[Federal Register Volume 76, Number 8 (Wednesday, January 12, 2011)]
[Rules and Regulations]
[Pages 2011-2027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-507]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 070514119-0452-03]
RIN 0648-AV51
High Seas Driftnet Fishing Moratorium Protection Act;
Identification and Certification Procedures To Address Illegal,
Unreported, and Unregulated Fishing Activities and Bycatch of Protected
Living Marine Resources
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final action implements identification and certification
procedures to address illegal, unreported, and unregulated (IUU)
fishing activities and bycatch of protected living marine resources
(PLMRs) pursuant to the High Seas Driftnet Fishing Moratorium
Protection Act (Moratorium Protection Act). The objectives of these
procedures are to promote the sustainability of transboundary and
shared fishery stocks and to enhance the conservation and recovery of
PLMRs. The final rule is intended to implement existing U.S. statutory
authorities to address noncompliance with international fisheries
management and conservation agreements, and encourage the use of
bycatch reduction methods in international fisheries that are
comparable to methods used in U.S. fisheries. Agency actions and
recommendations under this rule will be in accordance with U.S.
obligations under applicable international trade law, including the
World Trade Organization (WTO) Agreement.
DATES: This final rule is effective on January 12, 2011, except for
Sec. Sec. 302.205(b)(2), 300.206, and 300.207, which contain
information collection requirements that have not yet been approved by
the Office of Management and Budget (OMB) under the Paperwork Reduction
Act (PRA). A document will be published in the Federal Register
announcing the effective dates of these provisions after OMB provides
its approval.
FOR FURTHER INFORMATION CONTACT: Laura Cimo, Trade and Marine
Stewardship Division, Office of International Affairs, NMFS, at (301)
713-9090.
SUPPLEMENTARY INFORMATION:
Background
The Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006 (MSRA), which was signed into law in
January 2007, amends the Moratorium Protection Act to require that
actions be taken by the United States to strengthen international
fishery management organizations and address IUU fishing and bycatch of
PLMRs. IUU fishing has been defined in the Moratorium Protection Act
and implemented through regulation at 50 CFR 300.201 as follows:
1. Fishing activities that violate conservation and management
measures required under an international fishery management agreement
to which the United States is a party, including catch limits or
quotas, capacity restrictions, and bycatch reduction requirements;
2. Overfishing of fish stocks shared by the United States, for
which there are no applicable international conservation or management
measures or in areas with no applicable international fishery
management organization or agreement, that has adverse impacts on such
stocks; and
3. Fishing activity that has an adverse impact on seamounts,
hydrothermal vents, and cold water corals located beyond national
jurisdiction, for which there are no applicable conservation or
management measures or in areas with no applicable international
fishery management organization or agreement.
This final action amends the regulatory definition at Sec. 300.201 to
make the definition more consistent with the United Nations General
Assembly Resolution 65-105.
The Moratorium Protection Act requires the Secretary of Commerce to
identify in a biennial report to Congress those foreign nations whose
fishing vessels are engaged in IUU fishing or fishing activities or
practices that result in bycatch of PLMRs. The Moratorium Protection
Act also requires the establishment of procedures to certify whether
appropriate corrective actions have been taken to address IUU fishing
or bycatch of PLMRs by fishing vessels of those nations. Identified
nations that are not positively certified by the Secretary of Commerce
could be subject to prohibitions on the importation of certain
fisheries products into the United States and other measures, including
limitations on port access, under the High Seas Driftnet Fisheries
Enforcement Act (Enforcement Act) (16 U.S.C. 1826a). This final rule
sets forth procedures to implement the identification and certification
requirements of the Moratorium Protection Act.
NMFS published an Advance Notice of Proposed Rulemaking (ANPR) on
June 11, 2007 (72 FR 32052), to announce that it was developing
certification procedures to address IUU fishing and bycatch of PLMRs
pursuant to the Moratorium Protection Act and, based upon comments
received, a proposed rule was published on January 14, 2009 (74 FR
2019). Public comments were solicited on the proposed rule for a period
of 120 days. In conjunction with publication of the proposed rule, NMFS
held public hearings in 2009 in locations where it expected substantial
public interest in the proposed procedures. These sessions were held in
Boston, MA (March 16, 2009); Silver Spring, MD (April 6, 2009); San
Diego, CA (April 13, 2009); Seattle, WA (April 14, 2009); Honolulu, HI
(April 27, 2009);
[[Page 2012]]
and Miami, FL (May 12, 2009). The public hearings provided valuable
opportunities for NMFS to explain the proposed rule, respond to
questions, and receive feedback from the public. A summary of the
comments received on the proposed rule and how these comments were
addressed in the final rule can be found below. Further background is
provided in the above-referenced Federal Register documents and is not
repeated here.
NMFS prepared a final Environmental Assessment (EA) to accompany
this final rule. The EA was developed as an integrated document that
includes a Regulatory Impact Review (RIR) and a Final Regulatory
Flexibility Analysis (FRFA). Copies of the draft EA/RIR/FRFA analysis
are available at the following address: Office of International
Affairs, F/IA, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910. Copies are also available via the
Internet at the NMFS Web site at http://www.nmfs.noaa.gov/msa2007/.
Major Aspects of the Final Action
This final action sets forth procedures for both the identification
and certification of foreign nations whose fishing vessels are engaged
in IUU fishing or bycatch of PLMRs. As discussed above, the Moratorium
Protection Act requires that NMFS identify foreign nations whose
fishing vessels are engaged in IUU fishing or bycatch of PLMRs and list
these nations in a biennial report to Congress, the first of which was
due in January 2009. The Act does not require publication of
identification procedures in a rule, but in the interest of
transparency and to provide context for subsequent certification
determinations, NMFS decided to address identification in this action.
NMFS made its first identifications in the January 2009 Biennial Report
to Congress based on authority provided in the Moratorium Protection
Act only, as these regulations were not yet in place.
Procedures To Identify Nations Engaged in IUU Fishing
As required under the Moratorium Protection Act, NMFS will
identify, and list in the biennial report to Congress, that those
nations whose fishing vessels are engaged, or have been engaged at any
point during the preceding 2 years, in IUU fishing.
When determining whether to identify a nation as having fishing
vessels engaged in IUU fishing, NMFS will exercise due diligence in
evaluating appropriate information and evidence available to the
agency. This information could include data, gathered by the U.S.
Government as well as offered by other nations, international
organizations (such as regional fisheries management organizations
(RFMOs)), institutions, or arrangements that, if true, could support a
determination that a nation's vessels have been engaged in IUU fishing.
NMFS will review and verify the pertinent information when determining,
for the purposes of identification, whether a nation's fishing vessels
are engaged, or have been engaged, during the preceding 2 years in IUU
fishing as defined under the Moratorium Protection Act.
Once NMFS has determined that the information received is credible
and provides a reasonable basis to believe or suspect that a nation's
fishing vessels are engaged in IUU fishing, NMFS, acting through or in
consultation with the State Department, will initiate bilateral
discussions with the nation to:
Seek corroboration of the alleged IUU activity or credible
information that refutes such allegations;
Communicate the requirements of the Moratorium Protection
Act to the nation; and
Encourage such nation to take action to address the
alleged IUU fishing activity in question.
Prior to making identifications, NMFS will consider measures taken
by the nation to address the IUU fishing activity of its vessels,
information refuting allegations of IUU fishing activity, and domestic
laws or regulatory programs designed to address IUU fishing activity,
along with all verified information on alleged IUU fishing activity.
In determining whether to make an IUU fishing identification, NMFS
will consider whether a nation has implemented and is enforcing
measures that are deemed comparable in effectiveness to measures
implemented by the United States to address the pertinent IUU fishing
activity. NMFS will also consider if an international fishery
management organization exists with a mandate to regulate the fishery
in which the IUU activity in question takes place, whether or not the
nation is party to or maintains cooperating status with the
organization, and whether or not the relevant RFMO has adopted measures
that are deemed by NMFS to be effective at addressing such IUU fishing
activity. If the nation is a party or cooperating non-party to the
relevant RFMO, NMFS will consider whether the nation has implemented
and is enforcing measures of that organization.
Measures by nations to address IUU fishing could include those that
reflect the recommendations of international organizations to prevent,
deter and eliminate IUU fishing. Such flag State measures and actions,
as relevant, may include, but are not limited to, those that fall into
the following categories:
Data collection and catch reporting programs, including
observer programs, catch documentation programs, and trade tracking
schemes;
Trade-related measures that seek to reduce or eliminate
trade in fish, and fish products derived from IUU fishing;
At-sea or dockside boarding and inspection schemes;
Programs documenting whether fish were caught in a manner
consistent with conservation and management measures;
IUU vessel lists identifying fishing vessels that violate
and/or undermine conservation and management measures;
Port State measures to prohibit landings or transshipment
of unauthorized or other IUU catch;
Catch and effort monitoring, including licensing and
permitting schemes, reporting, and vessel monitoring systems (VMS);
Bycatch reduction and mitigation strategies and
techniques, such as gear restrictions or requirements, if the IUU
fishing activity includes a violation of bycatch reduction or
mitigation conservation and management measures;
Programs or measures to identify and protect vulnerable
marine ecosystems (VMEs) in waters beyond any national jurisdiction
(including seamounts, hydrothermal vents, and cold water corals) from
significant adverse impacts due to bottom fishing activities;
Efforts to improve and enhance fisheries enforcement and
compliance, including through the development of effective sanctions
and monitoring, control and surveillance (MCS) capacity; and
Participation in voluntary international efforts to combat
IUU fishing (e.g., the International Monitoring, Control, and
Surveillance (MCS) Network or other cooperative enforcement and
compliance networks).
NMFS will also examine whether adequate enforcement measures and
capacity exist to help promote compliance.
Notification of and Consultations With Nations Identified as Having
Fishing Vessels Engaged in IUU Fishing
Upon identifying a nation whose vessels have been engaged in IUU
fishing activities in the biennial report to Congress, the Secretary of
Commerce
[[Page 2013]]
will notify the President of such identification. Within 60 days after
submission of the biennial report to Congress, the Secretary of
Commerce, acting through or in consultation with the Secretary of
State, will notify:
1. Nations that have been identified in the biennial report as
having fishing vessels that are currently engaged, or were engaged at
any point during the preceding 2 calendar years, in IUU fishing
activities;
2. Identified nations of the requirements under the Moratorium
Protection Act and this subpart; and
3. Any relevant international fishery management organization of
actions taken by the United States to identify nations whose fishing
vessels are engaged in IUU fishing.
Within 60 days after submission of the biennial report to Congress,
the Secretary of Commerce, acting through or in consultation with the
Secretary of State, will initiate consultations with nations that have
been identified in the biennial report as having fishing vessels that
are currently engaged, or were engaged at any point during the
preceding 2 calendar years, in IUU fishing activities for the purpose
of encouraging such nations to take appropriate corrective action with
respect to the IUU fishing activities described in the biennial report.
Procedures To Certify Nations Identified as Having Fishing Vessels
Engaged in IUU Fishing
Subsequent to the identification, notification, and consultation
processes outlined above, the Secretary will provide either a positive
or negative certification to nations that have been identified in the
biennial report as having fishing vessels engaged in IUU fishing. The
Secretary of Commerce shall issue a positive certification to an
identified nation upon making a determination that such nation has
taken appropriate corrective action to address the activities for which
such nation has been identified in the biennial report to Congress.
