The Department of Commerce has submitted its plan to comply with President Obama’s Executive Order 13563, "Improving Regulation and Regulatory Review". The General Counsel of the Department of Commerce, Cameron Kerry, will be responsible for overseeing execution of the retrospective analysis laid out in the Plan.
According to the plan:
Many of NOAA’s statutory mandates emphasize the need to base decisions on best scientific information available and require periodic review of regulatory actions. In addition, many of NOAA’s activities require analyses under the National Environmental Policy Act. The Council on Environmental Quality has indicated that environmental impact statements that are more than 5 years old should be carefully reexamined to determine if supplementary analyses are required per 40 C.F.R. § 1502.9 of the CEQ regulations. See http://ceq.hss.doe.gov/nepa/regs/40/40p3.htm (explaining need for supplements to old EIS at question # 32 of “NEPA’s Forty Most Asked Questions”).
NOAA’s National Marine Fisheries Service (NMFS) intends to reinforce the existing culture of retrospective analysis through increased outreach to the Regional Fishery Management Councils that develop fishery management plans pursuant to the Magnuson-Stevens Act. The Councils’ fishery management planning process entails significant public participation and opportunities for soliciting thoughts on needed modifications to or repeal of regulatory actions. NMFS has begun, and will continue, to coordinate with the councils, emphasizing the need for scrutiny of proposed and existing regulations consistent with Executive Order 13563, the Magnuson-Stevens Act, and other relevant laws, and the need to make fisheries management regulations simpler and easier to follow. NMFS intends to encourage such scrutiny of regulatory actions through its meetings with the Council Coordination Committee and during meetings of the councils and their subcommittees.
As part of the agency’s Catch Share Policy, NOAA has provided further guidance to the Councils regarding periodic review of all limited access privilege programs pursuant to 16 U.S.C. § 1853a(c)(1)(G). Specifically, the agency directs that Councils should periodically review all catch share and non-catch share programs to ensure that management goals are specified, measurable, tracked, and used to gauge whether a program is meeting its goals and objectives. The policy reinforces NOAA’s commitment to working with Councils, stakeholders, the Department of Commerce, the Office of Management and Budget, and Congress in improving and monitoring useful and relevant performance metrics for all U.S. fishery management policies, not just catch share programs.
Additional plan sections referenceing NMFS include:
NOAA’s National Marine Fisheries Service (NMFS) and the Regional Fishery Management Councils established under the Magnuson-Stevens Act have ongoing engagement with constituents and other members of the public on fishery management actions. NMFS and the Councils receive continual feedback on concerns regarding regulations, guidance documents, information collections, and other agency activities. Since publication of the notice, NMFS has used outreach and communication opportunities, as they have arisen, to alert members of the public to the notice and to encourage people to provide feedback.
The vast majority of NOAA’s significant regulations involve marine fishery and protected resources issues. These regulations are subject to change frequently as a result of new information and also pursuant to statutory requirements.
NOAA is currently undertaking the following actions to review its rulemaking, in many cases to streamline and reduce requirements:
• · Under § 610 of the Regulatory Flexibility Act, NOAA, conducts ongoing reviews of rules that were identified as having a significant economic impact on a substantial number of small entities. “Significant” under this Act is defined differently than under Executive Order 12866. Most recently, NOAA’s National Marine Fisheries Service (NMFS) completed a review of 36 rules from 2001-02. See 75 FR 69633 (Nov. 15, 2010). No regulatory changes were made as a result of this review. As a general matter, because the majority of entities that NMFS regulates are considered “small entities” for purposes of the Act, an important aspect of the fishery management process is considering potential impacts to such entities. NMFS has specific guidelines on addressing such impacts: Guidelines for Economic Analysis of Fishery Management, Office of Sustainable Fisheries, National Marine Fisheries Service (2007), available at http://www.nmfs.noaa.gov/sfa/RFA%20Guidelines.PDF.
