense Production Act, other national-security-related 
legislation, and Executive Orders, BXA administers a range of programs 
designed to strengthen the U.S. defense industrial base and assist U.S. 
defense manufacturers in diversifying production for civil 
applications.
Streamlining the Export Administration Regulations (EAR)
Although many substantive changes to the EAR must await reauthorization 
of the EAA, BXA's top regulatory priority is to clarify, simplify, and 
make more user-friendly the present EAR, consistent with U.S. national 
security and foreign policy interests and present law. 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 Secretary 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 Executive Order 12866 and the 
President's regulatory reform goals, BXA, on May 11, 1995, issued a 
proposed rule to reorganize 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.
The proposed new EAR contain many innovative changes designed to make 
the regulations easier to use. Probably the most important of these is 
a reorientation from the current regulations prohibition on all 
exports, absent BXA authorization, to a presumption that no license is 
needed unless the regulations affirmatively state the requirement. In 
addition, the chapters of the new regulations are arranged to give the 
exporter and reexporter a logical path to follow. Finally, the 
affirmative statements of the need to obtain a license or other 
obligation, currently scattered throughout the regulations, are 
consolidated into ten general prohibitions.
Additionally, the proposed new EAR include a Country Chart that lists 
worldwide licensing requirements by reason for control for all items 
listed on the Commerce Control List (CCL). Once an exporter identifies 
an item on the CCL, worldwide licensing requirements, the reason for 
control, and the licensing policy are readily discernible. This 
innovation will signficantly reduce the amount of time exporters will 
need to obtain this information. BXA received overwhelming support for 
this new approach when it conducted a pilot test comparing it with the 
current regulatory scheme.
The proposed new EAR would establish a Special Comprehensive License 
(SCL) procedure to replace four multiple-export licensing procedures 
currently in the regulations. This amounts to a 75 percent reduction in 
procedures that exporters need to consider when they apply for 
multiple-export authorizations. In addition, the transactions that 
would be eligible for the SCL are expanded in terms of country and 
product scope. This would further reduce burdens on exporters by 
expanding the number of cases for which transaction-by-transaction 
license applications could be replaced by the SCL.
The current EAR include approximately 30 general licenses, permissive 
reexports, and other exceptions which are scattered throughout a number 
of CFR parts. These general licenses, known as ``license exceptions'' 
in the proposed new EAR, are consolidated into one part of the proposed 
new EAR, and are combined into transaction-based groupings. This 
combination results in an almost 30 percent reduction in the number of 
license exceptions.
International Trade Administration
The International Trade Administration (ITA) is responsible for most of 
the 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 does 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 science and electronics, basic industries, chemicals, and allied 
products, energy, and textiles and apparel. Among its regulatory 
activities, ITA issues certificates of review providing export trading 
companies with limited immunity from liability under 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 
and Watch Quota Programs, and the Educational, Scientific, and Cultural 
Materials Importation Act.
Antidumping and Countervailing Duties Regulations
The top regulatory priority of ITA is revising the antidumping and 
countervailing duty regulations to conform to 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 them, 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. 
Clarifying the methodologies and procedures used in administering the 
antidumping and countervailing duty laws will enhance the efficiency 
and fairness of these laws 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 the 
steel, lumber, and bearings industries.
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.
In recognition that economic growth must go hand in hand with 
environmental stewardship, the Commerce 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 saving 
fisheries and confronting short-term economic dislocation, while 
boosting long-term economic growth. The Department of Commerce 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 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 coastal zone, estuarine research reserve and 
national marine sanctuary management activities, including regulatory 
activities under various statutes.
NOAA's principal regulatory objectives are to manage the marine fishery 
resources under its jurisdiction more effectively, 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. 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 an FMC, the Magnuson Act places stringent deadlines upon NMFS within 
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 strategies 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 (e.g., 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.
Florida Keys National Marine Sanctuary Rulemaking
One of NOAA's most important significant regulatory actions will be 
finalizing the management plan and regulations for the Florida Keys 
National Marine Sanctuary. A proposed management plan and proposed 
implementing regulations were published in early spring, 1995. 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 developing a comprehensive Sanctuary 
management plan, including a Florida and U.S. EPA-developed Water 
Quality Plan, 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 
the proposed plan addresses, 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 of this marine area.
A draft environmental impact statement (DEIS) has been published which 