When making such determination, the Secretary shall take into account
whether a nation has provided documentary evidence that it has taken
appropriate corrective action to address the IUU fishing activity
described in the biennial report, or the relevant international fishery
management organization has implemented measures that are effective in
addressing the IUU fishing activity by vessels of the nation. NMFS will
notify nations prior to a formal certification determination, and will
provide such nations an opportunity to support and/or refute
preliminary certification determinations, and communicate any
corrective actions taken to address the IUU fishing activity described
in the biennial report to Congress.
Corrective actions that NMFS will consider include, but are not
limited to, a nation's:
Efforts towards improving data collection, catch
monitoring, and reporting programs;
Record of implementation of or compliance with
international measures to address IUU fishing;
Participation in technical assistance and capacity
building programs to address IUU fishing and enhance regulatory
efforts, as well as enforcement;
Adequacy of surveillance, enforcement, and prosecution to
promote compliance with conservation and management measures and
respond to non-compliance;
Response to IUU fishing activity;
Participation in voluntary international efforts to combat
IUU fishing (e.g., the International Monitoring, Control, and
Surveillance (MCS) network or other cooperative enforcement and
compliance networks); and
Cooperation with other governments in enforcement,
apprehension, and prosecution efforts related to those vessels of the
identified nation that have engaged in IUU fishing.
To determine whether a positive certification is warranted, NMFS
will consider the extent to which the IUU fishing activities described
in the biennial report have been effectively addressed, the likely
effectiveness of the nation's actions to deter future IUU activity, and
whether measures that are comparable in effectiveness to measures
implemented by the United States have been implemented and are being
effectively enforced. Such flag State measures may include, but are not
limited to:
Catch and effort monitoring, including licensing and
permitting schemes, reporting, and vessel monitoring systems (VMS);
Programs for data collection and sharing, including
observer programs;
Catch documentation and trade tracking schemes that
identify the origin and document the legality of fish from the point of
harvest through the point of market/import;
Trade-related measures, such as import and export controls
or prohibitions, to reduce or eliminate trade in fish and fish products
derived from IUU fishing;
Programs that document fish were caught in a manner
consistent with, or that does not undermine, conservation and
management measures;
Port State control measures;
At-sea and dockside inspection schemes;
Bycatch reduction and mitigation strategies and
techniques, such as gear restrictions or requirements, if the IUU
fishing activity includes a violation of bycatch reduction and
mitigation requirements of an international agreement to which the
United States is a party;
Systems to improve monitoring, control, and surveillance
of fishing activities;
Sufficient sanctions and legal frameworks to support
effective enforcement; and
Measures to protect VMEs from significant adverse impacts
from bottom fishing activities in waters beyond any national
jurisdiction.
The Secretary of Commerce will make certification determinations
pursuant to provisions of the Moratorium Protection Act in accordance
with international law, including the WTO Agreement, regarding adoption
of trade measures in a fair, transparent, and non-discriminatory
manner. When considering whether appropriate corrective action has been
taken to warrant a positive certification, NMFS will take into account
the outcome of consultations with the identified nation and comments
received from such nation. NMFS will also evaluate actions taken by the
relevant nation and applicable RFMO to address the IUU fishing activity
described in the biennial report, including participation in applicable
RFMOs and requests for assistance in building fisheries management and
enforcement capacity. NMFS will also consider, as appropriate, whether
the affected nation has implemented and is enforcing RFMO conservation
and management measures designed to address IUU fishing activities.
The Secretary of Commerce will make the first certification
determinations no later than 90 days after promulgation of this rule.
Subsequent certification determinations will be published in the
biennial report. Identified nations will receive notice of
certification determinations.
Once certification determinations are published in the biennial
report, NMFS will, working through or in consultation with the
Department of State, continue consultations with negatively certified
nations and provide them an opportunity to take corrective action with
respect to the IUU fishing activities described in the biennial report
to Congress.
[[Page 2014]]
Procedures To Identify Nations Engaged in PLMR Bycatch
As required under the Moratorium Protection Act, NMFS will also
identify, and list in the biennial report to Congress, nations whose
fishing vessels are engaged, or have been engaged during the preceding
calendar year in fishing activities either in waters beyond any
national jurisdiction that result in PLMR bycatch, or beyond the U.S.
exclusive economic zone (EEZ) that result in bycatch of a PLMR shared
by the United States.
When determining whether to identify a nation as having fishing
vessels engaged in the bycatch of PLMRs, NMFS will evaluate, review,
and verify appropriate information and evidence that are available to
the agency. During this review, NMFS will take into account the extent
of the PLMR bycatch and the impact of bycatch on sustainability of the
PLMR. NMFS will also consider any actions taken by the nation to
address the bycatch, information refuting the allegations of PLMR
bycatch, and participation in cooperative research activities designed
to address such bycatch. In addition, NMFS will consider whether
adequate enforcement authority and capacity exist to promote
compliance.
NMFS will also examine if an international organization for the
conservation and protection of such PLMR, or an international or
regional fishery management organization with a mandate to regulate the
fishery in which the bycatch activity in question occurred, exists; and
whether the nation whose fishing vessels are engaged, or have been
engaged during the preceding calendar year, in bycatch of PLMRs is
party to or maintains cooperating status with the relevant
international body. NMFS will examine whether the relevant
international body has adopted measures that have been demonstrated to
end or reduce bycatch of PLMRs; whether the nation is a party or
cooperating non-party to the organization; and whether the nation has
implemented, and is enforcing, such measures. If an identified nation
is not party to the relevant international or regional body, NMFS will
examine whether the nation has implemented measures deemed to be
effective at addressing the bycatch of such PLMRs, including any
measures that have been recommended by a relevant international body.
Such measures, where appropriate, may include, but are not limited to:
Programs for data collection and sharing, including
programs to assess the abundance and status of PLMRs and observer
programs;
Bycatch reduction and mitigation strategies, techniques,
and equipment, such as gear restrictions and gear modifications; and
Improved monitoring, control, and surveillance of fishing
activities.
Once NMFS has determined that information on PLMR bycatch is
credible and provides a reasonable basis to believe or suspect that a
nation's fishing vessels are engaged in bycatch of PLMRs, NMFS, acting
through or in consultation with the State Department, will initiate
bilateral discussions with the identified nation. These discussions
will, among other things:
Seek to corroborate the alleged PLMR bycatch or credible
information that refutes such allegations;
Communicate the requirements of the Moratorium Protection
Act to the nation; and
Encourage such nation to take action to address the
alleged PLMR bycatch.
Pursuant to the requirements under the Moratorium Protection Act,
NMFS will publish a list of nations that have been identified as having
fishing vessels engaged in bycatch of PLMRs in the biennial report to
Congress.
Notification and Consultation With Nations Identified as Having Fishing
Vessels Engaged in Bycatch of PLMRs
After submission of the biennial report to Congress, the Secretary
of Commerce, acting through the Secretary of State, will officially
notify nations that have been identified in the biennial report as
having fishing vessels that are engaged in bycatch of PLMRs. Within 60
days after submission of the biennial report to Congress, NMFS, acting
through or in consultation with the State Department, will notify such
nations of the requirements of the Moratorium Protection Act and
initiate consultations regarding the bycatch of PLMRs.
Upon submission of the biennial report to Congress, the Secretary
of Commerce, acting through or in consultation with the Secretary of
State, will:
1. Initiate consultations with the governments of identified
nations for the purposes of entering into bilateral and multilateral
agreements and treaties with such nations to protect the PLMRs from
bycatch activities described in the biennial report; and
2. Seek agreements through the appropriate international
organizations calling for international restrictions on the fishing
activities or practices described in the biennial report that result in
bycatch of PLMRs and, as necessary, request that the Secretary of State
initiate the amendment of any existing international treaty to which
the United States is a party for the protection and conservation of the
PLMRs in question to make such agreements consistent with this subpart.
International Cooperation and Assistance
To the greatest extent possible consistent with existing authority
and the availability of funds, NMFS shall provide assistance to nations
identified as having vessels engaged in PLMR bycatch. NMFS will also
provide assistance to international organizations of which those
nations are members to assist with qualifying for a positive
certification. Assistance activities may include, where appropriate,
cooperative research activities on species assessments and improved
bycatch mitigation techniques, improved governance structures, or
improved enforcement capacity. NMFS will also encourage and facilitate
the transfer of appropriate technology to identified nations or the
organizations of which they are members to assist identified nations in
qualifying for a positive certification and to assist those identified
nations or organizations in designing and implementing appropriate fish
harvesting methods that minimize bycatch of PLMRs.
Procedures To Certify Nations Identified as Having Fishing Vessels
Engaged in Bycatch of PLMRs
Based on the identification, notification, and consultation
processes outlined above, NMFS will certify nations that have been
identified in the biennial report as having fishing vessels engaged in
bycatch of PLMRs. NMFS will notify nations prior to a formal
certification determination and will provide such nations an
opportunity to support and/or refute preliminary certification
determinations, and communicate any corrective actions taken to address
the bycatch of PLMRs described in the biennial report to Congress.
Identified nations will receive either a positive or negative
certification from the Secretary of Commerce. A positive certification
indicates that a nation has:
1. Provided documentary evidence of the adoption of a regulatory
program governing the conservation of the PLMR that is comparable to
that of the United States, taking into account different conditions,
and which, in the case of pelagic longline fishing, includes mandatory
use of circle hooks, careful
[[Page 2015]]
handling and release equipment, and training and observer programs; and
2. Established a management plan containing requirements that will
assist in gathering species-specific data to support international
stock assessments and conservation enforcement efforts for PLMRs. Stock
assessments include population assessments.
When determining whether a nation's regulatory program is
comparable to measures required in the United States, NMFS will
consider whether the program is comparable in effectiveness, taking
into account different conditions that could bear on the feasibility
and efficacy of comparable measures. If other measures could address
bycatch of the PLMRs in question that are comparable in effectiveness,
then the implementation of such measures by a nation may be deemed
sufficient for purposes of the Moratorium Protection Act. As relevant,
NMFS will also consider whether measures have been implemented and
effectively enforced including, but not limited to:
Programs for data collection and sharing, including
programs to assess the abundance and status of PLMRs and observer
programs;
Bycatch reduction and mitigation strategies, techniques,
and equipment (including training and assistance for bycatch reduction
technology and equipment);
Improved monitoring, control, and surveillance of fishing
activities;
Efforts towards improving data collection, bycatch
monitoring, and reporting programs;
Record of implementation of or compliance with
international measures to address bycatch of PLMRs;
Participation in technical assistance and capacity
building programs to reduce bycatch;
Surveillance, enforcement, and prosecution program and
their adequacy for promoting compliance with conservation and
management measures and responding to non-compliance;
Response to PLMR bycatch; and
Cooperation with other governments in enforcement,
apprehension, and prosecution efforts related to those vessels of the
identified nation that have engaged in PLMR bycatch.
The Secretary of Commerce will make certification determinations
pursuant to provisions of the Moratorium Protection Act in accordance
with international law, including the WTO Agreement, regarding adoption
of trade measures in a fair, transparent, and non-discriminatory
manner. When making certification determinations, the Secretary of
Commerce will, in consultation with the Secretary of State, evaluate
the information discussed above, comments received from such nation,
the consultations with each identified nation, and subsequent actions
taken by the relevant nation to address the bycatch of PLMRs described
in the biennial report, including requests for assistance in the
implementation of measures comparable to those of the United States and
establishment of an appropriate management plan. The Secretary of
Commerce will also take into account whether the nation participates in
existing certification programs, such as that authorized under section
609 of Public Law 101-162, or the affirmative finding process under the
International Dolphin Conservation Program Act (111 Stat. 1122).
