[Federal Register Volume 72, Number 111 (Monday, June 11, 2007)]
[Proposed Rules]
[Pages 32052-32055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11254]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 070514119-7120-01; I.D. 042307D]
RIN 0648-AV51


Certification of Nations Whose Fishing Vessels Are Engaged in 
Illegal, Unreported, or Unregulated Fishing or Bycatch of Protected 
Living Marine Resources

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Advance notice of proposed rulemaking; request for comments.

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SUMMARY: NMFS issues this advance notice of proposed rulemaking to 
announce that it is developing certification procedures to address 
illegal, unreported, or unregulated (IUU) fishing activities and 
bycatch of protected living marine resources pursuant to the High Seas 
Driftnet Fishing Moratorium Protection Act (Moratorium Protection Act). 
NMFS is seeking advance public comment on the development of these 
procedures and on the sources and types of information to be considered 
in the process. NMFS plans to arrange for one or more opportunities to 
obtain public input on the certification procedures. Dates and 
locations of any such opportunities will be published in the Federal 
Register at a later date.

DATES: Written comments must be received by July 26, 2007.

ADDRESSES: Written comments on this action and requests for background 
information should be addressed to Christopher Rogers, Trade and Marine 
Stewardship Division, Office of International Affairs, NMFS. Comments 
and requests may be submitted by any of the following methods:
     Email: [email protected]. Including ``0648-AV51'' in the 
subject line of the e-mail comment. Comments sent via e-mail, including 
all attachments, must not exceed a 10 megabyte file size.
     Federal e-Rulemaking portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Christopher Rogers, Trade and Marine Stewardship 
Division, Office of International Affairs, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Christopher Rogers (ph. 301-713-9090, 
fax 301-713-9106, e-mail [email protected]).

SUPPLEMENTARY INFORMATION:

Background

    The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 (Public Law 109-479), which was signed into 
law in January 2007, amends the Moratorium Protection Act (Public Law 
104-43) to require actions be taken by the United States to strengthen 
international fishery management organizations and address IUU fishing 
and bycatch of protected living marine resources. Specifically, the 
Moratorium Protection Act requires the Secretary of Commerce to 
identify in a biennial report to Congress those foreign nations whose 
vessels are engaged in IUU fishing or fishing that results in bycatch 
of protected living marine resources. The Moratorium Protection Act 
also requires the establishment of procedures to certify whether 
nations identified in the biennial report are taking appropriate 
corrective actions to address IUU fishing or bycatch of protected 
living marine resources by fishing vessels of that nation. Based upon 
the outcome of the certification procedures developed in this 
rulemaking, nations could be subject to import prohibitions and other 
measures under the authority provided in the High Seas Driftnet 
Fisheries Enforcement Act at 16 U.S.C. 1826a (Enforcement Act) if they 
are not positively certified by the Secretary of Commerce. The 
Secretary of Commerce has delegated authority under this Act and the 
Moratorium Protection Act to NMFS. In addition to the Moratorium 
Protection and Enforcement Acts, NMFS notes that there are 
identification and/or certification procedures in other statutes, 
including the Pelly Amendment to the Fishermen's Protective Act at 22 
U.S.C. 1978. This advance notice of proposed rulemaking solicits public 
input on the new Moratorium Protection Act provisions and applicable 
Enforcement Act provisions, as well as general identification and 
certification considerations.

Definitions under the Moratorium Protection Act

    For purposes of the Moratorium Protection Act, ``IUU fishing'' is 
defined as fishing activities that violate conservation and management 
measures required under an international fishery management agreement 
to which the United States is a party, including catch limits or 
quotas, capacity restrictions, and bycatch reduction requirements; 
overfishing of fish stocks shared by the United States, for which there 
are no applicable international conservation or management measures or 
in areas with no applicable international fishery management 
organization or agreement, that has adverse impacts on such stocks; and 
fishing activity that has an adverse impact on seamounts, hydrothermal 
vents, and cold water corals located beyond national jurisdiction, for 
which there are no applicable conservation or management measures or in 
areas with no applicable international fishery management organization 
or agreement. See 16 U.S.C. 1826j. This definition of IUU fishing was 
published in the Federal Register on April 12, 2007 (72 FR 18404) and 
is codified at 50 CFR part 300.
    ``Protected living marine resources'' is defined in the Moratorium 
Protection Act as non-target fish, sea turtles, or marine mammals that 
are protected under United States law or international agreement, 
including the Marine Mammal Protection Act, the Endangered Species Act, 
the Shark Finning Prohibition Act, and the Convention on International 
Trade in Endangered Species of Wild Flora and Fauna; but they do not 
include species, except sharks, that are managed under the Magnuson-
Stevens Fishery Conservation and Management Act, the Atlantic Tunas 
Convention Act, or any international fishery management organization. 
See 16 U.S.C. 1826k.