sets forth management 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.
In passing the FKNMSPA, Congress specifically recognized that the 
unique natural and historic environment of the Florida Keys is 
irreplaceable. Accordingly, 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 there than previously 
believed.
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, and 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, and another $16 million is 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 proposed 
regulations borne by individuals would be relatively small and arise 
from two items. First, some of those engaged in consumptive fishing 
will likely need to travel farther to fish. Additionally, some 
activities that were previously unregulated, such as treasure salvaging 
(in Federal waters) and coral collecting, would require permits or be 
subject to additional requirements. However, the amount 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 and prohibited vessels greater 
than 50 meters from an Area to Be Avoided. However, since Congress 
prohibited these activities, the regulatory prohibition does not create 
associated costs. Other than the prohibition of oil, gas, and mineral 
leasing, the Sanctuary regulations contain some Sanctuary-wide 
prohibitions, such as the prohibition on harvesting live rock or 
altering the seabed, 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 proposed 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 
protection while still facilitating use of the Sanctuary.
Natural Resources Damage Assessment Regulations
Another of NOAA's most important significant regulatory activities for 
the Regulatory Plan year is promulgation of 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.
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. The 
public comment period continued through October 7, 1994. In addition, 
12 public meetings were held on the proposed regulations in January and 
February, 1994, again showing full consistency with the President's 
policy of increased public participation in rulemaking. Subsequently, 
NOAA determined, due in part to the comments received on the January 7, 
1994, proposed rule, to issue a second proposed rule. That second 
proposal was published in the Federal Register on August 3, 1995 (60 FR 
39804).
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.
Economic Development Administration
Because economic opportunity is not evenly dispersed to all communities 
and because of the dynamic nature of our economy, the Commerce 
Department includes programs to help areas respond to conditions of 
economic deterioration and dislocation. Under the Department's economic 
development programs, we help communities build the capacity to plan 
and implement the economic development strategies needed to respond to 
problems and to restore their job bases. The Economic Development 
Administration (EDA) provides grants to help communities fund the 
infrastructure improvements needed to support development. We have been 
particularly active in helping communities respond to problems caused 
by the down-sizing of the defense industry. With 70 major military 
facilities selected for closure or realignment in the first two rounds 
and an additional 49 major facilities recommended by the Defense Base 
Realignment and Closure Commission for closure or realignment in the 
1995 round, the need for this assistance will continue to grow.
It had been over 20 years since the EDA's regulations were completely 
revamped. Many regulations were out of date, applied to programs that 
no longer existed, or reflected policies that had changed or were not 
applied in a consistent or regular manner. The regulatory system did 
not fully reflect actual programmatic procedures or practices. In 
essence, EDA regulations did not achieve the desired goal of truth-in-
regulating that is at the heart of a reinvented government. As a 
result, the reform of EDA's regulations produces not only fewer and 
more streamlined regulations, but regulations that have been thought 
through anew and restricted to the absolute minimum to achieve EDA's 
program goals.
An initial review resulted in an agency consensus to delete and/or 
rewrite over 200 of approximately 370 EDA regulations. An interim final 
rule to accomplish the deletions was recently published.
The reform of the regulatory system has also prompted a complete review 
of long-time requirements and policies that may not always be reflected 
in the regulations. Some will be eliminated, others rewritten. In 
conjunction with the regulatory reform, EDA's annual Notice of Funding 
Availability (NOFA) is also undergoing revision and streamlining. Over 
the years, the NOFA has grown to well over 50 typewritten pages of 
information, requirements, policies, and directions, becoming yet 
another--and sometimes duplicative--required source of information for 
applicants.
The participation of agency staff in the reform effort has been very 
broad. Additionally, public comment has been invited and has already 
generated useful suggestions that have been incorporated into the 
reform.
The reform of EDA's regulations is intended to produce a set of 
regulations that will more easily be read and understood by EDA's 
customers--potential applicants for grant funding and the businesses 
and communities that benefit from economic development projects. Their 
expectations will reflect more accurately the reality of the 
application process they will have to undergo. There will be the 
potential for one-stop application information.
In addition, the regulations will be more user-friendly to the staff of 
EDA that applies them on a daily basis. They will be able to explain 
and use the regulations more rationally. The agency will be able to 
achieve more continuity and consistency in the application of its 
regulations among its regional offices. The regulatory reform effort 
will also have a positive effect on EDA's ongoing efforts to re-
engineer its grant application, including the process and the forms 
used.
_______________________________________________________________________
DOC--Economic Development Administration (EDA)