Nothing in this rulemaking will modify such existing certification
procedures.
The Secretary of Commerce will publish certification determinations
in the biennial report to the Congress. Identified nations will receive
notice of certification determinations.
Once certification determinations are published in the biennial
report, NMFS will, working through or in consultation with the
Department of State, continue consultations with the negatively-
certified nations and provide them an opportunity to take corrective
action with respect to the bycatch of PLMRs described in the biennial
report to Congress.
Effect of Certification Determinations
If nations identified as having fishing vessels engaged in IUU
fishing and/or bycatch of PLMRs receive a positive certification from
the Secretary of Commerce pursuant to the Moratorium Protection Act, no
actions will be taken against such nations.
If an identified nation fails to take sufficient action to address
IUU fishing and/or bycatch of PLMRs and does not receive a positive
certification from the Secretary of Commerce, the nation could face
denial of port privileges for its fishing vessels, prohibitions on the
import of certain fish and fish products into the United States, and
other appropriate measures. In determining the appropriate course of
action to recommend to the President, the Secretary of Commerce and
other Federal agencies, as appropriate, will take into account the
nature, circumstances, extent, duration, and gravity of the fishing
activity for which the initial identification was made; the degree of
culpability; any history of prior IUU fishing activities or bycatch of
PLMRs; and other relevant matters. The Secretary of Commerce, in
cooperation with the Secretary of State, may initiate further
consultations with identified nations that fail to receive a positive
certification prior to determining an appropriate course of action.
The Secretary of Commerce will recommend to the President
appropriate measures, including trade restrictive measures, to be taken
against identified nations that have not received a positive
certification, to address the relevant IUU fishing activity and/or
fishing activities or practices that result in PLMR bycatch for which
such nations were identified in the biennial report. The Secretary will
make such recommendations on a case by case basis in accordance with
international obligations, including the WTO Agreement. Adoption of
trade measures will be done in a fair, transparent, and non-
discriminatory manner. If certain fish or fish products of a nation are
subject to import prohibitions, to facilitate enforcement, NMFS may
require that other fish or fish products from that nation that are not
subject to the import prohibitions be accompanied by documentation of
admissibility to be developed by NMFS. If NMFS decides to require that
such fish or fish products be accompanied by documentation of
admissibility, it will develop this documentation through a future
rulemaking action and give the public an opportunity to review and
provide comment.
In implementing the certification procedures under the Moratorium
Protection Act, in order to inform U.S. ports that cargo originating
from a foreign port may be subject to import restrictions, NMFS intends
to collaborate with other Federal agencies and, as appropriate, take
advantage of existing prior notification procedures, such as those
required under section 343(a) of the Trade Act of 2002, or those
proposed for further development under the International Trade Data
System (ITDS) established under the Security and Accountability for
Every (SAFE) Port Act of 2006 (Pub. L. 109-347). NMFS also intends to
utilize existing documentation schemes developed by RFMOs, as
appropriate. These efforts will be undertaken to help mitigate the
effects of a negative certification determination on U.S. industry.
If certain fish or fish products are prohibited from entering the
United States, within six months after the imposition of the
prohibition, the Secretary of Commerce shall determine whether the
prohibition is insufficient to cause that nation to effectively address
the IUU fishing described in the biennial report, or that nation has
retaliated against the United States as a result of that prohibition.
The Secretary
[[Page 2016]]
of Commerce shall certify to the President each affirmative
determination that an import prohibition is insufficient to cause a
nation to effectively address such IUU fishing activity or that a
nation has taken retaliatory action against the United States. This
certification is deemed to be a certification under section 1978(a) of
Title 22, which provides that the President may direct the Secretary of
the Treasury to prohibit the bringing or the importation into the
United States of any products from the offending country for any
duration as the President determines appropriate and to the extent that
such prohibition is sanctioned by the WTO.
Alternative Procedures
Section 609(d)(2) of the Moratorium Protection Act authorizes the
Secretary of Commerce to establish alternative procedures for importing
fish or fish products from a vessel of a harvesting nation identified
under section 609(a) of the Act in the event that the Secretary cannot
reach a certification determination for such identified nation by the
time of the next biennial report. The alternative procedures shall not
apply to fish or fish products from identified nations that have
received either a negative or a positive certification under this Act.
Under these alternative procedures, the Secretary of Commerce may allow
entry of fish or fish products on a shipment-by-shipment, shipper-by-
shipper, or other basis as long as specified conditions are met.
For nations that have been identified as having fishing vessels
engaged in IUU fishing and have not received a certification from the
Secretary of Commerce, certain fish or fish products of that nation may
be eligible for alternative certification procedures. To qualify for
the alternative certification procedures, NMFS must determine, based on
the best available information, that the relevant vessel has not
engaged in IUU fishing, or been identified by an international fishery
management organization as participating in IUU fishing activities.
Section 610(c)(4) of the Moratorium Protection Act requires the
Secretary of Commerce to establish alternative procedures for importing
fish or fish products from a vessel of a harvesting nation identified
under section 610(a) of the Act in the event that the Secretary cannot
reach a certification determination for such identified nation by the
time of the next biennial report. The alternative procedures shall not
apply to fish or fish products from identified nations that have
received either a negative or a positive certification under this Act.
Under these alternative procedures, the Secretary of Commerce may allow
entry of fish or fish products on a shipment-by-shipment, shipper-by-
shipper, or other basis as long as specified conditions are met.
To qualify for the alternative certification procedures, NMFS must
determine that imports were harvested by practices that do not result
in bycatch of a protected living marine resource, or were harvested by
practices comparable to those required in the United States, taking
into account different conditions that affect the feasibility and
efficacy of such practices, and which, in the case of pelagic longline
fishing, includes mandatory use of circle hooks, careful handling and
release equipment, and training and observer programs. NMFS must also
determine that the vessel collects species-specific bycatch data that
can be used to support international and regional assessments and
efforts to conserve PLMRs. NMFS will make these determinations in
accordance with international law, including the WTO Agreement,
regarding adoption of trade measures in a fair, transparent, and non-
discriminatory manner.
In its implementation of alternative certification procedures, NMFS
will seek appropriate documentation to verify that imports were
harvested in a manner consistent with the requirements of this subpart,
such as chain-of-custody information, VMS reports, or other forms of
verification. To the extent practicable, NMFS will rely on existing
trade tracking programs to implement alternative procedures.
Responses to Comments on the Proposed Rule
NMFS received comments on the proposed rule, including comments
from U.S. industry, non-governmental organizations, Marine Mammal
Commission, private citizens, and other nations. Several comments
received were not germane to this rulemaking and are not addressed in
this section. These comments include potential legislative changes and
other actions outside the scope of the statutory mandate.
Several commenters provided broad suggestions that pertain to the
overall implementation of the rule. Specifically, many commenters
expressed their support for the certification process under the
Moratorium Protection Act and the application of trade measures,
including sanctions.
NMFS received numerous comments asking the agency to adopt the
strongest measures possible to address IUU fishing and the bycatch of
PLMRs, as mandated by Congress, in order conserve these resources and
level the playing field for U.S. fisherman. Several commenters
recommended that NMFS hold other nations to the same rigorous and
strict standards to which U.S. fishermen are subject, especially for
Atlantic bluefin tuna fishing, and expressed dissatisfaction that NMFS
is not aggressively utilizing trade sanctions as a tool to combat IUU
fishing of shared highly migratory fish stocks.
A comment was made that the threat of trade sanctions is often more
effective than the actual imposition and that sanctions should only be
used as a last resort if at all.
In the following section, NMFS addresses the issues that directly
relate to the measures in the rulemaking.
General Comments
Comment 1: One commenter recommended that NMFS coordinate the
proposed rule with the European Union's approach in order to have a
unified global process to address IUU fishing.
Response: NMFS is obligated to adhere to the Moratorium Protection
Act that sets forth identification, consultation, and certification
procedures to address IUU fishing and the bycatch of PLMRs. These
procedures differ from the regulatory process of the European Union
(EU) to address IUU fishing. EU Council Regulation 1005/2008, which was
passed in the fall of 2008, requires, among other things, that most
exports of seafood to the European market be accompanied by a catch
document signed by a flag-state competent authority that the product
was caught legally. NMFS is committed to working with our partners in
the European Union in order address the global problem of IUU fishing
and the bycatch of PLMRs.
Comment 2: A commenter expressed concern that the implementation of
the proposed rule will result in increased expenses to U.S. suppliers
as well as to the Federal government.
Response: The regulations will not directly increase costs to U.S.
suppliers. However, it is possible to anticipate increased costs to
U.S. suppliers. If a foreign nation's ability to import certain fish or
fish products into the United States is limited upon receipt of a
negative certification and application of trade restrictive measures,
this may impact the ability of U.S. suppliers to access fish or fish
products from that nation. Alternative sources of fish and fish
products could mitigate the impacts
[[Page 2017]]
of restrictions on U.S. suppliers' access to fish and fish products.
Comment 3: Several commenters suggested that NMFS should include in
the biennial report to Congress information on the status of the RFMOs'
compliance committees and the performance reviews as an indicator of
the effectiveness of the RFMOs actions related to implementing measures
to avoid IUU and bycatch of PLMRs.
Response: NMFS will include in the biennial report to Congress
relevant information on RFMOs and their measures to address IUU fishing
and the bycatch of PLMRs.
Comment 4: A suggestion was made that NMFS prioritize situations
where IUU is rampant or bycatch of PLMRs is clearly excessive, thus
focusing the imposition of trade measures on the most egregious
situations.
Response: NMFS is required to address IUU fishing activity and the
PLMR bycatch. When making identification decisions for both IUU fishing
and bycatch, NMFS will consider the history, nature, circumstances,
extent, duration, and gravity of the activity in question.
Definition of IUU Fishing
Comment 5: Several commenters suggested that NMFS should expand the
definition of IUU fishing. Suggestions included addressing unreported
fishing and fishing activities that are misreported to the relevant
national or international fishery management authority, as well as
violations of agreements to which the United States is not a party.
Others suggested broadening the IUU fishing definition to include
illegal incursions of a nation's vessels into the waters of other
nations (including U.S. waters), flagrant reflagging under flags of
convenience, beneficial ownership, and lack of registration.
Commenters also recommended that the definition of IUU fishing be
as consistent as possible with the United Nation's International Plan
of Action to Prevent, Defer and Eliminate Illegal, Unreported and
Unregulated Fishing (IPOA-IUU), as well as the UNFAO Agreement on Port
State Measures.
Response: At this time, NMFS believes it is not appropriate to
modify the definition of IUU fishing through this regulatory action.
NMFS appreciates the public is interested in having this definition
modified, but NMFS has decided not to revise the definition until the
agency is able to understand the implications for implementing the
United Nations Food and Agriculture Organization's Agreement on Port
State Measures to Prevent, Deter and Eliminate Illegal, Unreported and
Unregulated Fishing (Port State Measures Agreement). Although this
agreement has been signed by the United States, it has not been
ratified. At present, NOAA plans to revise the definition of IUU
fishing in a subsequent rulemaking action to help ensure that the
definition complies with our international as well as statutory
obligations. In its development of the new definition, NMFS will
consider what clarifications may be helpful for the definition, and
will seek and take public comments on the definition. NMFS will also
take the comments received in response to this rulemaking into account
when formulating the new definition of IUU fishing.
