[Federal Register Volume 75, Number 6 (Monday, January 11, 2010)]
[Proposed Rules]
[Pages 1324-1332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-144]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No.: 080228336-9133-01]
RIN 0648-AW09


Implementation of Regional Fishery Management Organizations' 
Measures Pertaining to Vessels that Engaged in Illegal, Unregulated, 
and Unreported Fishing Activities

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes regulations to implement international 
conservation and management measures adopted by the International 
Commission for the Conservation of Atlantic Tunas (ICCAT), Commission 
for the Conservation of Antarctic Marine Living Resources (CCAMLR), 
Northwest Atlantic Fisheries Organization (NAFO), Western and Central 
Pacific Fisheries Commission (WCPFC), Inter-American Tropical Tuna 
Commission (IATTC), and the Agreement on the International Dolphin 
Conservation Program (AIDCP). The measures pertain to vessels that have 
been identified by these regional fishery management organizations 
(RFMOs) as having engaged in illegal, unregulated, and unreported (IUU) 
fishing activities and included on their respective IUU vessel lists. 
As a party to these RFMOs, the United States is obligated to take 
certain actions against the listed IUU vessels in a manner consistent 
with our laws and policies. This proposed rule would clarify the 
domestic processes by which the United States intends to meet these 
obligations. Specifically, it would implement obligations to restrict 
entry into any port or place of the United States and access to port 
services by vessels on the IUU vessel lists of the aforementioned 
RFMOs. It would also prohibit the provision by persons and business 
entities subject to U.S. jurisdiction of certain services to, and 
commercial transactions with, such vessels. NMFS is seeking public 
comment on the proposed rule.

DATES: Written comments must be received by February 25, 2010.

ADDRESSES: Written comments on this action, identified by RIN 0648-
AW09, may be submitted by any of the following methods:

[[Page 1325]]

     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal at http://www.regulations.gov.
     Mail: Mi Ae Kim, Trade and Marine Stewardship Division, 
Office of International Affairs, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910.
    All comments received are a part of the public record and will 
generally be posted to http://www.regulations.gov without change. No 
comments will be posted for public viewing until after the comment 
period has closed. All personal identifying information (for example, 
name and address) voluntarily submitted by the commenter may be 
publicly accessible. Do not submit confidential business information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Enter N/A in the required 
fields if you wish to remain anonymous. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe portable document file (pdf) formats only.

FOR FURTHER INFORMATION CONTACT: Mi Ae Kim, Trade and Marine 
Stewardship Division, Office of International Affairs, NMFS (phone 301-
713-9090, fax 301-713-9106, or e-mail [email protected].)

SUPPLEMENTARY INFORMATION:

Background

    The effective management of marine fisheries resources, including 
highly migratory species, fish stocks that migrate between or occur in 
both the exclusive economic zone (EEZ) of one or more nations and the 
high seas, and discrete high seas stocks, depends on compliance with 
the applicable conservation and management measures of regional 
fisheries management organizations (RFMOs) and domestic laws. To 
promote compliance with such conservation and management measures and 
combat IUU fishing, several RFMOs of which the United States is a 
member have adopted binding measures that establish both procedures for 
identifying vessels engaged in IUU fishing activities and actions to be 
taken against such vessels. See IUU Vessel Listing Procedures section 
below for explanation of how vessels are listed or delisted from RFMO 
IUU vessel lists. The International Commission for Conservation of 
Atlantic Tunas (ICCAT), Commission for the Conservation of Antarctic 
Marine Living Resources (CCAMLR), Northwest Atlantic Fisheries 
Organization (NAFO), Western and Central Pacific Fisheries Commission 
(WCPFC), Inter-American Tropical Tuna Commission (IATTC), and the 
Agreement on the International Dolphin Conservation Program (AIDCP; the 
AIDCP is not an RFMO per se, but is referred to as such for the 
purposes of this action) adopted measures that include closure of ports 
or markets to vessels that the RFMOs identified as having engaged in 
IUU fishing activities and included on their respective list of IUU 
vessels. Such measures can act as a strong deterrent to engage in, or 
provide support to vessels that engage in, IUU fishing by reducing the 
profitability of such activities.
    The United States is obligated as a member of the RFMOs listed 
above to undertake specific actions to address IUU fishing activity 
pursuant to the following measures:
     ICCAT Recommendation 06-12 as amended by Recommendation 
07-09 - Recommendation by ICCAT amending the Recommendation by ICCAT to 
establish a list of vessels presumed to have carried out illegal, 
unreported and unregulated fishing activities in the ICCAT Convention 
Area,
     CCAMLR Conservation Measure 10-06 - Scheme to promote 
compliance by Contracting Party vessels with CCAMLR conservation 
measures,
     CCAMLR Conservation Measure 10-07 - Scheme to promote 
compliance by non-Contracting Party vessels with CCAMLR conservation 
measures,
     NAFO Conservation and Enforcement Measure Chapter VI - 
Scheme to promote compliance by non-contracting party vessels with 
recommendations established by NAFO,
     WCPFC Conservation and Management Measure 2007-03 - 
Conservation and management measure to establish a list of vessels 
presumed to have carried out illegal, unreported and unregulated 
fishing activities in the western and central Pacific Ocean,
     IATTC Resolution C-05-07 - Resolution to establish a list 
of vessels presumed to have carried out illegal, unreported and 
unregulated fishing activities in the eastern Pacific Ocean, and
     AIDCP Resolution A-04-07 - Resolution to establish a list 
of vessels presumed to have carried out illegal, unreported and 
unregulated fishing activities in the Agreement Area.
    NMFS is proposing these regulations pursuant to its authority to 
administer and enforce the statutes that implement the conventions of 
the RFMOs mentioned above. Statutes that authorize rulemaking to 
implement RFMO conservation and management measures include the 
Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971 et seq., the 
Antarctic Marine Living Resources Convention Act of 1984, 16 U.S.C. 
2431 et seq., the Northwest Atlantic Fisheries Convention Act of 1995, 
16 U.S.C. 5601 et seq., the Western and Central Pacific Fisheries 
Convention Implementation Act, 16 U.S.C. 6901 et seq., the Tuna 
Conventions Act of 1950, 16 U.S.C. 951 et seq., and the Marine Mammal 
Protection Act, 16 U.S.C. 1361 et seq. These statutes authorize the 
promulgation of regulations as necessary to carry out the purposes and 
management measures of each RFMO convention.
    At the time of this rulemaking, a total of approximately 90 vessels 
were listed on the IUU vessel lists of the five RFMOs to which the 
United States is a party. AIDCP has not developed an IUU vessel list at 
this time. The procedures for listing and delisting vessels are 
described below. The lists include mostly harvesting and transport 
vessels. The United States, however, is generally not a destination for 
foreign fishing vessels because of the Nicholson Act (46 U.S.C. 55114). 
Under the Nicholson Act, administered by U.S. Customs and Border 
Protection, foreign vessels are generally prohibited from unloading 
fish and fish product that were harvested or taken onboard on the 
``high seas'' in any U.S. port, with the exceptions of unloading in 
ports in the U.S. territories of American Samoa, Guam, and the 
Commonwealth of the Northern Mariana Islands; certain landings in the 
U.S. Virgin Islands; and landings pursuant to certain conventions to 
which the United States is a party. Because the United States is, for 
the most part, not an offloading port for foreign harvesting vessels, 
the proposed regulations would primarily concern transport vessels 
included on the relevant IUU vessel lists.
    Table 1 summarizes the measures that parties to the RFMOs are 
required to implement per the previously-referenced RFMO measures. 
While there are differences in the specific obligations, the RFMOs 
share the goal of combating IUU fishing.
BILLING CODE 3510-22-S

