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(2) NPR 8831.2, Facility Maintenance
Management.
[Insert any real property related Center
requirements here]
(b) Within 30 calendar days following
award, the Contractor shall provide a plan for
maintenance of Government real property
provided for use under this contract. The
Contractor’s maintenance program shall
enable the identification, disclosure, and
performance of normal and routine
preventative maintenance and repair. The
Contractor shall disclose and report to the
Contracting Officer the need for replacement
and/or capital rehabilitation. Upon
acceptance by the Contracting Officer, the
program shall become a requirement under
this contract.
(c) Title to parts replaced by the Contractor
in carrying out its normal maintenance
obligations shall pass to and vest in the
Government upon completion of their
installation in the facilities. The Contractor
shall keep the property free and clear of all
liens and encumbrances.
(d) The Contractor shall keep records of all
work done to real property, including plans,
drawings, charts, warranties, and manuals.
Records shall be complete and current.
Record of all transactions shall be auditable.
The Government shall have access to these
records at all reasonable times, for the
purposes of reviewing, inspecting, and
evaluating the Contractor’s real property
management effectiveness. When real
property is disposed of under this contract,
the Contractor shall deliver the related
records to the Government.
(e) The Contracting Officer may direct the
Contractor in writing to reduce the work
required by the maintenance program
authorized in paragraph (b) of this clause at
any time.
procedures to address illegal,
unreported, and unregulated (IUU)
fishing activities and bycatch of
protected living marine resources
(PLMRs) pursuant to the High Seas
Driftnet Fishing Moratorium Protection
Act (Moratorium Protection Act). The
objectives of these procedures are to
promote the sustainability of
transboundary and shared fishery stocks
and to enhance the conservation and
recovery of PLMRs. The final rule is
intended to implement existing U.S.
statutory authorities to address
noncompliance with international
fisheries management and conservation
agreements, and encourage the use of
bycatch reduction methods in
international fisheries that are
comparable to methods used in U.S.
fisheries. Agency actions and
recommendations under this rule will
be in accordance with U.S. obligations
under applicable international trade
law, including the World Trade
Organization (WTO) Agreement.
DATES: This final rule is effective on
January 12, 2011, except for
§§ 302.205(b)(2), 300.206, and 300.207,
which contain information collection
requirements that have not yet been
approved by the Office of Management
and Budget (OMB) under the Paperwork
Reduction Act (PRA). A document will
be published in the Federal Register
announcing the effective dates of these
provisions after OMB provides its
approval.
(End of clause)
FOR FURTHER INFORMATION CONTACT:
Laura Cimo, Trade and Marine
Stewardship Division, Office of
International Affairs, NMFS, at (301)
713–9090.
SUPPLEMENTARY INFORMATION:
[FR Doc. 2010–32741 Filed 1–11–11; 8:45 am]
BILLING CODE 7510–01–P
DEPARTMENT OF COMMERCE
Background
National Oceanic and Atmospheric
Administration
50 CFR Part 300
[Docket No. 070514119–0452–03]
RIN 0648–AV51
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High Seas Driftnet Fishing Moratorium
Protection Act; Identification and
Certification Procedures To Address
Illegal, Unreported, and Unregulated
Fishing Activities and Bycatch of
Protected Living Marine Resources
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
This final action implements
identification and certification
SUMMARY:
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The Magnuson-Stevens Fishery
Conservation and Management
Reauthorization Act of 2006 (MSRA),
which was signed into law in January
2007, amends the Moratorium
Protection Act to require that actions be
taken by the United States to strengthen
international fishery management
organizations and address IUU fishing
and bycatch of PLMRs. IUU fishing has
been defined in the Moratorium
Protection Act and implemented
through regulation at 50 CFR 300.201 as
follows:
1. Fishing activities that violate
conservation and management measures
required under an international fishery
management agreement to which the
United States is a party, including catch
limits or quotas, capacity restrictions,
and bycatch reduction requirements;
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2011
2. Overfishing of fish stocks shared by
the United States, for which there are no
applicable international conservation or
management measures or in areas with
no applicable international fishery
management organization or agreement,
that has adverse impacts on such stocks;
and
3. Fishing activity that has an adverse
impact on seamounts, hydrothermal
vents, and cold water corals located
beyond national jurisdiction, for which
there are no applicable conservation or
management measures or in areas with
no applicable international fishery
management organization or agreement.
