[Federal Register Volume 80, Number 148 (Monday, August 3, 2015)]
[Notices]
[Pages 45955-45963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18945]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XE078


Presidential Task Force on Combating Illegal Unreported and 
Unregulated (IUU) Fishing and Seafood Fraud Action Plan

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

ACTION: Notice; request for comments.

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SUMMARY: The National Ocean Council Committee on IUU Fishing and 
Seafood Fraud (NOC Committee) is seeking public input on draft 
principles for determining seafood species at risk of IUU fishing and 
seafood fraud (``at risk'') and a draft list of ``at risk'' species 
developed using the draft principles.

DATES: Comments must be received by September 2, 2015.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2014-0090, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2014-0090, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Danielle Rioux, 1315 
East-West Highway; Silver Spring, Maryland 20910.
     Webinar: A webinar will be held on August 25th 3:30-5pm 
Eastern time. Please go to http://www.nmfs.noaa.gov/ia/iuu/taskforce.html for information on how to join.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by the Working Group. All comments received are a 
part of the public record and will generally be posted for public 
viewing on www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. The Working Group will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous).

FOR FURTHER INFORMATION CONTACT: Danielle Rioux, Office of Sustainable 
Fisheries, National Marine Fisheries Service (phone 301-427-8516, or 
email [email protected]).

SUPPLEMENTARY INFORMATION: According to NOAA, in 2013, U.S. fishers 
landed 9.9 billion pounds of fish and shellfish worth $5.5 billion. 
Illegal, unreported, and unregulated (IUU) fishing and seafood fraud 
undermine the sustainability of U.S. and global seafood stocks and 
negatively impact general ecosystem health. At the same time, IUU 
fishing and fraudulent seafood products distort legal markets and 
unfairly compete with the products of law-abiding fishers and seafood 
industries. On March 15, 2015, the Presidential Task Force on Combating 
IUU Fishing and Seafood Fraud (Task Force), co-chaired by the 
Departments of Commerce and State, took an historic step to address 
these issues and published its Action Plan for Implementing Task Force 
Recommendations (Action Plan).

The Action Plan

    (http://www.nmfs.noaa.gov/ia/iuu/noaa_taskforce_report_final.pdf) 
articulates the proactive steps that Federal agencies will take to 
implement the recommendations the Task Force made to the President in 
December 2014 on a comprehensive framework of integrated programs to 
combat IUU fishing and seafood fraud. The Action Plan identifies 
actions that will strengthen enforcement, create and expand 
partnerships with state and local governments, industry, and non-
governmental organizations, and create a risk-based traceability 
program to track seafood from harvest to entry into U.S. commerce, 
including through the use of existing traceability mechanisms. The work 
the Task Force began continues under the oversight of the National 
Ocean Council's Committee on IUU Fishing and Seafood Fraud (NOC 
Committee), established this past April, 2015.
    This notice is one of several steps in the plan to implement Task 
Force Recommendations 14 and 15, identifying ``species of fish or 
seafood that are presently of particular concern because they are 
currently subject to significant seafood fraud or because they are at 
significant risk of being caught by IUU fishing.'' To begin 
implementing these recommendations, the NOC Committee created a Working 
Group (Working Group), led by NOAA and composed of members from partner 
agencies: Department of State, Food and Drug Administration, Department 
of Homeland Security, Customs and Border Protection, and the Office of 
the U.S. Trade Representative.
    As the first step, the NOC Committee, through the Working Group, 
solicited public input through a Federal Register notice (80 FR 24246, 
April 30, 2015) on what principles should be used to determine the 
seafood species ``at risk'' for IUU fishing or seafood fraud. Public 
input was received both in writing and through webinars. Taking into 
consideration comments received, the Working Group developed draft 
principles and a draft list of ``at risk'' species based on those 
principles. This notice seeks public comment on the draft principles 
and ``at risk'' species list. Following public comment, the Working 
Group will develop final principles and a final recommended list of at 
risk species. Once at risk species have been determined, the NOC 
Committee will transmit the list to agencies charged with implementing 
the Task Force recommendations for appropriate action. The list will be 
published by October 2015, in the

[[Page 45956]]

Federal Register. The list will not impose any legal requirements, but 
will inform the first phase of the risk-based seafood traceability 
program, as described in the Action Plan for Implementing Task Force 
Recommendations. The traceability program itself will be developed 
through notice-and-comment rulemaking, pursuant to the Magnuson-Stevens 
Fishery Conservation and Management Act, and that rulemaking will 
address data requirements, the design of the program, and the species 
to which the first phase of the program will be applied.

Draft Principles for Determining Species at Risk of IUU Fishing and 
Seafood Fraud

    To develop draft principles, the Working Group reviewed all public 
comments received and evaluated the strength and utility of various 
principles as indicators for potential risk of IUU fishing or seafood 
fraud as well as their measurability and the robustness of data 
available to assess them. The Working Group worked to minimize overlap 
of principles to ensure that alignment with several principles does not 
overstate associated risk, and also to distinguish between risk of IUU 
fishing and risk of seafood fraud. The Working Group then applied the 
draft principles to a base list of species to determine a draft list of 
species at risk for IUU fishing or seafood fraud.
    Based on the Working Group's evaluation and synthesis of comments 
received, the draft principles for which public comment is sought are 
listed below. Species and species groups were evaluated using these 
principles:
     Enforcement Capability: The enforcement capability of the 
United States and other countries, which includes both the existing 
legal authority to enforce fisheries management laws and regulations 
and the capacity (e.g., resources, infrastructure, etc.) to enforce 
those laws and regulations throughout the geographic range of fishing 
activity for a species.
     Catch Documentation Scheme: The existence of a catch 
documentation scheme throughout the geographic range of fishing 
activity for a species, and the effectiveness of that scheme if it 
exists, including whether a lack of proper documentation leads to 
discrepancies between total allowable catch and trade volume of a 
species.
     Complexity of the Chain of Custody and Processing: The 
transparency of chain-of-custody for a species, which includes the 
amount of transshipment (in this context, the transfer of fish from one 
vessel to another, either at sea or in port) for a species, as well as 
the complexity of the supply chain and extent of processing (e.g., fish 
that is commonly exported for processing or that is sold as fillet 
block vs. whole fish) as it pertains to comingling of species or catch.
     Species Substitution: The history of known species 
substitution for a species, focused on mislabeling or other forms of 
misrepresentation of seafood products regarding the species contained 
therein.
     Mislabeling: The history of mislabeling other than 
mislabeling related to species substitution, e.g., customs 
misclassification or misrepresentation related to country of origin, 
whether product is wild vs. aquaculture, or product weight.
     History of Violations: The history of fisheries violations 
in the United States and abroad for a species, particularly those 
related to IUU fishing.
     Human Health Risks: History of mislabeling, other forms of 
misrepresentation, or species substitution leading to human health 
concerns for consumers, including in particular, incidents when 
misrepresentation of product introduced human health concerns due to 
different production, harvest or handling standards, or when higher 
levels of harmful pathogens were introduced directly from the 
substituted species.

