Commerce is a vital resource base, a tireless advocate, and Cabinet-level voice for job creation.

The Regulatory Plan tracks the most important regulations that implement these policy and program priorities, several of which involve regulation of the private sector by Commerce.

Responding to the Administration's Regulatory Philosophy and Principles

The vast majority of the Commerce's programs and activities do not involve regulation. Of Commerce's 12 primary operating units, only the National Oceanic and Atmospheric Administration (NOAA) will be planning actions that are considered the "most important" significant pre-regulatory or regulatory actions for FY 2017. During the next year, NOAA plans to publish five rulemaking actions that are designated as Regulatory Plan actions. The Bureau of Industry and Security (BIS) may also publish rulemaking actions designated as Regulatory Plan actions. Further information on these actions is provided below.

Commerce has a long-standing policy to prohibit the issuance of any regulation that discriminates on the basis of race, religion, gender, or any other suspect category and requires that all regulations be written so as to be understandable to those affected by them. The Secretary also requires that Commerce afford the public the maximum possible opportunity to participate in Departmental rulemakings, even where public participation is not required by law.

National Oceanic and Atmospheric Administration

NOAA establishes and administers Federal policy for the conservation and management of the Nation's oceanic, coastal, and atmospheric resources. It provides a variety of essential environmental and climate services vital to public safety and to the Nation's economy, such as weather forecasts, drought forecasts, and storm warnings. It is a source of objective information on the state of the environment. NOAA plays the lead role in achieving Commerce's goal of promoting stewardship by providing assessments of the global environment.

Recognizing that economic growth must go hand-in-hand with environmental stewardship, Commerce, through NOAA, conducts programs designed to provide a better understanding of the connections between environmental health, economics, and national security. Commerce's emphasis on "sustainable fisheries" is designed to boost long-term economic growth in a vital sector of the U.S. economy while conserving the resources in the public trust and minimizing any economic dislocation necessary to ensure long-term economic growth. 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 Services (NMFS), the National Ocean Service (NOS), and the National Environmental Satellite, Data, and Information Service (NESDIS), exercise regulatory authority.

NMFS oversees the management and conservation of the Nation's marine fisheries, protects threatened and endangered marine and anadromous species and marine mammals, and promotes economic development of the U.S. fishing industry. NOS assists the coastal States in their management of land and ocean resources in their coastal zones, including estuarine research reserves; manages the national marine sanctuaries; monitors marine pollution; and directs the national program for deep-seabed minerals and ocean thermal energy. NESDIS administers the civilian weather satellite program and licenses private organizations to operate commercial land-remote sensing satellite systems.

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 sound scientific observations, assessments, and forecasts of environmental phenomena on which resource management, adaptation, and other societal decisions can be made.

In the environmental stewardship area, NOAA's goals include: rebuilding and maintaining strong U.S. fisheries by using market-based tools and ecosystem approaches to management; increasing the populations of depleted, threatened, or endangered species and marine mammals by implementing recovery plans that provide for their recovery while still allowing for economic and recreational opportunities; promoting healthy coastal ecosystems by ensuring that economic development is managed in ways that maintain biodiversity and long-term productivity for sustained use; and modernizing navigation and positioning services. In the environmental assessment and prediction area, goals include: understanding climate change science and impacts, and communicating that understanding to government and private sector stakeholders enabling them to adapt; continually improving the National Weather Service; implementing reliable seasonal and interannual climate forecasts to guide economic planning; providing science-based policy advice on options to deal with very long-term (decadal to centennial) changes in the environment; and advancing and improving short-term warning and forecast services for the entire environment.

Magnuson-Stevens Fishery Conservation and Management Act

Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) rulemakings concern the conservation and management of fishery resources in the U.S. Exclusive Economic Zone (generally 3-200 nautical miles). Among the several hundred rulemakings that NOAA plans to issue in FY 2017, a number of the preregulatory and regulatory actions will be significant. The exact number of such rulemakings is unknown, since they are usually initiated by the actions of eight regional Fishery Management Councils (FMCs) that are responsible for preparing fishery management plans (FMPs) and FMP amendments, and for drafting implementing regulations for each managed fishery. NOAA issues regulations to implement FMPs and FMP amendments. Once a rulemaking is triggered by an FMC, the Magnuson-Stevens Act places stringent deadlines upon NOAA by which it must exercise its rulemaking responsibilities. FMPs and FMP amendments for Atlantic highly migratory species, such as bluefin tuna, swordfish, and sharks, are developed directly by NOAA, not by FMCs.