This final action amends the regulatory
definition at § 300.201 to make the
definition more consistent with the
United Nations General Assembly
Resolution 65–105.
The Moratorium Protection Act
requires the Secretary of Commerce to
identify in a biennial report to Congress
those foreign nations whose fishing
vessels are engaged in IUU fishing or
fishing activities or practices that result
in bycatch of PLMRs. The Moratorium
Protection Act also requires the
establishment of procedures to certify
whether appropriate corrective actions
have been taken to address IUU fishing
or bycatch of PLMRs by fishing vessels
of those nations. Identified nations that
are not positively certified by the
Secretary of Commerce could be subject
to prohibitions on the importation of
certain fisheries products into the
United States and other measures,
including limitations on port access,
under the High Seas Driftnet Fisheries
Enforcement Act (Enforcement Act) (16
U.S.C. 1826a). This final rule sets forth
procedures to implement the
identification and certification
requirements of the Moratorium
Protection Act.
NMFS published an Advance Notice
of Proposed Rulemaking (ANPR) on
June 11, 2007 (72 FR 32052), to
announce that it was developing
certification procedures to address IUU
fishing and bycatch of PLMRs pursuant
to the Moratorium Protection Act and,
based upon comments received, a
proposed rule was published on January
14, 2009 (74 FR 2019). Public comments
were solicited on the proposed rule for
a period of 120 days. In conjunction
with publication of the proposed rule,
NMFS held public hearings in 2009 in
locations where it expected substantial
public interest in the proposed
procedures. These sessions were held in
Boston, MA (March 16, 2009); Silver
Spring, MD (April 6, 2009); San Diego,
CA (April 13, 2009); Seattle, WA (April
14, 2009); Honolulu, HI (April 27, 2009);
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and Miami, FL (May 12, 2009). The
public hearings provided valuable
opportunities for NMFS to explain the
proposed rule, respond to questions,
and receive feedback from the public. A
summary of the comments received on
the proposed rule and how these
comments were addressed in the final
rule can be found below. Further
background is provided in the abovereferenced Federal Register documents
and is not repeated here.
NMFS prepared a final Environmental
Assessment (EA) to accompany this
final rule. The EA was developed as an
integrated document that includes a
Regulatory Impact Review (RIR) and a
Final Regulatory Flexibility Analysis
(FRFA). Copies of the draft EA/RIR/
FRFA analysis are available at the
following address: Office of
International Affairs, F/IA, National
Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD
20910. Copies are also available via the
Internet at the NMFS Web site at
http://www.nmfs.noaa.gov/msa2007/.
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Major Aspects of the Final Action
This final action sets forth procedures
for both the identification and
certification of foreign nations whose
fishing vessels are engaged in IUU
fishing or bycatch of PLMRs. As
discussed above, the Moratorium
Protection Act requires that NMFS
identify foreign nations whose fishing
vessels are engaged in IUU fishing or
bycatch of PLMRs and list these nations
in a biennial report to Congress, the first
of which was due in January 2009. The
Act does not require publication of
identification procedures in a rule, but
in the interest of transparency and to
provide context for subsequent
certification determinations, NMFS
decided to address identification in this
action. NMFS made its first
identifications in the January 2009
Biennial Report to Congress based on
authority provided in the Moratorium
Protection Act only, as these regulations
were not yet in place.
Procedures To Identify Nations
Engaged in IUU Fishing
As required under the Moratorium
Protection Act, NMFS will identify, and
list in the biennial report to Congress,
that those nations whose fishing vessels
are engaged, or have been engaged at
any point during the preceding 2 years,
in IUU fishing.
When determining whether to
identify a nation as having fishing
vessels engaged in IUU fishing, NMFS
will exercise due diligence in evaluating
appropriate information and evidence
available to the agency. This
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information could include data,
gathered by the U.S. Government as
well as offered by other nations,
international organizations (such as
regional fisheries management
organizations (RFMOs)), institutions, or
arrangements that, if true, could support
a determination that a nation’s vessels
have been engaged in IUU fishing.
NMFS will review and verify the
pertinent information when
determining, for the purposes of
identification, whether a nation’s
fishing vessels are engaged, or have
been engaged, during the preceding 2
years in IUU fishing as defined under
the Moratorium Protection Act.