Biennial Report to Congress on International Compliance

    The Moratorium Protection Act (see 16 U.S.C. 1826h) requires that 
the Secretary, in consultation with the Secretary of State, provide 
Congress (by no later than January 12, 2009, and every two years 
thereafter), a report that includes:
    1. the state of knowledge on the status of international living 
marine resources shared by the United States or subject to treaties or 
agreements to which the United States is a party, including a list of 
all such fish stocks classified as overfished, overexploited, depleted,

[[Page 32053]]

endangered, or threatened with extinction by any international or other 
authority charged with management or conservation of living marine 
resources;
    2. a list of nations whose vessels have been identified pursuant to 
the Moratorium Protection Act for engaging in IUU fishing or bycatch of 
protected living marine resources, including the specific offending 
activities and any subsequent actions taken pursuant to the Act;
    3. a description of efforts taken by nations on those lists to take 
appropriate corrective action consistent with the Moratorium Protection 
Act, and an evaluation of the progress of those efforts, including 
steps taken by the United States to implement those sections and to 
improve international compliance;
    4. progress at the international level to strengthen the efforts of 
international fishery management organizations to end IUU fishing; and
    5. steps taken by the Secretary at the international level to adopt 
international measures comparable to those of the United States to 
reduce impacts of fishing and other practices on protected living 
marine resources, if no international agreement to achieve such goal 
exists, or if the relevant international fishery or conservation 
organization has failed to implement effective measures to end or 
reduce the adverse impacts of fishing practices on such species.

Identification Under the Moratorium Protection Act

    Section 609 of the Moratorium Protection Act (see 16 U.S.C. 
1826j(a)) requires the Secretary to identify, and list in the biennial 
report, a nation if fishing vessels of that nation are engaged, or have 
been engaged at any point during the preceding two years, in IUU 
fishing; and (1) the relevant international fishery management 
organization has failed to implement effective measures to end the IUU 
fishing activity by vessels of that nation or that the nation is not a 
party to, or does not maintain cooperating status with such 
organization; or (2) where no international fishery management 
organization exists with a mandate to regulate the fishing activity in 
question.
    Section 610 of the Moratorium Protection Act (see 16 U.S.C. 
1826k(a)) requires the Secretary to identify, and list in the biennial 
report, a nation if:
1. fishing vessels of that nation are engaged, or have been engaged 
during the preceding calendar year in fishing activities or practices;
    A. in waters beyond any national jurisdiction that result in 
bycatch of a protected living marine resource; or
    B. beyond the exclusive economic zone of the United States that 
result in bycatch of a protected living marine resource shared by the 
United States.
2. the relevant international organization for the conservation and 
protection of such resources or the relevant international or regional 
fishery organization has failed to implement effective measures to end 
or reduce such bycatch, or the nation is not a party to, or does not 
maintain cooperating status with, such organization; and
3. the nation has not adopted a regulatory program governing such 
fishing practices designed to end or reduce such bycatch that is 
comparable to that of the United States, taking into account different 
conditions.
    Reliable and timely information is critical to making accurate and 
effective use of identification provisions under the Moratorium 
Protection Act. Potential sources of information for identification of 
nations whose vessels are engaged in IUU fishing or bycatch of 
protected living marine resources could include IUU vessel lists from 
RFMOs, as well as reports from RFMOs on vessels engaged in IUU fishing 
or bycatch of protected living marine resources. In addition, foreign, 
federal, state, and local governments; nongovernmental organizations; 
industry organizations; and citizens and citizen groups from both the 
United States and other foreign nations could be potential sources of 
information. Such information might include photographs or video of 
vessels engaging in IUU activities and/or fisheries with bycatch of 
protected living marine resources, surveillance from satellite and 
Vessel Monitoring Systems (VMS), observations and testimony from crew 
and/or observers, nongovernmental organizations, industry 
representatives, and citizens and citizen groups.
    NMFS will assess different approaches for evaluating pieces of 
information related to nations whose fishing vessels are alleged to be 
engaged in IUU fishing activities or bycatch of protected living marine 
resources. Considerations for potential sources of information to be 
used include:
     Accessibility and transparency of the collected data/
information and methodology used to collect the data/information;
     Specificity of the information;
     Susceptibility of the media to falsification and 
alteration;
    NMFS seeks input on the above and other relevant sources of 
information, as well as other issues related to identification under 
the Moratorium Protection Act.

