[Federal Register Volume 87, Number 130 (Friday, July 8, 2022)]
[Proposed Rules]
[Pages 40763-40777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14034]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 216 and 300
[Docket No. 220603-0130]
RIN 0648-BG11
Implementation of Provisions of the Illegal, Unreported, and
Unregulated Fishing Enforcement Act of 2015 and the Ensuring Access to
Pacific Fisheries Act
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes a rule to implement certain provisions of the
Illegal, Unreported, and Unregulated Fishing Enforcement Act of 2015
and the Ensuring Access to Pacific Fisheries Act, and to amend the
definition of illegal, unreported, or unregulated (IUU) fishing in the
regulations that implement the High Seas Driftnet Fishing Moratorium
Protection Act.
DATES: Written comments must be received on or before September 6,
2022.
ADDRESSES: You may submit comments on this document, identified by
NOAA-NMFS-2016-0164, by any of the following methods:
Electronic Submission: Submit all electronic public comments via
the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and
enter NOAA-NMFS-2016-0164 in the Search box. Click on the ``Comment''
icon, complete the required fields, and enter or attach your comments.
Mail: Submit written comments to Christopher Rogers, Office of
International Affairs, Trade, and Commerce, National Marine Fisheries
Service, 1315 East-West Highway (F/IS5), Silver Spring, MD 20910.
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 NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
https://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. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to the Office of International Affairs,
Trade, and Commerce and by submission to Information Collection Review
(https://www.reginfo.gov/public/do/PRAMain).
FOR FURTHER INFORMATION CONTACT: Christopher Rogers, Office of
International Affairs, Trade, and Commerce, National Marine Fisheries
Service (phone: 301-427-8350; or email: [email protected]).
SUPPLEMENTARY INFORMATION:
Background
This proposed rule would implement the Port State Measures
Agreement Act of 2015 and certain other provisions of the Illegal,
Unreported, and Unregulated Fishing Enforcement Act of 2015 (IUU
Fishing Act), Public Law 114-81 (November 15, 2015), and would
implement certain provisions of the Ensuring Access to Pacific
Fisheries Act (Pacific Fisheries Act), Public Law 114-327 (December 16,
2016). As explained below, these two Acts amended several existing
statutes. Thus, authority for this rulemaking comes from those existing
statutes, as amended.
This proposed rule would also amend the definition of IUU fishing
in regulations that implement the High Seas Driftnet Fishing Moratorium
Protection Act (Moratorium Protection Act) (16 U.S.C. 1826d et seq.).
Title IV of the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006 (Pub. L. 109-479) amended the Moratorium
Protection Act to direct the Secretary of Commerce to promulgate a
regulatory definition of IUU fishing. See 16 U.S.C. 1826j(e).
Statutory Background
On November 15, 2015, President Obama signed into law the IUU
Fishing Act, which can be found at: https://www.congress.gov/114/plaws/publ81/PLAW-114publ81.pdf, and consists of three Titles. Title I amends
several regional fishery management agreements' implementing statutes
to harmonize their enforcement provisions with those found in the
Magnuson-Stevens Fisheries Conservation and Management Act, 16 U.S.C.
1801 et seq., and addresses other administrative matters. Title II
provides authority to implement the Antigua Convention, which was
negotiated to strengthen and replace the 1949 Convention for the
Establishment of an Inter-American Tropical Tuna Commission. Title III
provides the authority to implement the provisions of the Agreement on
Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported
and Unregulated Fishing (Port State Measures Agreement or PSMA) of the
Food and Agriculture Organization of the United Nations. The Port State
Measures Agreement has been signed and ratified by the United States
and, as of February 2022, joined by 69 other Parties, including the
European Union on behalf of its Member States.
On December 16, 2016, President Obama signed into law the Pacific
Fisheries Act. This Act provides authority to implement the Convention
on the Conservation and Management of High Seas Fisheries Resources in
the North Pacific Ocean, the Convention on the Conservation and
Management of High Seas Fishery Resources in the South Pacific Ocean,
and the amendments to the Convention on Future Multilateral Cooperation
in the Northwest Atlantic Fisheries. The Pacific Fisheries Act also
addresses other matters, including harmonizing amendments to the
Moratorium Protection Act (16 U.S.C. 1826d-k), which are detailed
below.
This proposed rule would implement only certain provisions of the
IUU Fishing Act and the Pacific Fisheries Act, by: revising the
regulatory penalty provisions under the Pacific Salmon Treaty Act
(1985) (16 U.S.C. 3631) and the Dolphin Protection Consumer Information
Act (16 U.S.C. 1385); amending the procedures for identifying and
certifying nations under the Moratorium Protection Act; reducing the
period of validity for vessel permits issued under the High Seas
Fishing Compliance Act (16 U.S.C. 5501 et seq.); and expanding the set
of information
[[Page 40764]]
required to be submitted by foreign fishing vessels requesting entry
into U.S. ports as required by the Port State Measures Agreement. The
proposed rule also updates a reference to subsequent subparts in the
general definitions section of 50 CFR part 300, subpart A (50 CFR
300.2).
Title II of the IUU Fishing Act (implementing the Antigua
Convention) has already been addressed through a separate final rule
published on August 1, 2016 (81 FR 50401). Additionally, Titles I, II,
III, V, and VI of the Pacific Fisheries Act will be implemented, as
needed, through separate rulemakings.
Strengthening Fisheries Enforcement Mechanisms
This proposed rule would implement several amendments made by the
IUU Fishing Act to the fisheries enforcement mechanisms of a number of
existing statutes implementing U.S. obligations to regional fisheries
management organizations and other international conservation
organizations, as described below. Rulemaking is needed to implement
these amended enforcement provisions and to ensure their consistent
application nationally. Specifically, the penalties section of the
regulations implementing the Pacific Salmon Treaty Act (1985) (16
U.S.C. 3631) would be revised to reference the updated enforcement
provisions of the High Seas Driftnet Fishing Moratorium Protection Act
(16 U.S.C. 1826g), described above.
In addition, this proposed rule would revise the Dolphin Protection
Consumer Information Act (DPCIA) (16 U.S.C. 1385) regulations to remove
the existing paragraph describing penalties. Given that the IUU Fishing
Act makes the updated enforcement and penalties provisions of the High
Seas Driftnet Fishing Moratorium Protection Act (codified at 16 U.S.C.
1826g) applicable to the DPCIA, a separate penalties section for the
DPCIA regulations is no longer needed.
Amendments to Procedures To Identify and Certify Nations
The Moratorium Protection Act requires the Secretary of Commerce to
identify and certify nations whose fishing vessels are engaged in
illegal, unreported, or unregulated fishing, bycatch of protected
living marine resources, or shark catch on the high seas without a
regulatory program comparable to that of the U.S. See 16 U.S.C.
1826j(a), (d) and 1826k(a), (c) (setting forth identification and
certification requirements) and 50 CFR 300.201-300.204 (definitions and
identification, notification, and certification procedures). Such
identifications and certifications are notified to Congress through a
biennial report, available at https://www.fisheries.noaa.gov/foreign/international-affairs/identification-iuu-fishing-activities#magnuson-stevens-reauthorization-act-biennial-reports-to-congress. Nations
identified in the Biennial Report receive notification as provided in
50 CFR 300.202-300.204. To facilitate analysis and report preparation,
the Pacific Fisheries Act changes the due date of the biennial report
to June 1 of a reporting year. While adjustment of the reporting date
is a statutory provision that does not require a regulatory change, we
are providing notice of this change in the preamble to this rule.
Consistent with the Pacific Fisheries Act, this proposed rule would
amend the Moratorium Protection Act's implementing regulations for
identifying nations (50 CFR part 300, subpart N). Specifically, the
proposed regulatory change would expand to three years the time period
for which a nation's fishing activities will be considered for
identification for IUU fishing (originally 2 years), for bycatch of
protected living marine resources (originally 1 year), or for fishing
activities that target or incidentally catch sharks in waters beyond
any national jurisdiction without having adopted a regulatory program
comparable to that of the United States (originally 1 year).
The proposed rule also would amend the existing procedures for
certifying nations to clarify the effect of negative certification of a
nation, including the duration of a negative certification, denial of
port privileges, and import restrictions on fish or fish products from
negatively certified nations. In addition, consistent with a statutory
amendment, the proposed rule would limit the applicability of
provisions for denial of port privileges and prohibition of imports
only to identified nations that receive a negative certification under
the Moratorium Protection Act. Currently, 50 CFR 300.205 addresses
situations where a nation ``does not receive a positive
certification,'' because the Act originally provided for the assessment
of sanctions on a nation if that nation received a negative
certification or if a nation has not been certified either positively
or negatively in the subsequent biennial report. The Pacific Fisheries
Act eliminated the option of not certifying a nation, thus existing
regulations would be revised to reflect this change.
IUU Fishing Definition Amendments
This proposed rule would also amend the definition of ``Illegal,
unreported, or unregulated (IUU) fishing'' in the regulations
implementing the Moratorium Protection Act (50 CFR 300.201). Congress
authorized the Secretary of Commerce to establish a definition of IUU
fishing for the purposes of the Act and required the definition to
include, among other elements, fishing activities that violate
conservation and management measures required under international
fishery management agreements to which the United States is a party. 16
U.S.C. 1826j(e).
This proposed rule would add two new elements to the regulatory
definition of IUU fishing for identifications and certifications under
the Act. The first proposed element would be new paragraph (6) in the
definition of IUU fishing in 50 CFR 300.201, which would add fishing in
waters under the jurisdiction of a nation, without the permission of
that nation, or in contravention of its laws and regulations. The
United States is a contracting party to a number of regional fishery
management organizations (RFMOs) that have adopted IUU fishing vessel-
listing procedures that presume unauthorized fishing within waters
under the jurisdiction of another nation to be IUU fishing. For
example, see Recommendation 2018-08 of the International Commission for
the Conservation of Atlantic Tunas (https://www.iccat.int) and
Conservation and Management Measure 2019-07 of the Western and Central
Pacific Fisheries Commission (https://www.wcpfc.int).
In addition, paragraph 3.1.1 of the United Nations Food and
Agriculture Organization (FAO) International Plan of Action to Prevent,
Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA
IUU) includes fishing in the waters under the jurisdiction of a state
without permission or in contravention of the laws of that state in its
description of activities constituting IUU fishing (https://www.fao.org/3/y1224e/Y1224E.pdf). Consistent with the IPOA IUU, this
proposed change to the IUU fishing definition could lead to
identification of nations by the United States even when the
unauthorized incursion is not a violation of any specific RFMO
conservation measure or an RFMO has not posted any involved vessels of
the identified flag state to its IUU fishing vessel list.
