[Federal Register Volume 77, Number 132 (Tuesday, July 10, 2012)]
[Proposed Rules]
[Pages 40553-40561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-16838]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 110321208-1203-01]
RIN 0648-BA89


High Seas Driftnet Fishing Moratorium Protection Act; 
Identification and Certification Procedures To Address Shark 
Conservation

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

ACTION: Proposed rule; request for comments.

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SUMMARY: This proposed action sets forth identification and 
certification

[[Page 40554]]

procedures established by the Shark Conservation Act to address shark 
conservation in areas beyond any national jurisdiction. The objectives 
of these procedures are to promote the conservation and sustainable 
management of sharks. 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. This action would also amend the definition of illegal, 
unreported, or unregulated (IUU) fishing for purposes of the High Seas 
Driftnet Fishing Moratorium Protection Act.

DATES: Written comments must be received no later than 5 p.m. Eastern 
time on August 9, 2012.
    NMFS is soliciting feedback on the proposed rule. Information and 
comments concerning this proposed rule may be submitted by any one of 
several methods (see ADDRESSES). Information related to the 
international fisheries provisions of the Moratorium Protection Act can 
be found on the NMFS Web site at http://www.nmfs.noaa.gov/msa2007/intlprovisions.html. NMFS will consider all comments and information 
received during the comment period in preparing a final rule.

ADDRESSES: Written comments on this action, identified by RIN 0648-
BA89, may be submitted by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal at http://www.regulations.gov.
     Mail: Laura Cimo, Trade and Marine Stewardship Division, 
Office of International Affairs, NMFS, 1315 East-West Highway, Silver 
Spring, MD 20910.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All personal identifying information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit confidential business information or 
otherwise sensitive or protected information. NMFS will accept 
anonymous comments (enter N/A in the required fields, if you wish to 
remain anonymous). Attachments to electronic comments will be accepted 
in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Laura Cimo, Trade and Marine 
Stewardship Division, Office of International Affairs, NMFS, at (301) 
427-8359.

SUPPLEMENTARY INFORMATION:

Background

    On January 12, 2011, the National Marine Fisheries Service (NMFS) 
published a final rule establishing identification and certification 
procedures to address illegal, unreported, or 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) (76 FR 2011) (50 CFR 300.200 et seq.) (16 
U.S.C. 1826h-k). The identification and certification procedures must 
be amended to reflect recent statutory amendments to the Moratorium 
Protection Act. These amendments were included in the Shark 
Conservation Act (Pub. L. 111-348), which was enacted on January 4, 
2011.
    Sharks present an array of challenges for fisheries conservation 
and management due to their biological characteristics and lack of 
general data reported on catch of each species. Many shark species are 
characterized by relatively slow growth, late maturity, and low 
reproductive rates, which can make them particularly vulnerable to 
overexploitation and slow to recover. As demand and exploitation rates 
for some shark species, and particularly for shark fins, have 
increased, concern has grown regarding the status of many shark stocks 
and the sustainability of their exploitation in global fisheries.
    The United States continues to be a leader in promoting shark 
conservation and management globally. We are committed to working 
bilaterally and multilaterally to promote shark conservation and 
management, and prevent shark finning so that legal and sustainable 
fisheries are not disadvantaged by these activities. In particular, the 
United States wants to ensure that its own import market does not 
encourage unsustainable activity.
    Under the amendments in the Shark Conservation Act, the Secretary 
of Commerce is required to identify a foreign nation if: (a) the 
nation's fishing vessels are engaged or have been engaged during the 
preceding calendar year, in fishing activities or practices in waters 
beyond any national jurisdiction that target or incidentally catch 
sharks; and (b) the nation has not adopted a regulatory program for the 
conservation of sharks, including measures to prohibit removal of any 
of the fins of a shark (including the tail) and discarding of the 
carcass of the shark at sea, that is comparable to that of the United 
States, taking into account different conditions. The amendments also 
call upon the Secretary of Commerce to begin making identifications no 
later than January 4, 2012.
    NMFS solicited information from the public on activities of fishing 
vessels from foreign nations engaged in shark catch beyond any national 
jurisdiction on March 24, 2011 (76 FR 16616), and indicated that it 
anticipated making the first identifications under this statute by 
January 4, 2012. However, upon further reflection and review of the 
statute, NMFS proposes to begin the process of making identifications 
by January 4, 2012, and publish the first identifications in the 
January 2013 Biennial Report to Congress, coincident with the next 
identification process under the IUU fishing and bycatch provisions of 
the Moratorium Protection Act. This approach is consistent with the 
statute and will treat all identified nations equally. If 
identifications were made in January 2012, it would have provided 
potentially-affected foreign nations only one year to become familiar 
with the new shark provisions before identification decisions were made 
and only one year to take the necessary actions to receive a positive 
certification. NMFS has already started collecting and analyzing 
information that could help the agency determine which nations may have 
vessels engaging in fishing activities or practices on the high seas 
that target or incidentally catch sharks.
    The Secretary of Commerce will issue either a positive or negative 
certification to each nation that is identified in the biennial report 
to Congress. In the unlikely event that the Secretary of Commerce does 
not make a certification decision, alternative certification procedures 
may be applied. A positive certification indicates that the nation has 
taken the necessary actions pursuant to the Moratorium Protection Act. 
If an identified nation does not receive a positive certification, 
fishing vessels of such nation would be, 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. 
Additionally, if an identified nation does not receive a positive 
certification, the Secretary of Commerce shall so notify the President 
of the United States. This notification may include recommendations to 
prohibit the importation of certain fish and fish products from the 
identified nation. The Secretary of Commerce will recommend to the 
President appropriate measures, including trade restrictive measures, 
to be taken against identified nations that