Once NMFS has determined that the
information received is credible and
provides a reasonable basis to believe or
suspect that a nation’s fishing vessels
are engaged in IUU fishing, NMFS,
acting through or in consultation with
the State Department, will initiate
bilateral discussions with the nation to:
• Seek corroboration of the alleged
IUU activity or credible information that
refutes such allegations;
• Communicate the requirements of
the Moratorium Protection Act to the
nation; and
• Encourage such nation to take
action to address the alleged IUU fishing
activity in question.
Prior to making identifications, NMFS
will consider measures taken by the
nation to address the IUU fishing
activity of its vessels, information
refuting allegations of IUU fishing
activity, and domestic laws or
regulatory programs designed to address
IUU fishing activity, along with all
verified information on alleged IUU
fishing activity.
In determining whether to make an
IUU fishing identification, NMFS will
consider whether a nation has
implemented and is enforcing measures
that are deemed comparable in
effectiveness to measures implemented
by the United States to address the
pertinent IUU fishing activity. NMFS
will also consider if an international
fishery management organization exists
with a mandate to regulate the fishery
in which the IUU activity in question
takes place, whether or not the nation is
party to or maintains cooperating status
with the organization, and whether or
not the relevant RFMO has adopted
measures that are deemed by NMFS to
be effective at addressing such IUU
fishing activity. If the nation is a party
or cooperating non-party to the relevant
RFMO, NMFS will consider whether the
nation has implemented and is
enforcing measures of that organization.
Measures by nations to address IUU
fishing could include those that reflect
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the recommendations of international
organizations to prevent, deter and
eliminate IUU fishing. Such flag State
measures and actions, as relevant, may
include, but are not limited to, those
that fall into the following categories:
• Data collection and catch reporting
programs, including observer programs,
catch documentation programs, and
trade tracking schemes;
• Trade-related measures that seek to
reduce or eliminate trade in fish, and
fish products derived from IUU fishing;
• At-sea or dockside boarding and
inspection schemes;
• Programs documenting whether fish
were caught in a manner consistent with
conservation and management
measures;
• IUU vessel lists identifying fishing
vessels that violate and/or undermine
conservation and management
measures;
• Port State measures to prohibit
landings or transshipment of
unauthorized or other IUU catch;
• Catch and effort monitoring,
including licensing and permitting
schemes, reporting, and vessel
monitoring systems (VMS);
• Bycatch reduction and mitigation
strategies and techniques, such as gear
restrictions or requirements, if the IUU
fishing activity includes a violation of
bycatch reduction or mitigation
conservation and management
measures;
• Programs or measures to identify
and protect vulnerable marine
ecosystems (VMEs) in waters beyond
any national jurisdiction (including
seamounts, hydrothermal vents, and
cold water corals) from significant
adverse impacts due to bottom fishing
activities;
• Efforts to improve and enhance
fisheries enforcement and compliance,
including through the development of
effective sanctions and monitoring,
control and surveillance (MCS)
capacity; and
• Participation in voluntary
international efforts to combat IUU
fishing (e.g., the International
Monitoring, Control, and Surveillance
(MCS) Network or other cooperative
enforcement and compliance networks).
NMFS will also examine whether
adequate enforcement measures and
capacity exist to help promote
compliance.
Notification of and Consultations With
Nations Identified as Having Fishing
Vessels Engaged in IUU Fishing
Upon identifying a nation whose
vessels have been engaged in IUU
fishing activities in the biennial report
to Congress, the Secretary of Commerce
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will notify the President of such
identification. Within 60 days after
submission of the biennial report to
Congress, the Secretary of Commerce,
acting through or in consultation with
the Secretary of State, will notify:
1. Nations that have been identified in
the biennial report as having fishing
vessels that are currently engaged, or
were engaged at any point during the
preceding 2 calendar years, in IUU
fishing activities;
2. Identified nations of the
requirements under the Moratorium
Protection Act and this subpart; and
3. Any relevant international fishery
management organization of actions
taken by the United States to identify
nations whose fishing vessels are
engaged in IUU fishing.
Within 60 days after submission of
the biennial report to Congress, the
Secretary of Commerce, acting through
or in consultation with the Secretary of
State, will initiate consultations with
nations that have been identified in the
biennial report as having fishing vessels
that are currently engaged, or were
engaged at any point during the
preceding 2 calendar years, in IUU
fishing activities for the purpose of
encouraging such nations to take
appropriate corrective action with
respect to the IUU fishing activities
described in the biennial report.