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[GRAPHIC] [TIFF OMITTED] TP11JA10.005

BILLING CODE 3510-22-C
    NMFS is proposing a single set of regulations to clarify domestic 
implementation of IUU vessel list measures under the relevant RFMOs and 
to facilitate better enforcement of those measures. The regulations 
describe the actions that the United States will take, consistent with 
its international obligations, with respect to foreign, listed IUU 
vessels. Foreign vessels include vessels not entitled to fly the flag 
of the United States and vessels operated under the authority of a 
country other than the United States.
    These regulations detail the authorities of the Assistant 
Administrator for Fisheries (Assistant Administrator) to take actions 
against a listed IUU vessel in accordance with the

[[Page 1327]]

requirements of the appropriate RFMO conservation measure. The 
regulations provide the Assistant Administrator some discretion, albeit 
in accordance with the relevant RFMO measures, in determining the 
appropriate action to take with respect to a listed IUU vessel seeking 
entry into, or use of, a U.S. port. For example, the NAFO measure 
requires vessels on its IUU vessel list to be denied port entry. 
However, under the NAFO measure and pursuant to these regulations, 
there is flexibility to allow such vessels into port for information-
gathering, inspection, or enforcement purposes if NMFS determines that 
doing so is appropriate under the specific circumstances and furthers 
the goals of combating IUU fishing.
    These regulations also specify the prohibitions applicable to 
listed IUU vessels as well as for those persons or entities subject to 
the jurisdiction of the United States who may consider business 
relationships with listed vessels. NMFS, in particular the Office of 
Law Enforcement, will cooperate with the U.S. Coast Guard, U.S. Customs 
and Border Protection, and other state and Federal agencies as 
appropriate in the implementation of the rule.
    The following describes each section of this proposed rule and the 
basis for the proposed regulatory text.

Definitions (Section 300.301)

    To ensure clarity of the terms used in the proposed rule, 
definitions are included for landing, processing, and transshipping. 
The text of the RFMO conventions, the implementing statutes, and 
regulations related to the RFMOs were considered in developing these 
regulatory definitions. ``Landing'' and ``transshipping'' were defined 
in some of the documents, but ``processing'' was not. ``Landing'' is 
defined in the CCAMLR regulations (50 CFR 300.101) and in the IATTC 
regulations (50 CFR 300.21). ``Transshipping'' is defined in the IATTC 
regulations (50 CFR 300.21), WCPFC statute and treaty (16 U.S.C. 
6901(11) and Part 1, Article 1(h) of the treaty), and CCAMLR 
regulations (50 CFR 300.101). The definitions for this rule are 
intentionally broad to capture a broad range of activities that may be 
covered by the relevant RFMO measures.
    ``Listed IUU vessel'' is also defined to identify the specific 
vessels to which the rule applies. Listed IUU vessel is defined as a 
vessel that appears on a final IUU vessel list adopted or approved by 
an RFMO to which the United States is a party.