Application of Draft Principles

    Given the large number of seafood species domestically landed and 
imported, it was not feasible to analyze all species that enter U.S. 
commerce under the principles listed above. Therefore, the Working 
Group created a base list of species for evaluation using several 
factors: (1) The value of domestic landings and imports (all seafood 
species with an imported or domestically landed value over $100 million 
USD in 2014 were included on the base list); (2) species identified by 
the Working Group due to a high cost of product per pound (which was 
considered to potentially increase the incentive for IUU fishing and 
fraud); and (3) species proposed based on the expertise of 
representatives from the Working Group agencies. In some cases, the 
Working Group combined related species (e.g., shrimp), together in its 
analysis because the supporting data utilized nomenclature which made 
further analytical breakouts (e.g., by scientific name) unworkable. The 
resulting list of species and groups analyzed is set forth below:

    Abalone; Billfish (Marlins, Spearfishes, and Sailfishes); 
Catfish (Ictaluridae); Cod, Atlantic; Cod, Pacific; Crab, Blue; 
Crab, Dungeness; Crab, King; Crab, Snow; Dolphinfish (Mahi Mahi); 
Oyster; Grouper; Haddock; Halibut, Atlantic; Halibut, Pacific; Lake 
or Yellow Perch; Lobster; Mackerel; Menhaden; Opah; Orange Roughy; 
Red Drum; Red Snapper; Sablefish; Salmon, Atlantic; Salmon, Chinook; 
Salmon, Chum; Salmon, Coho; Salmon, Pink; Salmon, Sockeye; Scallop; 
Sea bass; Sea cucumber; Shrimp; Sharks; Sole; Squid; Sturgeon 
caviar; Swordfish; Tilapia; Toothfish; Tunas (Albacore, Bigeye, 
Bluefin, Skipjack, Yellowfin); Wahoo; Walleye (Alaskan) Pollock; 
Pacific Whiting.

    Both imported and domestically landed species were evaluated using 
the same data sources and methodology, as described below.
    The Working Group identified appropriate data sources for analyzing 
the base list of species using the principles to determine species at 
risk of IUU fishing and seafood fraud. The Working Group used 
verifiable data, including information from Customs and Border 
Protection (CBP), Food and Drug Administration (FDA), and NOAA 
databases, published reports, or data gathered by Regional Fisheries 
Management Organizations to which the United States is a member and 
whose scientific data is developed and reviewed with active U.S. 
government participation, and the knowledge of subject matter experts, 
including members of the Working Group and other personnel from 
represented agencies. The Working Group decided to analyze data from 
the past five years as the appropriate timeframe for decision-making 
because a longer timeframe might not reflect improvements that have 
been made in some fisheries over time and a shorter timeframe might not 
include sufficient data to identify risks to certain species.
    Sub-working groups based on subject matter expertise were created 
to complete the analyses under each individual principle. The Working 
Group then used the analyses done by the sub-working groups to 
determine which species were most at risk of IUU fishing and seafood 
fraud.
    The Working Group then had in-depth discussions regarding the 
application of the draft principles to the base list of species, and 
noted that the suite of risks posed to species varied not only in terms 
of what risks affected which species, but also in terms of the scale of 
the risks. For example, a single documented case of species 
substitution for a species that is sold in high volumes was considered 
differently than one case for a species rarely found in U.S. markets.
    Additionally, as the Working Group discussed the suite of risks 
associated

[[Page 45957]]

with the principles, a relationship became evident between the 
enforcement capability associated with a species and the history of 
violations. In many cases a history of violations was indicative of a 
strong enforcement capability for a species. Conversely, for some 
species, a lack of violations history may have been due to a lack of 
ability to detect or prosecute violations.