Procedures To Certify Nations
Identified as Having Fishing Vessels
Engaged in IUU Fishing
Subsequent to the identification,
notification, and consultation processes
outlined above, the Secretary will
provide either a positive or negative
certification to nations that have been
identified in the biennial report as
having fishing vessels engaged in IUU
fishing. The Secretary of Commerce
shall issue a positive certification to an
identified nation upon making a
determination that such nation has
taken appropriate corrective action to
address the activities for which such
nation has been identified in the
biennial report to Congress. When
making such determination, the
Secretary shall take into account
whether a nation has provided
documentary evidence that it has taken
appropriate corrective action to address
the IUU fishing activity described in the
biennial report, or the relevant
international fishery management
organization has implemented measures
that are effective in addressing the IUU
fishing activity by vessels of the nation.
NMFS will notify nations prior to a
formal certification determination, and
will provide such nations an
opportunity to support and/or refute
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preliminary certification
determinations, and communicate any
corrective actions taken to address the
IUU fishing activity described in the
biennial report to Congress.
Corrective actions that NMFS will
consider include, but are not limited to,
a nation’s:
• Efforts towards improving data
collection, catch monitoring, and
reporting programs;
• Record of implementation of or
compliance with international measures
to address IUU fishing;
• Participation in technical assistance
and capacity building programs to
address IUU fishing and enhance
regulatory efforts, as well as
enforcement;
• Adequacy of surveillance,
enforcement, and prosecution to
promote compliance with conservation
and management measures and respond
to non-compliance;
• Response to IUU fishing activity;
• Participation in voluntary
international efforts to combat IUU
fishing (e.g., the International
Monitoring, Control, and Surveillance
(MCS) network or other cooperative
enforcement and compliance networks);
and
• Cooperation with other
governments in enforcement,
apprehension, and prosecution efforts
related to those vessels of the identified
nation that have engaged in IUU fishing.
To determine whether a positive
certification is warranted, NMFS will
consider the extent to which the IUU
fishing activities described in the
biennial report have been effectively
addressed, the likely effectiveness of the
nation’s actions to deter future IUU
activity, and whether measures that are
comparable in effectiveness to measures
implemented by the United States have
been implemented and are being
effectively enforced. Such flag State
measures may include, but are not
limited to:
• Catch and effort monitoring,
including licensing and permitting
schemes, reporting, and vessel
monitoring systems (VMS);
• Programs for data collection and
sharing, including observer programs;
• Catch documentation and trade
tracking schemes that identify the origin
and document the legality of fish from
the point of harvest through the point of
market/import;
• Trade-related measures, such as
import and export controls or
prohibitions, to reduce or eliminate
trade in fish and fish products derived
from IUU fishing;
• Programs that document fish were
caught in a manner consistent with, or
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2013
that does not undermine, conservation
and management measures;
• Port State control measures;
• At-sea and dockside inspection
schemes;
• Bycatch reduction and mitigation
strategies and techniques, such as gear
restrictions or requirements, if the IUU
fishing activity includes a violation of
bycatch reduction and mitigation
requirements of an international
agreement to which the United States is
a party;
• Systems to improve monitoring,
control, and surveillance of fishing
activities;
• Sufficient sanctions and legal
frameworks to support effective
enforcement; and
• Measures to protect VMEs from
significant adverse impacts from bottom
fishing activities in waters beyond any
national jurisdiction.
The Secretary of Commerce will make
certification determinations pursuant to
provisions of the Moratorium Protection
Act in accordance with international
law, including the WTO Agreement,
regarding adoption of trade measures in
a fair, transparent, and nondiscriminatory manner. When
considering whether appropriate
corrective action has been taken to
warrant a positive certification, NMFS
will take into account the outcome of
consultations with the identified nation
and comments received from such
nation. NMFS will also evaluate actions
taken by the relevant nation and
applicable RFMO to address the IUU
fishing activity described in the biennial
report, including participation in
applicable RFMOs and requests for
assistance in building fisheries
management and enforcement capacity.
NMFS will also consider, as
appropriate, whether the affected nation
has implemented and is enforcing
RFMO conservation and management
measures designed to address IUU
fishing activities.
The Secretary of Commerce will make
the first certification determinations no
later than 90 days after promulgation of
this rule. Subsequent certification
determinations will be published in the
biennial report. Identified nations will
receive notice of certification
determinations.
Once certification determinations are
published in the biennial report, NMFS
will, working through or in consultation
with the Department of State, continue
consultations with negatively certified
nations and provide them an
opportunity to take corrective action
with respect to the IUU fishing activities
described in the biennial report to
Congress.