FMPs address a variety of issues including maximizing fishing opportunities on healthy stocks, rebuilding overfished stocks, and addressing gear conflicts. One of the problems that FMPs may address is preventing overcapitalization (preventing excess fishing capacity) of fisheries. This may be resolved by market-based systems such as catch shares, which permit shareholders to harvest a quantity of fish and which can be traded on the open market. Harvest limits based on the best available scientific information, whether as a total fishing limit for a species in a fishery or as a share assigned to each vessel participant, enable stressed stocks to rebuild. Other measures include staggering fishing seasons or limiting gear types to avoid gear conflicts on the fishing grounds and establishing seasonal and area closures to protect fishery stocks.

The FMCs provide a forum for public debate and, using the best scientific information available, make the judgments needed to determine optimum yield on a fishery-by-fishery basis. Optional management measures are examined and selected in accordance with the national standards set forth in the Magnuson-Stevens Act. This process, including the selection of the preferred management measures, constitutes the development, in simplified form, of an FMP. The FMP, together with draft implementing regulations and supporting documentation, is submitted to NMFS for review against the national standards set forth in the Magnuson-Stevens Act, in other provisions of the Act, and other applicable laws. The same process applies to amending an existing approved FMP.

Marine Mammal Protection Act

The Marine Mammal Protection Act of 1972 (MMPA) provides the authority for the conservation and management of marine mammals under U.S. jurisdiction. It expressly prohibits, with certain exceptions, the take of marine mammals. The MMPA allows NMFS to permit the collection of wild animals for scientific research or public display or to enhance the survival of a species or stock. NMFS initiates rulemakings under the MMPA to establish a management regime to reduce marine mammal mortalities and injuries as a result of interactions with fisheries. The MMPA also established the Marine Mammal Commission, which makes recommendations to the Secretaries of the Departments of Commerce and the Interior and other Federal officials on protecting and conserving marine mammals. The Act underwent significant changes in 1994 to allow for takings incidental to commercial fishing operations, to provide certain exemptions for subsistence and scientific uses, and to require the preparation of stock assessments for all marine mammal stocks in waters under U.S. jurisdiction.

Endangered Species Act

The Endangered Species Act of 1973 (ESA) provides for the conservation of species that are determined to be "endangered" or "threatened," and the conservation of the ecosystems on which these species depend. The ESA authorizes both NMFS and the Fish and Wildlife Service (FWS) to jointly administer the provisions of the ESA. NMFS manages marine and "anadromous" species, and FWS manages land and freshwater species. Together, NMFS and FWS work to protect critically imperiled species from extinction. Of the approximately 1,300 listed species found in part or entirely in the United States and its waters, NMFS has jurisdiction over approximately 60 species. NMFS' rulemaking actions are focused on determining whether any species under its responsibility is an endangered or threatened species and whether those species must be added to the list of protected species. NMFS is also responsible for designating, reviewing, and revising critical habitat for any listed species. In addition, under the ESA's procedural framework, Federal agencies consult with NMFS on any proposed action authorized, funded, or carried out by that agency that may affect one of the listed species or designated critical habitat, or is likely to jeopardize proposed species or adversely modify proposed critical habitat that is under NMFS' jurisdiction.

NOAA's Regulatory Plan Actions

While most of the rulemakings undertaken by NOAA do not rise to the level necessary to be included in Commerce's regulatory plan, NMFS is undertaking five actions that rise to the level of "most important" of Commerce's significant regulatory actions and thus are included in this year's regulatory plan. A description of the five regulatory plan actions is provided below.

1. Magnuson-Stevens Fishery Conservation and Management Act; Seafood Import Monitoring Program (0648-BF09): The Magnuson-Stevens Fishery Conservation and Management Act prohibits the importation and trade in interstate commerce of fishery products from fish caught in in violation of any foreign law or regulation.