Draft Species at Risk of IUU Fishing and Seafood Fraud

    The Working Group recognizes that all species of fish can be 
susceptible to some risk of IUU fishing or seafood fraud due to the 
inherent complexities in the fishing industry and supply chain. 
However, the draft species list was developed to identify species for 
which the current risks for IUU fishing or seafood fraud warrant 
prioritization for the first phase of the traceability program. 
Pursuant to the Action Plan, implementation of the first phase of the 
traceability program will be regularly evaluated, beginning with a 
report to be issued by December 2016, in order to determine ``whether 
it is meeting the intended objectives and how it can be expanded to 
provide more information to prevent seafood fraud and combat IUU 
fishing.''
    Based on its evaluation, the Working Group identified the following 
draft list of species or species groups at risk for IUU fishing and 
seafood fraud, in alphabetical order:
    Abalone: Abalone is considered to be at risk due to enforcement 
concerns. The fishery has a history of poaching, and there is a known 
black market for this expensive seafood. The fishery is primarily 
conducted by small vessels close to shore, and does not require 
specialized gear, which makes it difficult to detect illegal harvest, 
despite some enforcement capability. In addition to the IUU fishing 
risks for abalone, there is a history of species substitution where 
topshell is marketed as abalone.
    Atlantic Cod: Atlantic cod have been targets of global IUU fishing 
operators. Despite a moderate amount of enforcement capability, there 
has been concern that adequate resources have not been dedicated to law 
enforcement for this species globally. Additional IUU fishing risk is 
tied to a lack of an effective catch documentation scheme throughout 
the geographic range of fishing activity, despite rigorous reporting 
requirements in some areas, including the United States. In addition, 
there is a history of species substitution with other white fish, as 
well as concerns over mislabeling related to over-glazing (ice 
coating), and short-weighting.
    Blue Crab: Blue crab is sold in a number of different forms from 
live animals to significantly processed crab meat. In the highly 
processed form, species identification is only possible through DNA 
testing. There is a strong history of both species substitution and 
mislabeling. Blue crab has been substituted with swimming crab, which 
is native to Southeast Asia. The mislabeling history is largely 
associated with misidentification of product origin, with crab from 
other locations sold as ``Maryland crab,'' although there have also 
been incidents of short-weighting in the sale of crab meat.
    Dolphinfish: Dolphinfish (also known as Mahi Mahi) is associated 
with a lack of enforcement capability and a lack of a catch 
documentation scheme throughout the geographic range of fishing 
activity, which makes it vulnerable to the risk of IUU fishing. Some 
dolphinfish is transshipped prior to entry into the U.S, and there is 
concern over mislabeling associated with product origin. In addition, 
there is a history of species substitution, in which yellowtail 
flounder has been sold as dolphinfish.
    Grouper: Grouper refers to a group of species legally fished and 
sold under the names grouper and spotted grouper. Grouper, as a species 
group, has history of fisheries violations, and a lack of a catch 
documentation scheme throughout the geographic range of fishing 
activity for the species group. Additionally, this global species is 
transshipped, and processed both at the local level and at regionally 
located or third country processing plants. Grouper has a strong 
history of species substitution, including substitution using seafood 
that is of human health concern, such as escolar (which has a 
Gemplytoxin hazard).
    King Crab: King crab has a significant history of fisheries 
violations, despite insufficient enforcement capability in some parts 
of the world. Additional IUU fishing risk is tied to the lack of an 
effective catch documentation scheme throughout the geographic range of 
fishing activity, despite rigorous reporting requirements in some 
areas, including the United States. Further, King crab is often 
transshipped before entering the United States, which increases the IUU 
fishing and seafood fraud risks. King crab is at risk for seafood 
fraud, mostly due to mislabeling of product origin, as well as some 
species substitution.
    Pacific cod: Pacific cod is proposed as a species at risk despite 
significant enforcement capability associated with this fishery. 
Pacific cod is a target of global IUU fishing operators and has a clear 
a history of fishing violations. It is also subject to highly 
globalized processing and transshipment. Additional IUU fishing risk is 
tied to a lack of an effective catch documentation scheme throughout 
the geographic range of fishing activity, despite rigorous reporting 
requirements in some areas, including the United States. In addition, 
as with Atlantic cod, there is a history of species substitution using 
other white fish and concerns over mislabeling associated with over-
glazing (ice coating) and short-weighting.
    Red Snapper: Red Snapper is at risk for IUU fishing, based upon the 
history of fisheries violations, as well as the lack of a catch 
documentation scheme throughout the geographic range of fishing 
activity, despite rigorous reporting requirements in some areas, 
including the United States. There are also enforcement capability 
concerns for red snapper throughout the full geographic range of 
fishing activity for the species. Additionally, there is a strong 
history of species substitution with some of the substituted species 
(e.g. rockfish, porgy, other snappers) presenting a risk to human 
health due to parasites and natural toxins.
    Sea Cucumber: Sea cucumber is an IUU fishing concern, due to the 
lack of enforcement capability and known illegal harvesting and 
smuggling associated with this species. There is also a lack of a catch 
documentation scheme throughout the geographic range of fishing 
activity and a significant amount of transshipment. Although sea 
cucumber is often sold live, it can also be processed into a dried 
product for preservation. There are mislabeling concerns for sea 
cucumber, often tied to falsification of shipping and export 
documentation to conceal illegally harvested product.
    Sharks: ``Sharks,'' as included on the draft at risk species list, 
refers to a group of species that are often sold as fins with some 
species also sold as steaks or filets. Depending upon the product form, 
differentiating between species in this broad group is a challenge 
without identification guides or DNA testing. This led the Working 
Group to group all shark species together to assess risks. Sharks as a 
species group have a history fishing violations because they are 
processed and transshipped and there is a lack of enforcement 
capability throughout the geographic range of fishing activity. There 
is a global trade in shark fins that is a known enforcement concern. In 
addition to the IUU fishing risks associated with sharks, there are 
fraud concerns tied to the sale

[[Page 45958]]