                              -----------

                            FINAL RULE STAGE

                              -----------

12. SIMPLIFICATION AND STREAMLINING OF REGULATIONS OF THE ECONOMIC 
DEVELOPMENT ADMINISTRATION
Priority:


Other Significant


Reinventing Government:


This rulemaking is part of the Reinventing Government effort. It will 
revise text in the CFR to reduce burden or duplication, or streamline 
requirements.


Legal Authority:


 42 USC 3211; DOC Organization Order 10-4, as amended


CFR Citation:


 13 CFR 301 to 318


Legal Deadline:


None


Abstract:


The Economic Development Administration (EDA) has issued an interim 
final rule to revise all of its regulations so that they are easier to 
read and use, and accurately reflect program requirements, evaluation 
criteria, and selection processes in implementing programs under the 
Public Works and Economic Development Act of 1965 (PWEDA), as amended, 
the Trade Act of 1974, as amended, and other statutes. This 
streamlining effort includes the removal of numerous unnecessary, 
redundant, and outdated parts, sections, and smaller portions of the 
existing regulations.


Statement of Need:


It has been over 20 years since the Economic Development 
Administration's regulations were completely revamped. During that 
time, EDA's regulations have been criticized by Congress, applicants, 
recipients, and others as being too long, burdensome, complex, and 
difficult to understand. EDA believes that many of its regulations are 
out of date, apply to programs that no longer exist, or reflect 
policies that have changed or are not applied in a consistent or 
regular manner. Therefore, EDA's regulatory system does not fully 
reflect actual programmatic procedures or practices. In essence, 
current EDA regulations do not achieve the desired goal of truth-in-
regulating that is at the heart of a reinvented government. As a 
result, the reform of EDA's regulations will produce not only fewer and 
more streamlined regulations, but regulations that have been thought 
through anew and restricted to the absolute minimum to achieve EDA's 
program goals.
The reform of the regulatory system has also prompted a complete review 
of long-time requirements and policies that may not always be reflected 
in the regulations. Some have been eliminated, others rewritten. Also 
in conjunction with the regulatory reform, EDA's annual Notice of 
Funding Availability (NOFA) is also undergoing revision and 
streamlining. Over the years, the NOFA has grown to well over fifty 
typewritten pages of information, requirements, policies, and 
directions, becoming yet another--and sometimes duplicative--required 
source of information for applicants.


Summary of the Legal Basis:


The PWEDA, as amended, and the Trade Act of 1974, as amended, serve as 
the basic underlying legal authorities for EDA's assistance programs.