[[Page 40555]]

have not received a positive certification, to address the fishing 
activities or practices for which such nations were identified in the 
biennial report. The Secretary of Commerce will make such 
recommendations on a case by case basis in accordance with 
international obligations, including the WTO Agreement. Upon this 
notification, the High Seas Driftnet Fisheries Enforcement Act (16 
U.S.C. 1826a) authorizes the President to direct the Department of 
Treasury to prohibit the importation of certain fish and fish products 
from such nation.
    If certain fish and 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 shark catch 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 shark catch 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.
    The final rule establishing identification and certification 
procedures pursuant to the Moratorium Protection Act (published on 
January 12, 2011) also set forth a definition of IUU fishing for 
purposes of the Moratorium Protection Act (50 CFR 300.201). In response 
to public comments on the rule, NMFS committed to consider amending 
this regulatory definition in a subsequent rulemaking to make any 
necessary technical changes and incorporate suggestions made by the 
public. Through this action, NMFS also proposes to amend the definition 
of IUU fishing to include fishing activities that violate shark 
conservation measures required under an international fishery 
management agreement to which the United States is a party. Amendments 
to the Identification and Certification Procedures to Address Shark 
Conservation.
    Pursuant to the Shark Conservation Act, NMFS proposes to amend the 
identification and certification procedures under the Moratorium 
Protection Act. This will provide for the identification of a foreign 
nation if fishing vessels of that nation are engaged, or have been 
engaged during the preceding calendar year, in fishing activities or 
practices in waters beyond any national jurisdiction that target or 
incidentally catch sharks, and the nation has not adopted a regulatory 
program for the conservation of sharks, including measures to prohibit 
removal of any of the fins of a shark (including the tail) and discard 
the carcass of the shark at sea, that is comparable in effectiveness to 
that of the United States, taking into account different conditions. 
When making identification decisions, NMFS will take into account 
whether the nation has adopted a regulatory program for the 
conservation and management of sharks in their domestic waters that 
could have bearing on shark conservation on the high seas. NMFS does 
not intend to identify nations, or issue a negative certification for 
identified nations, on the basis of a nation's failure to establish a 
comparable regulatory program in their domestic waters if the 
regulatory deficiency is not relevant to the nation's regulation of 
high seas shark catch. When determining whether a nation could 
potentially be identified for these activities through the process set 
forth in final regulations that were published on January 12, 2011 (76 
FR 2011), NMFS will review, evaluate and verify relevant information 
obtained from credible sources by the agency demonstrating that 
foreign-flagged vessels engaged in fishing activities or practices in 
areas beyond any national jurisdiction that targeted or incidentally 
caught sharks during the relevant timeframe. 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), institutions, bilateral or other 
arrangements, or non-governmental organizations.
    Corroboration of information may be addressed through cooperation 
with governments, international organizations, non-governmental 
organizations, and through use of other credible information as 
appropriate. NMFS, acting through or in consultation with the State 
Department, may as appropriate initiate bilateral discussions with the 
nation whose vessels engaged in such fishing activities to:
     Communicate the provisions of the Moratorium Protection 
Act to the nation;
     Provide an opportunity for nations to provide additional 
information on the fishing activities of particular vessels; and
     Determine if the nation has adopted a regulatory program 
for the conservation of sharks for their vessels fishing on the high 
seas, including measures to prohibit the removal of any of the fins of 
a shark (including the tail) and discard the carcass of the shark at 
sea, that is comparable in effectiveness to that of the United States, 
taking into account different conditions.
    When making its identification decisions, NMFS will take into 
account relevant matters, including, but not limited to, the history, 
nature, circumstances, and gravity of the fishing activities that 
targeted or incidentally caught sharks in areas beyond any national 
jurisdiction. NMFS will also take into account any actions taken by the 
nation that are relevant to the conservation and sustainable management 
of sharks in areas beyond any national jurisdiction, including:
     If the nation has adopted a regulatory program for the 
conservation of sharks;
     Participation in cooperative research activities designed 
to mitigate the impacts of fishing activities that result in the 
incidental catch of sharks;
     Programs for data collection and sharing, including 
programs to assess the abundance and status of sharks and observer 
programs; and
     The adoption and use of strategies, techniques, and 
equipment for the reduction and mitigation of shark bycatch, if vessels 
of the nation have shark bycatch.
    If any relevant international organization or regional fishery 
management organization (RFMO) has adopted measures for the 
conservation and sustainable management of sharks, NMFS will consider 
whether the nation is a party or cooperating non-party to the 
organization, and/or whether the nation has implemented such measures.
    By January 4, 2012, NMFS began the process of making 
identifications of nations whose fishing vessels engaged in fishing 
activities or practices on the high seas that target or incidentally 
catch sharks and have not adopted a regulatory program for the 
conservation of sharks on the high seas, including measures to prohibit 
removal of any of the fins of the shark (including the tail) and 
discard the carcass of the shark at sea, that is comparable in 
effectiveness to that of the United States, taking into account 
different conditions.