The proposed change to the definition of IUU fishing would allow
[[Page 40765]]
identification of a nation under the Moratorium Protection Act for a
failure to exercise effective flag state control, as evidenced by
persistent and pervasive fishing activities by the nation's vessels in
waters recognized by the United States as being under the jurisdiction
of another nation without the authorization of that nation or otherwise
in contravention of that nation's laws. The flag nation would be
considered for identification unless there has been effective
resolution of such illegal fishing by the flag State, on a bilateral
basis, or through a relevant international fishery management
organization.
As with identifications for other aspects of IUU fishing, the
process and procedures of 50 CFR 300.202(a) would be applied to
consider the history, nature, circumstances, extent, duration and
gravity of any unauthorized fishing in waters under the jurisdiction of
a coastal nation. NMFS will also take into account any actions already
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.
NMFS notes that the Joint Explanatory Statement to Division B of
the Consolidated Appropriations Act, 2021 (Pub. L. 116-260) directs
NOAA to revise existing regulations defining IUU fishing in 50 CFR
300.201 (Moratorium Protection Act regulations) to be consistent with
the definition codified in section 3532(6) of Public Law 116-92
(Maritime Security and Fisheries Enforcement (SAFE) Act). Under section
3532(6), IUU fishing ``means illegal fishing, unreported fishing, or
unregulated fishing (as such terms are defined in paragraph 3 of the
International Plan of Action to Prevent, Deter, and Eliminate Illegal,
Unreported and Unregulated Fishing [IPOA IUU], adopted at the 24th
Session of the Committee on Fisheries in Rome on March 2, 2001).''
The Joint Explanatory Statement does not amend the Moratorium
Protection Act, which prescribes specific, minimum elements for the
regulatory definition of IUU fishing. While the IPOA IUU generally
describes activities considered illegal fishing, unreported fishing, or
unregulated fishing, an operational definition of IUU fishing is needed
in order to implement the identification and certification procedures
of the Moratorium Protection Act. NMFS believes that the IUU fishing
definition, as amended by proposed paragraph (6) in the definition in
Sec. 300.201, is consistent with the IPOA IUU and Moratorium
Protection Act, and can be used to implement the Act's procedures.
The second proposed element would add paragraph (7) to the
definition of IUU fishing in 50 CFR 300.201, which would amend the
definition to include fishing activities in waters beyond any national
jurisdiction that involve the use of forced labor. Because the
Moratorium Protection Act sets forth ``minimum'' elements for the IUU
fishing definition, NMFS has discretion to consider whether other
elements should be added. Significant concerns have been raised about
the use of forced labor in the course of fishing activity on fishing
vessels in international waters. As stated by NMFS on page 77 of its
2019 report to Congress, Improving International Fisheries Management
(available at https://www.fisheries.noaa.gov/foreign/international-affairs/identification-iuu-fishing-activities), there is a growing body
of evidence documenting severe abuses and exploitation on board fishing
vessels. Workers on fishing vessels may be particularly vulnerable due
to isolated workplaces and length of time at sea, which physically
restricts workers' abilities to leave or escape abusive situations.
Fisheries also frequently recruit migrant workers, who may not be
protected by the flag state's domestic laws, and are therefore more
vulnerable to exploitation. Further, such abuses and exploitation are
known to occur in conjunction with other IUU fishing activities. These
practices may include charging workers recruitment fees, confiscating
and withholding workers' passports or identity documents, threats or
physical violence, and using fraudulent recruitment tactics such as
contract switching.
To facilitate implementation, paragraph (7) in the definition of
IUU fishing in Sec. 300.201 is focused on fishing activities ``in
waters beyond any national jurisdiction.'' This is consistent with the
Moratorium Protection Act's bycatch and shark identification
provisions, 16 U.S.C. 1826k(a)(1)(A), (2)(A). The proposed rule uses
the definition of ``forced labor'' in Section 307 of the Tariff Act of
1930, as amended (19 U.S.C. 1307) with a few edits: ``all work or
service which is exacted from any person under the menace of any
penalty for its nonperformance and for which the worker does not offer
[themself] voluntarily. For purposes of this subpart, forced labor
includes forced child labor.'' As forced labor can include ``indentured
labor'' and the latter term is not separately defined, the proposed
rule does not include ``indentured labor.'' In addition, one
grammatical edit is noted in brackets.
As previously discussed, the Joint Explanatory Statement directs
that the definition of IUU fishing be consistent with the definition
codified in section 3532(6) of Public Law 116-92 (Maritime Security and
Fisheries Enforcement (SAFE) Act). Under section 3532(6), IUU fishing
``means illegal fishing, unreported fishing, or unregulated fishing (as
such terms are defined in paragraph 3 of the International Plan of
Action to Prevent, Deter, and Eliminate Illegal, Unreported and
Unregulated Fishing [IPOA IUU], adopted at the 24th Session of the
Committee on Fisheries in Rome on March 2, 2001).'' Under the IPOA IUU
paragraph 3,
Illegal fishing refers to activities: 3.1.1 conducted by
national or foreign vessels in waters under the jurisdiction of a
State . . . in contravention of its laws and regulations; . . .
3.1.3 in violation of national laws or international obligations,
including those undertaken by cooperating States to a relevant
regional fisheries management organization.
The IPOA IUU does not specifically mention forced labor. However,
the Maritime SAFE Act refers to ``IUU fishing, including its links to
forced labor and transnational organized illegal activity.'' 16 U.S.C.
8003(1). It also indicates that trafficking and forced labor are
``other'' crimes ``associated'' with IUU fishing. 16 U.S.C. 8013(d)(9).
The Maritime SAFE Act also references the ties of IUU fishing to human
trafficking, poor working conditions, and labor abuses. See, e.g., 16
U.S.C. 8003 (11), (12).
While the Maritime SAFE Act does not require that forced labor be
included as an element of IUU fishing, the addition of paragraph (7) to
the definition in Sec. 300.21 is not inconsistent with the Maritime
SAFE Act and the IPOA IUU. Specifically, the proposed addition of
``forced labor'' uses the established definition embodied in U.S. law
and widely adopted international obligations. The definition, which
comes from Section 307 of the Tariff Act of 1930, is consistent with
Article 2 of the Forced Labor Convention of 1930. The 1998 ILO
Declaration on Fundamental Principles and Rights at Work confirms that
all ILO Members have an obligation, arising from the very fact of
membership in the organization, to respect, promote and realize, in
good faith, the principles concerning fundamental labor rights. One of
those principles is the elimination of forced or compulsory labor. In
addition, the primary international instrument
[[Page 40766]]
concerning human trafficking,\1\ which has been widely ratified,
provides a framework for countries to criminalize trafficking in
persons in all its forms, including for the purpose of forced labor; to
prevent the crime; to protect the victims; and to facilitate
international cooperation. If finalized, the inclusion of forced labor
in the definition of IUU fishing would apply only in the Moratorium
Protection Act context and would not modify other legal authorities.
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\1\ The Protocol to Prevent, Suppress and Punish Trafficking in
Persons Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime (Protocol),
defines trafficking in persons as the recruitment, transportation,
transfer, harboring or receipt of persons, by means of the threat or
use of force or other forms of coercion, of abduction, of fraud, of
deception, of the abuse of power or of a position of vulnerability
or of the giving or receiving of payments or benefits to achieve the
consent of a person having control over another person, for the
purpose of exploitation. The Protocol provides that exploitation
includes forced labor or services. See also the Trafficking Victims
Protection Act of 2000, 22 U.S.C. 7102 (defining ``severe forms of
trafficking in persons'' to include ``the recruitment, harboring,
transportation, provision, or obtaining of a person for labor or
services, through the use of force, fraud, or coercion for the
purpose of subjection to involuntary servitude, peonage, debt
bondage, or slavery''); see also 18 U.S.C. 1589 (Forced Labor)
(punishing whoever ``knowingly provides or obtains the labor or
services of a person'' by means of force, threats of force, threats
of serious harm, or other means set forth in section 1589).
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Revisions to the IUU Fishing Identification Procedures
With regard to the triggers for identification, the Moratorium
Protection Act provides that, for actions of its fishing vessels, a
nation is identified for IUU fishing if it violates measures required
under an international fishery management organization and the
violations undermine the effectiveness of such measures, or the nation
fails to effectively address or regulate IUU fishing in areas where no
international fishery management organization exists with a mandate to
regulate the fishing activity in question. 16 U.S.C. 1826j(a). NOAA is
committed to engaging with such organizations to take any appropriate
actions on forced labor issues. But given that no such organization has
adopted a binding forced labor measure yet, proposed Sec.
300.202(a)(1)(iii) adds a new basis for identifying a nation for its
fishing vessels' IUU fishing actions ``[a]s defined under paragraph (7)
of the definition of IUU fishing in Sec. 300.201.''
As with identifications for other aspects of IUU fishing, NMFS
would apply the process and considerations under 50 CFR 300.202(a).
Given the expertise of other Departments and agencies on labor issues,
the proposed rule adds that NMFS may consider relevant documentation,
information, and advice from other Departments and agencies during the
identification and certification process and may engage with other
Departments and agencies during the consultation process with
identified nations ((50 CFR 300.202(a)(3), (c), and (d)(2)).
NMFS seeks comment on the proposed addition of paragraph (7) to the
definition of IUU fishing in Sec. 300.201, the related, new basis for
identification of nations, and other conforming provisions; on whether
other alternatives would be more appropriate or preferable; on which
factors should be considered when identifying and certifying nations
that are engaged in fishing activities that involve the use of forced
labor; and on any other considerations concerning the implementation of
the proposed measures to address forced labor under the Moratorium
Protection Act.
NMFS also proposes a revision to the identification criteria for
IUU fishing (50 CFR 300.202) to conform with a statutory amendment to
the Moratorium Protection Act. Under the revised identification
criteria, NMFS could also identify a nation for actions or inactions
that undermine a conservation measure of an RFMO to which the United
States is a party even in situations where there is no direct evidence
of activities by specific vessels. For example, identification could
occur when a nation does not report catch and effort data as required
by the RFMO to assess stocks or monitor catch allocations. NMFS could
also identify a nation if its vessels are engaged in activities defined
as IUU fishing in areas where no RFMO has been established and
therefore no specific conservation measures would pertain.