Port Entry (Section 300.302)

    This proposed rule would allow the Assistant Administrator to deny 
a foreign, listed IUU vessel entry into ports or places subject to the 
jurisdiction of the United States, except in cases of force majeure. 
The Assistant Administrator will make a determination about the denial 
of port entry on a case-by-case basis, taking into account the IUU 
vessel list that includes the vessel seeking entry and the provisions 
in the relevant RFMO conservation and management measure that applies 
to the listed IUU vessel. As shown on Table 1, obligations with respect 
to the denial of port entry differ across the RFMOs. Denial of port 
entry may be encouraged or mandatory, subject to certain exceptions, 
and in some cases accompanied by a requirement to inspect vessels that 
come into port. The ICCAT and NAFO measures call for prohibiting 
vessels on their respective IUU vessel lists from entering port, except 
in cases of force majeure. NAFO includes a provision that allows a 
contracting party to grant port entry to a vessel from a non-
contracting party for the purposes of inspection and taking enforcement 
action. IATTC and WCPFC measures do not call for denial of port entry 
but obligate their members to ensure that listed vessels that 
voluntarily enter ports are not authorized to land or transship. The 
WCPFC measure further states that listed vessels must be inspected upon 
entry and must not be authorized to refuel or resupply. CCAMLR's 
conservation measures call for denial of port access except for the 
purpose of inspecting it and taking other appropriate enforcement 
action or in cases of force majeure. The CCAMLR measures require 
examination of the vessel's documentation and, where possible, seizure 
of catch. Given the differences in the measures, the proposed rule was 
drafted to provide that the Assistant Administrator has discretion in 
the denial of port entry. This would enable domestic implementation 
that is flexible, facilitates enforcement and is consistent with the 
relevant RFMO measures that pertain to the vessel at issue while 
allowing for the full exercise of NOAA's enforcement authority under 
other domestic laws such as the Lacey Act (33 U.S.C. 3371 et seq.).
    Currently, as described in more detail below, most foreign-flagged 
vessels are required to submit a notice of arrival to the Coast Guard 
when entering a port or place of the United States. The notice of 
arrival from a listed IUU vessel will trigger an interagency 
consultation. The Assistant Administrator will take the results of the 
interagency consultation into consideration when making a determination 
on whether to deny a listed IUU vessel entry into a U.S. port. For 
example, a vessel on NAFO's IUU vessel list may be allowed entry into 
port for inspection if the Assistant Administrator determines, in 
consultation with other agencies, that inspection of the vessel is 
necessary to verify its identity. As many IUU vessels conceal their 
name and/or identification number (such as the call sign or Lloyds/
International Maritime Organization number) and information on IUU 
vessels lists is often incomplete, an inspection may be necessary to 
verify that the vessel is in fact the one included on the relevant IUU 
list.
    Vessels flying the flag of the United States would not be 
prohibited from port entry by the proposed rule in the event such a 
vessel becomes listed on an RFMO IUU vessel list. Rather, the United 
States will exercise its authority as a flag state to address the IUU 
fishing activities of U.S. vessels. The conservation and management 
measures adopted by the RFMOs to which the United States is a party 
obligate the United States to take action against its vessels and, 
where applicable, its nationals for activities that violate or 
contravene such measures. NOAA's authority to take this action comes 
from the statutes implementing the international fisheries agreements 
to which the United States is party. The United States satisfies its 
obligation by promulgating, and subsequently enforcing, the regulations 
implementing those statutes. For example, for ICCAT fisheries, 
regulations are generally promulgated under the dual authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA; 16 
U.S.C. 1801 et seq.) and the Atlantic Tunas Convention Act, and the 
enforcement actions are generally brought under the MSA authority.
    The range of enforcement actions that the United States is 
authorized to take against its nationals is established by the language 
of the statutes themselves. In general, U.S. fisheries law allows for 
imposition of civil monetary penalties and permit sanctions (including 
suspension and revocation of permits), forfeiture of vessels and catch, 
and criminal penalties for certain violations. NMFS has determined that 
exercising its flag state authority is a more effective means of 
addressing IUU activity by U.S. flagged vessels than denial of port 
privileges.

[[Page 1328]]

Access to Port Services (Section 300.303)