[[Page 40556]]

Identifications will be published in the biennial report to Congress, 
as required by the Moratorium Protection Act. The next biennial report 
is due to Congress on January 12, 2013.
    Nations will be notified of their identification under the 
Moratorium Protection Act, and NMFS, acting through or in consultation 
with the State Department, will initiate consultations to encourage 
identified nations to take the necessary actions pursuant to the 
Moratorium Protection Act.
    Although the Secretary of Commerce is authorized not to issue a 
certification decision to an identified nation under the Moratorium 
Protection Act, the Secretary of Commerce will issue either a positive 
or negative certification to each identified nation, which will be 
published in the subsequent biennial report to Congress, for all 
nations that are identified.
    In determining whether to issue a positive or negative 
certification for each identified nation, the Secretary of Commerce, in 
consultation with the Secretary of State, will take into account all 
relevant facts and circumstances, including, but not limited to, the 
record of consultations with such nation, results of these 
consultations, and actions taken by the nation and any applicable RFMO 
to address the fishing activities of concern described in the biennial 
report.
    To receive a positive certification, any nation that is identified 
as having fishing vessels engaged in fishing activities or practices on 
the high seas that target or incidentally catch sharks will need to 
provide documentary evidence of the adoption of a regulatory program 
for the conservation of sharks that is comparable in effectiveness to 
that of the United States, taking into account different conditions, 
including conditions that could bear on the feasibility and 
effectiveness of these measures. In order to receive a positive 
certification, such nation will also need to establish a management 
plan that assists in the collection of species-specific data.
    When evaluating whether an identified nation whose pelagic longline 
vessels engaged in fishing activities or practices on the high seas 
that target or incidentally catch sharks has adopted a regulatory 
program for the conservation of sharks that is comparable in 
effectiveness to that of the United States, the proposed rule would not 
require the regulatory program to include the mandatory use of circle 
hooks, as specified for nations identified under Section 610 of the 
Moratorium Protection Act, since there is scientific uncertainty about 
the impact of circle hook use on shark bycatch and the United States 
does not require the use of circle hooks in its fisheries to mitigate 
shark bycatch.
    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 
actions taken to adopt a regulatory program for the conservation of 
sharks that is comparable in effectiveness to that of the United 
States, taking into account different conditions, and establish a 
management plan that assists in the collection of species-specific 
data. The Secretary of Commerce shall consider any relevant information 
received during consultations when making its formal certification 
determination.

