[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