Alternatives:


EDA held three representative regional public meetings, in 
Philadelphia, Chicago, and Monterey, during early 1995, in order to 
receive input on the regulatory reform project from recipients and 
applicants of EDA financial assistance. Comments received at these 
meetings focused on the complexity, length of time, and repetitive 
nature of grants processing. Additionally, all EDA employees were 
encouraged to participate in the process of identifying problems in the 
agency's regulations, and many did.
The interim final rule addresses the concerns raised at the public 
meetings and by EDA employees because they are less complex and set 
forth program descriptions, evaluation criteria, and processing 
procedures in an easy-to-read and straightforward manner. The interim 
final rule also contains several significant changes. Certain 
regulations were removed because the programs to which those 
regulations apply are no longer in existence. Other removals were made 
because policy rules not required by PWEDA have become unnecessarily 
constraining or outdated. Finally, the new 13 CFR 304, which contains 
the general selection process and evaluation criteria for EDA projects 
funded under PWEDA, was substantially rewritten to condense and clarify 
policies and criteria previously published in EDA's annual funding 
notices, which were codified in the interim final rule.


Anticipated Costs and Benefits:


The reform of EDA's regulations is intended to produce a set of 
regulations that will more easily be read and understood by EDA's 
customers -- potential applicants for grant funding and the businesses 
and communities that benefit from economic development projects. They 
will be able to determine before applying what requirements they must 
meet. Their expectations will reflect more accurately the reality of 
the application process they will have to undergo. There will be the 
potential for one-stop application information.
In addition, the regulations will be more user-friendly to the staff of 
EDA that applies them on a daily basis, who will then be able to 
explain and use the regulations more rationally. The agency will be 
able to achieve more continuity and consistency in the application of 
its regulations among its regional offices. The regulatory reform 
effort will also have a positive effect on EDA's ongoing efforts to re-
engineer its grant application, including the process and the forms 
used.
The costs of achieving these benefits should be minimal.


Timetable:
_______________________________________________________________________
Action                                 DFR Cite

_______________________________________________________________________
Interim Final Ru60 FR 49670                                    09/26/95
Final Action                                                   04/00/96
Small Entities Affected:


None


Government Levels Affected:


State, Local, Tribal


Sectors Affected:


 Multiple


Agency Contact:
Awilda R. Marquez
Chief Counsel
Department of Commerce
Economic Development Administration
Herbert C. Hoover Bldg.
14th Street & Constitution Avenue NW.
Room 7001, Washington, DC 20230
Phone: 202 482-4687
RIN: 0610-AA47
_______________________________________________________________________
DOC--International Trade Administration (ITA)

                              -----------

                          PROPOSED RULE STAGE

                              -----------

13. ANTIDUMPING DUTIES; COUNTERVAILING DUTIES
Priority:


Other Significant


Reinventing Government:


This rulemaking is part of the Reinventing Government effort. It will 
revise text in the CFR to reduce burden or duplication, or streamline 
requirements.


Legal Authority:


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


CFR Citation:


 19 CFR 353; 19 CFR 355


Legal Deadline:


 Other, Statutory, January 1, 1996.


Section 103(b) of the Uruguay Round Agreements Act establishes January 
1, 1996, as the deadline for interim final regulations.


Abstract:


Revisions of the antidumping and countervailing duty regulations are 
necessary due to enactment of 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). Clarifying the methodologies and 
procedures used in administering the antidumping and countervailing 
duty laws will enhance the efficiency and fairness of these laws 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 administration 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.


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 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 
benefited from ``dumping,'' and conducting periodic administrative 
reviews of antidumping and countervailing duty orders. Merchandise 
found to be benefiting 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 disciplines on diversionary dumping, and ensure that the 
antidumping rules continue to provide an effective tool to combat 
injurious dumping. The Agreements substantially achieve 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: (a) prohibited subsidies; (b) permissible 
subsidies which are actionable if they cause adverse trade effects; and 
(c) 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 that allows 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 and the implementing legislation. 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           60 FR 80                                       01/03/95
ANPRM Comment Pe60 FR 80                                       02/24/95
Interim Final Ru60 FR 25130                                    05/11/95
Interim Final Rule Effective                                   05/11/95
NPRM                                                           10/00/95
Small Entities Affected:


None


Government Levels Affected:


None


Agency Contact:
Richard N. Moreland
Director, Office of Antidumping Investigations
Department of Commerce
International Trade Administration
Room 3093
14th Street & Constitution Avenue NW.
Washington, DC 20230
Phone: 202 482-1768
Fax: 202 482-4771
RIN: 0625-AA45
_______________________________________________________________________
DOC--Bureau of Export Administration (BXA)

                              -----------

                            FINAL RULE STAGE

                              -----------

14. SIMPLIFICATION OF THE EXPORT ADMINISTRATION REGULATIONS
Priority:


Other Significant


Reinventing Government:


This rulemaking is part of the Reinventing Government effort. It will 
revise text in the CFR to reduce burden or duplication, or streamline 
requirements.


Legal Authority:


 18 USC 2510 et seq; 30 USC 185; 42 USC 6212; 10 USC 7429; 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 12924; Notice of August 
15, 1995, (60 FR 42767)


CFR Citation:


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


Legal Deadline:


None


Abstract:


The Bureau of Export Administration (BXA) is continuing a comprehensive 
review of the Export Administration Regulations (EAR). This review is 
intended to simplify, to clarify, and to 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.
There has not been a complete overhaul of the EAR in the approximately 
45 years they have been in place. The structure has become disorganized 
and the content has become increasingly complex as the EAR have been 
repeatedly revised over the years to reflect numerous changes in their 
legal and policy foundation. The most fundamental change has been a 
shift away from requiring governmental review of a wide range of 
exports to making it unnecessary, in most cases, for an exporter to 
apply for a license if the export meets a set of destination and use 
criteria. Moreover, it can be extremely difficult for exporters to find 
and understand the rules using the current EAR.
Forces driving the revision of export control regulations in the near 
term as BXA tries to meet these objectives are reauthorization of the 
Export Administration Act (EAA) and simplification of the EAR as 
recommended by the Trade Promotion Coordinating Committee (TPCC).
Section 201 of the Export Enhancement Act of 1992, P.L. 102-429, 
directed 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.
On September 30, 1993, the first report of the TPCC, ``Toward a 
National Export Strategy,'' was issued. This report outlined more than 
60 specific actions to strengthen U.S. 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, an advance notice of proposed rulemaking was published in the  
Federal Register (59 FR 6526) inviting comments on areas that should be 
the focus of our simplification process. On May 11, 1995, BXA published 
a proposed rule (60 FR 25268) to simplify the EAR and make them more 
user-friendly.


Summary of the Legal Basis:


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


Alternatives:


A clarified, simplified, and logically structured EAR will bring such 
clear benefit to both business and government that it is more 
appropriate to note additional steps regarding export control, rather 
than alternatives. BXA has already taken steps to carry out other TPCC 
recommendations. These include a major reduction in export licensing 
requirements through elimination of outdated controls. The processing 
of export licenses will be expedited under an Executive Order on 
interagency review that awaits the President's signature. Work is well 
underway on arrangements to shift dual-use items that remain on the 
State Department Munitions List to BXA licensing and to give exporters 
reliable guidance as to which agency has licensing jurisdiction over 
specific items. As these and other substantive reforms are 
accomplished, they will be incorporated into the pending, simplified, 
EAR.


Anticipated Costs and Benefits:


The publication of the proposed EAR brought an extraordinary number of 
written public comments. Many comments noted that there would be one-
time costs associated with adjusting internal systems to the new 
regulations and in training personnel. There was, however, broad 
support for the overall direction of the simplification initiative and 
expression of the view that transition costs would be exceeded by the 
long-term benefits. The principal benefits from the new EAR will 
accrue, not only to the applicants for the approximately 10,000 
individual export licenses issued annually by BXA, but also to the 
vastly greater number of exporters who will be able to determine for 
themselves, quickly and reliably, that they can legally export without 
a license.