2. Final Rule to Designate Critical Habitat for the Gulf of Maine, New York Bight, and Chesapeake Bay Distinct Population Segments of Atlantic Sturgeon (0648-BF28): The National Marine Fisheries Service listed four distinct population segments of Atlantic sturgeon as endangered-and one distinct population of Atlantic sturgeon as threatened-under the Endangered Species Act on February 6, 2012. This rule would designate critical habitat for the Gulf of Maine, New York Bight, and Chesapeake Bay Distinct Population Segments of Atlantic sturgeon.

3. Final Rule to Designate Critical Habitat for the Carolina and South Atlantic Distinct Population Segments of Atlantic Sturgeon (0648-BF32): The National Marine Fisheries Service listed four distinct population segments of Atlantic sturgeon as endangered-and one distinct population of Atlantic sturgeon as threatened-under the Endangered Species Act on February 6, 2012. This action would designate critical habitat for the Carolina and South Atlantic Distinct Population Segments of Atlantic sturgeon, both listed as endangered.

4. Proposed Rule to Designate Critical Habitat for Threatened Caribbean Corals (0648-BG20): On September 10, 2014, the National Marine Fisheries Service listed 5 corals in the Caribbean as threatened under the Endangered Species Act. With this action, the National Marine Fisheries Service proposes to designate critical habitat for the 5 Caribbean corals (Dendrogyra cylindrus, Orbicella annularis, Orbicella faveolata, Orbicella franksi, and Mycetophyllia ferox) and revises critical habitat for the previously-listed corals Acropora palmata and Acropora cervicornis. The proposed designation would cover coral reef habitat containing essential features that support reproduction, growth, and survival of the listed coral species.

5. Proposed Rule to Designate Critical Habitat for Threatened Indo-Pacific Corals (0648-BG26): On September 10, 2014, the National Marine Fisheries Service listed 15 species of reef-building corals in the Indo-Pacific as threatened under the Endangered Species Act. Of the 15 Indo-Pacific species listed, seven occur in U.S. waters of the Pacific Islands Region, including in American Samoa, Guam, the Commonwealth of the Mariana Islands, and the Pacific Remote Island Areas. With this action, the National Marine Fisheries Service proposes to designate critical habitat for the seven species in U.S. waters (Acropora globiceps, Acropora jacquelineae, Acropora retusa, Acropora speciosa, Euphyllia paradivisa, Isopora crateriformis, and Seriatopora aculeata). The proposed designation would cover coral reef habitat containing essential features that support reproduction, growth, and survival of the listed coral species.

Bureau of Industry and Security

The Bureau of Industry and Security (BIS) advances U.S. national security, foreign policy, and economic objectives by maintaining and strengthening adaptable, efficient, and effective export control and treaty compliance systems as well as by administering programs to prioritize certain contracts to promote the national defense and to protect and enhance the defense industrial base.

Major Programs and Activities

BIS administers four sets of regulations. The Export Administration Regulations (EAR) regulate exports and reexports to protect national security, foreign policy, and short supply interests. The EAR also regulates U.S. persons' participation in certain boycotts administered by foreign governments. The National Security Industrial Base Regulations provide for prioritization of certain contracts and allocations of resources to promote the national defense, require reporting of foreign Government-imposed offsets in defense sales, provide for surveys to assess the capabilities of the industrial base to support the national defense and address the effect of imports on the defense industrial base. The Chemical Weapons Convention Regulations implement declaration, reporting, and on-site inspection requirements in the private sector necessary to meet United States treaty obligations under the Chemical Weapons Convention treaty. The Additional Protocol Regulations implement similar requirements with respect to an agreement between the United States and the International Atomic Energy Agency.

BIS also has an enforcement component with nine offices covering the United States. BIS export control officers are also stationed at several U.S. embassies and consulates abroad. BIS works with other U.S. Government agencies to promote coordinated U.S. Government efforts in export controls and other programs. BIS participates in U.S. Government efforts to strengthen multilateral export control regimes and to promote effective export controls through cooperation with other Governments.