Changes to the IUU Fishing Definition

    NMFS proposes to amend the definition of IUU fishing, consistent 
with the purposes of the Moratorium Protection Act, in order to more 
comprehensively address IUU fishing, and thus more effectively address 
this serious problem that threatens the sustainable management of the 
world's fisheries.
    First, NMFS proposes to amend the IUU fishing definition to clarify 
its application to fishing activities conducted by fishing vessels of 
both party and non-party nations to international fishery management 
agreements to which the United States is a party. The first paragraph 
of the current IUU fishing definition addresses fishing activities that 
violate conservation and management measures of an RFMO to which the 
United States is a party. NMFS proposes to amend this paragraph to 
clarify that it is intended to apply to nations that are a party to the 
relevant international fishery agreement. NMFS also proposes to add a 
new paragraph clarifying that, in the case of non-parties to an 
international fishery management agreement to which the United States 
is a party, fishing activities that would undermine the conservation of 
the resources managed under that agreement can be IUU fishing.
    Second, pursuant to the Shark Conservation Act, NMFS proposes to 
amend the IUU fishing definition to explicitly include fishing 
activities in violation of shark conservation measures that are 
required by an RFMO to which the United States is a party.
    Third, NMFS proposes to clarify that the IUU fishing definition 
applies when a nation fails to report or fails to provide accurate or 
complete data and information regarding its vessels' fishing activities 
as required by an RFMO to which the United States is a party. By adding 
an explicit reference to reporting, NMFS intends to highlight the 
importance of compliance with RFMO data collection requirements to 
support effective fisheries management.
    Fourth, NMFS proposes to amend the IUU fishing definition to 
include fishing activities conducted by foreign flagged vessels in 
waters under U.S. jurisdiction without authorization of the United 
States. Such activities undermine the ability of the United States to 
sustainably manage its fisheries.
    In determining whether to make an IUU fishing identification, NMFS 
will take into account all relevant information, in accordance with 
Sec.  300.202(a)(2). In addition, when determining whether to identify 
a foreign nation for having vessels engaged in fishing activities 
within the U.S. exclusive economic zone (EEZ) without authorization of 
the United States, NMFS will consider any actions taken by the United 
States, the flag State and, where relevant, the international fishery 
management organization, to address those activities, as well as the 
effectiveness of such actions.

Application of IUU Fishing Identification Criteria

    In addition to the regulatory changes identified above, NMFS is 
reconsidering the manner in which it has applied Section 609 of the 
Moratorium Protection Act and its implementing regulations. To date, 
NMFS has primarily applied this Act and implementing regulations to 
identify a nation when the nation's vessels were engaged in illegal, 
unregulated, or unreported fishing activity that was directly 
attributable to specific vessel conduct. In future identifications, 
NMFS intends to identify nations based on fishing activity that was 
illegal, unreported, or unregulated because of either the vessels' 
conduct or the nation's actions or inactions in managing its fisheries.
    After two cycles of identification, NMFS has determined that these 
provisions could be applied more broadly. In order to more 
comprehensively address IUU fishing, we must consider not only the 
prohibited actions of fishing vessels but also non-compliance in the 
form of action or inaction at the national level that leads to IUU 
fishing. To further this goal, NMFS is proposing to identify a nation 
based on the nation's actions or inactions that lead to fishing by 
vessels registered under their flag that is not in

[[Page 40557]]

accordance with RFMO conservation and management measures. For example, 
under this approach, NMFS could identify a nation when the nation has 
failed to implement measures that are required by an RFMO to which the 
United States is a party, and as a result the fishing vessels of that 
nation operated in a manner inconsistent with the relevant RFMO 
conservation and management measures.
    This approach is consistent with the plain language of the 
statutory guidelines provided in Section 609(e)(3)(A) of the Moratorium 
Protection Act for the IUU fishing definition. These statutory 
guidelines specifically mention certain RFMO conservation and 
management measures, such as catch limits or quotas, that must be 
implemented by nations that are parties to the RFMO and cannot 
necessarily be attributed to specific fishing vessels. For example, 
RFMOs can establish quotas for their member nations. Each nation bears 
the responsibility for implementing and adhering to the quota it 
received. Individual fishing vessels, therefore, cannot be found in 
violation of the RFMO's quota, but action or inaction by the flag 
nation could result in fishing activity in violation of the quota. In 
addition to specific situations mentioned in the minimum statutory 
guidelines for the IUU fishing definition, there are other 
circumstances in which fishing activities might violate RFMO measures 
because of a nation's failure to govern its own fishing vessels or 
carry out its own responsibilities. For example, RFMOs require parties 
to implement data reporting requirements. In most cases, the nations, 
and not individual vessels, compile and report the requisite 
information to comply with RFMO conservation and management measures. 
Because many measures are inherently a nation's responsibility, 
Congress evidently intended NMFS to be able to identify a nation based 
on its failure to fulfill the requirements of the relevant RFMO and the 
operations of the nation's fisheries in light of this failure.
    Under the proposed approach, a nation could be identified for 
fishing activities that were illegal, unregulated, or unreported 
because of national action or inaction, including, consistent with the 
examples discussed above, fishing activities that resulted in the 
nation exceeding a harvest quota granted by the relevant RFMO because 
the nation failed to implement measures to prevent such overharvest, 
and fishing activities that were not reported because the nation failed 
to carry out its responsibilities for reporting to ensure collection of 
such information.