    For any foreign vessel on an IUU vessel list that enters the United 
States, the proposed rule would allow the Assistant Administrator to 
(1) conduct inspections of the vessel, (2) deny the vessel port 
services, including, but not limited to, refueling, resupplying, and 
disembarking or embarking crew, and (3) prohibit the vessel from 
conducting commercial transactions, including, but not limited to, 
transshipping and landing product. As with denial of port entry, the 
proposed rule provides the Assistant Administrator with discretion to 
consider, on a case-by-case basis, which of the above actions to take 
against the listed IUU vessel. Such a decision would take into account 
the provisions in the relevant RFMO conservation and management 
measure, consultations with other agencies as appropriate, and any 
other relevant factors.
    NMFS believes that the flexible approach in the proposed rule is 
appropriate given the differences in the various RFMO measures (see 
Table 1). Vessel inspections are required by the conservation measures 
of CCAMLR and WCPFC. The NAFO measure states that a port State member 
can allow a vessel entry into its ports for the purpose of conducting 
an investigation. The ICCAT, IATTC and AIDCP measures do not explicitly 
require inspections. However, as a sovereign State, the United States 
has broad authority independent of RFMO measures to inspect a vessel 
that is in a U.S. port or place, including vessels listed by ICCAT, 
NAFO, IATTC, and AIDCP. Especially where applicable law allows for the 
sharing of information gathered during inspections with RFMOs and 
foreign governments, port and at-sea inspections serve as a critical 
tool in the effort to combat IUU fishing.
    As for denial of port services, ICCAT and WCPFC conservation 
measures state that refueling and resupply are not to be authorized. 
CCAMLR measures also require all non-emergency support to be 
prohibited. Similarly, NAFO calls for prohibitions on the supply of 
provisions, fuel and other services to, and change of crew on, listed 
IUU vessels except in cases of force majeure. IATTC and AIDCP measures 
do not include such prohibitions. The proposed rule could result in the 
denial of port services (e.g., refueling, resupplying, disembarking and 
embarking crew) to all foreign vessels on the ICCAT, WCPFC, CCAMLR, and 
NAFO IUU vessel lists, with certain exceptions essential to the safety, 
health, and welfare of the crew or in cases of force majeure.
    The proposed rule would also allow the Assistant Administrator to 
prohibit listed IUU vessels from engaging in commercial transactions, 
such as transshipping and landing, in accordance with applicable 
provisions of RFMO conservation and management measures. According to 
the measures of IATTC, AIDCP, ICCAT, and WCPFC, listed IUU vessels are 
to be prohibited from transshipping or landing product. The measures of 
CCAMLR and NAFO do not specify these prohibitions. However, in the 
CCAMLR measure, listed IUU vessels that are granted port access are to 
be inspected and, where possible, their catch confiscated. In the NAFO 
measure, listed IUU vessels are to be denied entry into ports and 
landings of fish from listed IUU vessels are to be prohibited. Although 
the NAFO measure does not explicitly require a prohibition on 
transshipments by listed vessels, it does prohibit members' vessels 
from participating in any transshipment with listed IUU vessels. NMFS 
believes that the proposed rule is consistent with the intent of the 
CCAMLR and NAFO measures. Under the proposed rule, the prohibition on 
commercial transactions would apply broadly to vessels on the CCAMLR 
and NAFO IUU vessel lists, as well as those on the IUU vessel lists of 
IATTC, AIDCP, ICCAT, and WCPFC. Providing the Assistant Administrator 
with broad authority to prohibit all listed IUU vessels from 
transshipping or landing product in any U.S. port or place would 
facilitate enforcement and therefore is necessary and appropriate to 
carry out the purpose of the relevant RFMO conservation measures.

Prohibitions (Section 300.304)

    The proposed rule prohibits a foreign, listed IUU vessel from 
entering any port or place subject to the jurisdiction of the United 
States if it was denied entry by the Assistant Administrator. It also 
prohibits such vessels from obtaining port services or engaging in 
commercial transactions if such activities have been denied.
    The proposed rule would make it unlawful for any person subject to 
the jurisdiction of the United States to engage in commercial 
transactions with a listed IUU vessel, unless authorized to do so by 
the Assistant Administrator. Such transactions include, but are not 
limited to:
     Transshipment,
     Processing fish harvested or landed by a listed vessel or 
processing fish using a listed vessel,
     Joint fishing operations,
     Providing supplies, fuel, crew, or otherwise supporting a 
listed vessel, or
     Chartering or entering into a chartering arrangement.
    Except for the measures of IATTC and AIDCP, the RFMO conservation 
measures require that their members ensure that fishing vessels, 
support vessels, mother ships and cargo vessels flying their flags do 
not support, resupply, or participate in any transshipment or joint 
fishing operations with vessels on the IUU lists. NAFO further requires 
members to ensure that such vessels do not engage in fish processing 
operations with a vessel on their IUU vessel list. All six RFMO 
measures require that chartering of listed vessels be prohibited (see 
Table 1). Except for CCAMLR and NAFO, the RFMO measures also require 
prohibiting commercial transactions involving species covered by the 
RFMO with listed IUU vessels. While there are differences between the 
RFMO measures, NMFS is proposing a broad approach: the proposed rule 
would prohibit all of the above activities, irrespective of which IUU 
vessel list a vessel is on, subject to the exception spelled out below. 
NMFS believes that this approach would facilitate compliance by U.S. 
persons by simplifying what actions must not occur with any vessels on 
the IUU vessel lists of these RFMOs. In addition, this approach would 
serve to prevent U.S. persons from being implicated with listed IUU 
vessels and, thereby, possibly prevent U.S.-flagged vessels from being 
considered for inclusion on IUU vessel lists.
    Recognizing that there are differences between RFMO measures, an 
exception has been added so that the prohibitions listed in Sec.  
300.304(c) would not apply to persons that provide port services to, or 
engage in other prohibited transactions with, a listed IUU vessel that 
enters a port or place subject to the jurisdiction of the United States 
following a decision by the Assistant Administrator to allow the vessel 
to access port services or engage in commercial transactions. As the 
Assistant Administrator may allow certain port services for certain 
listed IUU vessels, in accordance with the relevant RFMO conservation 
measures, the prohibitions would not apply to those persons who engage 
in commercial transactions with a listed IUU vessel if the Assistant 
Administrator has authorized such activities, including in cases of 
force majeure and where the Assistant Administrator has determined that 
such services are essential to the safety, health, and welfare of the 
crew.