of imitation shark fin, which has been labeled as wild caught product.
    We are seeking additional public comment on whether this broader 
grouping is appropriate, potential ways to refine how sharks are 
addressed on the list, and any exclusions from the group that should be 
considered. Any refinements would need to be enforceable without the 
need for DNA testing, and should not unintentionally shift the risk of 
IUU fishing or seafood fraud to other species or introduce new IUU 
fishing or seafood fraud risks.
    Shrimp: Shrimp is produced through both aquaculture and wild 
harvest. The Working Group found that shrimp is at risk for IUU fishing 
activity due to the history of fishery violations, as well as the level 
of processing often associated with shrimp products. Shrimp is also at 
risk for seafood fraud. There is a significant amount of mislabeling 
and/or misrepresentation of shrimp, tied largely to misrepresentation 
of weight, including where product has been treated with Sodium 
Tripolyphosphate to increase water retention. Mislabeling is also a 
concern regarding wild versus aquacultured labeling and product origin. 
Additionally, there is a history of substitution of one species of 
shrimp for another when imports cross the border into the United 
States.
    We are seeking additional public comment on possible ways to refine 
the scope of this species group, e.g., by limiting the scope based on 
product type, species, processing type, or other approaches. Shrimp is 
the largest seafood import into the United States, with the value of 
shrimp imports representing more than twice the value of any other 
seafood species group. Wild capture fisheries exist both in the United 
States and foreign nations. Due to the sheer volume of shrimp that 
enters U.S. markets, traceability for all shrimp may exceed the 
capacity of implementing agencies.
    Swordfish: Swordfish are at risk in terms of both IUU fishing and 
seafood fraud. Swordfish are a highly migratory species and their range 
crosses numerous jurisdictions, including into the high seas. There has 
been a history of fisheries violations in certain swordfish fisheries 
and regions, in addition to a lack of enforcement capability. The 
United States does, however, implement a statistical document program 
for swordfish pursuant to the International Commission for the 
Conservation of Atlantic Tunas (ICCAT) to help mitigate IUU fishing and 
seafood fraud risk. This document is required for all swordfish product 
entering the United States, regardless of the product form or ocean 
area where it was harvested, although it does not provide the full 
range of information that would be expected in a traceability program, 
particularly for fish harvested outside the Atlantic. Swordfish is 
commonly transshipped and is also at risk in terms of species 
substitution with mako shark.
    Tunas: Tunas are a high volume and high visibility species group 
that includes five main species: albacore, bigeye, bluefin, skipjack, 
and yellowfin. There has been a history of fisheries violations in 
certain tuna fisheries and in certain regions. Further, harvesting, 
transshipment, and trade patterns for tunas can be complex, in 
particular for certain value-added products. While there are 
multilateral management and reporting measures in place for many stocks 
within the tuna species group, these management and reporting 
mechanisms vary in terms of information standards and requirements and 
do not all provide a complete catch documentation scheme. Tunas are 
also subject to complicated processing that includes comingling of 
species and transshipments. Further, there has been a history of some 
species substitutions, with most instances involving substitution of 
one tuna species for another. However, there have also been instances 
of escolar, which can contain a toxin, being substituted for albacore 
tuna.
    The Working Group is asking for public comment on possible ways to 
refine the scope of this species group possibly by limiting to certain 
product types, species, processing types, or other approaches.

 Programs To Mitigate Risk

    Through the application of the draft principles, the Working Group 
identified two species--toothfish and catfish--that had a number of 
risk factors for IUU fishing or seafood fraud, but due to mechanisms to 
address those risks are not being proposed as at risk species in this 
Notice.
    Toothfish has been known, historically, as a species with IUU 
fishing concerns, which led to the development, by the Commission for 
the Conservation of Antarctic Marine Living Resources (CCAMLR), of a 
number of monitoring tools including a comprehensive catch 
documentation scheme. Without the existing level of reporting, 
documentation, and enforcement capability, including through measures 
adopted by CCAMLR, for this species, the Working Group would have found 
it to be at risk.
    The Working Group found that while existing measures do not 
eliminate risk for toothfish, they mitigate the IUU fishing and seafood 
fraud risks to such a level that the Working Group does not propose 
toothfish as an at risk species for the first phase of the traceability 
program.
    In the United States, seafood sold as catfish must be from the 
family Ictaluridae (per section 403(t) of the Federal Food, Drug, and 
Cosmetic Act (21 U.S.C. 343(t)) Regarding the Use of the Term 
``Catfish''). As such, there is a strong history of species 
substitution, in which non-Ictaluridae species are sold as catfish. 
Some of this species substitution has been tied to Silurformes species, 
which could have a drug hazard associated with them, as well as other 
species that have been found contaminated with prohibited chemicals and 
pharmaceuticals. In addition to species substitution, there is a 
history of other mislabeling issues, including product origin and 
failure to accurately label product that has been treated with carbon 
monoxide.
    These risks were discussed and are fully recognized by the Working 
Group. However, there is a rulemaking on catfish inspection (http://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201410&RIN=0583-AD36) 
under development, separate from the NOC Committee and Working Group 
actions. Once in effect, this pending rulemaking may mitigate risks 
identified by the Working Group. Taking into consideration the 
underlying principle of the Task Force to maximize existing resources 
and expertise from across the federal government through increased 
federal agency collaboration, the Working Group did not include catfish 
on the draft list of at risk species. In the absence of this pending 
rulemaking, or if the pending rulemaking has not progressed when a 
final list of at risk species is determined, the decision to exclude 
catfish from the list of at risk species can be revisited.

Summary of Comments in Response to 80 FR 24246 (April 30, 2015)

    In response to the April 30, 2015, notice (described above), U.S. 
fishing industry groups, non-governmental organizations, foreign 
nations, and interested citizens submitted comments on a wide breadth 
of topics related to the development of the draft principles and the 
draft at risk species list. A total of 155 written comments, and 26 
oral comments received via webinars, were provided. The comments 
included 66 unique comments and 115 comments that were substantially 
the same and therefore are treated as one unified comment supporting 
implementation of a seafood traceability program for

[[Page 45959]]

imported Dolphinfish (noted as ``Dorado'' in public comments, also 
known as Mahi Mahi, Coryphaena hippurus) from Mexico. The Working Group 
considered all public comments, and has provided responses to all 
relevant issues raised by comments below. We have not responded to 
comments that are outside the scope of this request and that may be 
more relevant to future steps in the process, i.e., the pending 
rulemaking on the design of the traceability system.

1. Enforcement Capability

    Comment: Many public comments noted that a species will be at risk 
when there is a lack of enforcement capability for managing the 
species. Comments addressed two different aspects of enforcement 
capability: enforcement authority for a species (i.e., if there is an 
existing legal framework that gives authority to enforce fisheries 
management regulations), and enforcement capacity (i.e., if the 
resources and infrastructure necessary for effective enforcement, such 
as patrol vessels and personnel, exists).
    Response: The Working Group agrees that this is an important factor 
to consider in determining whether a species is at risk for IUU fishing 
and used enforcement capability (i.e., both enforcement authority and 
enforcement capacity) as one of the draft principles for its analysis.