Classification

    This proposed rule is published under the authority of the 
Moratorium Protection Act, 16 U.S.C. 1826d-1826k, as amended by the 
Shark Conservation Act (Pub. L. 111-348).
    This proposed rulemaking has been determined to be significant for 
the purposes of Executive Order 12866.
    Pursuant to section 605 of the Regulatory Flexibility Act, the 
Chief Council for Regulation of the Department of Commerce certified to 
the Chief Council for Advocacy of the Small Business Administration 
that this proposed rule, if adopted, would not have a significant 
economic impact on a substantial number of small entities. In this 
rulemaking, NMFS proposes to amend the identification and certification 
procedures under the Moratorium Protection Act to prevent shark finning 
and to promote the conservation and sustainable harvest of sharks by 
fishing vessels of foreign nations, as required under the Shark 
Conservation Act (Pub. L. 111-348).
    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. 
Briefly, under the proposed regulations, NMFS would identify a foreign 
nation in a biennial report to Congress if fishing vessels of that 
nation have been engaged during the preceding calendar year in fishing 
activities or practices in waters beyond any national jurisdiction that 
target or incidentally catch sharks and the nation has not adopted a 
regulatory program for the conservation of sharks, including measures 
to prohibit removal of any of the fins of a shark (including the tail) 
and discarding of the carcass of the shark at sea, that is comparable 
to that of the United States, taking into account different conditions. 
The Secretary of Commerce will issue either a positive or negative 
certification to each nation that is identified in the biennial report 
to Congress. A positive certification would demonstrate that the nation 
has taken the necessary corrective action to address the fishing 
activities of concern described in the biennial report to Congress. 
Nations identified for having vessels engaged in shark catch on the 
high seas that do not receive a positive certification from the 
Secretary of Commerce may be subject to measures imposed by the 
Secretary of the Treasury under the High Seas Driftnet Fisheries 
Enforcement Act (16 U.S.C. 1826a). Such measures include the denial of 
port privileges of fishing vessels of those nations, and, as directed 
by the President, prohibition on the importation into the United States 
of certain fish and fish products caught by the vessels engaged in the 
relevant activity for which the nations were identified, or other 
measures.
    To receive a positive certification, any nation that is identified 
as having fishing vessels engaged in fishing activities or practices on 
the high seas that target or incidentally catch sharks will need to 
provide documentary evidence of the adoption of a regulatory program 
for the conservation of sharks that is comparable in effectiveness to 
that of the United States, taking into account different conditions, 
including conditions that could bear on the feasibility and 
effectiveness of measures. Prior to being issued a positive 
certification, such nation will also need to establish a management 
plan that assists in the collection of species-specific data in order 
to receive a positive certification.
    Because the proposed regulations are purely procedural in nature, 
and only set out how NMFS is to make decisions regarding certifications 
for nations that have been identified in the biennial report to 
Congress, there are no direct economic impacts on small or large 
entities. Therefore, the proposed regulations will not have a 
significant economic impact on a substantial number of small entities 
and do not need to be analyzed under the Regulatory Flexibility Act. As 
a result, an initial regulatory flexibility analysis is not required 
and none has been prepared.
    This proposed rule contains collection-of-information requirements 
for Sec. Sec.  300.206(b)(2), 300.207(c), and 300.208(c) subject to 
review and approval by OMB under the Paperwork Reduction Act (PRA). The 
collection-of-information requirements have been provided to OMB.

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.