Notification and Consultation Procedures

    Identifications under the Moratorium Protection Act are deemed to 
be identifications under the Enforcement Act. See 16 U.S.C. 1826j. 
Accordingly, the Secretary of Commerce would notify both the President 
and the affected nations of such identifications.
    For IUU identifications, no later than 60 days after submission of 
the biennial report to Congress, the Secretary of Commerce, acting 
through the Secretary of State, is to notify nations identified in the 
biennial report of the requirements of the Moratorium Protection Act 
and initiate consultations for the purpose of encouraging such nations 
to take the appropriate corrective action with respect to the offending 
activities of their fishing vessels identified in the report. The 
Secretary of Commerce, acting through the Secretary of State, would 
also notify any relevant international fishery management organization 
of actions taken by the United States under Section 609 of the 
Moratorium Protection Act. See 16 U.S.C. 1826j.
    For nations whose vessels engage in fishing activities or practices 
described in section 610(a) of the Moratorium Protection Act, the 
Secretary of Commerce, acting through the Secretary of State, is to 
notify these nations about the requirements of the Moratorium 
Protection Act as soon as possible. The Secretary of Commerce, acting 
through the Secretary of State, is also called upon to initiate 
discussions as soon as possible with all foreign governments that are 
engaged in, or that have persons or companies engaged in, fishing 
activities or practices described in section 610(a), for the purpose of 
entering into bilateral and multilateral treaties with these countries 
to protect such species. In addition, the Secretary of State, acting on 
behalf of the Secretary of Commerce, is called upon to seek agreements 
calling for international restrictions on fishing activities or 
practices described in section 610(a) through the United Nations, the 
Food and Agriculture Organization's Committee on Fisheries, and 
appropriate international fishery management bodies; and initiate the 
amendment of any existing international treaty for the protection and 
conservation of such species to which the United States is a party in 
order to make such treaty consistent with the purposes and policies of 
section 610 of the Moratorium Protection Act. See 16 U.S.C. 1826k.

[[Page 32054]]

Certification of Nations

    The Moratorium Protection Act calls for the Secretary of Commerce 
to establish procedures through rulemaking to certify identified 
nations under sections 609(d) and 610(c). In order to positively 
certify an identified nation for IUU fishing, the Secretary shall 
determine (A) whether the government of an identified nation has 
provided documentary evidence that it has taken corrective action with 
respect to the offending activities of its fishing vessels identified 
in the report; or (B) whether the relevant international fishery 
management organization has implemented measures that are effective in 
ending the IUU fishing by vessels of that nation. See 18 U.S.C. 
1826j(d)(1).
    In order to positively certify a nation identified for bycatch of 
protected living marine resources, the Secretary shall determine that 
the government of an identified nation (A) has provided documentary 
evidence of the adoption of a regulatory program governing the 
conservation of the protected living marine resource that is comparable 
to that of the United States, taking into account different conditions, 
and which, in the case of pelagic longline fishing, includes mandatory 
use of circle hooks, careful handling and release equipment, and 
training and observer programs; and (B) has established a management 
plan containing requirements that will assist in gathering species-
specific data to support international stock assessments and 
conservation enforcement efforts for protected living marine resources. 
See 18 U.S.C. 1826k(c)(1).
    Pursuant to the requirements under the Moratorium Protection Act, 
NMFS will publish certification of nations in the biennial report for 
Congress. However, the first certification of nations previously 
identified for having vessels that engaged in IUU fishing activities 
will occur no later than 90 days after the date of promulgation of the 
subsequent final rule. NMFS is also considering publishing 
certification decisions in the Federal Register concurrent with the 
publication of the biennial report and providing an opportunity for 
comment on these actions.

Information for Certification

    NMFS is considering the following sources of information in 
determining the certification of nations whose vessels are engaged in 
IUU fishing or bycatch of protected living marine resources: 
information on non-compliance with RFMO measures to address IUU fishing 
(as identified by the RFMO); information on non-compliance with 
measures that have been recommended by the United Nations to address 
IUU fishing; whether the relevant RFMO has failed to implement 
effective measures to end IUU fishing activity or end or reduce bycatch 
of protected species; whether an identified nation is not party to, or 
does not maintain cooperating status with the relevant RFMO; whether a 
competent RFMO exists that regulates the IUU fishing activity in 
question; and whether the identified nation has provided sufficient 
documentary evidence of corrective action taken to end IUU fishing or 
adoption of a regulatory program to end or reduce bycatch that is 
comparable to that of the United States, accounting for regional 
conditions. NMFS seeks input on the above and other relevant sources of 
information, and other issues related to certification under the 
Moratorium Protection Act.