2. Catch Documentation Scheme

    Comment: We received multiple comments regarding the importance of 
a catch documentation scheme to reduce a species' risk for IUU fishing 
and seafood fraud. Example comments: ``A lack of effective catch 
documentation systems: Thorough, up-to-date catch documentation and 
consistent cross-checks of those records helps to reduce opportunities 
to funnel illegally-caught fish into legal market streams, especially 
for complicated trade routes,'' and ``the presence of relevant and 
reliable catch records in an easily stored and shared format (such as 
electronic) would be considered an indicator for degree of risk.''
    Response: The Working Group agrees and has made the existence of a 
catch documentation scheme for a species, and the effectiveness of the 
scheme if one exists, one of the draft principles for determining at 
risk species. An effective catch documentation scheme is a tool that 
enhances seafood traceability and helps decrease the opportunity for 
IUU fishing and seafood fraud.

3. Complexity of the Chain of Custody and Processing

    Comment: A number of comments were received that were related to 
the complexity and transparency of the chain of custody for seafood. In 
the more complex chains of custody there are more opportunities for 
mixing illegally caught fish with legally caught fish, or for 
mislabeling. Multiple comments noted that transshipments make tracking 
the chain of custody harder and present an opportunity to commingle 
legally and illegally caught fish. Similarly, the complexity of the 
processing a species undergoes is also important. It is much more 
difficult to mislabel whole fish, because the identification of the 
species is easier. Conversely, highly processed seafood (such as fillet 
block or surimi) could have a number of species mixed into it, either 
legally, or fraudulently, and without DNA testing it is impossible to 
identify the constituent parts. Example comments include: ``Prioritize 
mixed products that are composed of more than one species . . . 
numerous species in a single product can increase IUU risk.'' ``Seafood 
products that have been co-mingled, processed, transshipped, or 
transported throughout multiple jurisdictions.'' ``Monitoring and 
control of transshipments; Does the supply chain actor (i.e. retailer, 
importer, etc.) request/have a list of vessels involved in 
transshipments including carrier vessel (basic level information, flag 
State, registration number, license, unique vessel identifier).''
    Response: The Working Group agrees that the transparency in the 
supply chain is important to detecting and discouraging IUU fishing and 
seafood fraud. Accordingly, we have made the transparency of chain of 
custody for a species a draft principle. This draft principle includes 
an assessment of how common transshipment is for each species, the 
complexity of processing, and the resulting final product (e.g., fillet 
block vs. whole fish).

4. Species Substitution

    Comment: The Working Group received many comments highlighting the 
problems associated with mislabeling and other forms of 
misrepresentation of seafood. Due to the magnitude of comments 
concerned with the substitution of one species for another, the Working 
Group addressed species substitutions separately from other forms of 
mislabeling fraud (see next comment). Commenters highlighted some 
reasons species substitutions might occur: Avoiding tariffs, increasing 
value (i.e., a less valuable species sold as a higher value species), 
and masking illegal fishing. Example comments include: ``operators 
intentionally mislabel species to avoid tariffs or regulations or to 
pass off lower value fish as higher value product.'' ``Low value 
species whose products `resemble' those from higher value species. Even 
if the species itself is plentiful, economic incentive then exists for 
seafood fraud and substitution.''
    Response: The Working Group agrees that substituting one species 
for another species can be harmful to the seafood industry and to the 
consumer, regardless of the reason for species substitution. Therefore, 
the Working Group has included a draft principle that takes into 
account the history of seafood substitutions for a species.

5. Seafood Mislabeling

    Comment: In addition to species substitutions, there are many other 
types of seafood mislabeling that can be considered fraud, including, 
but not limited to: Improper weighting, unlabeled chemical additives, 
added water, mislabeled harvest location, misrepresentation of farmed 
vs. wild product, and misclassification of import codes. Example 
comments include: ``Net weight is the most widespread fraudulent 
activity and the hardest to fix. It is very tempting to sell and ice 
glaze for $10 to $25 a pound.'' ``Lower value farm raised species that 
are substituted for higher value wild species . . . [is] economically 
motivated adulteration or fraud.''
    Response: The Working Group agrees. Seafood mislabeling and other 
forms of misrepresentation create an unfair market for law-abiding 
members of the seafood industry and directly impacts consumers. The 
motive for mislabeling and other forms of misrepresentation are more 
difficult to ascertain and in some instances mislabeling can be 
unintentional. Therefore, the Working Group chose to analyze instances 
of mislabeling unrelated to species substitution to determine species 
most at risk, and did not attempt to address intent.

6. History of Violations

    Comment: A number of comments received highlighted fisheries with 
prior IUU fishing violations as being at risk fisheries. Without 
additional controls or management and monitoring systems, continued IUU 
fishing activity would be expected for species that have a history as a 
target for IUU fishing. Example comments: ``We encourage the Task Force 
to identify and review the cases for those companies and individuals,

[[Page 45960]]

both domestic and foreign, convicted for incidents of misreporting.''
    Response: The Working Group agrees with public comments that a 
history of violations is a risk factor. The Working Group therefore 
included the history of violations for a species as a draft principle 
for identifying risk of IUU fishing for a species. It should be noted 
that the history of fisheries violations within a fishery is separate 
from the draft principles concerning mislabeling and species 
substitution.

7. Human Health Risks

    Comment: The Working Group received comments that species at risk 
of seafood fraud should also be reviewed and prioritized according to 
potential human health impacts. When species are substituted or 
mislabeled, in addition to defrauding the customer, there can be an 
introduced or increased human health risk. An example comment includes: 
``Farmed fish from developing countries with little or no health 
standards are increasingly being found to contain toxins that pose 
health threats to consumers. These fish are often substituted for fish 
with local names, and passed off to the American consumer as domestic 
wild caught [sic.].''
    Response: The Working Group agrees that human health risk should be 
considered. As such, the Working Group has made history of mislabeling 
impacting human health a draft principle for determining at risk 
species.