[[Page 40558]]


    Dated: July 5, 2012.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 300 is 
proposed to be amended as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

    1. The authority citation for part 300 continues to read as 
follows:

    Authority:  Moratorium Protection Act, 16 U.S.C. 1826d-1826k

    2. Section 300.200 is revised to read as follows:


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 engaged 
in illegal, unreported, or unregulated fishing; whose fishing 
activities result in bycatch of protected living marine resources; or 
whose vessels engaged in fishing activities or practices on the high 
seas that target or incidentally catch sharks where the nation has not 
adopted a regulatory program for the conservation of sharks, comparable 
in effectiveness to that of the United States, taking into account 
different conditions. This language applies to vessels entitled to fly 
the flag of the nation in question. Where the Secretary of Commerce 
determines that an identified nation has not taken the necessary 
actions to warrant receipt of a positive certification, the Secretary 
of Commerce may recommend to the President that the United States 
prohibit the importation of certain fish and fish products from the 
identified nation or other measures. 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 fishing 
activities or practices for which such nations were identified in the 
biennial report. The Secretary of Commerce will make such a 
recommendation on a case-by-case basis in accordance with international 
obligations, including the WTO Agreement. The Moratorium Protection Act 
also authorizes cooperation and assistance to nations to take action to 
combat illegal, unreported, or unregulated fishing, reduce bycatch of 
protected living marine resources, and achieve shark conservation.
    3. In Sec.  300.201, the definition of ``Illegal, unreported, or 
unregulated (IUU) fishing'' is revised to read as follows:


Sec.  300.201  Definitions.

* * * * *
    Illegal, unreported, or unregulated (IUU) fishing means:
    (1) In the case of parties to an international fishery management 
agreement to which the United States is a party, 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, bycatch reduction requirements, shark 
conservation measures, and data reporting;
    (2) In the case of non-parties to an international fishery 
management agreement to which the United States is a party, fishing 
activities that would undermine the conservation of the resources 
managed under that agreement;
    (3) 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,
    (4) 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 or in areas 
with no applicable international fishery management organization or 
agreement.
    (5) Fishing activities by foreign flagged vessels in U.S. waters 
without authorization of the United States.
* * * * *
    4. In Sec.  300.202, paragraphs (a)(2) and (d)(1) are revised to 
read as follows:


Sec.  300.202  Identification and certification of nations engaged in 
illegal, unreported, or unregulated fishing activities.

    (a) * * *
    (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. NMFS will also take into account any 
actions taken or on-going proceedings by the United States and/or flag 
State to address the IUU fishing activity of concern as well as the 
effectiveness of such actions.
* * * * *
    (d) * * *
    (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;
    (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;
    (iii) Whether the United States has taken enforcement action to 
effectively address the IUU fishing activity of the identified nation 
described in the biennial report; and
    (iv) Whether the identified nation has cooperated in any action 
taken by the United States to address the IUU fishing activity 
described in the biennial report.
* * * * *


Sec.  300.203  [Amended]

    5. In Section 300.203, paragraphs (a)(1), (a)(2), and (c)(1) are 
revised; paragraph (c)(2) is redesignated as paragraph (c)(3), and a 
new paragraph (c)(2) is added to read as follows:
    (a) * * *
    (1) NMFS will identify and list, in the biennial report to Congress 
nations--

[[Page 40559]]

    (i) 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;
    (ii) if the nation is a party to or maintains cooperating status 
with the relevant international organization with jurisdiction over the 
conservation and protection of the relevant PLMRs, or a relevant 
international or regional fishery organization, and the organization 
has not adopted measures to effectively end or reduce bycatch of such 
species; and
    (iii) the nation has not implemented measures designed to end or 
reduce such bycatch that are comparable in effectiveness to U.S. 
regulatory requirements, taking into account different conditions that 
could bear on the feasibility and efficacy of comparable measures.
    (2) 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.
* * * * *
    (c) * * *
    (1) Initiate consultations within 60 days after submission of the 
biennial report to Congress with the governments of identified nations 
for the purposes of encouraging adoption of a regulatory program for 
protected living marine resources that is comparable in effectiveness 
to that of the United States, taking into account different conditions, 
and establishment of a management plan that assists in the collection 
of species--specific data;
    (2) Seek to enter into bilateral and multilateral treaties with 
such nations to protect the PLMRs from bycatch activities described in 
the biennial report; and
* * * * *
    6. Section 300.204 is redesignated as Sec.  300.205 and a new Sec.  
300.204 is added to read as follows:


Sec.  300.204  Identification and certification of nations whose 
vessels engaged in shark catch.