Timetable:
_______________________________________________________________________
Action                                 DFR Cite

_______________________________________________________________________
ANPRM           59 FR 6528                                     02/10/94
ANPRM Comment Period End                                       03/28/94
NPRM            60 FR 25268                                    05/11/95
NPRM Comment Period End                                        07/10/95
Final Action                                                   12/00/95
Small Entities Affected:


None


Government Levels Affected:


None


Agency Contact:
Patricia Muldonian
Policy Analyst
Department of Commerce
Bureau of Export Administration
Washington, DC 20230
Phone: 202 482-2440
RIN: 0694-AA67
_______________________________________________________________________
DOC--National Oceanic and Atmospheric Administration (NOAA)

                              -----------

                          PROPOSED RULE STAGE

                              -----------

15. FLORIDA KEYS NATIONAL MARINE SANCTUARY
Priority:


Other Significant


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 developing a 
comprehensive Sanctuary management plan 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, PL 101-605, set out as a note to 16 USC 1453, 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 the National Marine Sanctuaries 
Research Act, 17 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:


A draft environmental impact statement (DEIS) has been published 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.
A final management plan and regulations will be published that will 
further the Clinton Administration's objective of providing long-term 
protection for ecologically significant areas while maximizing their 
sustainable use. The final regulations will protect Sanctuary resources 
with the minimum necessary regulatory burden on Sanctuary users.


Anticipated Costs and Benefits:


In passing the FKNMSPA, Congress specifically recognized that the 
unique natural and historic environment of the Florida Keys is 
irreplaceable. Accordingly, 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 there than previously 
believed.
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, and 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 are 
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 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:


Many 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 proposed 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            60 FR 16399                                    03/30/95
NPRM Comment Period End                                        12/31/95
Final Action                                                   06/00/96
Small Entities Affected:


None


Government Levels Affected:


State, Local


Agency Contact:
James Lawless
Acting Chief
Sanctuaries and Reserves Division
Department of Commerce
National Oceanic and Atmospheric Administration
1305 East-West Highway (N/ORM2)
Silver Spring, MD 20910
Phone: 301 713-3125
RIN: 0648-AD85
_______________________________________________________________________
DOC--NOAA
16. NATURAL RESOURCE DAMAGE ASSESSMENT AND RESTORATION REGULATIONS
Priority:


Other Significant


Legal Authority:


 33 USC 2706


CFR Citation:


 15 CFR 990


Legal Deadline:


 Final, Statutory, August 18, 1992. Final, Judicial, December 31, 1995.


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


Abstract:


The Oil Pollution Act of 1990 (OPA) 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 OPA 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 the Comprehensive Environmental Response Compensation and 
Liability Act of 1980 (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.
On December 28, 1990, NOAA issued an advance notice of proposed 
rulemaking for these regulations. Following review of the comments 
received, NOAA published proposed regulations on January 7, 1994. The 
public comment period continued through October 7, 1994. In addition, 
12 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. Subsequently, NOAA determined, due in part to the comments 
received on the January 7, 1994 proposed rule, to issue a second 
proposed rule. This second proposal was published in the Federal 
Register on August 3, 1995.


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:


Because the rulemaking is Congressionally mandated, there is no 
alternative to the rulemaking itself. However, through the rulemaking 
process to date, including substantial public input, NOAA has developed 
a new approach which was made available for public comment in the 
August 3, 1995, proposed rule. As described below, that proposal 
focuses on restoring the resource rather than merely developing a 
process for assessing damages.
The goal of OPA is to make the environment and public whole for 
injuries to natural resources and natural resource services resulting 
from an incident involving oil. This goal is achieved through the 
restoration, rehabilitation, replacement, or acquisition of the 
equivalent of the injured natural resources and/or services. Under the 
proposed rule, restoration plans, including activities to compensate 
for natural resource injuries and diminution in value, are the basis of 
a claim for damages. This approach will decrease the time from the 
incident until completion of restoration, due to reduction in 
duplicative steps, and will reduce transaction costs. In addition, the 
proposed rule explicitly considers allowing responsible parties to 
implement trustee-approved restoration plans. The restoration planning 
process provided in the proposed rule is divided into three phases: (a) 
preassessment; (b) restoration planning; and (c) restoration 
implementation.
Preassessment Phase
When notified by response agencies of an incident involving a discharge 
or substantial threat of discharge of oil, trustees must first 
determine threshold issues that provide their authority to begin the 
NRDA process. Trustees then determine whether natural resource and/or 
service injuries will be adequately addressed through response or 
emergency restoration actions, or whether further action is warranted 
to consider the need for restoration. If further action is justified, 
the trustees make a preliminary determination as to whether natural 
resources and/or services have been injured and whether feasible 
restoration alternatives exist to address these injuries.
Restoration Planning Phase
The purpose of the Restoration Planning Phase is to evaluate potential 
injuries to natural resources and/or services, and use that information 
to determine the need for and scale of restoration actions. The 
Restoration Planning Phase integrates and provides the link between 
injury and restoration. It has two basic components: injury assessment 
and restoration selection.
Injury Assessment Component
The goal of the injury assessment component of the Restoration Planning 
Phase is to determine the nature, degree, and extent of injuries to 
natural resources and/or services, thus providing a technical basis for 
evaluating the need for and scale of restoration. Under the proposed 
rule, injury is defined as an observable or measurable adverse change 
in a natural resource or impairment of a service. To determine injury, 
trustees must decide if this definition has been met. Trustees must 
also determine either that: (a) the natural resource was exposed, and 
there is a plausible pathway between the incident and the natural 
resource of concern; or (b) in the case of response-related injuries 
and incidents involving a substantial threat of a discharge, the injury 
or impairment of use of a natural resource service has occurred as a 
result of the incident. Trustees must also perform injury 
quantification. Injury quantification is the process by which trustees 
determine the degree and extent of injuries. The quantification of 
injury is accomplished by comparing the condition of the injured 
natural resource and/or service to baseline conditions.
The proposed rule provides a range of possible approaches to injury 
determination and quantification, including simplified and more 
detailed procedures. Although trustees are encouraged to use simplified 
procedures, when appropriate, selection of assessment procedures will 
be based upon such factors as: the potential nature, degree, and extent 
of the injury; time and cost necessary to implement the assessment 
procedures; and relationship between the anticipated injury information 
and restoration planning.
Restoration Selection
Once injury assessment is completed, trustees must develop a plan for 
restoring the injured natural resources and/or services. Under the 
proposed rule, trustees would identify a reasonable range of 
restoration alternatives, evaluate those alternatives, select an 
alternative, develop a draft restoration plan, and produce a final 
restoration plan that considers public comments. Trustees must identify 
a reasonable range of alternative restoration actions for 
consideration. Acceptable restoration actions include any of the 
actions authorized under OPA (i.e., restoration, rehabilitation, 
replacement, or acquisition of the equivalent), any combination of 
those actions, and natural recovery, as well as a no-action 
alternative.
Restoration alternatives may include: (a) primary restoration, which is 
human intervention or natural recovery that returns injured natural 
resources and services to baseline; and (b) compensatory restoration, 
which is action taken to make the environment and the public whole for 
service losses that occur from the date of the incident through 
recovery.
Each alternative considered would have a primary restoration action. 
Alternative primary restoration actions can range from natural recovery 
with no human intervention to more intensive actions expected to return 
injured natural resources to baseline faster or with greater certainty 