[[Page 1329]]

    The proposed rule would apply the prohibitions on commercial 
transactions with listed IUU vessels to all persons subject to the 
jurisdiction of the United States rather than to U.S.-flagged vessels. 
RFMO measures of ICCAT, CCAMLR, NAFO, and WCPFC specify prohibitions of 
specific commercial activities (e.g., transshipment, joint fishing 
operations, support, and re-supply) for several vessel types, but 
IATTC, AIDCP, ICCAT, and WCPFC also include prohibitions on commercial 
transactions that are not specific to vessels. The proposed rule 
applies generally to persons, which will simplify and thus facilitate 
enforcement and ensure more effective implementation of the various 
RFMO measures.

Measures Not Addressed in This Proposed Rule

    As shown on Table 1, the RFMOs also obligate the United States to 
take the following measures as a flag state:
     Deny the U.S. flag to listed IUU vessels (required by all 
RFMOs),
     Prohibit issuing a license to listed IUU vessels to fish 
in waters under U.S. jurisdiction (required by CCAMLR and NAFO),
     Prohibit imports of species managed by the RFMO from 
listed IUU vessels (required by all RFMOs),
     Encourage dealers, importers, transporters and others 
involved to refrain from transactions in, and transshipment of, covered 
species from listed IUU vessels (required by all RFMOs), and
     Collect and exchange information with the aim of searching 
for, controlling and preventing false import/export certificates for 
species managed by the RFMO from listed IUU vessels (required by all 
RFMOs).
    These measures either have been or, if appropriate, will be 
implemented by the United States in separate regulatory and non-
regulatory actions. With respect to the first bullet, U.S. flags are 
granted by the U.S. Coast Guard. NMFS will coordinate with the 
appropriate Coast Guard office to ensure that listed vessels are not 
granted the U.S. flag. With respect to the second bullet, foreign 
vessels would not be granted a license to fish unless the United 
States, through the Department of State, entered into a governing 
international fishery agreement and at this time the only such 
agreement is with Russia. This governing international fishery 
agreement includes cooperation between the United States and Russia to 
address illegal or unregulated fishing activities on the high seas in 
the North Pacific Ocean and Bering Sea. With respect to the third 
bullet, the RFMO measures require prohibitions on conducting commercial 
transactions, imports, landings, and transshipment of species managed 
by RFMOs from listed vessels. As described earlier, this proposed rule 
would prohibit persons subject to U.S. jurisdiction from engaging in 
commercial transactions, which can include landings from, and 
transshipment with, listed IUU vessels. The prohibition on imports from 
IUU vessels has already been implemented for ICCAT-managed species (50 
CFR 635 Subparts D and E). Similar prohibitions for species managed by 
other RFMOs may be incorporated into the respective implementing 
regulations, as necessary. The last two bullet items (m and n in Table 
1) are not regulatory in nature. NMFS conducts outreach and encourages 
U.S. fishing and support industries to consult RFMO IUU vessel lists 
before making commercial arrangements with listed vessels and, 
specifically, to avoid providing to IUU vessels any support or services 
that are prohibited by the relevant RFMO (item m in Table 1). As for 
collecting and exchanging information with the aim of searching for, 
controlling, and preventing false import/export certificates for 
covered species from listed vessels (item n in Table 1), the United 
States is a founding and active member of the International Monitoring, 
Control, and Surveillance Network, which works multilaterally to 
exchange fisheries and enforcement information.

IUU Vessel Listing Procedures

    ICCAT, CCAMLR, NAFO, WCPFC, IATTC, and AIDCP use similar criteria 
and procedures for listing and delisting vessels (see the respective 
conservation and management measures available on the RFMO websites). 
The process for listing and delisting vessels can span several months, 
involving notifications to RFMO members and non-contracting parties, 
gathering of information, and consideration of the information at RFMO 
meetings. These RFMOs may list vessels that engaged in activities that 
undermine the effectiveness of conservation and management measures, 
such as:
     Fishing in an RFMO's management (or convention) areas 
without authorization,
     Failing to record or declare their catches, or making 
false reports,
     Using prohibited fishing gear in contravention of 
conservation measures, or
     Transshipping with, or participating in joint operations 
with, re-supplying, or re-fueling vessels included in IUU vessel lists.
    Each RFMO seeks information from member countries and other 
entities about vessels that violate any relevant conservation and 
management measures. In the case of ICCAT, CCAMLR, NAFO, and WCPFC, a 
flag state that has a vessel that allegedly engaged in IUU activity is 
provided notice about the submittal of information to the RFMO for 
consideration of its inclusion on the IUU vessel list. The Executive 
Secretary, Director, or other RFMO official uses all submitted 
information to compile a draft list of IUU vessels by a pre-determined 
time specific to their RFMO (except NAFO, which compiles a provisional 
list but not a draft list). The draft list and supporting information 
are then provided to all members of the RFMO and to the nation of the 
vessel presumed to have carried out the IUU activity. Using information 
sent in response to the draft list, a provisional list of IUU vessels 
is compiled and distributed to members along with supporting 
information prior to an RFMO's annual meeting. Decisions to adopt the 
provisional IUU list are determined during the annual meetings. 
Decisions on removal of vessels from the list adopted the prior year 
are also made at the annual meeting. However, in the case of ICCAT and 
WCPFC, vessels can also be removed outside of the annual meetings. 
Additionally, ICCAT and NAFO may add vessels outside of the annual 
meetings on the grounds that they have been listed by another RFMO. 
Adoption of IUU vessel lists is governed by procedural rules of each 
RFMO.
    Generally, an RFMO will remove vessels from its provisional or 
final IUU vessels lists if the vessels are determined not to have taken 
part in IUU fishing or if effective action has been taken in response 
to the IUU fishing in question, such as prosecution and imposition of 
sanctions of adequate severity. Other factors that could also lead to 
removal of a vessel from an RFMO's IUU vessel list include a change in 
vessel ownership where the new owner can establish that the previous 
owner no longer has any legal, financial, or real interests in the 
vessel or exercises control over it and the new owner has not 
participated in IUU fishing.
    Given that the RFMO annual meetings occur at different times of the 
year (generally IATTC and AIDCP in June, NAFO in September, CCAMLR at 
the end of October and early November, ICCAT in November, and WPCFC in 
December) the composition of the lists changes throughout the year. The 
websites of each RFMO should be

