2011-5681. Reducing Regulatory Burden; Retrospective Review Under E.O. 13563

AGENCY:

National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Request for information.

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA) is preparing a preliminary plan to review its existing significant regulations in response to the President's Executive Order 13563 on Improving Regulation and Regulatory Review. The purpose of NOAA's review is to make the agency's regulatory program more effective and less burdensome in achieving its regulatory objectives by identifying those regulations that should be modified, streamlined, expanded or repealed. NOAA is asking for ideas and information from the public in preparing its preliminary plan explaining how it will conduct such a review.

DATES:

You must submit any comments on or before April 4, 2011.

ADDRESSES:

You may submit comments, identified by RIN 0648-XA282, by any one of the following methods:

• Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal http://www.regulations.gov.
• Fax: [phone], Attn: William Chappell.
• Mail: 1315 East-West Highway, SSMC3, SF5, Room 13142, Silver Spring, MD 20910.

Instructions: All comments received are a part of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. NOAA will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

William Chappell, 301-713-2337, x169.

SUPPLEMENTARY INFORMATION:

The National Oceanic and Atmospheric Administration is a Federal agency that is part of the U.S. Department of Commerce. NOAA's mission is to understand and predict changes in the Earth's environment and conserve and manage coastal and marine resources to meet our Nation's economic, social, and environmental needs. NOAA administers a broad range of statutes, including, but not limited to the Endangered Species Act, 16 U.S.C. 1531, et seq.; Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801, et seq.; Marine Mammal Protection Act, 16 U.S.C. 1361, et seq, National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq.; Coastal Zone Management Act, 16 U.S.C. 1415, et seq.; and Land Remote Sensing Policy Act, 15 U.S.C. 5601, et seq.

On January 18, 2011, the President issued Executive Order 13563, “Improving Regulation and Regulatory Review,” to ensure that Federal regulations seek more affordable, less intrusive means to achieve policy goals, and that agencies give careful consideration to the benefits and costs of those regulations. Among other things, the Executive Order directed agencies to develop and submit a preliminary plan within 120 days that will explain how they will periodically review existing significant regulations to identify any regulations that can be made more effective or less burdensome in achieving regulatory objectives.

To implement the Executive Order, NOAA is taking several immediate steps to launch its retrospective review of existing regulatory requirements. Consistent with its commitment to public participation, NOAA is soliciting views from the public on how best to conduct its analysis of existing NOAA rules and how best to identify those rules that might be modified, streamlined, expanded or repealed. NOAA promulgates rules in accordance with applicable laws and based on best available scientific information, analyses of different alternatives for agency action, and public participation and input. However, important information as to the consequences of a rule, including its costs and benefits, comes from practical, real-world experience (both on the part of the public and on the part of the agency) after rules have been implemented. Regulated entities and members of the public affected by or interested in NOAA's regulations are likely to have useful information and perspectives on the benefits and burdens of existing requirements beyond what was available at the time regulations were issued. Interested parties may also be well-positioned to identify those rules that are most in need of review; NOAA would find such input helpful as it considers how to prioritize and properly tailor its retrospective review process for significant regulations. In short, engaging the public in an open, transparent process is a crucial step in NOAA's review of its existing regulations.

NOAA recognizes that the public comment period set forth in this Request for Information (RFI) is shorter than the 30-60 day (or longer) comment periods that may be used for proposed rules. That is because of consideration of the timing requirements under the Executive Order, and because NOAA is not asking for detailed comments on the substance of specific regulation, only comments pertaining to the retrospective review plan which is under development.

Questions for the Public

Comments will be most helpful if they provide examples and a detailed explanation of how the suggestion will support NOAA's mission in a way that is more efficient and less burdensome. In providing comments, please keep these key considerations in mind:

• Retrospective review does not allow NOAA to contravene requirements of its various statutory mandates. In addition, where NOAA's discretion has been limited by law, as is the case with fishery management plans and regulations developed by Regional Fishery Management Councils under the Magnuson-Stevens Act, 16 U.S.C. 304, NOAA's ability to modify, streamline, expand, or repeal regulations is similarly constrained.
• NOAA currently conducts periodic review of existing regulations pursuant to statutory mandates. For instance, NOAA's Office of National Marine Sanctuaries is required by the National Marine Sanctuaries Act, 16 U.S.C. 1434(e), to periodically review sanctuary management plans to ensure that sanctuary management continues to best conserve, protect, and enhance the nationally significant living and cultural resources at each site. Such review provides sanctuary management with an ongoing opportunity to review existing regulations, amend existing regulations (as deemed necessary), and generally outline future regulatory goals in the management plans. Similarly, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, NOAA's National Marine Fisheries Service (as delegated from the Secretary of Commerce) 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. 16 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). We seek your input on developing a review plan that is integrated with those existing requirements.
• Our plan will be tailored to reflect our resources, rulemaking history, and the volume of significant regulations at issue.

NOAA intends the questions below to elicit useful information as the agency develops a preliminary plan for possible review of its significant regulations. These questions are not intended to be exhaustive. You may raise other issues or make suggestions unrelated to these questions that you believe would help the agency develop better regulations.

(1) How can NOAA review its existing significant rules in a way that will identify rules that can and should be changed, streamlined, consolidated, or removed? NOAA encourages those submitting comments to include a proposed process under which such a review could be regularly undertaken.

(2) How can NOAA reduce burdens and maintain flexibility and choice for the public in a way that will promote and achieve its mission?

(3) Does NOAA have rules or guidance that are duplicative or that have conflicting requirements among its components or with other agencies? If so, please specifically identify the rules or guidance and suggest ways NOAA can streamline, consolidate, or make these regulations work better.

(4) Are there better ways to encourage public participation and an open exchange of views when NOAA engages in rulemaking?

(5) Are there rules or guidance that is working well that could be used as models for improving other regulations? If so, please specifically identify the rule or guidance.

(6) Are NOAA regulations and guidance written in language that is clear and easy to understand, consistent with statutory requirements? Please identify specific regulations and guidance that are good candidates for a plain language re-write and also identify regulations that are written clearly that could be used as models.

(7) What are some suggestions that NOAA can use to assure that its regulations promote and achieve its mission in ways that are efficient and less burdensome?

(8) Which significant regulations have proven to be excessively burdensome? What data support this? What suggestions do you have for reducing the burden and maintaining and achieving NOAA's mission?

(9) Which significant regulations could be made more flexible within the existing legal framework? What data support this?

(10) Are there regulations that have become ineffective or been overtaken by technological or other change and, if so, what are they? How can they be modernized to accomplish the statutory or regulatory objective better?

NOAA will consider public input as we develop a plan to periodically review the agency's significant rules.

NOAA notes that this Request for Information is issued solely for information and program-planning purposes. The agency will give careful consideration to the responses, and may use them as appropriate during the retrospective review, but we do not anticipate providing a response to each comment submitted. While responses to this RFI do not bind NOAA to any further actions related to the response, all submissions will be made publically available on http://www.regulations.gov.

Dated: March 7, 2011.

Lois J. Schiffer,

General Counsel, National Oceanic and Atmospheric Administration.