Comment 6: Several commenters were encouraged that NMFS' definition
of fishing vessels relative to its definition of IUU fishing extended
to ``vessels that are used for fishing or any activity relating to
fishing, including, but not limited to, preparation, supply, storage,
refrigeration, transportation, or processing, bunkering or purchasing
catch, aiding or assisting one or more vessels at sea in the
performance of such activity.''
Response: NMFS has decided to retain the proposed definition of
``fishing vessels'' in the final rule without amendment.
Comment 7: A nation commented that the failure to meet the
commitments of Resolution 61/105 of the United Nations General Assembly
and the International Guidelines for the Management of Deep-sea
Fisheries in the High Seas should not be defined as IUU fishing, as
there are no internationally agreed upon standards that would support
such a determination. In addition, the nation suggested that NMFS only
consider including flag State responsibilities related to these
guidelines for deep seas fisheries in the definition of IUU fishing
after the establishment of internationally agreed criteria for
assessing flag State performance.
Response: The portion of the definition of IUU fishing referenced
by the commenter is mandatory under the Moratorium Protection Act. The
aspect of the IUU fishing definition the commenter refers to includes
fishing activity that has a significant adverse impact on seamounts,
hydrothermal vents, cold water corals and other vulnerable marine
ecosystems located beyond any national jurisdiction, for which there
are no applicable conservation or management measures, including those
in areas with no applicable international fishery management
organization or agreement. This portion of the definition is required
under the Moratorium Protection Act.
Comment 8: One commenter recommended that NMFS include in its
definition of IUU fishing the failure of the flag State to report the
catch of its fishing vessels to the RFMO that it is party to, or other
applicable authorities in its definition of IUU fishing.
Response: Under the Moratorium Protection Act, NMFS is authorized
to identify nations based on the IUU fishing activity of their vessels.
If the vessels of a flag State fail to report their catch to the
relevant RFMO and this action is required under a conservation and
management measure of an RFMO to which the United States is a party,
then failure to report the catch could be a potential basis for
identifying the nation.
Concerns Regarding IUU Fishing
Comment 9: A comment was made in regards to a statement in the
biennial report to Congress that ``* * * more than one vessel must be
engaged in IUU fishing for purposes of identification.'' The commenter
recommended that NMFS reinterpret the statute or attempt to remove
legislative language limiting the criterion for identification that a
nation must have more than one vessel engaged in IUU fishing. The
commenter suggested that nations should be held responsible for any and
all IUU fishing activity of their flagged vessels.
Response: NMFS' interpretation of the statute that more than one
vessel of a nation must be engaged, or have been engaged, in IUU
fishing activity to warrant identification under the Moratorium
Protection Act is consistent with the statutory language.
Comment 10: NMFS received a comment recommending improvements in
traceability of catches to prevent IUU fishing. It was suggested that
Catch Documentation Schemes (CDS) would help with these improvements.
Response: NMFS agrees with the commenter and supports the adoption
of tools to address traceability of catch, including catch
documentation schemes, to help address IUU fishing, consistent with the
purposes of the Moratorium Protection Act.
Definition of Bycatch of PLMRs
Comment 11: One commenter advised NMFS to revise the definition of
bycatch of PLMRs to encompass any interaction with a non-target living
marine resource that results in the capture, serious injury or
mortality of that resource, regardless of whether the resource is
discarded or kept for personal or commercial use. The commenter was
concerned that the way the current definition is phrased
[[Page 2018]]
might suggest that if non-target living marine resources were to be
kept on the vessel, they would not be considered bycatch, which would
undermine efforts to conserve these species and reduce their bycatch.
Another commenter recommended that NMFS' definition of bycatch of
PLMRs be revised to explicitly refer to any encounter of non-target
living marine resources with fishing gear, not just encounters that
result in mortality or serious injury.
Response: NMFS sought to address these comments in the definition
of bycatch in the final rule. The revised definition of PLMRs in the
final rule is as follows: ``Bycatch means the incidental or discarded
catch of protected living marine resources or entanglement of such
resources with fishing gear.''
Concerns Regarding the Bycatch of PLMRs
Comment 12: NMFS received a comment from the Marine Mammal
Commission regarding the lack of available information and standards
with respect to the bycatch of PLMRs, as well as the incomparable
reporting requirement timelines and deadlines between IUU fishing and
bycatch of PLMRs. Specifically, under the IUU fishing provisions, the
Secretary has 60 days after submission of the biennial report to
Congress to notify identified nations and to initiate consultations,
whereas the proposed rule only suggests that this occur ``as soon as
possible'' with respect to the bycatch of PLMRs. Therefore, the Marine
Mammal Commission recommends that NMFS establish deadlines for
notification, consultation, and certification findings with respect to
PLMR bycatch.
Response: NMFS sought to address these comments by standardizing
the timelines and deadlines for information collection, notification,
consultation, and certification decisions for IUU fishing and bycatch
of PLMRs under the Moratorium Protection Act, in a manner consistent
with the statutory text of the Act.
With respect to nations that are identified as having fishing
vessels engaged in IUU fishing or bycatch of PLMRs, NMFS, acting
through or in cooperation with the State Department, will notify such
nations of the requirements of the Moratorium Protection Act and
initiate consultations within 60 days of submission of the biennial
report to Congress.
Certification determinations will be made for nations that are
identified as having vessels engaged in IUU fishing or bycatch of PLMRs
on a biennial basis to coincide with publication of the biennial report
to Congress.
Comment 13: The Marine Mammal Commission commented that the lack of
basic information on pelagic and transboundary PLMRs that are often
caught as bycatch is of serious concern, as this will severely hamper
NMFS' efforts to identify bycatch problems and evaluate the adequacy of
a nation's regulatory program.
Response: NMFS shares the concerns raised by the commenter
regarding the lack of basic information on PLMR bycatch and, based on
the absence of this information, recognizes the challenges associated
with identifying nations whose fishing vessels are engaged in bycatch
of PLMRs and evaluating other nations' regulatory programs. To address
this concern, as explained in the prior response, NMFS plans to examine
PLMR bycatch information from as broad a timeframe as possible under
the Act.
Comment 14: The Marine Mammal Commission recommended that NMFS work
with the Department of State to protect PLMRs by promoting protective
actions in relevant international fora, and through amendments to
treaties to which the United States is party, such as requiring the
collection and sharing of data pertaining to fishery interactions,
stock status, and bycatch estimates and implementing of bycatch
mitigation measures.
Response: Consistent with the legislative intent of the Moratorium
Protection Act, NMFS will work with the Department of State to protect
PLMRs through the adoption of measures in the relevant international
fora that require reporting of bycatch data and use of bycatch
mitigation gear. NMFS will also continue its efforts to work
cooperatively with nations that lack sufficient capacity for fisheries
monitoring, control, surveillance, and bycatch mitigation and assist
these nations achieve sustainable fisheries.
Comment 15: A commenter suggested that NMFS distinguish between a
particular instance of fishing activity that results in bycatch of
PLMRs, and a consistent disregard of bycatch reduction measures.
Response: NMFS has addressed this comment in the final rule by
requiring that the agency take into account all relevant matters when
determining whether to identify nations whose vessels engaged in PLMR
bycatch including, but not limited to, the history, nature,
circumstances, extent, duration, and gravity of the bycatch activity in
question.
Comparability
Comment 16: NMFS received numerous comments regarding the
effectiveness of measures to reduce IUU fishing and bycatch of PLMRs.
Specifically, the Marine Mammal Commission suggested that the framework
to determine the comparability of effectiveness between countries'
measures was too broad, and that NMFS needs to specify what standards
will be used to assess comparability in effectiveness by other nations,
especially with respect to the bycatch of PLMRs.
Response: In order to identify a nation for PLMR bycatch, under
this final rule NMFS will also determine that the nation has not
implemented measures designed to end or reduce such bycatch that are
comparable in effectiveness to U.S. regulatory requirements, and that
the relevant international organization has not adopted effective
measures to end or reduce bycatch of such species.
In its determination of whether programs to address IUU fishing or
PLMR bycatch are comparable in effectiveness to those of the United
States, NMFS will examine programs that have been adopted by the United
States to address the relevant activity for which a nation has been
identified, and compare such programs with those that have been adopted
by the nation, taking into account different conditions that could bear
on the program's feasibility and efficacy. Given the different IUU
fishing and bycatch activities for which a nation could be identified
under the Act, it may be difficult and overly prescriptive to establish
specific criteria for programs addressing all such activities. NMFS
may, however, seek to provide further clarification on its
identification and certification procedures, including any standards,
through internal guidance.
Data Utilized for Certification
Comment 17: Several comments recommended that in addition to
evaluating evidence ``available'' to NMFS, the proposed rule should
clearly state that the NMFS will actively seek out information from
industry groups and foundations, international fishery management
bodies, and nations wishing to export fish or fish products into the
United States. Similarly, a commenter suggested that in addition to
using data offered by other international organizations and from among
other sources to make an identification determination, as indicated in
the proposed rule, NMFS should also seek information from industry
groups such as the International Seafood
[[Page 2019]]
Sustainability Foundation (ISSF) and individual companies. The Marine
Mammal Commission recommended that NMFS establish procedures to allow
various U.S. government agencies, foreign governments, international
fishery management organizations, NGOs, industry organizations and the
public to provide and exchange pertinent information for the
identification and certification process.
Response: NMFS concurs with the comments provided and will actively
seek information from relevant sources with respect to the
identification processes under the Moratorium Protection Act. As an
illustration, NMFS published and circulated two notices in the Federal
Register on March 5, 2010 (75 FR 10213), and April 6, 2010 (75 FR
17379), soliciting information on IUU fishing and PLMR bycatch
activities prior to the development of the list of nations that were
identified in the January 2009 Biennial Report to Congress, and that
will be identified in the 2011 report. NMFS will continue to solicit
information from the public that could be used for the identification
processes under the Moratorium Protection Act, actively seek
information from RFMOs and international organizations for the
protection of PLMRs, and examine other information deemed relevant for
our decision-making processes.
Comment 19: A commenter recommended that NMFS give preference to
government information, information that has undergone a peer-review
process, or information that has been agreed upon through tribunals or
some other legal mechanism in making decisions regarding certification.
Several commenters also recommended that NMFS utilize ``additional
resources'' to verify documentation on which a certification will be
made; however, none of the commentators identified what those
``additional resources'' would be.
Further, NMFS received numerous comments with respect to both IUU
fishing and the bycatch of PLMRs, regarding the lack of abundance and
poor quality of the information that would be available and possibly
used to identify and certify nations.
Response: When determining whether to identify a nation as having
fishing vessels engaged in IUU fishing or bycatch of PLMRs, as well as
certifying an identified nation, NMFS will analyze and assess all
available information from a variety of sources. NMFS will exercise due
diligence in evaluating which information and evidence is most
appropriate for use in identifying and certifying nations. This
information could include data actively gathered by the U.S. Government
as well as data offered by other nations, or international
organizations (such as RFMOs), institutions, or arrangements that
provides a reasonable basis to believe or suspect that a nation's
vessels have been engaged in IUU fishing or bycatch of PLMRs.
Comment 20: A commenter recommended that NMFS establish a process
to notify nations and international fishery management bodies of the
Moratorium Protection Act requirements.
Response: The Moratorium Protection Act requires notification and
as such, the final regulations lay out what NMFS will communicate to
nations. NMFS has been actively conducting outreach and communicating
the requirements of the Moratorium Protection Act to nations and
international fishery management organizations over the past 3 years.