    (a) Procedures to identify nations if fishing vessels of that 
nation are engaged in fishing activities or practices in waters beyond 
any national jurisdiction that target or incidentally catch sharks 
during the preceding calendar year.--
    (1) NMFS will identify and list in the biennial report to Congress 
nations--
    (i) whose fishing vessels are engaged, or have been engaged during 
the calendar year prior to publication of the biennial report to 
Congress, in fishing activities or practices in waters beyond any 
national jurisdiction that target or incidentally catch sharks; and
    (ii) where that nation has not adopted a regulatory program to 
provide for the conservation of sharks, including measures to prohibit 
removal of any of the fins of a shark (including the tail) and discard 
the carcass of the shark at sea, that is comparable in effectiveness to 
that of the United States, taking into account different conditions, 
including conditions that could bear on the feasibility and 
effectiveness of measures.
    (2) When determining whether to identify nations for these 
activities, NMFS will take into account all relevant matters including, 
but not limited to, the history, nature, circumstances, duration, and 
gravity of the fishing activity of concern.
    (b) Notification of nations identified as having fishing vessels 
engaged in fishing activities or practices that target or incidentally 
catch sharks. Upon identifying in the biennial report to Congress a 
nation whose vessels engaged in fishing activities or practices in 
waters beyond any national jurisdiction that target or incidentally 
catch sharks, 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 N.
    (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 encouraging adoption of a regulatory program for 
the conservation of sharks that is comparable in effectiveness to that 
of the United States, taking into account different conditions, and 
establishment of a management plan that assists in the collection of 
species-specific data;
    (2) Seek to enter into bilateral and multilateral treaties or other 
arrangements with such nations to protect sharks; and
    (3) Seek agreements through the appropriate international 
organizations calling for international restrictions on the fishing 
activities or practices described in the biennial report 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 conservation of sharks 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 harvesting techniques aimed at mitigating or 
eliminating the non-target catch of sharks, 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
    (4) Provide assistance to those nations or organizations in 
designing, implementing, and enforcing appropriate fish harvesting 
plans for the conservation and sustainable management of sharks.
    (e) Procedures to certify nations identified as having fishing 
vessels engaged in fishing activities or practices that target or 
incidentally catch sharks.--Each nation that is identified as having 
fishing vessels engaged in fishing activities or practices in waters 
beyond any national jurisdiction that target or incidentally catch 
sharks and has not adopted a regulatory program for the conservation of 
sharks, including measures to prohibit removal of any of the fins of a 
shark (including the tail) and discard the carcass of the shark at sea, 
that is comparable to that of the United States, taking into account 
different conditions, shall receive either a positive or a negative 
certification from the Secretary of Commerce. This certification will 
be published in the biennial report to Congress. The Secretary of 
Commerce shall issue a positive certification to an identified

[[Page 40560]]

nation upon making a determination that:
    (1) Such nation has provided evidence documenting its adoption of a 
regulatory program for the conservation of sharks that is comparable in 
effectiveness to regulatory measures required under U.S. law in the 
relevant fisheries, taking into account different conditions, including 
conditions that could bear on the feasibility and effectiveness of 
measures; and (ii) Such nation has established a management plan that 
will assist in the collection of species-specific data on sharks to 
support international stock assessments and conservation efforts for 
sharks.
    (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 actions taken to adopt a regulatory program that is 
comparable in effectiveness to that of the United States, taking into 
account different conditions. The Secretary of Commerce shall consider 
any relevant information received during consultations when making its 
formal certification determination.
* * * * *
    7. Newly redesignated Sec.  300.205 is revised to read as follows:


Sec.  300.205  Effect of certification.

    (a) If a nation identified under Sec.  300.202(a), Sec.  
300.203(a), or Sec.  300.204(a) 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 by the Secretary of the Treasury into any place in 
the United States and to the navigable waters of the United States.
    (b) Upon notification and any recommendations by the Secretary of 
Commerce to the President that an identified nation has failed to 
receive a positive certification, the President is authorized to direct 
the Secretary of the Treasury to prohibit the importation of certain 
fish and fish products from such nation (see Sec.  300.206).
    (c) Any action recommended under paragraph (b) shall be consistent 
with international obligations, including the WTO Agreement.
    (d) If certain fish and 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, bycatch, or shark catch 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, bycatch, or shark catch 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 for having vessels engaged in IUU fishing 
that is 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 activities for which it 
was identified in the biennial report. Any nation identified in the 
biennial report to Congress for having vessels engaged in PLMR bycatch 
or catch of sharks that is negatively certified will remain negatively 
certified until the Secretary of Commerce determines that the nation 
has taken the necessary actions pursuant to the Moratorium Protection 
Act to receive a positive certification.
    (f) Consultations. NMFS will, working through or in consultation 
with the Department of State, continue consultations with nations that 
do not receive a positive certification with respect to the fishing 
activities 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 
each such nation.
    8. Redesignate Sec.  300.205 as Sec.  300.206, and in newly 
redesignated Sec.  300.206, revise paragraphs (a) and (b)(4) to read as 
follows:


Sec.  300.206  Denial of port privileges and import restrictions on 
fish or fish products.