BIS' Regulatory Plan Actions

In August 2009, the President directed a broad-based interagency review of the U.S. export control system with the goal of strengthening national security and the competitiveness of key U.S. manufacturing and technology sectors by focusing on the current threats and adapting to the changing economic and technological landscape. In August 2010, the President outlined an approach, known as the Export Control Reform Initiative (ECRI), under which agencies that administer export controls will apply new criteria for determining what items need to be controlled and a common set of policies for determining when an export license is required. The control list criteria are to be based on transparent rules, which will reduce the uncertainty faced by our Allies, U.S. industry and its foreign customers, and will allow the Government to erect higher walls around the most sensitive export items in order to enhance national security.

Under the President's approach, agencies are to apply the criteria and revise the lists of munitions and dual-use items that are controlled for export so that they:

BIS' current regulatory plan action is designed to implement the initial phase of the President's directive, which will add to BIS' export control purview, military related items that the President determines no longer warrant control under rules administered by the State Department.

As the agency responsible for leading the administration and enforcement of U.S. export controls on dual-use and other items warranting controls but not under the provisions of export control regulations administered by other departments, BIS plays a central role in the Administration's efforts to reform the export control system. Changing what we control, how we control it and how we enforce and manage our controls will help strengthen our national security by focusing our efforts on controlling the most critical products and technologies, and by enhancing the competitiveness of key U.S. manufacturing and technology sectors.

In FY 2011, BIS began implementing the ECRI with a final rule (76 FR 35275, June 16, 2011) implementing a license exception that authorizes exports, reexports and transfers to destinations that do not pose a national security concern, provided certain safeguards against diversion to other destinations are taken. Additionally, BIS began publishing proposed rules to add to its Commerce Control List (CCL), military items the President determined no longer warranted control by the Department of State. BIS continued to publish such proposed rules in FY 2012.

In FY 2013, BIS crossed an important milestone with publication of two final rules that began to put ECRI policies into place. An Initial Implementation rule (78 FR 22660, April 16, 2013) set in place the structure under which items the President determines no longer warrant control on the United States Munitions List are controlled on the Commerce Control List. It also revised license exceptions and regulatory definitions, including the definition of "specially designed" to make those exceptions and definitions clearer and to more closely align them with the International Traffic in Arms Regulations, and added to the CCL certain military aircraft, gas turbine engines and related items. A second final rule (78 FR 40892, July 8, 2012) followed on by adding to the CCL military vehicles, vessels of war, submersible vessels, and auxiliary military equipment that President determined no longer warrant control on the USML.

BIS continued its ECRI efforts and by the end of fiscal year 2016 had published final rules adding to the CCL additional items that the President determined no longer warrant control under rules administered by the State Department in the following categories: Military training equipment; Explosives and energetic materials; Personal protective equipment; Launch vehicles and rockets; Spacecraft; Military Electronics; Toxicological agents; and Directed energy weapons. During fiscal year 2015, BIS published a proposed rule that would add to the CCL items related to: Fire control, range finder, optical and guidance and control equipment, followed by a second proposed rule in fiscal year 2016.

During fiscal year 2015, BIS initiated a process of evaluating the effectiveness of its ECRI efforts by seeking public input on whether the regulations are clear; do not inadvertently control, as military items, items in normal commercial use; account for technological developments; and properly implement the national security and foreign policy objectives of the reform effort. The first review addressed the first two categories of items added to the CCL by ECRI: military aircraft and gas turbine engines. After reviewing public comments, BIS completed this review by publishing a final rule in fiscal year 2016. In fiscal year 2016, BIS continued this review process with a notice seeking public comment on implementation of ECRI with respect to military vehicles, vessels of war, submersible vessels, oceanographic equipment, and auxiliary and miscellaneous military equipment. BIS anticipates continuing this series of notices after the public has had time to develop experience with each regulation that added categories of items to the CCL.

Promoting International Regulatory Cooperation

As the President noted in Executive Order 13609, "international regulatory cooperation, consistent with domestic law and prerogatives and U.S. trade policy, can be an important means of promoting" public health, welfare, safety, and our environment as well as economic growth, innovation, competitiveness, and job creation. Accordingly, in E.O. 13609, the President requires each executive agency to include in its Regulatory Plan a summary of its international regulatory cooperation activities that are reasonably anticipated to lead to significant regulations.

