Small Business Administration: Office of Advocacy - Letter dated 10/21/97 - Department of Commerce, National Oceanic and Atmospheric Administration (NOAA) - Commending NOAA for the Final Regulatory Flexibility Analysis performed for implementing the final management plan for the Florida Keys National Marine Sanctuary and the supplement to the Final Regulatory Flexibility Analysis. Letter also suggests that NOAA use the FRFA and its supplement as a teaching tool for other regulators in its agency.

Office of Advocacy

Honorable D. James Baker
Under Secretary for Oceans and Atmosphere
Department of Commerce
14^th Street and Constitution Avenue, NW
Room 5128
Washington, DC 20230

Re: Florida Keys National Marine Sanctuary

Dear Dr. Baker:

On several occasions, the Office of Advocacy has submitted comments criticizing the activities of the National Oceanic and Atmospheric Administration (NOAA) and its lack of compliance with the Regulatory Flexibility Act (RFA). The Office of Advocacy would like to take this opportunity to commend NOAA for the thorough Final Regulatory Flexibility Analysis (FRFA) that it submitted for the Final Regulations Implementing the Final Management Plan for the Florida Keys National Marine Sanctuary and the supplement to the FRFA.

The proposed rule for the Florida Marine Keys Sanctuary was published in the Federal Register on March 30, 1995. At that time, NOAA certified to the Chief Counsel of Advocacy that the proposed rule would not have a significant economic impact on a significant number of small entities. In November 1996, the Office of Advocacy expressed concerns about the lack of a FRFA in the Draft Final Management Plan for the Florida Marine Keys Sanctuary that was forwarded to this office. NOAA's attorneys, Mark Haflett, Ole Varmer, and Michael Weiss, and economist, Nina Mollett, listened to Advocacy's concerns and agreed to prepare a FRFA in this matter.

NOAA prepared and submitted an 85 page FRFA for the regulation. The Office of Advocacy reviewed the FRFA and notified NOAA that while the majority of the FRFA was in compliance with the RFA, Advocacy was concerned about the lack of consideration given to the plight of the treasure salvers. NOAA agreed to prepare a supplemental analysis and to review letters that the Office of Advocacy had received from treasure salvers and any other group regarding the Final Management Plan for the Florida Marine Keys Sanctuary. Subsequently, an 84 page supplement to the FRFA was prepared which complied with the requirements of the RFA.

The FRFA for the Final Regulations Implementing the Final Management Plan for the Florida Keys National Marine Sanctuary is a fine example of a RFA compliance. NOAA should consider circulating the FRFA and the supplement throughout the agency as an example of the proper way to perform a regulatory flexibility analysis to ensure that the analytical process involved becomes institutionalized as an integral part of NOAA' s regulatory development. Because it has all of the necessary elements for an initial regulatory flexibility analysis as well as a final one, it has great instructional potential for agency wide compliance with the RFA.

In addition, the Office of Advocacy is willing to continue to assist NOAA with obtaining agency wide compliance. In September 1996, Advocacy spoke at a NOAA sponsored regulatory workshop about RFA and amendments to the RFA pursuant to the Small Business Regulatory Enforcement Fairness Act (SBREFA). The Office of Advocacy has also had conversations with NOAA' s staff on RFA concerns in other matters which were subsequently addressed by NOAA. We are willing to provide any additional help that NOAA may require for obtaining full RFA compliance and for avoiding judicial review of its compliance with the law.

If you have any questions about this or any other matter, please feel free to contact me at (202) 205-6533.

Thank you for your cooperation in this matter.

Sincerely,

Jere W. Glover
Chief Counsel
Office of Advocacy.