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Procedures To Identify Nations
Engaged in PLMR Bycatch
As required under the Moratorium
Protection Act, NMFS will also identify,
and list in the biennial report to
Congress, nations whose fishing vessels
are engaged, or have been engaged
during the preceding calendar year in
fishing activities either in waters
beyond any national jurisdiction that
result in PLMR bycatch, or beyond the
U.S. exclusive economic zone (EEZ) that
result in bycatch of a PLMR shared by
the United States.
When determining whether to
identify a nation as having fishing
vessels engaged in the bycatch of
PLMRs, NMFS will evaluate, review,
and verify appropriate information and
evidence that are available to the
agency. During this review, NMFS will
take into account the extent of the
PLMR bycatch and the impact of
bycatch on sustainability of the PLMR.
NMFS will also consider any actions
taken by the nation to address the
bycatch, information refuting the
allegations of PLMR bycatch, and
participation in cooperative research
activities designed to address such
bycatch. In addition, NMFS will
consider whether adequate enforcement
authority and capacity exist to promote
compliance.
NMFS will also examine if an
international organization for the
conservation and protection of such
PLMR, or an international or regional
fishery management organization with a
mandate to regulate the fishery in which
the bycatch activity in question
occurred, exists; and whether the nation
whose fishing vessels are engaged, or
have been engaged during the preceding
calendar year, in bycatch of PLMRs is
party to or maintains cooperating status
with the relevant international body.
NMFS will examine whether the
relevant international body has adopted
measures that have been demonstrated
to end or reduce bycatch of PLMRs;
whether the nation is a party or
cooperating non-party to the
organization; and whether the nation
has implemented, and is enforcing, such
measures. If an identified nation is not
party to the relevant international or
regional body, NMFS will examine
whether the nation has implemented
measures deemed to be effective at
addressing the bycatch of such PLMRs,
including any measures that have been
recommended by a relevant
international body. Such measures,
where appropriate, may include, but are
not limited to:
• Programs for data collection and
sharing, including programs to assess
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the abundance and status of PLMRs and
observer programs;
• Bycatch reduction and mitigation
strategies, techniques, and equipment,
such as gear restrictions and gear
modifications; and
• Improved monitoring, control, and
surveillance of fishing activities.
Once NMFS has determined that
information on PLMR bycatch is
credible and provides a reasonable basis
to believe or suspect that a nation’s
fishing vessels are engaged in bycatch of
PLMRs, NMFS, acting through or in
consultation with the State Department,
will initiate bilateral discussions with
the identified nation. These discussions
will, among other things:
• Seek to corroborate the alleged
PLMR bycatch or credible information
that refutes such allegations;
• Communicate the requirements of
the Moratorium Protection Act to the
nation; and
• Encourage such nation to take
action to address the alleged PLMR
bycatch.
Pursuant to the requirements under
the Moratorium Protection Act, NMFS
will publish a list of nations that have
been identified as having fishing vessels
engaged in bycatch of PLMRs in the
biennial report to Congress.
Notification and Consultation With
Nations Identified as Having Fishing
Vessels Engaged in Bycatch of PLMRs
After submission of the biennial
report to Congress, the Secretary of
Commerce, acting through the Secretary
of State, will officially notify nations
that have been identified in the biennial
report as having fishing vessels that are
engaged in bycatch of PLMRs. Within 60
days after submission of the biennial
report to Congress, NMFS, acting
through or in consultation with the
State Department, will notify such
nations of the requirements of the
Moratorium Protection Act and initiate
consultations regarding the bycatch of
PLMRs.
Upon submission of the biennial
report to Congress, the Secretary of
Commerce, acting through or in
consultation with the Secretary of State,
will:
1. Initiate consultations with the
governments of identified nations for
the purposes of entering into bilateral
and multilateral agreements and treaties
with such nations to protect the PLMRs
from bycatch activities described in the
biennial report; and
2. Seek agreements through the
appropriate international organizations
calling for international restrictions on
the fishing activities or practices
described in the biennial report that
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result in bycatch of PLMRs and, as
necessary, request that the Secretary of
State initiate the amendment of any
existing international treaty to which
the United States is a party for the
protection and conservation of the
PLMRs in question to make such
agreements consistent with this subpart.