Comment 21: One commenter requested that NMFS provide information
regarding the efforts that the United States has undertaken to
eliminate its own IUU fishing and PLMR bycatch. The commenter expressed
that this would not only facilitate earlier compliance, but also help
in information-gathering and negotiations.
Response: NMFS will summarize efforts to address PLMR bycatch and,
as appropriate, may provide information on efforts to address IUU
fishing in the biennial report to Congress.
Comment 22: A comment was made by a nation that NMFS should publish
all information sources used in the certification process.
Response: NMFS will publish the information sources, as
appropriate, that are used in the certification decision-making under
the Moratorium Protection Act in the biennial report to Congress.
Identification and Certification
Comment 23: A comment suggested that in order to make the task of
identifying and listing a nation easier, the proposed language for
section 608(c)(1) of the High Seas Driftnet Fishing Moratorium
Protection Act in H.R. 1080 section 2(b), should be clarified so that
if vessels and vessel owners are identified as engaging in IUU fishing
by an international fishery management organization or through an
international agreement, the vessel would automatically be added to the
Secretary's list and subject to possible action under the proposed
section 608(c)(2).
Response: Legislative changes are outside the scope of this action.
However, NMFS notes that, when considering an IUU fishing
identification under the Moratorium Protection Act, NMFS will examine
information regarding vessels flagged to a nation that is identified by
an international fishery management organization to which the United
States is a party as having engaged in IUU fishing. The Moratorium
Protection Act provides for consideration of vessels' IUU fishing
activities during the preceding 2 years.
Comment 24: A commenter recommended that, in addition to
identifying nations based on vessel-specific activity, NMFS also
utilize trade analysis that compares reported catches and trade data
for the purposes of identifying IUU fishing occurring in a fishery. The
commenter is concerned that in some situations vessel level information
will not be sufficient to support identification, but rather trade
analysis could be a strong indication that the fishery as a whole is
not being adequately monitored and enforced by the particular country
or set of countries and therefore the products from that fishery should
be considered IUU-derived.
Response: Under the Moratorium Protection Act, NMFS is required to
identify nations whose vessels engage in IUU fishing activity or
bycatch of PLMRs. Therefore, a determination must be made based upon
vessel specific information.
Comment 25: A comment recommended that the United States pursue
schemes requiring all fishing vessels to have International Maritime
Organization numbers, or an equivalent system for smaller vessels. It
was suggested that in order to encourage vessel owners to register with
an International Maritime Organization system, NMFS could automatically
list any unregistered vessel.
Response: NMFS supports efforts made at the international level to
enhance the identification and encourage registration of all fishing
vessels, which would improve the tracking of vessel activities and
compliance with international registration requirements. To the extent
that vessels of a nation are fishing without authorization in violation
of a conservation and management measure of an RFMO, NMFS will consider
identification of these nations as required under the Moratorium
Protection Act.
Comment 26: One comment recommended that NMFS not only identify and
list nations for having vessels engaged in IUU fishing, but also the
specific vessel as well as the
[[Page 2020]]
fisheries in which they are engaged. The commenter was concerned that,
under the current regulations, all fishing vessels flying the flag of
an identified country will be incriminated, as opposed to only those
vessels or fisheries actually engaged in IUU fishing.
Response: NMFS will, to the extent practicable, identify the
specific vessels of a nation that are engaged in IUU fishing activities
for purposes of identification under the Moratorium Protection Act in
the biennial report to Congress.
Comment 27: A nation commented that it was pleased to see that
consultation is a key aspect of the identification and certification
process. The nation recommended that NMFS consult in a way to ensure
the transparency and fairness of these processes.
Response: NMFS agrees that consultations are a key aspect of the
identification and certification processes under the Moratorium
Protection Act. NMFS will seek to implement the Moratorium Protection
Act to ensure fairness and transparency.
Comment 28: NMFS received a question from a nation requesting
clarification of the documentation required with respect to Sec.
300.205(b)(1) (Such finding may include a requirement that fish or fish
products from such nations be accompanied by documentation of
admissibility.).
Response: If an identified nation fails to receive a positive
certification from the Secretary of Commerce, and the President
determines that certain fish and fish products from that nation are
ineligible for entry into the United States and U.S. territories, then
NMFS may require that fish or fish products not subject to the import
restrictions from the nation be accompanied by admissibility
documentation to be developed by NMFS. This requirement would be put
into place if deemed necessary to assist with monitoring and compliance
with the import prohibitions.
Comment 29: A comment from a nation stated that with respect to
Sec. 300.205(a)(2) (``* * * If there is no applicable international
fishery agreement, the Secretary of Commerce shall not recommend import
prohibitions that would apply to fish or fish products caught by
vessels not engaged in IUU fishing * * *''), both the intent and the
language of this article are unclear. The nation recommended that NMFS
clearly explain the effects of negative certification and to whom it
applies in relation to bycatch of PLMRs.
Response: NMFS has revised the final rule to mirror the text of the
Act more closely. In response to the comment provided, NMFS clarifies
that, for nations identified under Sec. 300.202(a) that are not
positively certified, NMFS believes that import prohibition
recommendations should be made with respect to fish or fish products
managed under the applicable international fishery agreement. If there
is no applicable agreement, import prohibition recommendations should
be made with respect to fish or fish products caught by vessels engaged
in the IUU fishing activity. For nations identified under Sec.
300.203(a) that are not positively certified, NMFS believes that import
prohibition recommendations should be made with respect to fish or fish
products caught by the vessels engaged in the relevant activity for
which the nation was identified.
Comment 30: A nation requested that NMFS clarify Sec.
300.203(d)(2)(ii) (``Such nation has established a management plan that
will assist in the collection of species-specific data on PLMR bycatch
to support international stock assessments and conservation efforts for
PLMRs''). Specifically, the nation wanted to know if PLMRs include
species that are managed by an international fishery management
organization, and the likelihood of having international stock
assessments and conservation efforts for PLMRs. The nation recommended
that NMFS delete ``international stock assessments'' as they are
captured under broader ``conservation efforts.''
Response: The definition of PLMRs set forth in the Moratorium
Protection Act exempts those species, with the exception of sharks,
that are managed by an RFMO. The statute requires that nations
identified as having vessels engaged in PLMR bycatch establish a
management plan that will assist in the collection of species-specific
data for use in international assessments in order to receive a
positive certification.
Comment 31: A commenter recommended that the United States place
the burden of proof on the nations wishing to export product to the
United States that they have not engaged in IUU fishing or PLMR
bycatch. The commenter suggested that by placing the burden of proof on
the exporting nation, the United States will encourage other nations to
enhance their monitoring and enforcement requirements to eliminate IUU
fishing and bycatch of PLMRs.
Response: NMFS does not have authority under the Moratorium
Protection Act to require that nations bear the burden of proving that
their exports to the United States were harvested by vessels that have
not engaged in IUU fishing or PLMR bycatch.
Comment 32: Several commenters recommended that deadlines for
certification findings with respect to bycatch of PLMRs need to be
established. Specifically, a timeline should be created by which
nations are to meet the applicable comparability requirements or face
certification.
Response: In this final rule, NMFS clarifies that nations
identified for having vessels engaged in PLMR bycatch meet the
requirements for a positive certification prior to the subsequent
biennial report to Congress. Therefore, each identified nation will
have approximately 2 years to take sufficient corrective action before
a certification decision is made.
Comment 33: A commenter suggested that NMFS should evaluate not
only the statutory or regulatory requirements that apply to a fishery
but also the effectiveness of a nation's efforts to achieve compliance
with those requirements. Thus, the proposed rule should provide greater
detail on the types of data and information that will be required from
nations and the standards that will be used to judge the sufficiency of
documentary evidence for certification.
Response: In its implementation of the Moratorium Protection Act,
NMFS will evaluate whether a nation identified as having fishing
vessels engaged in IUU fishing or PLMR bycatch has taken appropriate
corrective action and is implementing and enforcing such actions. In
its evaluation, NMFS will consider several types of documentary
evidence and will work with the nation to examine what information is
available to determine whether appropriate corrective action is taken.
For example, NMFS will examine logbook data, laws and regulations to
address IUU fishing activity, and written documentation of permit
revocation, among other things.
Comment 34: A comment was made regarding revising the timeline for
reporting on the identification process. A commenter suggested that
stipulating such reports as ``biennial'' alone is insufficient, as
subsequent reports could be provided two years to the calendar year
rather than the calendar date. Specifically, a commenter recommended
that the language in Sec. 300.202(a)(1) of the proposed regulation be
revised to read: ``NMFS will identify and list, in a biennial report
provided to Congress, no later than 2 years after the date of the prior
[[Page 2021]]
biennial report, nations whose fishing vessels are engaged, or have
been engaged at any point during the preceding two calendar years, in
IUU fishing'' (recommended modifications in italics).
Response: NMFS is retaining the text as proposed, as it is
consistent with section 607 of the Moratorium Protection Act, which
requires the biennial report to be produced 2 years after enactment of
the MSRA and every 2 years thereafter.
Comment 35: Several comments recommended that the time period in
which IUU and bycatch activities are considered for identifying
countries should be extended to 3 years. Commenters expressed concern
that if NMFS reports on a biennial basis and only considers bycatch of
PLMRs during the previous calendar year, data from every other year
would not be considered in the report. Secondly, several commenters
expressed concern that the current two-year time period limits NMFS
from effectively collecting sufficient catch data and information on
bycatch.
Response: As reflected in prior comments and responses above, NMFS
recognizes the concerns regarding the availability of data and
information for purposes of making identifications under the Moratorium
Protection Act. NMFS plans to examine PLMR bycatch information from as
broad a timeframe as possible under the Act. For IUU fishing, NMFS will
examine information on IUU fishing activities during a 2-year period,
consistent with the Act.
Comment 36: NMFS received several comments in support of the idea
of having alternative certification procedures on a shipper-by-shipper
basis. In addition, the Marine Mammal Commission commented that
alternative certification procedures should require rigorous chain-of-
custody documentation, greater controls on transshipment than currently
exist, and real-time monitoring and verification to substantiate that
individual vessels, shipments, or shippers fully comply with the
bycatch reduction measures. They also recommended that NMFS defer the
implementation of alternative certification procedures until nations or
RMFOs can adopt monitoring and verification procedures coupled with
mandatory real-time tracking and documentation of products obtained in
compliance with bycatch reduction procedures.
Response: NMFS recognizes the value of establishing alternative
certification procedures on a shipper-by-shipper basis for those
identified nations that have not received a certification decision from
the Secretary of Commerce. In the implementation of the Moratorium
Protection Act, the Secretary of Commerce intends to issue a positive
or negative certification decision for each nation that is identified
as having vessels engaged in either IUU fishing or PLMR bycatch.
However, NMFS will use alternative procedures in the case that a
certification decision cannot be reached. For nations that are
negatively certified, entry of fish or fish products not subject to the
import prohibitions could be facilitated by accompaniment of these
products by documentation of admissibility under Sec. 300.205(b)(2).
Comment 37: One commenter recommended that NMFS recognize the
existing traceability system used for tuna products and its proven
track record, and clarify that for tuna products the Secretary intends
to use the alternative procedures authority, absent some new
information.
Response: NMFS recognizes the effective existing systems used for
tracking the trade of tuna products. In its implementation of
alternative certification procedures for this particular species, NMFS
will rely on existing trade tracking programs and seek chain-of-custody
documentation, real-time monitoring and verification to substantiate
that individual vessels, shipments, or shippers fully comply with
requirements of these procedures.