    (a) * * *
    (1) Vessels from a nation identified in the biennial report under 
Sec.  300.202(a), Sec.  300.203(a), or Sec.  300.204(a) and not 
positively certified by the Secretary of Commerce that enter any place 
in the United States or the navigable waters of the United States 
remain subject to inspection and may be prohibited from landing, 
processing, or transshipping fish and fish products, under applicable 
law. 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 previous biennial report under 
Sec.  300.202(a) that are not positively certified in the current 
biennial report, the Secretary of Commerce shall so notify and make 
recommendations to the President, who is authorized to direct the 
Secretary of the Treasury to impose import prohibitions with respect to 
fish and fish products from those nations. Such a recommendation would 
address the relevant fishing activities or practices for which such 
nations were identified in the biennial report. Such import 
prohibitions, if implemented, would apply to fish and fish products 
managed under an applicable international fishery agreement. If there 
is no applicable international fishery agreement, such prohibitions, if 
implemented, would only apply to fish and fish products caught by 
vessels engaged in illegal, unreported, or unregulated fishing. For 
nations identified under Sec.  300.203(a) or Sec.  300.204(a) that are 
not positively certified, the Secretary of Commerce shall so notify and 
make recommendations to the President, who is authorized to direct the 
Secretary of the Treasury to impose import prohibitions with respect to 
fish and fish products from those nations; such prohibitions would only 
apply to fish and fish products caught by the vessels engaged in the 
relevant activity for which the nation was identified.
    (3) Any action recommended under paragraph (a)(2) shall be 
consistent with international obligations, including the WTO Agreement.
    (b) * * *
    (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.  300.206 shall no longer apply. The 
Secretary of Commerce, with the concurrence of the Secretary of State 
and in cooperation with the Secretary of the Treasury, will notify such 
nations and will file with the Office of the

[[Page 40561]]

Federal Register for publication notification of the removal of the 
import restrictions effective on the date of publication.
    9. Redesignate Sec.  300.206 as Sec.  300.207, and in newly 
redesignated Sec.  300.207, revise the section heading, and paragraph 
(c), and add paragraph (d) to read as follows:


Sec.  300.207  Alternative procedures for nations identified as having 
vessels engaged in IUU fishing activities that are not certified under 
Sec.  300.202

* * * * *
    (c) Fish and 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 
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.
    (d) Any action recommended under this section shall be consistent 
with international obligations, including the WTO Agreement.
    10. Redesignate Sec.  300.207 as Sec.  300.208, and in newly 
redesignated Sec.  300.208, revise the section heading and add 
paragraph (d) to read as follows:


Sec.  300.208  Alternative procedures for nations identified as having 
vessels engaged in bycatch of PLMRs that are not certified under Sec.  
300.203.

    (d) Any action recommended under this section shall be consistent 
with international obligations, including the WTO Agreement.
    11. Add new Sec.  300.209 to read as follows:


Sec.  300.209  Alternative procedures for nations identified as having 
vessels engaged in shark catch that are not certified under Sec.  
300.204.

    (a) These certification procedures may be applied to fish and fish 
products from a vessel of a harvesting nation that has been identified 
under Sec.  300.204 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 and 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 and fish products on a shipment-by-
shipment, shipper-by-shipper, or other basis if the Secretary 
determines that imports were harvested by fishing activities or 
practices that do not target or incidentally catch sharks, or were 
harvested by practices that--
    (1) Are comparable to those of the United States, taking into 
account different conditions; and
    (2) Include the gathering of species specific shark data that can 
be used to support international and regional assessments and 
conservation efforts for sharks.
    (c) Fish and 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.
    (d) Any action recommended under this section shall be consistent 
with international obligations, including the WTO Agreement.

[FR Doc. 2012-16838 Filed 7-9-12; 8:45 am]
BILLING CODE 3510-22-P