New Sec. 300.202(a)(3) contains existing regulatory text that is
proposed to be reordered and, as explained above, adds a reference to
possible consultation with other relevant Departments and agencies
regarding information on forced labor in specific fisheries including,
but not limited to, information provided under section 131 of the
Trafficking Victims Protection Reauthorization Act (TVPRA) and Withhold
Release Orders and Findings issued pursuant to section 307 of the
Tariff Act of 1930. This paragraph (a)(3) provides discretion to
examine the full context of the IUU fishing activity and relevant
mitigating circumstances when deciding to identify a nation. These
discretionary provisions would apply to both paragraph (a)(1) as
proposed to be revised and paragraph (a)(2) as proposed to be added.
Under new paragraph (a)(2), a nation could be identified on the basis
of certain actions/inactions as a flag state. NMFS would not need to
have detailed information about the actions of specific vessels when
applying the provisions of proposed paragraph (a)(2). For example,
failure to implement required monitoring, control and surveillance
measures for its fleet or report annual catch data to the relevant RFMO
could lead to an identification under paragraph (a)(2).
Definition of ``Nation''
This proposed rule would also add a regulatory definition for
``nation'' to address a corresponding provision of the IUU Fishing Act.
Consistent with the amended statutory text, this provision specifies
that in addition to nations, an entity having the competency to enter
into international fisheries management agreements could be identified
as a nation under the Moratorium Protection Act process.
Consolidation of Alternative Procedures Provisions
Proposed revisions to Sec. 300.207 consolidate text in existing
Sec. Sec. 300.207 (IUU fishing), 300.208 (bycatch) and 300.209 (shark
catch) on alternative procedures for products not subject to trade
restrictions under circumstances of a negative certification of a
nation. Under the Moratorium Protection Act and current procedures, the
Secretary of Commerce may make a determination that a vessel has not
engaged in IUU fishing under an international fishery management
agreement to which the United States is a party. The proposed rule
would delete the reference to an agreement, given the proposed edits
related to forced labor and interest in ensuring that trade
restrictions are applied fairly and consistently.
Reformatting Revisions
Finally, this proposed rule would also renumber several provisions
of the Moratorium Protection Act's implementing regulations to fix
erroneous formatting in the existing regulatory text.
Validity Period for High Seas Fishing Compliance Act Permits
This proposed rule would revise the High Seas Fishing Compliance
Act (HSFCA) (16 U.S.C. 5501 et seq.) regulations to indicate that a
high seas permit becomes void upon the expiration, revocation, or
suspension of any other permit or authorization also required for the
conduct of the particular high seas fishing activity (see
[[Page 40767]]
e.g., 50 CFR 635.4, requiring permits for Atlantic Highly Migratory
Species Fisheries; 50 CFR 660.707 requiring permits for West Coast
Fisheries for Highly Migratory Species; 50 CFR 665.13 requiring permits
to fish for Western Pacific Pelagic Fisheries).
In addition, this proposed rule would clarify that a high seas
permit will no longer be issued for a period of validity of 5 years as
the IUU Fishing Act eliminated this requirement in amending the HSFCA.
NMFS instead proposes to set the length of validity of these high seas
permits to 1 year to ensure that vessels are compliant with monitoring,
reporting, and record-keeping requirements through an annual review
upon receipt of a renewal application. Additionally, the annual review
will ensure that any underlying permits necessary to obtain an HSFCA
permit for a specific fishery, many of which require annual renewal,
are concurrently valid. NMFS notes that the proposed regulatory text
does not specify a 1 year period, but states that HSFCA permits are
valid from their dates of issuance to dates of expiration. This
approach provides NMFS with flexibility to consider changing a HSFCA
permit's validity period, in light of changes to the validity periods
of the underlying permits, if any, needed to authorize the high seas
fishing activity.
The HSFCA applies, and requires a permit, for a vessel of the
United States (or subject to the jurisdiction of the United States)
used or intended for use on the high seas; for the purpose of the
commercial exploitation of living marine resources; and as a harvesting
vessel, as a mother ship, or as any other support vessel directly
engaged in a fishing operation. 16 U.S.C. 5502(4). Under the US
implementing regulations for several RFMO conventions, permits are
required throughout the convention area whether fishing in the U.S.
Exclusive Economic Zone (EEZ) or beyond. The statutory requirements
overlap, thus it is appropriate to coordinate permits for consistent
periods of validity. The overlapping fisheries are identified in the
regulations at 50 CFR 300.334(a).
Because annual renewal would reduce the period of validity for high
seas permits from the existing five years, the proposed rule requires
modifications to an existing information collection subject to approval
by the Office of Management and Budget (OMB) under the Paperwork
Reduction Act (OMB Control Number 0648-0304). As explained below, NMFS
has revised the reporting burden associated with renewal of these
permits. In addition, NMFS has implemented an automated permitting
system for initial permits and renewal permits, so no additional staff
would be needed to accomplish annual renewals.
NMFS requests comment on the proposal to renew HSFCA vessel permits
on an annual basis. In addition, should the proposed action be
implemented, NMFS requests comment on the appropriate transition to
annual permits. Options could include converting HSFCA permits as they
expire over the next few years, recalling all current permits and
reissuing them for a one-year period of validity, or re-issuing HSFCA
vessel permits together with any underlying permits held by the vessel
according to the same period of validity for those other permits. NMFS
will also consider other transition options submitted during the
comment period on this proposed rule.
Transshipment and Catch on the High Seas
Sections 300.339 and 300.341 of 50 CFR part 300, subpart R,
concerning transshipment and catch by U.S-flagged vessels on the high
seas, are proposed to be revised for formatting purposes only. The
procedures for notification and reporting of high seas transshipment,
and for reporting catch, that are currently in effect would not be
altered by these formatting changes.
Implementation of the Port State Measures Agreement
This proposed rule would implement the Port State Measures
Agreement, as authorized by Title III of the IUU Fishing Act. The main
purpose of the Port State Measures Agreement, which can be found at
https://www.fao.org/3/a-i5469t.pdf, is to prevent, deter, and eliminate
IUU fishing through the implementation of minimum standards for
effective port state measures. The Port State Measures Agreement is
intended to enhance regional and international cooperation and the
ability of nations to detect and intercept products of IUU fishing
before they enter into national and international markets. NOAA
proposes to incorporate the PSMA by reference.
The regulations authorizing actions against IUU fishing vessels (50
CFR part 300, subpart P) would be amended to incorporate certain
definitions included in the IUU Fishing Act. In particular, a
definition of ``IUU fishing'' would be added to reflect the description
of IUU fishing included in the International Plan of Action to Prevent,
Deter and Eliminate Illegal, Unreported and Unregulated Fishing of the
FAO, which was incorporated by reference into the Port State Measures
Agreement. This definition would establish the criteria for denial of
port access or port privileges to a vessel known to be engaged in IUU
fishing or for which there are reasonable grounds to believe it to be
engaged in IUU fishing. It is not inconsistent with, and is distinct
from, the definition of IUU fishing as laid out in 50 CFR part 300,
subpart N, which serves as the basis to identify nations for engaging
in IUU fishing under the Moratorium Protection Act.
NOAA likewise proposes to incorporate by reference FAO's 2001
International Plan of Action to Prevent, Deter and Eliminate Illegal,
Unreported and Unregulated Fishing, which can found at https://www.fao.org/3/y1224e/Y1224E.pdf. That Plan of Action addresses the
nature and scope of IUU fishing and adopts objectives and principles to
prevent, deter, and eliminate IUU Fishing. In particular, NMFS proposes
to incorporate by reference the description of activities deemed to
constitute IUU fishing and apply that description for the purposes of
screening foreign fishing vessels seeking entry to U.S. ports.
In current subpart P, the regulations address U.S. obligations to
RFMOs that have included vessels on IUU fishing vessel lists. This
proposed rule would add to subpart P those obligations of the U.S. as a
party to PSMA. RFMOs decide how to define IUU fishing for the purposes
of listing IUU fishing vessels. The addition of PSMA obligations to
these regulations expands U.S. requirements to take action against
vessels engaged in IUU fishing, or for which there are reasonable
grounds to believe it has been engaged, even if the vessels were not
previously posted to RFMO IUU fishing vessel lists. The IPOA IUU
description of IUU fishing activities would be used as a basis to take
action against vessels not listed by an RFMO.
The respective RFMO definitions of IUU fishing would continue to be
used to take obligatory action against RFMO listed vessels. The subpart
N definition of IUU fishing would be used as a basis for action to
identify and negatively certify a nation under the Moratorium
Protection Act, and port access restrictions would pertain. The subpart
P definition would be used as a basis for action under PSMA
obligations. In some instances, there could be more than one statutory
authority that could lead to a denial of port access and/or port
privileges. The specific actions of the vessel and the pertinent
authority for the situation would determine how port access would be
denied or granted.
Ports to which foreign vessels may request entry pursuant to the
PSMA,
[[Page 40768]]
include those Customs Ports of Entry listed in 19 CFR 101.3 and those
specified under any existing international fisheries agreement. NMFS
interprets the latter as referring to any such agreements that are in
force, not just those existing when the IUU Fishing Act was enacted in
2015. The regulatory provisions for vessel inspection under subpart P
would apply to either a situation where an RFMO has placed the vessel
on its IUU fishing vessel list (U.S. obligation to the RFMO) or a
situation where the vessel is not listed by an RFMO but is suspected of
having engaged in IUU fishing as that term is defined in subpart P
(U.S. obligation under the PSMA). Vessel inspections will be carried
out as necessary to meet all U.S. obligations that pertain to the
circumstances applicable to the vessel.
In addition, the proposed action would expand the set of
information required to be submitted by foreign vessels when such
vessels request entry into U.S. ports. The term ``vessel'' is defined
by the Act at 16 U.S.C. 7402(8) as ``any vessel, ship of another type,
or boat used for, equipped to be used for, or intended to be used for,
fishing or fishing related activities''. The regulations would also
specify the criteria under which port entry and access to port
privileges is authorized or denied, and procedures for communicating
the decisions regarding port entry and access to port privileges.