Comment 38: A commenter recommended that a strict set of criteria
be put in place so that countries know what is expected of them in
terms of making adequate reforms, and so that the public can understand
the criteria by which decisions are made in terms of certifications.
Response: Given the broad scope of IUU fishing and bycatch
activities for which a nation could be identified, it is difficult to
predict what types of data and information will be required of nations,
or what standards would need to be met to receive a positive
certification in each specific case. Rather, NMFS will determine the
data, information, and standards on a case-by-case basis.
Comment 39: A commenter recommended that public consultations be
built into the certification process as this will help ensure
transparency in decision making about how a positive or negative
certification is made.
Response: The Moratorium Protection Act requires the Secretary of
Commerce to notify nations prior to certification, and provide such
nations with an opportunity to comment on the certification
determinations. NMFS will provide notice of the official certifications
in the subsequent biennial report to Congress.
Trade Sanctions
Comment 40: A few commenters stated that the Moratorium Protection
Act specifies that the negative certification of a nation, or lack of
certification with respect to IUU fishing activity or bycatch of PLMRs,
triggers mandatory import prohibitions and provides that the President
``shall'' direct that importation of fish and fish products be
prohibited immediately upon being notified that a nation is identified
as having engaged in IUU fishing or PLMR bycatch, or if consultations
with the government of such a nation have not concluded satisfactorily
within 90 days. However, the commenter finds that the rule conflicts
with the Act, as it states that such nations ``may be subject'' to
import prohibitions. The commenter recommends that NMFS clarify the
rule to reflect the mandatory requirements of the Act, as well as the
stated timeline for implementing import prohibitions.
Response: The Secretary of Commerce only has the authority to make
recommendations to the President on import prohibitions of fish or fish
products. Thus, the rule was drafted to focus on the Secretary's roles
and actions.
Comment 41: NMFS received a comment recommending that the proposed
rule clearly identify which fish products or fishing vessels of
negatively certified nations would be subject to the import
prohibitions. Similarly, a nation expressed that it is not clear from
the proposed rule whether all fish products or all fishing vessels of a
negatively certified nation would be subject to import prohibitions.
The nation recommended that if import prohibitions are applied only to
some fish products or some fishing vessels, NMFS should clarify the
criteria that will be used to make that determination.
Response: The scope of any trade-related actions would be at the
discretion of the President. However, in making recommendations to the
President with respect to prohibitions on the importation of fish and
fish products from nations identified as having vessels engaged in IUU
fishing or PLMR bycatch that did not receive a positive certification
from the Secretary of Commerce, NMFS will take into account the fish
and fish products affected by the IUU fishing or PLMR bycatch activity
in question.
Comment 42: One commenter suggested that punitive measures should
not be limited solely to nations; penalties or trade restrictions
should
[[Page 2022]]
also be imposed on vessel operators, fishing masters, senior
executives, directors of companies, and traders deemed to be engaged
in, involved with, or benefitting from IUU fishing.
Response: The Moratorium Protection Act only provides authority for
the Secretary of Commerce to identify and certify nations for the
activities of its vessels.
Changes From Proposed Action
In addition to streamlining the final rule to reduce duplication
and ease readability, NMFS has made several changes in the final rule
to respond to public comments, provide clarification, and revise some
text to reflect better text in the Act. The key changes are outlined
below.
1. Outreach Prior to Identification
In its implementation of the identification procedures under the
Moratorium Protection Act, NMFS will communicate with nations regarding
alleged IUU fishing and bycatch activities prior to a formal
identification. This outreach process, which was described in the
preamble of the proposed rule, will provide NMFS with a means of
verifying information and building a more robust record in support of
identification decisions. In the preamble of the final rule, NMFS
clarified that it will consider action taken by nations in response to
IUU fishing, as well as cooperative research conducted by nations to
address bycatch activities prior to making formal identification
decisions. This will allow NMFS to use the identification and
certification procedures effectively to address IUU fishing and
bycatch, rather than penalize nations that have already taken
corrective action and/or are working cooperatively to reduce their
bycatch.
2. Enforcement and Implementation of International Measures
In the proposed rule, NMFS stated that it would consider whether a
nation has implemented and is enforcing international measures to
address IUU fishing or PLMR bycatch when making identification and
certification decisions. In the preamble of the final rule, NMFS
clarified that when evaluating whether a nation has implemented and is
enforcing measures that will address IUU fishing and PLMR bycatch when
making identification decisions, the agency will also examine whether
adequate enforcement measures and capacity exist to help promote
compliance. In some cases, NMFS may be able to provide international
assistance to a nation to help such nation achieve more sustainable
fisheries and obtain a positive certification.
3. Bycatch Definition
In the proposed rule, bycatch was defined as ``the discarded catch
of any living marine resource and/or mortality or serious injury of
such resource due to an encounter with fishing gear that does not
result in the capture of such resource.'' This definition was revised
in response to public comments that bycatch should include resources
that are caught incidentally due to an encounter with fishing gear,
regardless of whether the resource is retained. The bycatch definition
was also revised based on concerns that the terms ``mortality and/or
serious injury'' would establish unintentional standards that could not
be applied consistently to all protected living marine resources. The
definition of bycatch was revised in the final rule to ``the incidental
or discarded catch of protected living marine resources or entanglement
of such resources with fishing gear.''
4. Definition of International Fishery Management Agreement
In the proposed rule, this term was defined as ``any bilateral or
multilateral treaty, convention, or agreement that governs direct
harvest of fish and/or directly governs bycatch of fish, sea turtles,
or marine mammals.'' This definition was revised for clarity in the
final rule and consistent with the definition of ``international
fishery management organization'' as ``any bilateral or multilateral
treaty, convention, or agreement for the conservation and management of
fish.''
5. Notification and Initiation of Consultations for PLMR Bycatch
As specified in the Moratorium Protection Act, the proposed rule
required that NMFS notify nations of their identification for having
vessels engaged in IUU fishing, and initiate consultations within 60
days after submission of the biennial report to Congress. The proposed
rule did not, however, establish a specific deadline for the
notification and initiation of consultations with nations identified
for having vessels engaged in PLMR bycatch. In response to public
comments, NMFS will require that nations identified for having vessels
engaged in PLMR bycatch be notified of their identification and
consultations be initiated within 60 days after submission of the
biennial report to Congress, consistent with the requirements for
nations identified for having vessels engaged in IUU fishing.
6. International Cooperation and Assistance
In the final rule, NMFS specified that the agency is required to
work cooperatively with nations that are identified for having vessels
engaged in PLMR bycatch to address such bycatch and provide appropriate
assistance to help such nations obtain a positive certification. These
requirements have been included for transparency in the process by
which NMFS plans to work cooperatively with other nations and provide
assistance where necessary to help achieve sustainable fisheries
globally.
7. Scope of Import Prohibitions
NMFS received several public comments asking for clarification
regarding the scope of trade sanctions that would be recommended by the
Secretary of Commerce to the President when identified nations fail to
receive a positive certification. NMFS has revised the final rule to
mirror the text of the Act more closely. In the response to comments in
this final rule, NMFS explains that, for nations identified under Sec.
300.202(a) that are not positively certified, NMFS believes that import
prohibition recommendations should be made with respect to fish or fish
products managed under the applicable international fishery agreement.
If there is no applicable agreement, import prohibition recommendations
should be made with respect to fish or fish products caught by vessels
engaged in the IUU fishing activity. For nations identified under Sec.
300.203(a) that are not positively certified, NMFS believes that import
prohibition recommendations should be made with respect to fish or fish
products caught by vessels engaging in the relevant activity for which
the nation was identified.
Classification
This final rule is published under the authority of the Moratorium
Protection Act, 16 U.S.C. 1826d-1826k.
This rulemaking has been determined to be significant for the
purposes of Executive Order 12866.
A final regulatory flexibility analysis (FRFA) was prepared, as
required by section 603 of the RFA. The FRFA describes the economic
impact this rule would have on small entities. A description of the
action, why it is being considered, and the legal basis for this action
are contained at the beginning of this section in the preamble and in
the SUMMARY section of the preamble. A summary of the analysis follows.
A copy of this analysis is available from NMFS (see ADDRESSES).
[[Page 2023]]
NMFS received public comments on the proposed rule, and made some
revisions to the final rule to clarify provisions. A summary of public
comments on the proposed rule and agency responses is provided above.
NMFS did not receive comments specifically on the IRFA or on issues
related to the IRFA.
This final rule does not apply directly to any U.S. small business,
as the rulemaking is aimed at foreign nations whose vessels engage in
fishing activities. The universe of potentially indirectly affected
industries includes the following: U.S. ports and U.S. seafood
harvesters, processors, wholesalers, and importers. Ports generate
economic activity across many sectors, including surface
transportation; maritime services; cargo handling; federal, state, and
local governments; port authorities; importers and consignees; and the
banking and insurance sectors. Maritime services include pilots,
handlers (food and other supplies), towing, bunkering (fuel), marine
surveyors, and shipyard and marine construction. Cargo handling
services include longshoremen, stevedoring, terminal operators,
warehouse operators, and container leasing and repair.
No U.S. industry is directly affected by this rulemaking, although
indirect effects may cause short term disruptions in the flow of
seafood imports, and thus potentially impact U.S. businesses. NMFS does
not anticipate that national net benefits and costs would change
significantly in the long term as a result of the implementation of the
proposed alternatives.
Although this action will not have significant economic impacts on
a substantial number of small U.S. entities, NMFS decided to analyze
different alternatives in the FRFA for the certification procedures in
this rule. In order to meet the objectives of the Moratorium Protection
Act and this final rule, NMFS cannot exempt small entities, change
reporting requirements only for small entities, or use performance or
design standards in lieu of the regulatory requirements in the rule.
Sections 2.2 and 2.3 of the Environmental Assessment describe the
alternatives analyzed for certification procedures for IUU fishing and
bycatch.
The Alternatives for Certification for nations whose vessels are
engaged, or have been engaged in, IUU fishing activities are as
follows: Under Alternative I-1, the No Action Alternative, NMFS would
not develop any new procedures to address the certification of nations
identified in the biennial report to Congress (called for in section
609(a) of the Moratorium Protection Act) as having vessels that are
engaged, or have been engaged during the preceding 2 calendar years, in
IUU fishing activities. Under Alternative I-2, the Secretary would
provide a positive certification to a nation identified in the biennial
report to Congress (called for in section 609(a) of the Moratorium
Protection Act) as having vessels that are engaged, or have been
engaged during the preceding 2 calendar years, in IUU fishing
activities, if such nation has taken corrective action against the
offending vessels, or the relevant RFMO has implemented measures that
are effective in ending the IUU fishing activities by vessels of the
identified nation. Under Alternative I-3, the Secretary would provide a
positive certification to a nation identified in the biennial report to
Congress (called for in section 609(a) of the Moratorium Protection
Act) as having vessels that are engaged, or have been engaged during
the preceding 2 calendar years, in IUU fishing activities, if such
nation has taken corrective action against the offending vessels, and
the relevant RFMO has implemented measures that are effective in ending
the IUU fishing activities by vessels of the identified nation.