The Department of Commerce engages with numerous international bodies in various forums to promote the Department's priorities and foster regulations that do not "impair the ability of American business to export and compete internationally." E.O. 13609(a). For example, the United States Patent and Trademark Office is working with the European Patent Office to develop a new classification system for both offices' use. The Bureau of Industry and Security, along with the Department of State and Department of Defense, engages with other countries in the Wassenaar Arrangement, through which the international community develops a common list of items that should be subject to export controls because they are conventional arms or items that have both military and civil uses. Other multilateral export control regimes include the Missile Technology Control Regime, the Nuclear Suppliers Group, and the Australia Group, which lists items controlled for chemical and biological weapon nonproliferation purposes. In addition, the National Oceanic and Atmospheric Administration works with other countries' regulatory bodies through regional fishery management organizations to develop fair and internationally-agreed-to fishery standards for the High Seas.

BIS is also engaged, in partnership with the Departments of State and Defense, in revising the regulatory framework for export control, through the President's Export Control Reform Initiative (ECRI). Through this effort, the United States Government has moved certain items currently controlled by the United States Military List (USML) to the Commerce Control List (CCL) in BIS' Export Administration Regulations. The objective of ECRI is to improve interoperability of U.S. military forces with those of allied countries, strengthen the U.S. industrial base by, among other things, reducing incentives for foreign manufacturers to design out and avoid U.S.-origin content and services, and allow export control officials to focus Government resources on transactions that pose greater concern. The new export control framework also will benefit companies in the United States seeking to export items through more flexible and less burdensome export controls. The system, however, requires ongoing review and maintenance for it to accomplish these objectives. Some technologies are modified and become more sensitive or are applied to more sensitive uses; others become more commercially available and warrant fewer controls. The approach is novel and will require regular refinement to further the objective of increasing interoperability with allies and reducing unnecessary regulatory burdens.

Retrospective Review of Existing Regulations

Pursuant to section 6 of Executive Order 13563 "Improving Regulation and Regulatory Review" (Jan. 18, 2011), the Department has identified several rulemakings as being associated with retrospective review and analysis in the Department's final retrospective review of regulations plan. Accordingly, the Agency is reviewing these rules to determine whether action under E.O. 13563 is appropriate. Some of these entries on this list may be completed actions, which do not appear in the Regulatory Plan. However, more information can be found about these completed rulemakings in past publications of the Unified Agenda on Reginfo.gov in the Completed Actions section for the Agency. These rulemakings can also be found on Regulations.gov.

Two rulemakings that are the product of the Agency's retrospective review are from BIS and NOAA. BIS published a rule effective in September 2015 that removed the Special Comprehensive License provisions from the EAR. These provisions had been rendered obsolete by liberalizations to the individual licensing process, and their removal not only streamlined the EAR but also achieved paperwork burden reductions. More significantly, BIS, working with its colleagues in the State Department, substantially updated and revised the key structural definitions within the export control regulations. The effort is not yet completed and substantial additional work is needed to harmonize, update, and simplify the regulatory structure of the existing export control system, which has been in place for decades without material modification.

NOAA continues to demonstrate great success in fishery sustainability managed under the Magnuson-Stevens Act, with near-record landings and revenue accomplished while rebuilding stocks across the country and preventing overfishing. Since the Magnuson-Stevens Act reauthorization in 2007, NMFS and the Regional Fishery Management Councils have implemented annual catch limits and accountability measures in every fishery management plan under National Standard One of the act. Informed by a robust public process that gained input through a public summit (Managing our Nation's Fisheries), visits to each region and Council and multiple public hearings, NMFS took the experience gained from 8 years of implementation of National Standard One and has proposed multiple substantive, technical changes to the National Standard One rule that will improve implementation and continue to support healthy fisheries.

For more information, the most recent E.O. 13563 progress report for the Department can be found here: http://open.commerce.gov/news/2016/04/05/commerce-plan-retrospective-analysis-existing-rules.