8. Species Health and Vulnerability

    Comment: The Working Group received numerous comments regarding the 
importance of sustainable seafood, and requesting that the biological 
health of the species, or associated bycatch levels, gear impacts and 
other environmental impacts be considered. Example comments include: 
``[Species] [k]nown or projected to be biologically vulnerable, 
including low intrinsic rates of population increase or highly 
migratory (subject to fishing from multiple jurisdictions).'' 
``Unfortunately, as a species' numbers decline the market value of the 
species often rises. This could boost the incentive for illegal fishers 
to chase those species.''
    Response: The Working Group acknowledges that the sustainability of 
fishing resources is an important goal and is a priority for NOAA under 
the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 
U.S.C. 1801 et seq. Some vulnerable species identified in the comments 
such as sharks, sturgeon, and abalone were added to the base list and 
analyzed by the Working Group. However, the main focus of this process 
is to identify species at risk for IUU fishing or seafood fraud and a 
species' vulnerability is not, in and of itself, indicative of such 
risk, and thus is beyond the scope of this process.

9. Economic Importance of a Species (Volume and Value)

    Comment: Multiple comments encouraged the Working Group to include 
information about the volume and value of the species traded or landed 
when determining risk. The comments note that high volume and high 
value species are more likely at risk for IUU fishing and seafood 
fraud. Example comments include: `` IUU fishing is often associated 
with highly valuable species that are prized in the global marketplace, 
including large apex predators, such as tunas or sharks and specialty 
products such as eel'', and ``Value and volume of species: initial 
focus on species of significant value and volume, both aspects that 
increase motivation for IUU and seafood fraud.''
    Response: To ensure that the economic importance of a species was 
taken into account, the Working Group ensured that all species or 
groups of species, either domestically landed or imported, with an 
annual value of $100 million USD or more for 2014 were included in the 
base list of species evaluated to determine whether they are at risk 
for IUU fishing or seafood fraud. This encompassed both the demand for 
a product, as well as the value, and, in most cases, also the volume 
(most high volume species also have an annual value of over $100 
million). Recognizing, however, that value or volume is only one 
measurement, the Working Group also identified species that are known 
to have high prices per pound, but do not meet the threshold of annual 
landings or import value of over $100 million, and added them for 
evaluation (e.g., sturgeon caviar, sea cucumber), as well as species 
identified by subject matter experts from the Working Group agencies.

10. Bycatch Concern

    Comment: In addition to comments about target species' 
sustainability, comments were received regarding the level of bycatch 
associated with the harvest of a species. These comments generally were 
in agreement that a high level of bycatch would make the target species 
more likely to be at risk.'' Example comments: ``It must adequately 
address bycatch.'' ``Harvested from fisheries with a high frequency of 
destructive fishing methods . . . and fishing methods that result in 
significant bycatch are more likely to be threatened by IUU fishing.''
    Response: The Working Group acknowledges the importance of reducing 
incidental bycatch of marine species to the sustainability of global 
fisheries. The selection of species to which the principles were 
applied as described in this notice includes species harvested both as 
targeted catch and bycatch. Despite the importance of minimizing 
bycatch in sustainable fisheries management, the level of bycatch 
associated with harvest of a target species is not, in and of itself, 
determinative of the level of risk for IUU fishing or seafood fraud for 
the target species. Thus, the Working Group did not include this 
consideration as a draft principle.

11. Marine Mammal Protection Act Ties to Risk

    Comment: One commenter stated: ``in addition to concerns about the 
seafood products themselves, the Marine Mammal Protection Act (MMPA) at 
16 U.S.C. 1371(a)(2) requires the government to insure that seafood 
products imported into the United States must be caught in a manner 
that does not result in the killing or serious injury of ocean mammals 
in excess of U.S. standards.''
    Response: MMPA section 101(a)(2) (16 U.S.C. 1371(a)(2)) concerns 
the level of marine mammal bycatch in the course of commercial fishing 
operations. As stated above, the level of bycatch associated with 
harvest of a target species is not, in and of itself, determinative of 
the level of risk for IUU fishing or seafood fraud for the target 
species. In a separate rulemaking, NOAA intends to publish a proposed 
rule to implement MMPA section 101(a)(2).

12. Country-Specific Risk

    Comment: A large number of public comments requested that we look 
at the country of origin as a critical principle for determining a 
species' risk of IUU fishing or seafood fraud. For example, comments 
received include: ``The Task Force should start with the existing 
report NOAA provides to Congress every two years that identifies 
nations that have vessels engaging in IUU fishing. Imported seafood 
from nations identified in this report should be categorized as high 
risk'' and ``[k]nown or established history of illegal fishing or 
fisheries product coming from a nation identified as having documented 
IUU fishing.''
    Response: The Working Group has already identified as draft 
principles enforcement capability and history of

[[Page 45961]]

fisheries violations. These principles will allow the Working Group to 
take into account fisheries identified in NOAA's biennial report to 
Congress as engaging in IUU fishing (see 16 U.S.C. 1826(h)). The 
Working Group does not believe it is useful or appropriate to establish 
a principle based on country of origin.

13. European Union (EU) IUU Seafood Certification

    Comment: A number of comments included discussion of the EU 
approach to combatting IUU fishing, which is country-of-origin based, 
rather than species-based. Example comments: ``Ideally the United 
States could also use the well-researched `red and yellow card' system 
of the European Union to assess the likelihood of IUU products coming 
out of a country's fishery or processing operations'' and 
``[p]rioritize products imported from countries already issued IUU 
yellow or red cards by the EU.''
    Response: The Working Group is implementing the recommendations of 
the Presidential Task Force on Combatting IUU fishing and Seafood 
Fraud, which outlines a species specific approach as the basis for a 
risk-based traceability scheme. As noted above, the Working Group does 
not believe it is appropriate to establish a principle based on country 
of origin. In addition, the U.S. government does not have active 
involvement with the EU country-based IUU fishing risk identification 
system. Therefore, the Working Group did not include a principle that 
would identify species at risk based on whether they are associated 
with nations that have been issued a yellow and red card under the EU 
system. However, to the extent available, information generated or 
collected pursuant to the EU system that could be relevant to other 
principles used by the Working Group, such as enforcement capability 
and history of fisheries violations for specific species.