The Alternatives for Certification for nations whose vessels are
engaged, or have been engaged in, bycatch of PLMRs are as follows:
Under Alternative B-1, the No action alternative, NMFS would not
develop any new procedures to address certification of nations
identified in the biennial report to Congress (called for in section
610(a) of the Moratorium Protection Act) as having vessels that are
engaged, or have been engaged during the preceding calendar year in
bycatch of PLMRs. Under Alternative B-2, to receive a positive
certification from the Secretary of Commerce, nations identified in the
biennial report to Congress (called for in section 610(a) of the
Moratorium Protection Act) as having vessels that are engaged, or have
been engaged during the preceding calendar year in bycatch of PLMRs
must provide documentary evidence of their adoption of a regulatory
program governing the conservation of the PLMR that is comparable in
effectiveness with that of the United States, taking into account
different conditions, and establish a management plan that will assist
in species-specific data collection to support international stock
assessments and conservation enforcement efforts for the PLMR. Under
Alternative B-3, identified nations must provide documentary evidence
of the adoption of a regulatory program for PLMR bycatch that is
comparable with that of the United States', taking into account
different conditions. Identified nations must also show proof of the
identified nation's participation with an international organization
governing the conservation of the PLMRs, if one exists, and establish a
management plan that will assist in species-specific data collection to
support international assessments and conservation efforts, including
but not limited to enforcement efforts for PLMRs.
As noted above, NMFS does not anticipate significant economic
impacts to U.S. businesses from any of the alternatives analyzed.
However, certain importers may be affected by import prohibitions that
are imposed on fish or fish products coming into the United States from
an identified nation that fails to receive a positive certification.
IUU Alternative I-3 may produce more socioeconomic benefits than IUU
Alternative I-2. Likewise for the bycatch alternatives, Alternative B-3
may produce more benefits than Alternative B-2. Due to the consultative
nature of this rulemaking, it may be possible for the costs to U.S.
businesses to be ameliorated by new port state controls, substituting
different transportation modes, or substituting different products all
together. As a result, it is difficult to know if costs will also be
higher moving from the less restrictive IUU Alternative I-2 or bycatch
Alternative B-2 to IUU Alternative I-3 or bycatch Alternative B-3.
Because Alternatives I-2 and B-2 most closely mirror the text of the
Moratorium Protection Act, NMFS has decided to implement them in this
final rule.
Pursuant to 5 U.S.C 553(d)(3), NOAA finds that there is good cause
to waive the 30-day delay in the effective date of this rule. This rule
is procedural in nature: It only creates procedures for the agency to
follow when determining identification and certification of nations
whose fishing vessels are engaged in IUU fishing and/or bycatch of
PLMRs. Importantly, the rule does not modify, add, or revoke any
existing rights and obligations of the public or any private parties,
because the rule only applies to NOAA. Accordingly, NOAA finds that
there is good cause, within the meaning of 5 U.S.C. 553(d)(3) and in
accordance with the Congressional Review Act, 5 U.S.C. 808(2), to waive
the 30-day delay in effectiveness of this rule and to make this rule
effective immediately.
This final rule contains collection-of-information requirements for
Sec. Sec. 300.205(b)(2), 300.206(c), and 300.207(c) subject to review
and
[[Page 2024]]
approval by OMB under the Paperwork Reduction Act (PRA). However, NMFS
is delaying the effective date of these sections until NMFS receives
OMB approval for these collections. After OMB approval is received,
NMFS will publish the effective date for these sections in the Federal
Register.
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Antarctica, Canada, Exports,
Fish, Fisheries, Fishing, Imports, Indians, Labeling, Marine resources,
Reporting and recordkeeping requirements, Russian Federation,
Transportation, Treaties, Wildlife.
Dated: January 7, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
0
For the reasons set out in the preamble, NMFS amends 50 CFR part 300 as
follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
0
1. Subpart N is revised to read as follows:
Subpart N--Identification and Certification of Nations
Sec.
300.200 Purpose and scope.
300.201 Definitions.
300.202 Identification and certification of nations engaged in
illegal, unreported, or unregulated fishing activities.
300.203 Identification and certification of nations engaged in
bycatch of protected living marine resources.
300.204 Effect of certification.
300.205 Denial of port privileges and import restrictions on fish or
fish products.
300.206 Alternative procedures for IUU fishing activities.
300.207 Alternative procedures for bycatch of PLMRs.
Authority: 16 U.S.C. 1826d et seq.
Subpart N--Identification and Certification of Nations
Sec. 300.200 Purpose and scope.
The purpose of this subpart is to implement the requirements in the
High Seas Driftnet Fishing Moratorium Protection Act (``Moratorium
Protection Act'') to identify and certify nations whose vessels are
engaged in illegal, unreported, or unregulated fishing or whose fishing
activities result in bycatch of protected living marine resources. This
language applies to vessels entitled to fly the flag of the nation in
question. Identified nations that do not receive a positive
certification may be subject to trade restrictive measures for certain
fishery products. The Moratorium Protection Act also authorizes
cooperation and assistance to nations that are taking action to combat
illegal, unreported, or unregulated fishing or reduce bycatch of
protected living marine resources.
Sec. 300.201 Definitions.
For the purposes of the Moratorium Protection Act:
Bycatch means: the incidental or discarded catch of protected
living marine resources or entanglement of such resources with fishing
gear.
Fishing vessel means: any vessel, boat, ship, or other craft which
is used for, equipped to be used for, or of a type which is normally
used for--
(1) Fishing; or
(2) Any activity relating to fishing, including, but not limited
to, preparation, supply, storage, refrigeration, transportation, or
processing, bunkering or purchasing catch, or aiding or assisting one
or more vessels at sea in the performance of such activity.
Illegal, unreported, or unregulated (IUU) fishing means:
(1) Fishing activities that violate conservation and management
measures required under an international fishery management agreement
to which the United States is a party, including but not limited to
catch limits or quotas, capacity restrictions, and bycatch reduction
requirements;
(2) Overfishing of fish stocks shared by the United States, for
which there are no applicable international conservation or management
measures or in areas with no applicable international fishery
management organization or agreement, that has adverse impacts on such
stocks; or,
(3) Fishing activity that has a significant adverse impact on
seamounts, hydrothermal vents, cold water corals and other vulnerable
marine ecosystems located beyond any national jurisdiction, for which
there are no applicable conservation or management measures, including
those in areas with no applicable international fishery management
organization or agreement.
International agreement means: an agreement between two or more
States, agencies of two or more States, or intergovernmental
organizations which is legally binding and governed by international
law.
International fishery management agreement means: any bilateral or
multilateral treaty, convention, or agreement for the conservation and
management of fish.
International fishery management organization means: an
international organization established by any bilateral or multilateral
treaty, convention, or agreement for the conservation and management of
fish.
Protected living marine resources (PLMRs) means: non-target fish,
sea turtles, or marine mammals that are protected under United States
law or international agreement, including the Marine Mammal Protection
Act, the Endangered Species Act, the Shark Finning Prohibition Act, and
the Convention on International Trade in Endangered Species of Wild
Flora and Fauna; but they do not include species, except sharks, that
are managed under the Magnuson-Stevens Fishery Conservation and
Management Act, the Atlantic Tunas Convention Act, or by any
international fishery management agreement.
Sec. 300.202 Identification and certification of nations engaged in
illegal, unreported, or unregulated fishing activities.
(a) Procedures to identify nations whose fishing vessels are
engaged in IUU fishing--(1) NMFS will identify and list, in a biennial
report to Congress, nations whose fishing vessels are engaged, or have
been engaged at any point during the preceding two years, in IUU
fishing.
(2) When determining whether to identify a nation as having fishing
vessels engaged in IUU fishing, NMFS will take into account all
relevant matters, including but not limited to the history, nature,
circumstances, extent, duration, and gravity of the IUU fishing
activity in question, and any measures that the nation has implemented
to address the IUU fishing activity. NMFS will also take into account
whether an international fishery management organization exists with a
mandate to regulate the fishery in which the IUU activity in question
takes place. If such an organization exists, NMFS will consider whether
the relevant international fishery management organization has adopted
measures that are effective at addressing the IUU fishing activity in
question and, if the nation whose fishing vessels are engaged, or have
been engaged, in IUU fishing is a party to, or maintains cooperating
status with, the organization.
(b) Notification of nations identified as having fishing vessels
engaged in IUU fishing. Upon identifying a nation whose vessels have
been engaged in IUU fishing activities in the biennial report to
Congress, the Secretary of Commerce will notify the President of such
identification. Within 60 days after submission of the biennial report
to Congress, the Secretary of Commerce,
[[Page 2025]]
acting through or in consultation with the Secretary of State, will:
(1) Notify nations that have been identified in the biennial report
as having fishing vessels that are currently engaged, or were engaged
at any point during the preceding two calendar years, in IUU fishing
activities;
(2) Notify identified nations of the requirements under the
Moratorium Protection Act and this subpart; and
(3) Notify any relevant international fishery management
organization of actions taken by the United States to identify nations
whose fishing vessels are engaged in IUU fishing and initiate
consultations with such nations.
(c) Consultation with nations identified as having fishing vessels
engaged in IUU fishing. Within 60 days after submission of the biennial
report to Congress, the Secretary of Commerce, acting through or in
cooperation with the Secretary of State, will initiate consultations
with nations that have been identified in the biennial report for the
purpose of encouraging such nations to take appropriate corrective
action with respect to the IUU fishing activities described in the
biennial report.
(d) Procedures to certify nations identified as having fishing
vessels engaged in IUU fishing. Each nation that is identified as
having fishing vessels engaged in IUU fishing shall receive either a
positive or a negative certification from the Secretary of Commerce,
and this certification will be published in the biennial report to
Congress. A positive certification indicates that a nation has taken
appropriate corrective action to address the IUU fishing activity
described in the biennial report. A negative certification indicates
that a nation has not taken appropriate corrective action.
(1) The Secretary of Commerce shall issue a positive certification
to an identified nation upon making a determination that such nation
has taken appropriate corrective action to address the activities for
which such nation has been identified in the biennial report to
Congress. When making such determination, the Secretary shall take into
account the following:
(i) Whether the government of the nation identified pursuant to
paragraph (a) of this section has provided evidence documenting that it
has taken corrective action to address the IUU fishing activity
described in the biennial report; or
(ii) Whether the relevant international fishery management
organization has adopted and, if applicable, the identified member
nation has implemented and is enforcing, measures to effectively
address the IUU fishing activity of the identified nation's fishing
vessels described in the biennial report.
(2) Prior to a formal certification determination, nations will be
provided with preliminary certification determinations and an
opportunity to support and/or refute the preliminary determinations and
communicate any corrective actions taken to address the activities for
which such nations were identified. The Secretary of Commerce shall
consider any information received during the course of these
consultations when making the subsequent certification determinations.
Sec. 300.203 Identification and certification of nations engaged in
bycatch of protected living marine resources.
(a) Procedures to identify nations whose fishing vessels are
engaged in PLMR bycatch--(1) NMFS will identify and list, in the
biennial report to Congress, nations whose fishing vessels are engaged,
or have been engaged during the preceding calendar year prior to
publication of the biennial report to Congress, in fishing activities
or practices either in waters beyond any national jurisdiction that
result in bycatch of a PLMR, or in waters beyond the U.S. EEZ that
result in bycatch of a PLMR that is shared by the United States. When
determining whether to identify nations as having fishing vessels
engaged in PLMR bycatch, NMFS will take into account all relevant
matters including, but not limited to, the history, nature,
circumstances, extent, duration, and gravity of the bycatch activity in
question.
(2) NMFS will also examine whether there is an international
organization with jurisdiction over the conservation and protection of
the relevant PLMRs or a relevant international or regional fishery
organization. If such organization exists, NMFS will examine whether
the organization has adopted measures to effectively end or reduce
bycatch of such species; and if the nation whose fishing vessels are
engaged, or have been engaged during the preceding calendar year prior
to publication of the biennial report to Congress, in bycatch of PLMRs
is a party to or maintains cooperating status with the relevant
international organization.