U.S. Coast Guard regulations currently require foreign-flagged
vessels to give advance notice prior to arrival at a U.S. port or place
of destination, as defined in 33 CFR 160.202. In accordance with 33 CFR
160.206, vessels are currently required to report electronically,
through the U.S. Coast Guard's electronic Notice of Arrival and
Departure (eNOAD) system. Under current U.S. Coast Guard regulations,
information to be submitted includes the vessel name, voyage number,
cargo on board, crewmembers, and other related information. This
information must be reported to the Coast Guard's National Vessel
Movement Center (NVMC) at least 96 hours before entering the port or
place of destination or, if an exemption applies, in accordance with
the timeframe stipulated at 33 CFR 160.212.
Annex A of the Port State Measures Agreement is titled Information
to be Provided in Advance by Vessels Requesting Port Entry. The
information specified in Annex A must be collected from foreign vessels
when they are bound for a U.S. port. Annex A information includes:
specific vessel information, including external and RFMO vessel
identification numbers, the type of vessel and its dimensions, the type
of Vessel Monitoring System aboard the vessel, details about relevant
fishing and transshipment authorizations for the vessel, as well as a
description of the total catch onboard the vessel and the catch to be
offloaded at the requested port of entry.
Therefore, the proposed rule would require vessel operators to
submit this additional information through the eNOAD system and
outlines expanded requirements with respect to the Notice of Arrival
process for vessels bound for U.S. ports listed in 19 CFR 101.3.
Supplemental submission may be needed if the PSMA Annex A information
is incomplete. Vessel operators submitting a notice of arrival are
already familiar with and using the eNOAD system. It is anticipated
that only a few hundred foreign fishing vessels will be affected
annually by the additional information requirement. No additional
operators on board foreign fishing vessels are likely needed to collect
and transmit this information.
This would be a new information collection subject to approval by
OMB under the Paperwork Reduction Act (OMB Control Number to be
assigned). NMFS has coordinated closely with the U.S. Coast Guard to
ensure that these proposed regulations would be compatible with
existing U.S. Coast Guard regulations and operations.
Once this new information collection is approved, compliance
guidance documents outlining the requirements of the information
collection, as well as the revised process of requesting port entry,
will be made available through the NMFS Office of Law Enforcement and
the U.S. Coast Guard (USCG). Should the proposed action be implemented,
NMFS will provide for a period of delayed effectiveness that will allow
USCG time for software development, testing and deployment, and to
allow shippers and vessel operators the time needed to become familiar
with the new information requirements and notification procedures. NMFS
requests comment on the additional time needed for operators of foreign
fishing vessels before the new reporting requirement becomes mandatory
for acceptance of a notice of arrival.
Classification
This rulemaking is published under the authority of the Illegal,
Unreported, and Unregulated Fishing Enforcement Act of 2015, Public Law
114-81 (November 15, 2015); the Ensuring Access to Pacific Fisheries
Act, Public Law 114-327 (December 16, 2016); the High Seas Driftnet
Fishing Moratorium Protection Act, 16 U.S.C. 1826d-k; 16 U.S.C. 1801 et
seq.; 16 U.S.C. 5501 et seq.; Antarctic Marine Living Resource
Conservation Act of 1984, 16 U.S.C. 2431 et seq.; 31 U.S.C. 9701 et
seq.; the High Seas Driftnet Fishing Enforcement Act, 16 U.S.C. 1826a-
1826c; the Marine Mammal Protection Act, 16 U.S.C. 1361 et seq.; the
Atlantic Tunas Convention Act, 16 U.S.C. 971 et seq.; the Northwest
Atlantic Fisheries Convention Act, 16 U.S.C. 5601 et seq.; and the
Pacific Salmon Treaty Act, 16 U.S.C. 3631 et seq.; the Tunas Convention
Act, 16 U.S.C. 951 et seq., the Magnuson-Stevens Fishery Management and
Conservation Act, 16 U.S.C. 1801 et seq.; and the High Seas Fishing
Compliance Act, 16 U.S.C. 5501 et seq. The NMFS Assistant Administrator
has determined that this proposed rule is consistent with the above
referenced statutes and other applicable law, subject to further
consideration after public comment.
This rulemaking has been determined to be significant for the
purposes of Executive Order (E.O.) 12866. Details on the estimated
costs and potential benefits of this proposed rule can be found in the
associated Regulatory Impact Review. NMFS requests comments on the
benefit-cost analysis, including whether the most likely net impacts
are reasonable, and solicits additional information to better
characterize the indirect effects of this rulemaking on curtailing IUU
fishing activity.
As described in the Background section above, certain provisions of
two different Acts would be implemented through this rulemaking: the
IUU Fishing Act (Pub. L. 114-81), implementation of which includes a
proposed new information-collection; and the Pacific Fisheries Act
(Pub. L. 114-327), implementation of which includes a proposed revision
to an existing information-collection.
Regulatory Flexibility Act
NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) to
describe the economic impact that this proposed rule would have on
small entities in accordance with section 603 of the Regulatory
Flexibility Act (RFA), 5 U.S.C. 603. A description of the proposed
rule, why it is being considered, and the objectives of, and legal
basis for, this proposed rule are contained in the SUMMARY section of
the preamble. A copy of the full analysis is available on the Federal
e-Rulemaking Portal (see ADDRESSES). A summary of the IRFA follows.
[[Page 40769]]
The proposed action and new information collection under the IUU
Fishing Act would directly affect approximately 300 foreign fishing
vessels and foreign vessels engaged in fishing-related activities that
seek access to U.S. ports. The foreign fishing vessel's notice of
arrival, including the PSMA Annex A information, would identify the
vessel's flag State and the fishing activities authorized by the flag
State. If NMFS has concerns about fraudulent representations, the
reported information can be verified by the flag State. If NMFS has
concerns about the RFMO compliance status of flag States, a vessel
allowed in port could be subject to inspection. The existing notice of
arrival process would not provide sufficient information regarding
fishing authorizations by the flag State. If the PSMA Annex A
information is not collected via eNOAD, NMFS would have to obtain that
information via other sources.
The requirement for PSMA Annex A information would indirectly
affect some U.S. suppliers of port services should vessels be denied
entry. However, these suppliers of port services would not be subject
to any of the requirements of this rulemaking and the number of vessels
denied entry or denied port services under this proposed rule is
estimated to be small. While there may be some minor indirect impacts
on suppliers due to port denials, such impacts on small entities to
which the rulemaking would not apply are not analyzed under the IRFA.
For the potentially affected foreign vessels, only a small
percentage would likely receive a Denial of Entry Notice. Because
foreign vessels engaged in fishing-related activities outside of U.S.
waters are not regulated by NMFS or any other U.S. Federal or State
agency, information is not available to enable an estimate of the
number of those vessels that might be expected to receive a Denial of
Entry Notice. However, otherwise admissible foreign fishing vessels
that are unable to meet the notice of arrival information requirements
are unlikely to seek entry into U.S. ports. Those eligible foreign
fishing vessels that can meet the notice of arrival requirements,
including PSMA Annex A information, are unlikely to be denied port
access unless they submit obviously fraudulent or suspicious
information.
With respect to the Pacific Fisheries Act, this proposed rule
includes regulatory provisions to implement Title IV of the Act, which
would make conforming amendments to regulations implementing the
statutes amended by the Act, specifically amendments to the High Seas
Driftnet Fishing Moratorium Protection Act. Titles I, II, III, V, and
VI of the Pacific Fisheries Act have been or will be implemented, as
needed, through separate rulemakings.
As discussed above, the Pacific Fisheries Act removed the
requirement that a high seas fishing permit be issued for a period of
validity of five years. Instead, NMFS proposes that the validity of the
high seas permit be limited to one year.
A 1 year period is more appropriate than the current 5 year period
in order to ensure that high seas fishing vessels are compliant with
all other relevant requirements and that underlying permits necessary
to participate in the fisheries authorized by an HSFCA permit are
concurrently valid. The objective of the change is to coordinate
issuance and renewal of the HSFCA permit with other required permits
for the particular fishery. NMFS examined the permit programs for those
other fisheries and determined that annual renewal of HSFCA permits
would coincide with renewal of other permits required to participate in
the fisheries when those vessels operate on the high seas.
The HSFCA permit is required of, and issued to, U.S. flag vessels
fishing on the high seas, not to foreign fishing vessels. U.S. vessels
are not subject to the PSMA requirements for entry into U.S. ports,
only foreign fishing vessels. There would be no supply chain impacts to
the proposed annual renewal of HSFCA permits, because the number of
permits is either not limited for some fisheries or limited by other
pre-existing regulations for those fisheries.
This change to annual permit renewal would have potential impacts
to small entities. Therefore, the analysis focuses primarily on the
effects of the change of the permit frequency to permit holders.
Small entities include ``small businesses,'' ``small
organizations,'' and ``small governmental jurisdictions.'' The Small
Business Administration (SBA) has established size standards for all
major industry sectors in the U.S. including commercial seafood
processors (North American Industry Classification System (NAICS) code
311710). A business primarily involved in seafood processing is
classified as a small business if it is independently owned and
operated, is not dominant in its field of operation (including its
affiliates), and has combined annual employment not in excess of 750
employees for all its affiliated operations worldwide. A small
organization is any not-for-profit enterprise that is independently
owned and operated and is not dominant in its field. Small governmental
jurisdictions are governments of cities, counties, towns, townships,
villages, school districts, or special districts, with populations of
less than 50,000.
On December 29, 2015, NMFS issued a final rule establishing a small
business size standard of $11 million in annual gross receipts for all
businesses primarily engaged in the commercial fishing industry (NAICS
11411) for RFA compliance purposes only (80 FR 81194). The $11 million
standard became effective on July 1, 2016, and is to be used in place
of the U.S. SBA current standards of $20.5 million, $5.5 million, and
$7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112),
and other marine fishing (NAICS 114119) sectors of the U.S. commercial
fishing industry in all NMFS rules subject to the RFA after July 1,
2016. Id. at 81194.
The proposed 1 year permit renewal would apply to owners and
operators of U.S. permitted fishing vessels operating on the high seas,
including harvesting vessels operating on the high seas, refrigerated
cargo vessels, or other vessels used to support fishing. As of March
2022, there are 347 registered U.S. vessels permitted to fish on the
high seas. The majority of these permitted vessels are longliners,
trollers, purse seiners, and pole and line vessels. There is also a
small percentage of gillnetting, squid jigging, line fishing,
multipurpose, and trawl vessels. A small number of the affected
entities are freezer vessels involved in seafood processing.