14. Vessel-Specific Risk and Flags of Convenience

    Comment: A comment was received that a principle for determining 
risk should be: ``Presence of flags of convenience in a fishery: Flags 
of convenience (FOCs) are a well-known challenge to effective fisheries 
management . . . Therefore, the Working Group should pay special 
attention to species caught in fisheries with large numbers of vessels 
registered to known FOCs).''
    Response: The Working Group used history of fisheries violations as 
a principle, which covers incidents from all vessels. Although the 
Working Group recognizes the challenges associated with FOCs, the 
Working Group decided to use a metric of documented offenses rather 
than a flag- or vessel-specific approach.

15. Wildlife Trafficking Connections

    Comment: There is an existing President's Advisory Council on 
Wildlife Trafficking that is working to implement the National Strategy 
for Combatting Wildlife Trafficking, released by the White House on 
February 11, 2014. Public comments encouraged the Working Group to 
connect with the Wildlife Trafficking Advisory Council to ensure we do 
not duplicate efforts, and to work to synergize activity where 
appropriate. Additionally, comments requested: ``In continuing to 
fulfill its mission, we encourage the Working Group to continue 
reaching out to the Presidential Task Force on Wildlife Trafficking, 
especially on illegal trade in marine species, particularly sharks, 
rays, and marine turtles.'' ``Seafood products that are known to be 
involved in wildlife trafficking. Illegally harvested seafood products, 
many of which are depleted or highly depleted, are sometimes involved 
with underground wildlife trade.''
    Response: The Working Group is coordinating with the President's 
Advisory Council on Wildlife Trafficking as some members participate in 
both groups. The Working Group has not used wildlife trafficking as a 
principle for any determination of a species' risk of IUU fishing or 
seafood fraud, but did consider the history of fisheries violations, 
species substitution and mislabeling violations associated with a 
species.

16. Sport vs. Commercial IUU fishing

    Comment: One comment stated: ``The Task Force should differentiate 
between sport and commercial fishing when determining IUU fishing 
activities.''
    Response: While the Working Group acknowledges that illegal sport 
fishing can have adverse impacts on fishery resources, the traceability 
program will only include products that enter into U.S. commerce. 
Landings from sport fishing trips, for the most part, do not enter the 
United States in commercially significant quantities and thus, the 
Working Group used data based on commercial fisheries for all at risk 
determinations.

17. Market Price Versus Catch Price

    Comment: A comment was received noting: ``Another indicator of 
whether IUU products are present in the market are [sic] if there are 
price discrepancies such that the catch price is significantly lower 
than the average price on the market. Where the market price is 
significantly higher than the catch price this may be an indication 
that the product was derived from IUU fishing.''
    Response: The Working Group did not review price discrepancies in 
its at risk analysis. Data on price in the market versus off the boat 
is not robust or consistently collected. In addition, the connection 
between market price and risk of IUU fishing and seafood fraud has not 
been clearly established, and there are many variables that could cause 
a discrepancy in price other than IUU fishing.

18. Risk From World Customs Organization Harmonized Schedule (New HS 
Codes)

    Comment: One comment was received regarding the increased risks 
associated with species for which there are new import codes that will 
go into effect in 2017: ``imports of species that originate in 
countries that have failed to implement the seafood-related amendments 
to the 2012 [World Customs Organization Harmonized Schedule (HS)] HS 
Codes should be considered `at risk.' As of March 20, 2015 only 115 out 
of 151 Contracting parties to the World Customs Organization had 
implemented the current HS Code Schedule. As the new HS Codes for 
seafood products come into force in January of 2017, we believe that 
there will be a heightened risk of fraud and mislabeling (whether 
inadvertent, as people adjust to the new codes, or intentional so as to 
avoid tariffs). Consequently, we believe that those species for which 
new codes have been added should be `at risk.' ''
    Response: There is another working group addressing the Action Plan 
for Implementing Task Force Recommendation 10 (Enforcement: Species 
Name and Code) that is currently assessing ways to enhance the 
identification of products through the use of the HS and the Harmonized 
Tariff Schedule of the United States (HTSUS). Though the outcomes of 
this assessment may not influence other countries' actions with regards 
to adopting the 2012 or 2017 HS changes, the Working Group may propose 
changes to the HTSUS and make other recommendations relative to naming 
and identification that could impact certain seafood imports into the 
United States, as well as changing the potential associated risks 
highlighted.

[[Page 45962]]

19. Highly Migratory Species (HMS)

    Comment: Highly migratory species were noted in public comments as 
being more susceptible to IUU fishing and seafood fraud. Because of the 
transient and pelagic nature of these species, they are fished outside 
of or across multiple Exclusive Economic Zones (EEZs), as well as on 
the high seas, making regulatory development and enforcement more 
difficult. Example comments: ``Highly migratory stocks, particularly 
those that travel through and between national boundaries, may be more 
susceptible to IUU fishing activities'' and ``The life history of 
certain species can lead to IUU vulnerability. For instance, fisheries 
for highly migratory species are difficult to monitor and enforce, 
which can make illegal behavior harder to detect and deter (e.g. 
tuna).''
    Response: The Working Group concluded that a separate principle for 
HMS was not necessary. HMS at a high risk for IUU fishing should be 
identified through a combination of other principles such as 
enforcement capability and the absence of a catch documentation scheme 
or an ineffective scheme. In addition, to alleviate potential risk 
associated with the migratory nature of these species, many HMS are 
managed internationally through Regional Fishery Management 
Organizations that adopt harvest limits, data collection requirements, 
and enforcement measures. The Working Group applied the drafted 
principles to HMS along with non-HMS, and those determined to be at 
risk are on the draft list of species (e.g., sharks and tunas).