(3) NMFS will also examine whether the nation has implemented
measures designed to end or reduce such bycatch that are comparable in
effectiveness to U.S. regulatory requirements. In considering whether a
nation has implemented measures that are comparable in effectiveness to
those of the United States, NMFS will evaluate if different conditions
exist that could bear on the feasibility and efficiency of such
measures to end or reduce bycatch of the pertinent PLMRs.
(b) Notification of nations identified as having fishing vessels
engaged in PLMR bycatch. Upon identifying a nation whose vessels have
been engaged in bycatch of PLMRs in the biennial report to Congress,
the Secretary of Commerce will notify the President of such
identification. Within 60 days after submission of the biennial report
to Congress, the Secretary of Commerce, acting through or in
consultation with the Secretary of State, will notify identified
nations about the requirements under the Moratorium Protection Act and
this subpart.
(c) Consultations and negotiations. Upon submission of the biennial
report to Congress, the Secretary of Commerce, acting through or in
consultation with the Secretary of State, will:
(1) Initiate consultations within 60 days after submission of the
biennial report to Congress with the governments of identified nations
for the purposes of entering into bilateral and multilateral treaties
with such nations to protect the PLMRs from bycatch activities
described in the biennial report; and
(2) Seek agreements through the appropriate international
organizations calling for international restrictions on the fishing
activities or practices described in the biennial report that result in
bycatch of PLMRs and, as necessary, request the Secretary of State to
initiate the amendment of any existing international treaty to which
the United States is a party for the protection and conservation of the
PLMRs in question to make such agreements consistent with this subpart.
(d) International Cooperation and Assistance. To the greatest
extent possible, consistent with existing authority and the
availability of funds, the Secretary shall:
(1) Provide appropriate assistance to nations identified by the
Secretary under paragraph (a) of this section and international
organizations of which those nations are members to assist those
nations in qualifying for a positive certification under paragraph(e)
of this section;
(2) Undertake, where appropriate, cooperative research activities
on species assessments and improved bycatch mitigation techniques, with
those nations or organizations;
(3) Encourage and facilitate the transfer of appropriate technology
to those nations or organizations to assist those nations in qualifying
for positive certification under paragraph (e) of this section; and
[[Page 2026]]
(4) Provide assistance to those nations or organizations in
designing and implementing appropriate fish harvesting plans.
(e) Procedures to certify nations identified as having fishing
vessels engaged in PLMR bycatch--(1) Each nation that is identified as
having fishing vessels engaged in PLMR bycatch shall receive either a
positive or a negative certification from the Secretary of Commerce,
and this certification will be published in the biennial report to
Congress. The Secretary of Commerce shall issue a positive
certification to an identified nation upon making a determination that:
(i) Such nation has provided evidence documenting its adoption of a
regulatory program to end or reduce bycatch of such PLMRs that is
comparable in effectiveness to regulatory measures required under U.S.
law to address bycatch in the relevant fisheries, taking into account
different conditions that could bear on the feasibility and efficacy of
these measures, and which, in the case of an identified nation with
fishing vessels engaged in pelagic longline fishing, includes the
mandatory use of circle hooks, careful handling and release equipment,
training and observer programs; and
(ii) Such nation has established a management plan that will assist
in the collection of species-specific data on PLMR bycatch to support
international stock assessments and conservation efforts for PLMRs.
(2) Nations will be notified prior to a formal certification
determination and will be provided with an opportunity to support and/
or refute preliminary certification determinations, and communicate any
corrective actions taken to address the activities for which such
nations were identified. The Secretary of Commerce shall consider any
information received during the course of these consultations when
making the subsequent certification determinations.
Sec. 300.204 Effect of certification.
(a) If an identified nation does not receive a positive
certification under this subpart (i.e., the nation receives a negative
certification or no certification is made), the fishing vessels of such
nation are, to the extent consistent with international law, subject to
the denial of entry into any place in the United States and to the
navigable waters of the United States.
(b) At the recommendation of the Secretary of Commerce (see Sec.
300.205), certain fish or fish products from such nation may be subject
to import prohibitions.
(c) Any action recommended under this paragraph (c) shall be
consistent with international obligations, including the WTO Agreement.
(d) If certain fish or fish products are prohibited from entering
the United States, within six months after the imposition of the
prohibition, the Secretary of Commerce shall determine whether the
prohibition is insufficient to cause that nation to effectively address
the IUU fishing described in the biennial report, or that nation has
retaliated against the United States as a result of that prohibition.
The Secretary of Commerce shall certify to the President each
affirmative determination that an import prohibition is insufficient to
cause a nation to effectively address such IUU fishing activity or that
a nation has taken retaliatory action against the United States. This
certification is deemed to be a certification under section 1978(a) of
Title 22, which provides that the President may direct the Secretary of
the Treasury to prohibit the bringing or the importation into the
United States of any products from the offending country for any
duration as the President determines appropriate and to the extent that
such prohibition is sanctioned by the World Trade Organization.
(e) Duration of certification. Any nation identified in the
biennial report to Congress and negatively certified will remain
negatively certified until the Secretary of Commerce determines that
the nation has taken appropriate corrective action to address the IUU
fishing activity and/or bycatch of PLMRs for which it was identified in
the biennial report. Receipt of a positive certification determination
will demonstrate that appropriate corrective action has been taken by a
nation to address the relevant IUU fishing activity and/or bycatch of
PLMRs.
(f) Consultations. NMFS will, working through or in consultation
with the Department of State, continue consultations with nations that
receive a negative certification with respect to the IUU fishing
activities or bycatch of PLMRs described in the biennial report to
Congress. The Secretary of Commerce shall take the results of such
consultations into consideration when making a subsequent certification
determination for such nation.
Sec. 300.205 Denial of port privileges and import restrictions on
fish or fish products.
(a) Scope of Applicability--(1) If a nation identified in the
biennial report under Sec. 300.202(a) or Sec. 300.203(a) is not
positively certified by the Secretary of Commerce, and fishing vessels
of the nation are allowed entry to any place in the United States and
to the navigable waters of the United States under this subpart, those
vessels will be subject to inspection and may be prohibited from
landing, processing, or transshipping fish and fish products. Services,
including the refueling and re-supplying of such fishing vessels, may
be prohibited, with the exception of services essential to the safety,
health, and welfare of the crew. Fishing vessels will not be denied
port access or services in cases of force majeure or distress.
(2) For nations identified in the biennial report under Sec.
300.202(a) that are not positively certified, the Secretary of Commerce
shall recommend import prohibitions with respect to fish or fish
products from those nations. Such recommendations on import
prohibitions would not apply to fish or fish products not managed under
an applicable international fishery agreement, or if there is no
applicable international fishery agreement, to the extent that such
provisions would apply to fish or fish products caught by vessels not
engaged in illegal, unreported, or unregulated fishing. For nations
identified under Sec. 300.203(a) that are not positively certified,
the Secretary of Commerce shall also recommend import prohibitions;
such prohibitions shall not apply to fish or fish products not caught
by the vessels engaged in the relevant activity for which the nation
was identified.
(3) Any action recommended under this paragraph (a)(3) shall be
consistent with international obligations, including the WTO Agreement.
(b) Imposition of import restrictions--(1) Notification. Where the
Secretary of Commerce cannot make positive certifications for
identified nations, and the President determines that certain fish and
fish products from such nations are ineligible for entry into the
United States and U.S. territories, the Secretary of Commerce, with the
concurrence of the Secretary of State and in cooperation with the
Secretary of Treasury, will file a notice with the Office of the
Federal Register.
(2) Documentation of admissibility. If certain fish or fish
products are subject to import prohibitions, NMFS may publish in the
Federal Register the requirement that other fish or fish products from
the relevant nation that are not subject to the prohibitions be
accompanied by documentation of admissibility. The documentation of
admissibility must be executed by a duly authorized official of the
identified
[[Page 2027]]
nation and validated by a responsible official(s) designated by NMFS.
The documentation must be executed and submitted in a format
(electronic facsimile (fax), the Internet, etc.) specified by NMFS.
(3) Effective date of import restrictions. Effective upon the date
of publication of such finding, shipments of fish or fish products
found to be ineligible will be denied entry to the United States. Entry
will not be denied for any such shipment that, on the date of
publication, was in transit to the United States.
(4) Removal of negative certifications and import restrictions.
Upon a determination by the Secretary of Commerce that an identified
nation that was not certified positively has satisfactorily met the
conditions in this subpart and that nation has been positively
certified, the provisions of Sec. 300.205 shall no longer apply. The
Secretary of Commerce, with the concurrence of the Secretary of State
and in cooperation with the Secretary of Treasury, will notify such
nations and will file with the Office of the Federal Register for
publication notification of the removal of the import restrictions
effective on the date of publication.
Sec. 300.206 Alternative procedures for IUU fishing activities.
(a) These certification procedures may be applied to fish or fish
products from a vessel of a harvesting nation that has been identified
under Sec. 300.202 in the event that the Secretary cannot reach a
certification determination for that nation by the time of the next
biennial report. These procedures shall not apply to fish or fish
products from identified nations that have received either a negative
or a positive certification under this subpart.
(b) Consistent with paragraph (a) of this section, the Secretary of
Commerce may allow entry of fish or fish products on a shipment-by-
shipment, shipper-by-shipper, or other basis if the Secretary
determines that:
(1) The vessel has not engaged in IUU fishing under an
international fishery management agreement to which the U.S. is a
party; or
(2) The vessel is not identified by an international fishery
management organization as participating in IUU fishing activities.
(c) Fish or fish products offered for entry under this paragraph
(c) must be accompanied by a completed documentation of admissibility
available from NMFS. The documentation of admissibility must be
executed by a duly authorized official of the identified nation and
must be validated by a responsible official(s) designated by NMFS. The
documentation must be executed and submitted in a format (electronic
facsimile (fax), the Internet, etc.) specified by NMFS.
Sec. 300.207 Alternative procedures for bycatch of PLMRs.
(a) These certification procedures may be applied to fish or fish
products from a vessel of a harvesting nation that has been identified
under Sec. 300.203 in the event that the Secretary cannot reach a
certification determination for that nation by the time of the next
biennial report. These procedures shall not apply to fish or fish
products from identified nations that have received either a negative
or a positive certification under this subpart.
(b) Consistent with paragraph (a) of this section, the Secretary of
Commerce may allow entry of fish or fish products on a shipment-by-
shipment, shipper-by-shipper, or other basis if the Secretary
determines that imports were harvested by practices that do not result
in bycatch of a protected marine species, or were harvested by
practices that--
(1) Are comparable to those of the United States, taking into
account different conditions, and which, in the case of pelagic
longline fisheries, the regulatory program of an identified nation
includes mandatory use of circle hooks, careful handling and release
equipment, and training and observer programs; and
(2) Include the gathering of species specific data that can be used
to support international and regional assessments and conservation
efforts for protected living marine resources.
(c) Fish or fish products offered for entry under this section must
be accompanied by a completed documentation of admissibility available
from NMFS. The documentation of admissibility must be executed by a
duly authorized official of the identified nation and validated by a
responsible official(s) designated by NMFS. The documentation must be
executed and submitted in a format (electronic facsimile (fax), the
Internet, etc.) specified by NMFS.
[FR Doc. 2011-507 Filed 1-11-11; 8:45 am]
BILLING CODE 3510-22-P