In the IRFA, an individual permitted vessel was used as the proxy
for each business entity. Although a single business entity may own
multiple vessels, NMFS does not have a reliable means at this time to
track ownership of multiple vessels to a single business entity. For
this reason, an assumption that each vessel is owned by a unique
business entity may overestimate the number of small businesses
affected by the proposed rule.
The NMFS annual report, Fisheries of the United States, for 2019
provides an aggregate total revenue for the active vessels (permit
holders reporting catch) listed as fishing on ``High Seas or off
Foreign Shores'' of $394 million in 2018 and and $347 million in 2019.
Using these revenue figures and the current number of permitted
vessels, average annual revenues for an individual U.S. high seas
vessel over the 2 year period is estimated at $1.1 million. Based on
the best available financial information about the affected fishing
vessels (i.e., permit holders), NMFS believes that all the affected
fish harvesting businesses
[[Page 40770]]
would be small entities as defined by the RFA; that is, they are
independently owned and operated and not dominant in their fields of
operation, and have annual receipts of no more than $11 million. Also,
this sector has an employee-based size standard different from other
sectors. A size standard of less than 750 employees would classify
these business as small. Based on available information on freezer
vessels, NMFS believes the entities would have fewer than 750 employees
and therefore, would be considered small entities as well.
If promulgated, the proposed action would require entities to renew
the permit annually, increasing the cost over the current requirement
of a renewal only every 5 years. NMFS reevaluated the cost of the
application process under the annual renewal cycle and due to automated
renewal procedures recently implemented for this program. As a result
of automation, NMFS lowered the permit fee from $129.00 to $56.00 for
each application/renewal. While the automation represents a decrease
for each application, the proposed change from 5-year renewal to annual
renewals would result in an increase in permitting fees from an average
of $11.20 per year to $56.00 per year. The HSFCA authorizes the
Secretary of Commerce to retain permit fees for the administration of
the program and such funds remain available until expended. Collected
fees have been used for development, operations and maintenance of the
National Permits System including enhancements to automate issuance of
HSFCA vessel permits.
NMFS has estimated the burden and cost associated with the
information collection that would be imposed on the entities. NMFS
estimates that the total public burden for the proposed information
collection and fee will apply to all permitted entities that would have
to comply with the changes in permit validity as part of the proposed
regulation. These estimates include the time required to review the
instructions and update any information from the previous year that may
have changed (e.g., upload a new picture of vessel) and pay the
associated permit fee via the U.S. Treasury financial management system
(www.pay.gov). The detailed analysis is provided in the request to OMB
for approval of revisions to the information collection under Control
Number 0648-0304.
The labor burden estimates of the proposed action were based on a
permit holder's hours of activity required to comply with the proposed
regulation to require an annual permit renewal application and fee,
rather than the current five-year renewal. Over 5 years, this equates
to completion of four additional permit applications and payment of the
application processing fee each year. NMFS previously estimated one-
half hour to complete the paper application form based on the number of
required data elements and the need to mail the form. With the ability
to apply for new permits and renew permits online, previously recorded
data elements are pre-populated in the system, thus reducing data entry
time. Because the annual renewal process is automated and available
online, NMFS has reduced its estimate of the average time burden by 50
percent from 0.5 hours per application to 0.25 hours. For the purpose
of burden analysis, NMFS assumed that an upper bound of 400 vessels
would apply for or maintain HSFCA permits. Given the reduced time per
application in the automated environment (15 minutes), NMFS estimates
that the total burden to all 400 permit holders for the information
collection would require an additional 80 labor hours annually to
comply with the proposed regulation compared to current regulation
(i.e., each vessel owner completing four additional permit applications
over a 5 year period).
NMFS assumes the administrative burden to complete the permit is
the same for all entities (i.e., permit holders), regardless of whether
the entity harvests or processes seafood. NMFS estimated the labor cost
of $5.28 per application using the Bureau of Labor and Statistics 2021
mean hourly wage for Bookkeeping, Accounting, and Auditing Clerks of
$21.10 and a mean time of 15 minutes per application/renewal. There is
no additional recordkeeping or reporting requirements associated with
the proposed annual permit renewal. There is no additional capital or
operational and maintenance cost associated with the proposed
regulation. If promulgated, the total cost (processing fee plus
application process labor) per entity is estimated to be $61.28 per
year ($24,512 for an estimated 400 permit holders). This represents an
insignifcant fraction of the average revenue for the high seas fishing
permit holders who actively engaged in fishing in 2018 and 2019.
The proposed action in this rule does not limit an entity's ability
to harvest or process fish and, therefore, would not impose a
significant adverse impact on an entity's profitability. All entities
are expected to be able to absorb the cost associated with the proposed
action as part of their normal cost of operations. Therefore, based on
the results of the analysis and all available information, if
promulgated, NMFS does not anticipate that this proposed action would
impose significant adverse or long-term economic impacts on a
substantial number of small entities.
Relative to this proposed regulation, no duplicative, overlapping,
or conflicting Federal rules have been identified. The annual renewal
of HSFCA permits would not require changes to observer deployment under
the other applicable authorities for regulating high seas fisheries
(e.g., Atlantic Highly Migratory Species, Western Pacific Pelagic
Fisheries, and Pacific Highly Migratory Species). Therefore, annual
renewal under HSFCA would not affect the schedule for dockside safety
exams necessary for observer deployment.
In addition to analyzing the proposed action, NMFS considered and
rejected a no-action alternative, whereby NMFS would leave the length
of validity of the permit at 5 years. The no-action alternative to the
proposed rule would impose the least burden or economic impact on small
entities, but it does not allow NMFS the ability to best fulfill its
obligations to monitor and control its fishing vessels operating in
areas beyond any national jurisdiction.
Although NMFS did consider other lengths of validity for this
permit (i.e., 2 or 3 years), the proposed annual permit renewal is the
preferred alternative because it will synchronize renewals with the
underlying fisheries permits that each high seas permit holder must
also carry. These underlying permits are required to operate the vessel
on the high seas for the specifically authorized fisheries and these
other permits must be renewed annually. Issuing a vessel permit under
HSFCA authority for a time period inconsistent with another required
permit can lead to confusion about the actual fishing authorization. In
addition, as discussed above, it will also provide the United States
with a better ability to monitor and control its high seas fishing
fleet by ensuring that any delinquent reports are submitted at the time
of initial permit application or annual renewal.
Paperwork Reduction Act
There are two collection-of-information requirements in this
proposed rule that are subject to OMB review and approval under the
Paperwork Reduction Act. The first is a new collection-of-information
that would be established to comply with the United States' obligations
under the
[[Page 40771]]
Port State Measures Agreement. This collection-of-information was
submitted to OMB for approval. The proposed collection-of-information
would apply to foreign vessels engaged in fishing activities that are
also seeking access to U.S. ports. The reporting burden would apply
only to the personnel aboard the foreign vessel who file the eNOAD
report. USCG will process the information for its purposes (e.g., Ports
and Waterways Safety Act) while NMFS will process the Annex A
information to determine if the vessel is listed by RFMOs or is
otherwise believed to have engaged in IUU fishing.
The new collection-of-information burden, as proposed under this
rule, is estimated to be an increase of 0.17 hours per submission over
the normal eNOAD filing already required of foreign vessels calling on
U.S. ports. In 2017, the U.S. Coast Guard received a total of 183,582
vessel Notice of Arrival submissions, 675 of which were classified as
fishing vessels (defined under the Port State Measures Agreement as
``any vessel, ship of another type or boat used for, equipped to be
used for, or intended to be used for, fishing or fishing-related
activities.'') Of these fishing vessel submissions, 217 were from
foreign-flagged vessels. For the purpose of estimating reporting
burden, NMFS is assuming that each submission is made by an individual
vessel, but this would be an overestimate if some submissions were made
by the same vessel.
NMFS anticipates that neither U.S. entities nor foreign entities
would be significantly affected by this action because it does not pose
entirely new burdens with regard to the collection and submission of
information necessary to approve port access and/or port services.
Further, many of the data elements to be submitted electronically
through this collection-of-information to grant port access are, to
some extent, either already collected under the existing U.S. Coast
Guard Notice of Arrival procedures, collected pursuant to national or
international trade tracking or catch documentation requirements, or
collected in support of third-party certification schemes voluntarily
adopted by the trade.
The second collection-of-information proposed in this rulemaking
revises the existing collection-of-information for High Seas Fishing
Compliance Act permitting (OMB Control Number 0648-0304).
This information collection is revised to reduce the period of
validity for high seas permits from 5 years to 1 year. The collection-
of-information burden for the permit requirement proposed by NMFS under
the discretionary authority afforded by the Pacific Fisheries Act was
estimated with respect to the annual renewal of high seas permits. The
revised burden to all permit applicants is estimated to be an increase
of 80 hours per year. This estimation is based on 400 permits renewed
annually rather than once every 5 years. However, as of March 2022,
there are only 347 active HSFCA permits that have been issued. Thus,
the use of 400 vessels in estimating the reporting burden represents an
upper bound.
The information collection requirement under this proposed rule
does not duplicate or conflict with such requirements under any other
Federal rules. Potential overlap with other reporting requirements has
been taken into account to avoid collecting data more than once.
Send comments on the burden estimates or any other aspects of the
new and revised collections of information to the Office of
International Affairs, Trade, and Commerce at the ADDRESSES above, and
by submission to Information Collection Review (https://www.reginfo.gov/public/do/PRAMain).
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the Paperwork Reduction Act, unless that collection of
information displays a currently valid OMB control number.
List of Subjects
50 CFR Part 216
Administrative practice and procedure, Exports, Fish, Imports,
Indians, Labeling, Marine mammals.
50 CFR Part 300
Administrative practice and procedure, Antarctica, Canada, Exports,
Fish, Fisheries, Fishing, Imports, Incorporation by reference, Indians,
Labeling, Marine resources, Reporting and recordkeeping requirements,
Russian Federation, Transportation, Treaties, Wildlife.
Dated: June 27, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR parts 216 and 300 as follows:
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
0
1. The authority for part 216 continues to read as follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
Sec. 216.24 [Amended]
0
2. In Sec. 216.24, remove and reserve paragraph (g).
PART 300--INTERNATIONAL FISHERIES REGULATIONS
0
3. The authority for part 300 continues to read as follows:
Authority: 16 U.S.C. 951 et seq., 16 U.S.C. 1801 et seq., 16
U.S.C. 5501 et seq., 16 U.S.C. 2431 et seq., 31 U.S.C. 9701 et seq.