than natural recovery.
Trustees may also include a compensatory restoration action in some or 
all of the alternatives. Trustees would first identify compensatory 
restoration alternatives that, in the judgment of the trustees, provide 
services of the same type and quality, and are subject to resource 
scarcity and demand conditions comparable to those lost. Trustees would 
determine the scale of such alternatives by selecting the scale that 
would provide services equal in quantity to those lost. If alternatives 
that provide services of the same type and quality, and are subject to 
comparable resource scarcity and demand conditions as those lost were 
infeasible or too few in number to provide a reasonable range of 
alternatives, trustees could then consider other alternatives that 
would provide services of at least comparable type and quality as those 
lost. The procedure for determining the scale of such additional 
alternatives would differ from that of determining the scale of 
alternatives that provided services of the same type and quality, and 
are subject to comparable resource scarcity and demand conditions. When 
trustees consider alternatives that provide services of a different 
type or quality, or are subject to resource scarcity and demand 
conditions not comparable to those lost, they need a way of translating 
the services lost and the services provided into a common metric. In 
such cases, the proposed rule would allow trustees to measure 
quantities in terms of lost economic value. Trustees would first 
calculate the value of the lost services and then determine the value 
gained from different scales of the alternative. Trustees would then 
select the scale that would produce value equal to that lost. However, 
the responsible parties would not be liable for the value calculated 
but rather for the cost of implementing a restoration alternative that 
would generate that amount of value.
If valuation of the services provided by an alternative could not, in 
the judgment of the trustees, be performed consistently with the 
definition of ``reasonable assessment costs,'' the trustees would be 
allowed to calculate the value of the lost services and then select the 
scale of the restoration alternative that posed a cost equivalent to 
the lost value. The responsible parties would have the option of 
requesting trustees to value the alternative, if the responsible 
parties advanced the costs of doing so in a timeframe acceptable to the 
trustees.
Selection of a Preferred Alternative
Once trustees have developed a reasonable range of restoration 
alternatives, they would be required to evaluate the alternatives based 
on a number of factors. Such factors include: the extent to which the 
alternative can return natural resources and/or services to baseline 
and compensate for interim lost services; extent to which the 
alternative improves the rate of recovery; likelihood of success of the 
alternative; and relative cost of the alternative. Based on the 
evaluation of the various factors, trustees select a preferred 
restoration package. If there are two or more preferred alternatives, 
trustees must select the most cost-effective.
Draft restoration plans will be made available for review and comment 
by the public, including appropriate members of the scientific 
community where possible. These draft restoration plans will describe 
the trustees' preassessment activities, as well as injury assessment 
activities and results, evaluate restoration alternatives, and identify 
preferred restoration projects. Final restoration plans will become the 
basis of claims for damages.
Restoration Implementation Phase
The final restoration plans are presented to responsible parties for 
implementation or funding of trustee costs to implement. Presentation 
will include a demand letter, summarizing the restoration planning 
process and selected alternatives, all trustee assessment costs, and 
all incurred and expected costs associated with restoration 
implementation and oversight. Responsible parties will have the option 
to settle the damages claim. Should responsible parties decline to 
settle claims for natural resource damages, OPA authorizes trustees to 
bring civil actions for damages in Federal court, or present claims for 
damages to the Oil Spill Liability Trust Fund.


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 August 3, 1995, proposed rule differs significantly in approach 
from that originally proposed in January, 1994. The differences 
strengthen the focus of the damage assessment process on achieving 
restoration of injured natural resources as quickly as possible. The 
August 1995 proposed rule provides a process for involving the public 
and responsible parties in selecting restoration actions appropriate 
for a given incident. NOAA intends for this process to eliminate the 
need for costly and time-consuming studies and litigation.


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
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 Per59 FR 32148d to                                10/07/94
NPRM            60 FR 39804                                    08/03/95
NPRM Comment Period End                                        10/02/95
Interim Final Rule                                             12/00/95
Small Entities Affected:


None


Government Levels Affected:


None


Agency Contact:
Linda B. Burlington
Project Manager
Department of Commerce
National Oceanic and Atmospheric Administration
SSMC 3, Room 15132
1315 East-West Highway
Silver Spring, MD 20910-3282
Phone: 301 713-1217
RIN: 0648-AE13
BILLING CODE 3510-BW-F