[[Page 1330]]

monitored for the latest IUU vessel lists. Internet links to the RFMO 
vessel lists are provided below in the RFMO IUU Vessel Lists section.

Coordination With Other Federal Agencies

    NMFS is coordinating with the U.S. Coast Guard (USCG) to ensure 
these regulations are compatible with Coast Guard operations. Coast 
Guard regulations require foreign vessels to give notice prior to 
entering a U.S. port or place of destination (defined in 33 CFR 160.204 
as any port or place in which a vessel is bound to anchor or moor). 
Generally, all foreign vessels greater than 300 gross tons must provide 
notice of their arrival at least 96 hours in advance, in accordance 
with 33 CFR 160.212(a)(3). The vessels are required to report 
electronically the vessel name, voyage, cargo, crewmembers, and other 
information to the Coast Guard's National Vessel Movement Center (NVMC) 
at least 96 hours before entering the port or place of destination. The 
Coast Guard is in the process of modifying the regulation to eliminate 
the exception for foreign vessels less than 300 gross tons (73 FR 
76295, December 16, 2008).
    When the NVMC receives a notice of arrival, NVMC staff examines the 
information and then transmits the relevant information to Customs and 
Border Protection and to the Coast Guard Captain of the Port. NMFS will 
provide the IUU vessel lists and any changes made thereto, along with 
other relevant information, to the Coast Guard for inclusion in their 
maritime domain monitoring system. For any vessels on RFMO IUU vessel 
lists, the Coast Guard would notify NMFS and the Department of State of 
the impending arrival. Such notification would trigger interagency 
consultations, among, at a minimum, the Department of State, Coast 
Guard, and NMFS to determine the most appropriate course of action in 
light of RFMO requirements.
    Due to interjurisdictional issues related to the proposed rule, 
NMFS is also coordinating with the Department of State, Customs and 
Border Protection, the Office of the U.S. Trade Representative and 
other relevant agencies and offices on this rulemaking.

RFMO IUU Vessel Lists

    NMFS maintains an internet website where internet links to relevant 
conservation measures and IUU vessel lists can be found http://www.nmfs.noaa.gov/ia. The following are the current Internet website 
links for RFMO IUU vessel list conservation measures and their vessel 
lists:
International Commission for the Conservation of Atlantic Tunas (ICCAT)
    Conservation Measure:  http://www.iccat.int/en/RecsRegs.asp (Select 
Key 07-09 and 06-12)
    IUU Vessel List:  http://www.iccat.int/en/IUU.asp
Commission for the Conservation of Antarctic Marine Living Resources 
(CCAMLR)
    Conservation Measures:http://www.ccamlr.org/pu/e/e_pubs/cm/06-07/10-06.pdf,
    http://www.ccamlr.org/pu/e/e_pubs/cm/06-07/10-07.pdf
    IUU Vessel List:  http://www.ccamlr.org/pu/E/sc/fish-monit/iuu-vess-list.htm
Northwest Atlantic Fisheries Organization (NAFO)
    Conservation Measure:  http://www.nafo.int/fisheries/frames/fishery-iuu.html
    IUU Vessel List:  http://www.nafo.int/fisheries/frames/fishery-iuu.html
Western and Central Pacific Fisheries Commission (WCPFC)
    Conservation Measure:  http://www.wcpfc.int/vessels#IUU
    IUU Vessel List: http://www.wcpfc.int/vessels#IUU
Inter-American Tropical Tuna Commission (IATTC)
    Conservation Measure: http://www.iattc.org/PDFFiles2/C-05-07-IUU-Vessel-list.pdf
    IUU Vessel List:  http://www.iattc.org/VesselRegister/IUU.aspx?Lang=en
Agreement on the International Dolphin Conservation Program
    Conservation Measure:  http://www.iattc.org/PDFFiles2/A-04-07%20IUU%20vessel%20list.pdf
    IUU Vessel List: No vessels listed.