Subpart A--General
0
4. The authority for part 300, subpart A, continues to read as follows:
Authority: 16 U.S.C. 2431 et seq., 31 U.S.C. 9701 et seq.
0
5. In Sec. 300.2, revise the introductory text to read as follows:
Sec. 300.2 Definitions.
In addition to the definitions in each act, agreement, convention,
or treaty specified in subparts B through R of this part, the terms
used in this part have the following meanings, unless defined otherwise
in the respective subpart:
* * * * *
0
6. Add Sec. 300.9 to read as follows:
Sec. 300.9 Incorporation by reference.
Certain material is incorporated by reference into this part with
the approval of the Director of the Federal Register in accordance with
5 U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by
reference (IBR) material is available for inspection at the National
Oceanic and Atmospheric Administration (NOAA) and at the National
Archives and Records Administration (NARA). Contact NOAA at: the
National Marine Fisheries Service (NMFS), Office of International
Affairs, Trade, and Commerce, 1315 East-West Highway, Silver Spring, MD
20910; phone (301) 427 8350; website: https://www.fisheries.noaa.gov/about/office-international-affairs-trade-and-commerce. For information
on the availability of this material at NARA, email:
[email protected], or go to: www.archives.gov/federal-register/cfr/ibr-locations.html. The material may be obtained from the following
source:
(a) Food and Agriculture Organization of the United Nations (FAO).
Viale delle Terme di Caracalla, 00153 Rome, Italy;
[[Page 40772]]
phone: (+39) 06 57051; email: [email protected]; website: www.fao.org/publications/.
(1) Agreement on Port State Measures to Prevent, Deter and
Eliminate Illegal, Unreported and Unregulated Fishing (Port State
Measures Agreement), Revised edition, copyright 2016; IBR approved for
Sec. Sec. 300.300(c); 300.304(a) and (b); 300.306(e).
(2) International Plan of Action to Prevent, Deter and Eliminate
Illegal, Unreported and Unregulated Fishing (International Plan of
Action), published 2001; IBR approved for Sec. 300.301.
(b) [Reserved]
Subpart F--Fraser River Sockeye and Pink Salmon Fisheries
0
7. The authority for part 300, subpart F, continues to read as follows:
Authority: Pacific Salmon Treaty Act, 16 U.S.C. 3636(b).
0
8. Revise Sec. 300.96 to read as follows:
Sec. 300.96 Penalties.
Any treaty Indian who commits any act that is unlawful under this
subpart normally will be referred to the applicable tribe for
prosecution and punishment. If such tribe fails to prosecute such
persons in a diligent manner for the offense(s) referred to the tribe,
or if other good cause exists, such treaty Indian may be subject to the
penalties and procedures set forth in section 606 of the High Seas
Driftnet Fishing Moratorium Protection Act (16 U.S.C. 1826g).
Subpart N--Identification and Certification of Nations
0
9. The authority for part 300, subpart N, continues to read as follows:
Authority: 16 U.S.C. 1826d et seq.
0
10. In Sec. 300.201, add paragraphs (6) and (7) to the definition of
``Illegal, unreported, or unregulated (IUU) fishing'' and the
definition of ``Nation'', in alphabetical order, to read as follows:
Sec. 300.201 Definitions.
* * * * *
Illegal, unreported, or unregulated (IUU) fishing * * *
(6) Failure to exercise effective flag State control as evidenced
by persistent and pervasive fishing activities by the nation's vessels
in waters recognized by the United States as being under the
jurisdiction of another nation without the authorization of that nation
or otherwise in contravention of that nation's laws, unless there has
been effective resolution of such illegal fishing by the flag State, on
a bilateral basis, or through a relevant international fishery
management organization.
(7) Fishing activities in waters beyond any national jurisdiction
that involve the use of forced labor, which shall mean all work or
service which is exacted from any person under the menace of any
penalty for its nonperformance and for which the person does not offer
themself voluntarily. For purposes of this subpart, forced labor
includes forced child labor.
* * * * *
Nation means a country other than the United States, or other
entity that has competency to enter into international fisheries
management agreements.
* * * * *
0
11. In Sec. 300.202, revise paragraphs (a), (c), and (d) to read as
follows:
Sec. 300.202 Identification and certification of nations engaged in
illegal, unreported, or unregulated fishing activities.
(a) Procedures to identify nations for IUU fishing--(1)
Identification for actions of fishing vessels. Based on a cumulative
compilation and analysis of data collected and provided by
international fishery management organizations, other nations, non-
governmental and intergovernmental organizations, and Federal, State,
and other governmental agencies, NMFS will identify, and list in the
biennial report to Congress, a nation if any fishing vessel of that
nation is engaged, or has been engaged at any point during the
preceding three years, in illegal, unreported, or unregulated fishing--
(i) That undermines the effectiveness of measures required by an
international fishery management organization, taking into account
whether the relevant international fishery management organization has
failed to implement effective measures to end the illegal, unreported,
or unregulated fishing activity by that nation or the nation is not a
party to, or does not maintain cooperating status with, such
organization; or
(ii) Where no international fishery management organization exists
with a mandate to regulate the fishing activity in question; or
(iii) As defined under paragraph (7) of the definition of IUU
fishing in Sec. 300.201.
(2) Identification for actions of a nation. Taking into account the
factors described under paragraph (a)(1) of this section when making a
report to Congress, NMFS will also identify, and list in such report, a
nation--
(i) If it is violating, or has violated at any point during the
preceding three years, conservation and management measures required
under an international fishery management organization to which the
United States is a party and the violations undermine the effectiveness
of such measures; or
(ii) If it is failing, or has failed in the preceding three-year
period, to effectively address or regulate illegal, unreported, or
unregulated fishing in areas where no international fishery management
organization exists with a mandate to regulate the fishing activity in
question.
(3) Considerations when making identifications. When determining
whether to identify a nation for 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
in question, and any measures that the nation has implemented to
address the IUU fishing. NMFS will also take into account whether an
international fishery management organization exists with a mandate to
regulate the fishery in which the IUU fishing 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 in question and, if the
nation whose fishing vessel(s) 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 of concern as well as the effectiveness of such actions.
With regard to making identifications under paragraph (7) of the
defintion of IUU fishing in Sec. 300.201, NMFS may additionally
consider any pertinent documentation provided by other relevant
Departments and agencies, including, but not limited to, information
provided under section 131 of the Trafficking Victims Protection
Reauthorization Act (TVPRA); Withhold Release Orders and Findings
issued pursuant to section 307 of the Tariff Act of 1930; and other
information on the history, nature, circumstances, extent, duration,
and gravity of the activity in question, and any measures that the
nation has implemented to address that activity.
* * * * *
(c) Consultation with nations identified under paragraph (a) of
this section. Within 60 days after submission of the biennial report to
Congress, the Secretary of Commerce, acting through
[[Page 40773]]
or in cooperation with the Secretary of State, will initiate
consultations with nations that have been identified in the biennial
report for the purpose of encouraging such nations to take appropriate
corrective action with respect to the IUU fishing activities described
in the biennial report. The Secretary of Commerce may engage with other
Departments and agencies when initiating consultations with nations
identified under paragraph (7) of the definition of IUU fishing in
Sec. 300.201 and as appropriate throughout the consultation process.
(d) Procedures to certify nations identified under paragraph (a) of
this section. Each nation that is identified under paragraph (a) of
this section shall receive either a positive or a negative
certification from the Secretary of Commerce, and this certification
will be published in the biennial report to Congress. A positive
certification indicates that a nation has taken appropriate corrective
action to address the activity described in the biennial report. A
negative certification indicates that a nation has not taken
appropriate corrective action.
(1) The Secretary of Commerce shall issue a positive certification
to an identified nation upon making a determination that such nation
has taken appropriate corrective action to address the activities for
which such nation has been identified in the biennial report to
Congress. When making such determination, the Secretary shall take into
account the following:
(i) Whether the government of the nation identified pursuant to
paragraph (a) of this section has provided evidence documenting that it
has taken corrective action to address the IUU fishing activity
described in the biennial report;
(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.
(2) Prior to a formal certification determination, nations will be
provided with preliminary certification determinations and an
opportunity to support and/or refute the preliminary determinations and
communicate any corrective actions taken to address the activities for
which such nations were identified. The Secretary of Commerce shall
consider any information received during the course of these
consultations when making the subsequent certification determinations.
The Secretary may consider advice or information provided by other
relevant Departments and agencies in making its preliminary and formal
certification determinations for identifications made under paragraph
(7) of the definition of IUU fishing in Sec. 300.201.
0
12. Revise Sec. 300.203 to read as follows:
Sec. 300.203 Identification and certification of nations engaged in
bycatch of protected living marine resources.
(a) Criteria for identification. NMFS will identify and list, in
the biennial report to Congress, nations--
(1) Whose fishing vessel(s) are engaged, or have been engaged
during the preceding three years 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;
(2) 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
(3) 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.
(b) Considerations when making identifications. When determining
whether to identify a nation as having any fishing vessel(s) 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) Effectiveness of comparable measures. NMFS will also examine
whether the nation has implemented measures designed to end or reduce
such bycatch that are comparable in effectiveness to U.S. regulatory
requirements. In considering whether a nation has implemented measures
that are comparable in effectiveness to those of the United States,
NMFS will evaluate if different conditions exist that could bear on the
feasibility and efficacy of such measures to end or reduce bycatch of
the pertinent PLMRs.
(d) Notification of nations identified as having fishing vessels
engaged in PLMR bycatch. Upon identifying a nation whose vessels have
been engaged in bycatch of PLMRs in the biennial report to Congress,
the Secretary of Commerce will notify the President of such
identification. Within 60 days after submission of the biennial report
to Congress, the Secretary of Commerce, acting through or in
consultation with the Secretary of State, will notify identified
nations about the requirements under the High Seas Driftnet Fishing
Moratorium Protection Act and this subpart.
(e) 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
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
(3) Seek agreements through the appropriate international
organizations calling for international restrictions on the fishing
activities or practices described in the biennial report that result in
bycatch of PLMRs and, as necessary, request the Secretary of State to
initiate the amendment of any existing international treaty to which
the United States is a party for the protection and conservation of the
PLMRs in question to make such agreements consistent with this subpart.