International Cooperation and
Assistance
To the greatest extent possible
consistent with existing authority and
the availability of funds, NMFS shall
provide assistance to nations identified
as having vessels engaged in PLMR
bycatch. NMFS will also provide
assistance to international organizations
of which those nations are members to
assist with qualifying for a positive
certification. Assistance activities may
include, where appropriate, cooperative
research activities on species
assessments and improved bycatch
mitigation techniques, improved
governance structures, or improved
enforcement capacity. NMFS will also
encourage and facilitate the transfer of
appropriate technology to identified
nations or the organizations of which
they are members to assist identified
nations in qualifying for a positive
certification and to assist those
identified nations or organizations in
designing and implementing
appropriate fish harvesting methods that
minimize bycatch of PLMRs.
Procedures To Certify Nations
Identified as Having Fishing Vessels
Engaged in Bycatch of PLMRs
Based on the identification,
notification, and consultation processes
outlined above, NMFS will certify
nations that have been identified in the
biennial report as having fishing vessels
engaged in bycatch of PLMRs. NMFS
will notify nations prior to a formal
certification determination and will
provide such nations an opportunity to
support and/or refute preliminary
certification determinations, and
communicate any corrective actions
taken to address the bycatch of PLMRs
described in the biennial report to
Congress.
Identified nations will receive either a
positive or negative certification from
the Secretary of Commerce. A positive
certification indicates that a nation has:
1. Provided documentary evidence of
the adoption of a regulatory program
governing the conservation of the PLMR
that is comparable to that of the United
States, taking into account different
conditions, and which, in the case of
pelagic longline fishing, includes
mandatory use of circle hooks, careful
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handling and release equipment, and
training and observer programs; and
2. Established a management plan
containing requirements that will assist
in gathering species-specific data to
support international stock assessments
and conservation enforcement efforts for
PLMRs. Stock assessments include
population assessments.
When determining whether a nation’s
regulatory program is comparable to
measures required in the United States,
NMFS will consider whether the
program is comparable in effectiveness,
taking into account different conditions
that could bear on the feasibility and
efficacy of comparable measures. If
other measures could address bycatch of
the PLMRs in question that are
comparable in effectiveness, then the
implementation of such measures by a
nation may be deemed sufficient for
purposes of the Moratorium Protection
Act. As relevant, NMFS will also
consider whether measures have been
implemented and effectively enforced
including, but not limited to:
• Programs for data collection and
sharing, including programs to assess
the abundance and status of PLMRs and
observer programs;
• Bycatch reduction and mitigation
strategies, techniques, and equipment
(including training and assistance for
bycatch reduction technology and
equipment);
• Improved monitoring, control, and
surveillance of fishing activities;
• Efforts towards improving data
collection, bycatch monitoring, and
reporting programs;
• Record of implementation of or
compliance with international measures
to address bycatch of PLMRs;
• Participation in technical assistance
and capacity building programs to
reduce bycatch;
• Surveillance, enforcement, and
prosecution program and their adequacy
for promoting compliance with
conservation and management measures
and responding to non-compliance;
• Response to PLMR bycatch; and
• Cooperation with other
governments in enforcement,
apprehension, and prosecution efforts
related to those vessels of the identified
nation that have engaged in PLMR
bycatch.
The Secretary of Commerce will make
certification determinations pursuant to
provisions of the Moratorium Protection
Act in accordance with international
law, including the WTO Agreement,
regarding adoption of trade measures in
a fair, transparent, and nondiscriminatory manner. When making
certification determinations, the
Secretary of Commerce will, in
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consultation with the Secretary of State,
evaluate the information discussed
above, comments received from such
nation, the consultations with each
identified nation, and subsequent
actions taken by the relevant nation to
address the bycatch of PLMRs described
in the biennial report, including
requests for assistance in the
implementation of measures comparable
to those of the United States and
establishment of an appropriate
management plan. The Secretary of
Commerce will also take into account
whether the nation participates in
existing certification programs, such as
that authorized under section 609 of
Public Law 101–162, or the affirmative
finding process under the International
Dolphin Conservation Program Act (111
Stat. 1122). Nothing in this rulemaking
will modify such existing certification
procedures.
The Secretary of Commerce will
publish certification determinations in
the biennial report to the Congress.
Identified nations will receive notice of
certification determinations.
Once certification determinations are
published in the biennial report, NMFS
will, working through or in consultation
with the Department of State, continue
consultations with the negativelycertified nations and provide them an
opportunity to take corrective action
with respect to the bycatch of PLMRs
described in the biennial report to
Congress.