Classification

    This proposed rule is published under the authority of the Atlantic 
Tunas Convention Act of 1975 (16 U.S.C. 971 et seq.), Antarctic Marine 
Living Resources Convention Act of 1984 (16 U.S.C. 2431 et seq.), 
Northwest Atlantic Fisheries Convention Act of 1995 (16 U.S.C. 5601 et 
seq.), Western and Central Pacific Fisheries Convention Implementation 
Act (16 U.S.C. 6901-6910), Tuna Conventions Act of 1950 (16 U.S.C. 951-
962), and the Marine Mammal Protection Act (11 Stat. 1122; 16 U.S.C. 
1361 et seq.). The NMFS Assistant Administrator has determined that 
this proposed action is consistent with the provisions of these and 
other applicable laws, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
the purposes of Executive Order 12866.
    An initial regulatory flexibility analysis (IRFA) was prepared, as 
required by section 603 of the Regulatory Flexibility Act (RFA). The 
IRFA describes the economic impact this proposed rule, if adopted, 
would have on small entities of the United States. The following 
elements should be included in an IRFA: a description of the action, 
why it is being considered, the legal basis for the action, description 
and where feasible an estimate of the number of small entities to which 
the action applies, description of the projected reporting, record-
keeping and other compliance requirements, and an identification of all 
relevant Federal rules which may duplicate, overlap, or conflict with 
the proposed rule. The action, why it is being considered, and its 
legal basis are described in detail earlier in the preamble. There are 
no new reporting or recordkeeping requirements contained in this 
action. This proposed rule has also been determined not to duplicate, 
overlap, or conflict with any other Federal rules. The remaining IRFA 
elements are described below.
    The proposed rule allows the NMFS Assistant Administrator to deny a 
listed IUU vessel entry into a port or place of the United States, in 
accordance with applicable provisions of RFMO conservation and 
management measures. The proposed rule also allows the Assistant 
Administrator, in accordance with applicable provisions of RFMO 
conservation and management measures, to prohibit certain transactions, 
such as transshipping with, processing fish using, or supplying 
provisions or fuel to IUU vessels. The following is the analysis of the 
economic impacts on small entities.
    The proposed rule would apply to U.S. entities that engage in or 
could engage in commercial transactions with vessels that are on the 
final IUU vessel lists adopted or approved by ICCAT, CCAMLR, NAFO, 
WCPFC, IATTC, and AIDCP. Such transactions include: (1) engaging in 
transshipment with a listed IUU vessel, (2) processing fish harvested 
or landed by a listed IUU vessel or processing fish using a listed IUU 
vessel, (3) participating in joint fishing operations with a listed IUU 
vessel, (4) providing supplies, fuel, crew, or otherwise support a 
listed IUU vessel, or (5) chartering or entering into a chartering 
arrangement with a listed IUU vessel.
    If this proposed rule goes into effect, U.S. entities (i.e., 
persons, businesses) would not be able to legally conduct business with 
vessels that are on the IUU vessel lists of RFMOs to which the U.S. is 
a party, subject to certain exceptions. The potential for transactions 
between these entities and

[[Page 1331]]

listed IUU vessels is limited, however, due to the small number of 
attempts made by listed IUU vessels to enter U.S. ports.
    In the aggregate, approximately 90 vessels are listed as IUU 
vessels by IATTC, ICCAT, CCAMLR, NAFO, and WCPFC. To date, none of 
these vessels are flagged to the United States. According to 
information recently compiled by Pew Environment Group, about 87 
percent of all the vessels listed by the six RFMOs to which the United 
States is a party are harvesting vessels (http://www.portstateperformance.org). As foreign harvesting vessels are 
generally prohibited from unloading fish in the United States by the 
Nicholson Act, most listed IUU vessels would not likely arrive in U.S. 
ports. As a result, U.S. entities would not normally conduct business 
with these vessels.
    Coast Guard data show that only two listed IUU vessels have ever 
come into U.S. ports. The lack of port visits by listed IUU vessels, or 
foreign fishing vessels generally, indicates an extremely low 
likelihood of transactions between U.S. entities and listed IUU 
vessels. Coast Guard holds records of notices of arrivals and 
departures from commercial vessels. The records are for vessels 
measuring 300 gross tons or greater, except for the foreign vessels 
that entered any port or place in the Seventh Coast Guard District 
(includes South Carolina, most of Georgia and Florida, Puerto Rico, and 
U.S. Virgin Islands) where all vessels, irrespective of their capacity, 
must provide such notices. The requirements for notices of arrival are 
under 33 CFR part 160 subpart C. The non-harvesting vessels that are on 
the IUU vessel lists are over 300 gross tons, in which case, most 
arrivals by these vessels would be contained in the Coast Guard 
database. That database shows that two listed IUU vessels arrived in 
U.S. ports in 2007. This was a negligible portion of the total 135,499 
arrival notices submitted to the Coast Guard by 12,148 commercial 
vessels that same year.
    With regard to the possible economic effects of this action, NMFS 
anticipates that U.S. entities would not be significantly affected by 
this action because they should be able to offset lost business 
opportunities by conducting business with non-listed vessels. Thus, 
small entities would not be significantly affected by the prohibitions 
in the proposed rule.
    A no-action alternative, where NMFS would not promulgate the 
proposed rule, was analyzed. This alternative to the proposed rule may 
demonstrate the least burden or economic impact to small entities. 
However, the financial risks associated with business transactions with 
listed IUU vessels likely have already caused U.S. entities to avoid 
such business transactions. The RFMOs adopted their IUU vessel list 
measures several years a go, and NMFS has advised U.S. entities of the 
potential ramifications of conducting business with a listed IUU vessel 
as the United States and other countries are obligated to carry out 
RFMO IUU vessel measures, such as port entry restrictions. Even under 
the no-action alternative, listed IUU vessels that transport fish 
product from the United States may not be able to deliver that product 
to any country that has implemented the relevant RFMO conservation and 
management measures.
    NMFS does not expect a substantial number of small entities to be 
affected by the proposed rule because arrival attempts by listed IUU 
vessels into the ports or places of the United States are so few in 
number. Thus, only a handful of potential transactions would likely be 
affected as a result of this proposed rulemaking. For any entities that 
could be affected, NMFS expects that the proposed rule would not have a 
significant economic impact because the number of legal vessels 
entering the United States would far exceed the number of listed IUU 
vessels that could attempt to enter the United States.