(f) 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
[[Page 40774]]
certification under paragraph (e) of this section;
(2) Undertake, where appropriate, cooperative research activities
on species assessments and improved bycatch mitigation techniques, with
those nations or organizations;
(3) Encourage and facilitate the transfer of appropriate technology
to those nations or organizations to assist those nations in qualifying
for positive certification under paragraph (e) of this section; and
(4) Provide assistance to those nations or organizations in
designing and implementing appropriate fish harvesting plans.
(g) Procedures to certify nations identified as having fishing
vessels engaged in PLMR bycatch. (1) Each nation that is identified as
having fishing vessels engaged in PLMR bycatch shall receive either a
positive or a negative certification from the Secretary of Commerce,
and this certification will be published in the biennial report to
Congress. The Secretary of Commerce shall issue a positive
certification to an identified nation upon making a determination that:
(i) Such nation has provided evidence documenting its adoption of a
regulatory program to end or reduce bycatch of such PLMRs that is
comparable in effectiveness to regulatory measures required under U.S.
law to address bycatch in the relevant fisheries, taking into account
different conditions that could bear on the feasibility and efficacy of
these measures, and which, in the case of an identified nation with
fishing vessels engaged in pelagic longline fishing, includes the
mandatory use of circle hooks, careful handling and release equipment,
training and observer programs; and
(ii) Such nation has established a management plan that will assist
in the collection of species-specific data on PLMR bycatch to support
international stock assessments and conservation efforts for PLMRs.
(2) Nations will be notified prior to a formal certification
determination and will be provided with an opportunity to support and/
or refute preliminary certification determinations, and communicate any
corrective actions taken to address the activities for which such
nations were identified. The Secretary of Commerce shall consider any
information received during the course of these consultations when
making the subsequent certification determinations.
0
13. In Sec. 300.204, revise the heading of paragraph (a) and paragraph
(a)(1)(i) to read as follows:
Sec. 300.204 Identification and certification of nations whose
vessels are engaged in shark catch.
(a) Procedures to identify nations whose fishing vessels target or
incidentally catch sharks in waters beyond any national jurisdiction.
(1) * * *
(i) Whose fishing vessels are engaged, or have been engaged during
the three years 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
* * * * *
0
14. In Sec. 300.205:
0
a. Revise the section heading, introductory text of paragraph (a), and
paragraph (b);
0
b. Add a heading for paragraph (c); and
0
c. Revise paragraphs (d) and (e).
The revisions and addition read as follows:
Sec. 300.205 Effect of negative certification.
(a) Response to negative certification. If a nation identified
under Sec. 300.202(a), Sec. 300.203(a), or Sec. 300.204(a) receives
a negative certification under this subpart, the Secretary of the
Treasury shall, in accordance with international law:
* * * * *
(b) Trade restrictions. Upon notification and any recommendations
by the Secretary of Commerce to the President that an identified nation
has received a negative 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) Consistency of actions. * * *
(d) Additional sanctions. If certain fish and fish products are
prohibited from entering the United States, the Secretary of Commerce
shall, within six months after the imposition of the prohibition,
determine whether the prohibition is insufficient to cause that nation
to effectively address the IUU fishing activity, 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 a certification under 22 U.S.C.
1978(a), 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 country so certified for any
duration as the President determines appropriate and to the extent that
such prohibition is sanctioned by the World Trade Organization (as
defined in 19 U.S.C. 3501(8)) or any relevant multilateral trade
agreements (as defined in 19 U.S.C. 3501(4)).
(e) Duration of negative certification. Any nation identified in
the biennial report to Congress for having vessels engaged in IUU
fishing, PLMR bycatch, or shark catch that is negatively certified will
remain negatively certified until the Secretary has determined that the
nation has effectively addressed the fishing or regulatory activities
for which the nation received a negative certification and issues a
positive certification.
* * * * *
0
15. In Sec. 300.206, revise the section heading and paragraphs (a)(1)
and (2) and (b)(1) and (4) to read as follows:
Sec. 300.206 Denial of port privileges and import restrictions on
fish or fish products from negatively certified nations.
(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
subsequently negatively certified by the Secretary 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 negatively certified in the subsequent
biennial report, the Secretary 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
[[Page 40775]]
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 which a nation was identified and negatively
certified. For nations identified under Sec. 300.203(a) or Sec.
300.204(a) that are negatively 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 and negatively certified.
* * * * *
(b) * * *
(1) Notification. Where the Secretary of Commerce makes negative
certifications for identified nations, and the President determines
that certain fish and fish products from such nations are ineligible
for entry into the United States and U.S. territories, the Secretary of
Commerce, in cooperation with the Secretaries of Treasury, Homeland
Security, and State, will publish a notice to that effect in the
Federal Register.
* * * * *
(4) Removal of negative certifications and import restrictions.
Upon a determination by the Secretary that an identified nation that
was negatively certified has satisfactorily met the conditions in this
subpart and that nation has been positively certified, the provisions
of this section shall no longer apply. The Secretary of Commerce will
issue a positive certification and will, in cooperation with the
Secretaries of Treasury, Homeland Security, and State, notify such
nations and publish in the Federal Register notification of the removal
of the import restrictions per the regulations in this part effective
on the date of publication.
0
16. In Sec. 300.207, revise the section heading and paragraphs (a) and
(b) to read as follows:
Sec. 300.207 Alternative procedures for products not subject to
trade restrictions.
(a) Alternative procedures may be applied to fish or fish products
from a harvesting nation that has been negatively certified under Sec.
300.202, Sec. 300.203, or Sec. 300.204 but are not caught by the
vessel(s) engaged in the fishing activity for which the nation was
negatively certified.
(b) Consistent with paragraph (a) of this section, the Secretary
may allow entry of fish or fish products on a shipment-by-shipment,
shipper-by-shipper, or other basis if the Secretary determines that:
(1) The vessel concerned has not engaged in IUU fishing;
(2) The vessel concerned is not identified by an international
fishery management organization as participating in IUU fishing or
fishing-related activities in support of such fishing;
(3) The fish products were harvested by practices that do not
result in bycatch of a protected marine species, or were harvested by
practices that--
(i) Are comparable to those of the United States, taking into
account different conditions, and which, in the case of pelagic
longline fisheries, the regulatory program of an identified nation
includes mandatory use of circle hooks, careful handling and release
equipment, and training and observer programs; and
(ii) Include the gathering of species-specific data that can be
used to support international and regional assessments and conservation
efforts for protected living marine resources; and
(4) The fish products were harvested by fishing activities or
practices that do not target or incidentally catch sharks, or were
harvested by practices that--
(i) Are comparable to those of the United States, taking into
account different conditions; and
(ii) Include the gathering of species-specific shark data that can
be used to support international and regional assessments and
conservation efforts for sharks.
* * * * *
Sec. Sec. 300.208 and 300.209 [Removed]
0
17. Remove Sec. Sec. 300.208 and 300.209.
Subpart P--Vessels Known or Reasonably Believed to Have Engaged in
Illegal, Unreported, and Unregulated Fishing
0
18. The authority for part 300, subpart P, is added to read as follows:
Authority: 16 U.S.C. 951 et seq., 16 U.S.C. 971 et seq., 16
U.S.C. 1413 et seq., 16 U.S.C. 1826i, 16 U.S.C. 2341 et seq., 16
U.S.C. 5601 et seq., 16 U.S.C. 6901 et seq., 16 U.S.C. 7401 et seq.,
16 U.S.C. 7701 et seq., 16 U.S.C. 7801 et seq.
0
19. Revise subpart P heading to read as set forth above.
0
20. In Sec. 300.300, revise paragraph (a) and add paragraph (c) to
read as follows:
Sec. 300.300 Purpose and scope.
(a) This subpart implements internationally-adopted measures
pertaining to foreign vessels determined to have engaged in illegal,
unreported, and unregulated (IUU) fishing and placed on IUU fishing
vessel lists of the:
(1) International Commission for the Conservation of Atlantic Tunas
(ICCAT);
(2) Commission for the Conservation of Antarctic Marine Living
Resources (CCAMLR);
(3) Northwest Atlantic Fisheries Organization (NAFO);
(4) Western and Central Pacific Fisheries Commission (WCPFC);
(5) Inter-American Tropical Tuna Commission (IATTC);
(6) Parties to the Agreement on the International Dolphin
Conservation Program (AIDCP);
(7) North Pacific Fisheries Commission (NPFC);
(8) South Pacific Regional Fishery Management Organization
(SPRFMO); and
(9) Any other regional fisheries management organization or
arrangement to which the United States is a contracting party or
member.
* * * * *
(c) In addition to the measures specified in paragraph (a) of this
section, this subpart implements provisions of the Agreement on Port
State Measures to Prevent, Deter and Eliminate Illegal, Unreported and
Unregulated Fishing (incorporated by reference, see Sec. 300.9), as it
pertains to foreign vessel(s) for which there are reasonable grounds to
believe that the vessel(s) has engaged in IUU fishing activities or
fishing-related activities in support of such fishing.
0
21. In Sec. 300.301:
0
a. Revise the introductory text;
0
b. Add, in alphabetical order, definitions for ``Fish'', ``Fishing'',
and ``IUU fishing'';
0
c. Remove the definition of ``Listed IUU Vessel'' and add the
definition of ``Listed IUU vessel'' in its place; and
0
d. Add, in alphabetical order, the definition of ``Vessel''.
The revision and additions read as follows:
Sec. 300.301 Definitions.
In addition to the definitions in Sec. 300.2, the terms used in
this subpart have the following meaning. If also defined under Sec.
300.2, the terms as defined in this subpart supersede those as defined
in Sec. 300.2.
Fish means finfish, mollusks, crustaceans, and all other forms of
marine animal and plant life other than marine mammals and birds.
Fishing means:
(1) The catching, taking, or harvesting of fish;
(2) The attempted catching, taking, or harvesting of fish;
[[Page 40776]]
(3) Any other activity which can reasonably be expected to result
in the catching, taking, or harvesting of fish; or
(4) Any operations at sea in support of, or in preparation for, any
activity described in paragraphs (1) through (3) of this definition.
(5) Fishing does not mean any scientific research activity that is
conducted by a scientific research vessel.
IUU fishing means any activity set out in paragraph 3 of the
International Plan of Action to Prevent, Deter and Eliminate Illegal,
Unreported and Unregulated Fishing (incorporated by reference, see
Sec. 300.9).
* * * * *
Listed IUU vessel means a vessel that is included in a list of
vessels having engaged in IUU fishing or fishing-related activities in
support of IUU fishing that has been adopted by a regional fisheries
management organization (RFMO) of which the United States is a member,
or a list adopted by an RFMO of which the United States is not a member
if the Secretary determines that the criteria used by that organization
to create the IUU fishing vessel list is comparable to criteria for
identifying IUU fishing vessels and activities that have been adopted
by RFMOs to which the United States is a member.