Effect of Certification

    Where NMFS negatively certifies a nation identified in the biennial 
report, or in cases where NMFS cannot make a certification 
determination for an identified nation whose vessels engaged in IUU 
fishing or bycatch of protected living marine resources, the Moratorium 
Protection Act provides for the application of sections 101(a) and 
sections 101(b)(3) and (b)(4) of the Enforcement Act. See 16 U.S.C. 
1826a(a), and 1826a(b)(3) and (b)(4). Relevant provisions of that Act 
include the following:
     The Secretary of Treasury shall, in accordance with 
recognized principles of international law deny entry of that vessel to 
any place in the United States and to the navigable waters of the 
United States;
     For nations whose vessels engaged in IUU fishing, the 
President shall direct the Secretary of Treasury to prohibit the 
importation into the United States of fish or fish products, except to 
the extent that such provisions would apply to sport fishing equipment 
or to fish or fish products not managed under the applicable 
international fishery agreement; or if there is no applicable 
international fishery agreement, to the extent that such provision 
would apply to fish or fish products caught by vessels not engaged in 
IUU fishing;
     For nations whose vessels engaged in bycatch of protected 
living marine resources, the President shall direct the Secretary of 
Treasury to prohibit the importation into the United States of fish or 
fish products, except to the extent that such provisions apply to sport 
fishing equipment or fish or fish products not caught by vessels 
engaged in IUU fishing; and
     Possible additional measures.

Alternative Procedures

    Section 609(d)(2) of the Moratorium Protection Act authorizes NMFS 
to establish a procedure for certification, on a shipment-by-shipment, 
shipper-by-shipper, or other basis of fish or fish products from a 
vessel of a harvesting nation that is not certified in the biennial 
report under section 609(d)(1), if NMFS determines that: (A) the vessel 
has not engaged in IUU fishing under an international fishery 
management agreement to which the United States is a party; or (B) the 
vessel is not identified by an international fishery management 
agreement as participating in IUU fishing activities.
    In addition, section 610(c)(4) of the Moratorium Protection Act 
authorizes NMFS to establish a procedure for certification, on a 
shipment-by-shipment, shipper-by-shipper, or other basis of fish or 
fish products from a vessel of a harvesting nation that is not 
certified in the biennial report under section 610(c)(1), if NMFS 
determines that such imports were harvested by practices that do not 
result in bycatch of a protected living marine species, or were 
harvested by practices that: (A) are comparable to those of the United 
States, taking into account different conditions, and which, in the 
case of pelagic longline fishing, includes mandatory use of circle 
hooks, careful handling and release equipment, and training and 
observer programs; and (B) include the gathering of species-specific 
data that can be used to support international and regional stock 
assessments and conservation efforts for protected living marine 
resources.
    The Moratorium Protection Act envisions a multilateral process to 
implement effective measures to end IUU fishing and eliminate or reduce 
the bycatch of protected living marine resources. In the case of 
bycatch of protected living marine resources, NMFS plans to work on a 
bilateral and/or multilateral basis to assist nations with the adoption 
of regulatory measures designed to end or reduce bycatch that are 
comparable to those measures applied in the United States, taking into 
account relevant environmental and/or socioeconomic conditions that may 
bear on their effectiveness.

Public Comment

    You may submit information and comments concerning this advanced 
notice of proposed rulemaking by any one of several methods (see 
ADDRESSES).

[[Page 32055]]

During the comment period, NMFS plans to arrange for one or more 
opportunities to obtain public input on the certification procedures. 
Prior notice of the dates, times and locations of any such 
opportunities will be published in the Federal Register.
    Information related to the international fisheries provisions of 
the Moratorium Protection Act can be found on the NMFS Web site at 
http://www.nmfs.noaa.gov/. NMFS will consider all comments and 
information received during the comment period in preparing a proposed 
rule.

Classification

    This advance notice of proposed rulemaking has been determined to 
be not significant for the purposes of Executive Order 12866.

    Authority: 16 U.S.C. 1801 et seq.; 16 U.S.C. 1826d-1826k.

    Dated: June 5, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. E7-11254 Filed 6-8-07; 8:45 am]
BILLING CODE 3510-22-S