List of Subjects in 50 CFR Part 300

    Fisheries, Fishing, Fishing vessels, Illegal, unreported or 
unregulated fishing, Foreign relations, Treaties.

    Dated: January 4, 2010.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 300 is 
proposed to be amended as follows:

PART 300-INTERNATIONAL FISHERIES REGULATIONS

    1. Subpart P is added to part 300 to read as follows:

Subpart P--Vessels on IUU Vessel Lists

Sec.
300.300 Purpose and Scope.
300.301 Definitions.
300.302 Port entry by foreign, listed IUU vessels.
300.303 Port access by foreign, listed IUU vessels.
300.304 Prohibitions.
 Subpart P-Vessels on IUU Vessel Lists

    Authority:  16 U.S.C. 971 et seq.; 16 U.S.C. 2431 et seq.; 16 
U.S.C. 5601 et seq.; 16 U.S.C. 6901-6910; 16 U.S.C. 951-962; and 11 
Stat. 1122; 16 U.S.C. 1361 et seq.


Sec.  300.300  Purpose and scope.

    (a) This subpart implements internationally-agreed measures 
pertaining to foreign vessels determined to have engaged in illegal, 
unregulated, and unreported (IUU) fishing and placed on IUU vessel 
lists of the:
    (1) International Commission for the Conservation of Atlantic Tunas 
(ICCAT),
    (2) Commission for the Conservation of Antarctic Marine Living 
Resources (CCAMLR)
    (3) Northwest Atlantic Fisheries Organization (NAFO),
    (4) Western and Central Pacific Fisheries Commission (WCPFC),
    (5) Inter-American Tropical Tuna Commission (IATTC), and
    (6) Parties to the Agreement on the International Dolphin 
Conservation Program (AIDCP).
    (b) For purposes of this subpart, the above organizations are 
referred to as regional fishery management organizations (RFMOs). Each 
of these RFMOs adopts or approves an IUU vessel list in accordance with 
their respective rules and procedures. The lists are publicly available 
at each RFMO's website. The regulations in this subpart apply to all 
persons subject to the jurisdiction of the United States wherever they 
are.


Sec.  300.301  Definitions.

    In addition to the terms defined in Sec.  300.2, the terms used in 
this subpart have the following meanings.
    Landing means to begin to offload fish, or to offload fish from any 
vessel.
    Listed IUU Vessel means a vessel that is included on a final IUU 
vessel list adopted or approved by an RFMO to which the United States 
is a party.
    Processing means the preparation or packaging of fish to render it 
suitable for human consumption, retail sale, industrial uses or long-
term storage, including, but not limited to, cooking, canning, smoking, 
salting, drying, filleting, freezing, or rendering into meal or oil.
    Transshipping means the offloading, unloading, or transferring of 
fish or fish products from one vessel to another.


Sec.  300.302  Port entry by foreign, listed IUU vessels.

    The Assistant Administrator may, in accordance with applicable 
provisions of RFMO conservation and management measures, deny a 
foreign, listed IUU vessel entry to any port or place subject to the 
jurisdiction of the United States, except in cases of force majeure.

[[Page 1332]]

Sec.  300.303  Port access by foreign, listed IUU vessels.

    If a foreign, listed IUU vessel is allowed to enter a port or place 
subject to the jurisdiction of the United States, the Assistant 
Administrator may, in accordance with applicable provisions of RFMO 
conservation and management measures, take one or more of the following 
actions:
    (a) Inspect the vessel;
    (b) Deny the vessel access to port services, including but not 
limited to refueling, resupplying, or disembarking or embarking of 
crew; or
    (c) Prohibit the vessel from engaging in commercial transactions 
including, but not limited to, transshipping or landing product.


Sec.  300.304  Prohibitions.

    (a) It is unlawful for a foreign, listed IUU vessel denied entry 
under Sec.  300.302 to enter any port or place subject to the 
jurisdiction of the United States.
    (b) It is unlawful for any foreign, listed IUU vessel to obtain 
port services or engage in commercial transactions, or attempt to 
obtain such services or engage in such transactions, if such activities 
have been denied or prohibited under Sec.  300.303(b) and/or Sec.  
300.303(c) or if the vessel has been denied entry under Sec.  300.302.
    (c) It is unlawful for any person, without prior authorization from 
the Assistant Administrator, to engage in commercial transactions with 
listed IUU vessels. Such transactions include, but are not limited to:
    (1) Transshipment;
    (2) Processing fish harvested or landed by a listed IUU vessel or 
processing fish using a listed IUU vessel;
    (3) Joint fishing operations;
    (4) Providing supplies, fuel, crew, or otherwise supporting a 
listed IUU vessel; or
    (5) Chartering or entering in a chartering arrangement with a 
listed IUU vessel.
    (d) The prohibitions listed in Sec.  300.304(c) shall not apply 
when the Assistant Administrator has authorized a listed IUU vessel to 
access such port services or engage in such commercial transactions, in 
accordance with applicable provisions of RFMO conservation and 
management measures, including in cases of force majeure and where the 
Assistant Administrator has determined that such services are essential 
to the safety, health, and welfare of the crew.
[FR Doc. 2010-144 Filed 1-8-10; 8:45 am]
BILLING CODE 3510-22-S