* * * * *
Vessel means any vessel, ship of another type, or boat used for,
equipped to be used for, or intended to be used for, fishing or
fishing-related activities, including support vessels and container
vessels that are carrying fish that have not been previously landed.
0
22. Revise Sec. 300.302 to read as follows:
Sec. 300.302 Port entry by foreign vessels.
(a) The Secretary of Commerce may decide to deny entry to any port
or place subject to the jurisdiction of the United States to a foreign
vessel listed as an IUU vessel by any regional fishery management
organization recognized by the United States.
(b) The Secretary may decide to deny entry to any port or place
subject to the jurisdiction of the United States to a foreign vessel
that the Secretary has reasonable grounds to believe has:
(1) Engaged in IUU fishing activities or fishing-related activities
in support of such fishing; or
(2) Violated any provisions of the Port State Measures Agreement
Act of 2015, Public Law 114-81, or amendments thereto.
(c) When determining whether a foreign vessel is or has been
previously engaged in IUU fishing or fishing-related activities in
support of such fishing, the Secretary will take into account, among
other things, the IUU vessel lists and compliance determinations of any
regional fishery management organization recognized by the United
States.
(d) Notwithstanding the provisions of paragraphs (a) and (b) of
this section, a foreign vessel may be allowed entry for the purpose of
inspection or facilitation of enforcement.
(e) The provisions of paragraphs (a) and (b) of this section to
deny entry shall not apply in cases of force majeure.
0
23. Revise Sec. 300.303 to read as follows:
Sec. 300.303 Port access by foreign vessels.
If a foreign, listed IUU vessel, or a foreign vessel for which
there are reasonable grounds to believe that the vessel has engaged in
IUU fishing or fishing-related activities in support of such fishing,
is allowed to enter a port or place subject to the jurisdiction of the
United States, the Secretary may, in accordance with the Port State
Measures Agreement Act (Pub. L. 114-81) and applicable provisions of
conservation and management measures of a regional fishery management
organization recognized by the United States, take one or more of the
following actions:
(a) Inspect the vessel;
(b) Request that the Secretaries of the Departments in which the
U.S. Coast Guard and U.S. Customs and Border Protection are operating
deny the vessel access to port services, including but not limited to
refueling, resupplying, or disembarking or embarking of crew; or
(c) Prohibit the vessel from engaging in commercial transactions
including, but not limited to, entering, importing, exporting,
transshipping, or landing product.
Sec. 300.304 [Redesignated as Sec. 303.306]
0
24. Redesignate Sec. 300.304 as Sec. 303.306.
0
25. Add a new Sec. 300.304 to read as follows:
Sec. 300.304 Notice of Arrival requirements.
(a) Ports to which foreign vessels may request entry pursuant to
the on Port State Measures Agreement (incorporated by reference, see
Sec. 300.9), include those Customs Ports of Entry listed in 19 CFR
101.3 as well as those specified under any existing international
fisheries agreement.
(b) In addition to complying with the Electronic Notice of Arrival/
Departure (eNOAD) provisions under 33 CFR 160.206(a), the vessel owner,
agent, master, operator, or person in charge of a vessel requesting
access to the ports of entry referenced in paragraph (a) of this
section must supply the information items listed in Annex A of the Port
State Measures Agreement to the National Vessel Movement Center (NVMC)
through the eNOAD system.
(c) Vessel owners and operators should protect any personal or
otherwise confidential information they gather in preparing notices for
transmittal to the NVMC to prevent unintended disclosure of that
information.
0
26. Add Sec. 300.305 to read as follows:
Sec. 300.305 Determinations and notifications.
For a foreign vessel that is requesting entry to, or that has
already entered, a port authorized under Sec. 300.304(a), the
Secretary shall provide the following notifications to the vessel
master and/or ship's agent and the flag nation of the vessel, and may
also provide such notifications as may be appropriate to the nation of
which the vessel's master is a national; relevant coastal nations;
RFMOs; the Food and Agriculture Organization of the United Nations; and
other relevant international organizations:
(a) Notification of the denial or authorization of port entry or
use of port services or of the withdrawal of the denial of port
services;
(b) The taking of enforcement action under this title or other
applicable law; or
(c) The results of any inspection conducted pursuant to this
subpart.
0
27. In newly redesignated Sec. 300.306, revise paragraph (d) and add
paragraph (e) to read as follows:
Sec. 300.306 Prohibitions.
* * * * *
(d) The prohibitions listed in paragraph (c) of this section shall
not apply when the Assistant Administrator has authorized a listed IUU
vessel to access such port services or engage in such commercial
transactions, in accordance with applicable provisions of RFMO
conservation and management measures, including in cases of force
majeure and where the Assistant Administrator has determined that such
services are essential to the safety, health, and welfare of the crew.
(e) It is unlawful for any vessel of the United States, and for the
owner or operator of any such vessel, to refuse to cooperate with, or
provide requested information to, a port nation in accordance with the
Port State Measures Agreement (incorporated by reference, see Sec.
300.9) or with port inspection or
[[Page 40777]]
port State measures adopted by an RFMO recognized by the United States.
For the purposes of this paragraph (e), ``vessel of the United States''
has the same meaning as in 16 U.S.C. 1802(48).
Subpart R-High Seas Fisheries
0
28. The authority for part 300, subpart R, continues to read as
follows:
Authority: 16 U.S.C. 5501 et seq.
0
29. In Sec. 300.333, revise paragraph (d)(4) to read as follows:
Sec. 300.333 Vessel permits.
* * * * *
(d) * * *
(4) Except as otherwise provided, permits issued under this subpart
are valid from the date of issuance until the date of expiration as
indicated on the permit. For a permit to remain valid to its expiration
date, the vessel's U.S. Coast Guard documentation or State registration
must be kept current. A permit issued under this subpart is void if the
vessel owner or the name of the vessel changes; if any other permit or
authorization required for the vessel to fish expires, or is revoked or
suspended; or, in the event the vessel is no longer eligible for U.S.
documentation, such documentation is revoked or denied, or the vessel
is removed from such documentation.
* * * * *
0
30. In Sec. 300.334, revise paragraphs (c) and (f) to read as follows:
Sec. 300.334 Fisheries authorized on the high seas.
* * * * *
(c) Change in authorized fisheries. If a high seas fishing permit
holder elects to change the authorized fisheries specified on the
permit, he or she shall notify the Regional Administrator or Office
Director who issued the permit of the change(s) and shall obtain the
underlying permits for the authorized fisheries prior to engaging in
the fishery on the high seas. Per the process under Sec. 300.333(d),
the Regional Administrator or Office Director will then issue a revised
high seas fishing permit which will expire on the date as indicated on
the original permit.
* * * * *
(f) Deletion of a fishery from the authorized fisheries list. NMFS
will delete (i.e., de-authorize) a fishery under paragraph (d) or (e)
of this section through publication of a final rule. NMFS will also
provide notice to affected permit holders by email and by Registered
Mail at the addresses provided to NMFS in the high seas permit
application. When a fishery is deleted from the list, any activities on
the high seas related to that fishery are prohibited as of the
effective date of the final rule. In addition, the high seas permit
will be voided unless the permit holder notifies NMFS that he or she
elects to change to another authorized high seas fishery or continue in
any other authorized fisheries noted on the permit. Once the applicant
so notifies NMFS and, if necessary, secures any underlying permits
necessary for participation in another authorized high seas fishery,
the Regional Administrator or Office Director will then issue a revised
high seas fishing permit per the process under Sec. 300.333(d). The
revised permit will expire on the date as indicated on the original
permit.
0
31. Revise Sec. 300.339 to read as follows:
Sec. 300.339 Transshipment on the high seas.
In addition to any other applicable restrictions on transshipment,
including those under this part and part 635 of this title, the
following requirements apply to transshipments, when authorized, taking
place on the high seas:
(a) The owner or operator of a U.S. vessel receiving or offloading
fish on the high seas shall provide a notice by fax or email to the
Regional Administrator or the Office Director at least 36 hours prior
to any intended transshipment on the high seas with the following
information: the vessels offloading and receiving the transshipment
(names, official numbers, and vessel types); the location (latitude and
longitude to the nearest tenth of a degree) of transshipment; date and
time that transshipment is expected to occur; and species, processed
state, and quantities (in metric tons) expected to be transshipped. If
another requirement for prior notice applies, the more restrictive
requirement (i.e., a requirement for greater advance notice and/or more
specific information regarding vessels, location, etc.) must be
followed.
(b) U.S. high seas fishing vessels shall report transshipments on
the high seas to the Regional Administrator or Office Director within
15 calendar days after the vessel first enters into port, using the
form obtained from the Regional Administrator or Office Director. If
there are applicable transshipment reporting requirements in other
parts of this title, the more restrictive requirement (e.g., a
reporting requirement due in fewer than 15 calendar days) must be
followed.
0
32. Revise Sec. 300.341 to read as follows:
Sec. 300.341 Reporting.
(a) The operator of any vessel permitted under this subpart must
accurately maintain on board the vessel a complete record of fishing
activities, such as catch, effort, and other data and report high seas
catch and effort information to NMFS in a manner consistent with the
reporting requirements of the authorized fishery(ies) noted on the high
seas permit. Reports must include:
(1) Identification information for vessel and operator;
(2) Operator signature;
(3) Crew size;
(4) Whether an observer is aboard;
(5) Target species;
(6) Gear used;
(7) Dates, times, locations, and conditions under which fishing was
conducted;
(8) Species and amounts of fish retained and discarded; and
(9) Details of any interactions with sea turtles, marine mammals,
or birds.
(b) The vessel owner and operator are responsible for obtaining and
completing the reporting forms from the Regional Administrator or
Office Director who issued the permit holder's high seas fishing
permit. The completed forms must be submitted to the same Regional
Administrator or Office Director or, if directed by NMFS, to a Science
Center.
(c) Reports must be submitted within the deadline provided for in
the regulations governing the authorized fishery, or within 15 days
following the end of a fishing trip, whichever is sooner. Contact
information for the Regional Administrators and Science Center
Directors can be found on the NMFS website.
[FR Doc. 2022-14034 Filed 7-7-22; 8:45 am]
BILLING CODE 3510-22-P