20. Species-Based Approach

    Comment: Many comments requested that the Working Group not take a 
species-based approach, and rather employ a larger scaled approach and 
begin the traceability program with all seafood products. Example 
comments: ``any legitimate approach to identifying IUU risk in seafood 
will inevitably produce a much broader and larger set of products than 
could be achieved through the selection of a limited set of ``species 
at risk'' and ``[w]hile we understand the need to prioritize resources 
on high risk problems, we do not believe that a species-by-species 
approach is an effective long-term solution to the challenges of IUU 
fishing and seafood fraud, which are global in nature, occur at all 
levels, from harvest through final sale, and are influence by changing 
market demands and other factors.''
    Response: The Action Plan for Implementing Task Force 
Recommendations specifies that the traceability program will be 
implemented by first targeting high risk species, while preserving the 
opportunity to leverage the value and effectiveness of other 
traceability efforts. By December 2016, the NOC will issue a report, 
taking into careful consideration input from stakeholders, evaluating 
implementation of the first phase of the traceability program and 
recommending how and under what timeframe it should be expanded.

21. Data for Analyzing Principles Identified

    Comment: There were multiple public comments expressing concerns 
with the data that would be used to analyze the base list of species 
using the draft principles to identify species at risk. One commenter 
noted that species at risk shift over time as changes in management 
occur, and therefore, the Working Group should use current information 
when identifying at risk species. Conflicting comments were submitted 
regarding the appropriate data to use: Some comments suggested use of 
government data only, while others supported use of non-governmental 
information submitted through public comment.
    Response: To develop the draft list the Working Group used 
verifiable data, including information from Customs and Border 
Protection (CBP), Food and Drug Administration (FDA), and NOAA 
databases, published reports, or data gathered by Regional Fisheries 
Management Organizations to which the United States is a member and 
whose scientific data is developed and reviewed with active U.S. 
government participation, and the knowledge of subject matter experts, 
including members of the Working Group and other personnel from 
represented agencies. The Working Group determined that including data 
from the past five years was appropriate, as a longer timeframe may not 
recognize improvements that have been made in some fisheries over time, 
and a shorter timeframe may not include enough data to identify the 
species at risk.

22. Convention on International Trade in Endangered Species (CITES) and 
International Union for Conservation of Nature (IUCN) Lists as Basis 
for Determining Risk

    Comment: A number of public comments requested that species listed 
with CITES or that are on IUCN red lists be determined as species at 
risk. Example comments: ``A species listed on one of the CITES 
appendices: A number of commercially exploited species, including shark 
and ray species, are included in the appendices of CITES'' and ``Of the 
more than 1200 described species, one quarter have been designated as 
threatened under the IUCN Red List, and 500 species are so data 
deficient that their conservation status cannot be determined, putting 
them at even greater risk.''
    Response: CITES is an international agreement between governments 
that aims to ensure that international trade in specimens of wild 
animals and plants does not threaten their survival. The IUCN red list 
of threatened species is an approach for evaluating the conservation 
status of plant and animal species on a global scale. As mentioned in 
response to a prior comment, the Working Group affirms that 
sustainability of fishing resources is an important goal. However, the 
main focus here is to identify species at risk for IUU fishing and 
seafood fraud. Thus, the draft principles do not include consideration 
of the conservation status of species.

23. Science-Based Fishery Management

    Comment: Public comments requested that species not managed using 
science-based fisheries management be considered at risk. This 
commentary was often tied to a country, rather than a species, but the 
premise of science-based fishery management was consistent in both 
approaches. For example, a comment stated that at risk species should 
include species ``[t]aken in managed fisheries but without science-
based or precautionary (where population assessments are not available) 
catch limits; where limits exceed scientific advice; or where catch 
limits are routinely exceeded.''
    Response: The Working Group agrees that fishery management must be 
science-based to be effective. Under the Magnuson-Stevens Fishery 
Conservation and Management Act, conservation and management measures 
for federal fisheries managed in the U.S. EEZ ``shall be based upon the 
best scientific information available'' (16 U.S.C. 1851(a)(2)). As 
noted earlier, the Working Group considered in its analysis scientific 
information from Regional Fisheries Management Organizations to which 
the United States is a member. Beyond this, the Working Group does not, 
as a general matter, have sufficient information or the ability to 
evaluate the science used by foreign nations in the management of their 
fishing resources. Thus, whether or not a species is subject to a 
management regime using best available scientific information was not 
included as a draft principle for determining at risk species.

[[Page 45963]]

Rather, the NOC will seek to address this concern through other 
approaches aimed at international stewardship (e.g., capacity building, 
diplomatic outreach, etc.)

24. Magnitude of the Violations

    Comment: One public comment requested: ``The Task Force should 
weigh the magnitude of labeling violations and impact on U.S. consumer 
prior to deeming a species at risk. The following are examples of 
mislabeling that should represent lower concern and should NOT be the 
sole basis from an at risk determination: Species that are mislabeled 
within the same genus or within the same acceptable market name 
grouping.''
    Response: The Working Group took known violations from the past 
five years into account in evaluating species for at risk'' 
determination. Adding a value judgment on the magnitude of the 
violations was beyond the capacity of the Working Group.

25. Poor Species Identification in the Catch and/or Trade Data

    Comment: One public comment noted that the lack of species 
identification in catch and trade data can increase a species' 
vulnerability to IUU fishing.
    Response: This issue will be captured under the draft principles 
concerning any history of species mislabeling and the existence of a 
catch documentation scheme. In addition, the Working Group recognizes 
the concern regarding import codes. This issue will be discussed 
through the work on Task Force Recommendation 10 ``to standardize and 
clarify rules on identifying the species, common name, and origin of 
seafood.''

26. Existing Traceability System

    Comment: Multiple comments recommended that the Working Group 
review and take into account whether there is already a certification 
system or traceability system for a species. Example comment: ``Some 
private industry sectors have initiated traceability requirements.''
    Response: The Working Group commends organizations and fishing 
groups that have initiated traceability programs on their own and 
recognizes the investment by the private sector in developing improved 
traceability. For species with a recently implemented traceability 
program, the number of enforcement violations over the past five years 
can be used as a measure of the effectiveness of the program and will 
allow us to either remove these species from our list of at risk 
species or, where appropriate, include existing catch documentation 
provisions into a traceability program to further address risk of IUU 
fishing and seafood fraud.

    Dated: July 28, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2015-18945 Filed 7-31-15; 8:45 am]
BILLING CODE 3510-22-P