• · In 2007, new requirements for annual catch limits and preventing overfishing went into effect in the Magnuson-Stevens Act. 16 U.S.C. § 1853(a)(15). As a result, NMFS and the Regional Fishery Management Councils have engaged in a comprehensive review of existing fishery management plans and amendments. Through this review, the Councils have undertaken substantial revisions to the existing fishery management plans, addressing inefficiencies in past processes as well as new statutory requirements. The annual catch limit requirement is effective in 2010 for fisheries experiencing overfishing and 2011 for other fisheries. In addition, in August 2010, NMFS conducted an “enforcement summit,” a national, professionally-facilitated conference with stakeholders at which issues concerning fishery management regulations were a major topic.
• · Under the Magnuson-Stevens Act, NMFS is required to review at routine intervals that may not exceed two years any fishery management plans, plan amendments, or regulations for fisheries that are experiencing overfishing or in need of rebuilding. Id. § U.S.C. 1854(e)(7). For many fisheries, revisions to plans and regulations occur with even greater frequency, as National Standard 2 of the Magnuson-Stevens Act requires that conservation and management measures be based on the best scientific information available. Id. § 1851(a)(2).
• · The Magnuson-Stevens Act also requires that all Limited Access Privilege Programs provide provisions for the regular monitoring and review by the Regional Fishery Management Councils and the Secretary of the operations of the program, and any necessary modification of the program to meet those goals, with a formal and detailed review 5 years after the implementation of the program and at least every seven years thereafter. Id. § 1853a(c)(1)(G).
• · NMFS is required by the Marine Mammal Protection Act, 16 U.S.C. § 1387(c), to publish a list of commercial fisheries based on whether they have frequent, occasional, or a remote likelihood or no known incidental mortality and serious injury of marine mammals. The Act further requires NOAA to annually reexamine the classification of commercial fisheries and other determinations on this list of fisheries and publish any necessary changes in the Federal Register. Each year, NOAA publishes an annual rule describing changes to the list of fisheries based on the best available current scientific information, including the reclassification of fisheries and additions or deletions of marine mammal stocks to the list of stocks killed or injured incidental to certain commercial fishing operations.
• · Under the Endangered Species Act (ESA), NMFS publishes an annual determination of commercial and recreational, federal and state, fisheries that are required to carry observers. Fisheries remain on an annual determination for 5 years; at the end of 5 years a fishery listed is no longer requested to carry observers pursuant to the ESA unless NOAA re-proposes that fishery. Each year NOAA evaluates whether to include additional fisheries on the annual determination.
• · NMFS and the Fish and Wildlife Service jointly administer regulations for implementing the ESA listing process, including designation of critical habitat, and the interagency consultation process. The agencies are considering the following changes to the joint ESA regulations that are expected to improve efficiency and effectiveness in the implementation of the statute:
• · Minimize requirements for written descriptions of critical habitat boundaries in favor of map- and internet-based descriptions. Map- and internet-based descriptions are clearer and more accessible methods of showing critical habitat boundaries. Additionally, reducing written boundary description requirements will save taxpayer money.
• · Clarify, expedite, and improve procedures for the development and approval of conservation agreements with landowners including habitat conservation plans.
• · Expand opportunities for the states to engage more often and more effectively in the implementation of the ESA’s various provisions, especially those pertaining to the listing of species.
• · With input from the regulated, conservation, and other stakeholder communities, review and revise the entire process for designating critical habitat to design a more efficient, defensible, and consistent process.
• · Clarify the definition of the phrase “destruction or adverse modification” of critical habitat, which is used to determine what actions can and cannot be conducted in critical habitat.
• · Clarify the scope and content of the incidental take statement, particularly with regard to programmatic actions or other actions where direct measurement is difficult. An incidental take statement specifies the impact of an incidental taking of an endangered or threatened species and provides reasonable and prudent measures that are necessary to minimize those impacts. Greater flexibility in the quantification of anticipated incidental taking could reduce the burden of developing and implementing biological opinions without any loss of conservation benefits.
• · NOAA, FWS and the Environmental Protection Agency (EPA) formed an interagency workgroup of senior policy leaders to craft a multi-faceted strategy to address the challenge of the conservation of endangered species and the administration of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). One major element of this effort is to address core scientific issues underlying the effective integration of FIFRA and ESA responsibilities.