Effect of Certification Determinations
If nations identified as having fishing
vessels engaged in IUU fishing and/or
bycatch of PLMRs receive a positive
certification from the Secretary of
Commerce pursuant to the Moratorium
Protection Act, no actions will be taken
against such nations.
If an identified nation fails to take
sufficient action to address IUU fishing
and/or bycatch of PLMRs and does not
receive a positive certification from the
Secretary of Commerce, the nation
could face denial of port privileges for
its fishing vessels, prohibitions on the
import of certain fish and fish products
into the United States, and other
appropriate measures. In determining
the appropriate course of action to
recommend to the President, the
Secretary of Commerce and other
Federal agencies, as appropriate, will
take into account the nature,
circumstances, extent, duration, and
gravity of the fishing activity for which
the initial identification was made; the
degree of culpability; any history of
prior IUU fishing activities or bycatch of
PLMRs; and other relevant matters. The
Secretary of Commerce, in cooperation
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with the Secretary of State, may initiate
further consultations with identified
nations that fail to receive a positive
certification prior to determining an
appropriate course of action.
The Secretary of Commerce will
recommend to the President appropriate
measures, including trade restrictive
measures, to be taken against identified
nations that have not received a positive
certification, to address the relevant IUU
fishing activity and/or fishing activities
or practices that result in PLMR bycatch
for which such nations were identified
in the biennial report. The Secretary
will make such recommendations on a
case by case basis in accordance with
international obligations, including the
WTO Agreement. Adoption of trade
measures will be done in a fair,
transparent, and non-discriminatory
manner. If certain fish or fish products
of a nation are subject to import
prohibitions, to facilitate enforcement,
NMFS may require that other fish or fish
products from that nation that are not
subject to the import prohibitions be
accompanied by documentation of
admissibility to be developed by NMFS.
If NMFS decides to require that such
fish or fish products be accompanied by
documentation of admissibility, it will
develop this documentation through a
future rulemaking action and give the
public an opportunity to review and
provide comment.
In implementing the certification
procedures under the Moratorium
Protection Act, in order to inform U.S.
ports that cargo originating from a
foreign port may be subject to import
restrictions, NMFS intends to
collaborate with other Federal agencies
and, as appropriate, take advantage of
existing prior notification procedures,
such as those required under section
343(a) of the Trade Act of 2002, or those
proposed for further development under
the International Trade Data System
(ITDS) established under the Security
and Accountability for Every (SAFE)
Port Act of 2006 (Pub. L. 109–347).
NMFS also intends to utilize existing
documentation schemes developed by
RFMOs, as appropriate. These efforts
will be undertaken to help mitigate the
effects of a negative certification
determination on U.S. industry.
If certain fish or fish products are
prohibited from entering the United
States, within six months after the
imposition of the prohibition, the
Secretary of Commerce shall determine
whether the prohibition is insufficient
to cause that nation to effectively
address the IUU fishing described in the
biennial report, or that nation has
retaliated against the United States as a
result of that prohibition. The Secretary
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of Commerce shall certify to the
President each affirmative
determination that an import
prohibition is insufficient to cause a
nation to effectively address such IUU
fishing activity or that a nation has
taken retaliatory action against the
United States. This certification is
deemed to be a certification under
section 1978(a) of Title 22, which
provides that the President may direct
the Secretary of the Treasury to prohibit
the bringing or the importation into the
United States of any products from the
offending country for any duration as
the President determines appropriate
and to the extent that such prohibition
is sanctioned by the WTO.
Alternative Procedures
Section 609(d)(2) of the Moratorium
Protection Act authorizes the Secretary
of Commerce to establish alternative
procedures for importing fish or fish
products from a vessel of a harvesting
nation identified under section 609(a) of
the Act in the event that the Secretary
cannot reach a certification
determination for such identified nation
by the time of the next biennial report.
The alternative procedures shall not
apply to fish or fish products from
identified nations that have received
either a negative or a positive
certification under this Act. Under these
alternative procedures, the Secretary of
Commerce may allow entry of fish or
fish products on a shipment-byshipment, shipper-by-shipper, or other
basis as long as specified conditions are
met.
For nations that have been identified
as having fishing vessels engaged in IUU
fishing and have not received a
certification from the Secretary of
Commerce, certain fish or fish products
of that nation may be eligible for
alternative certification procedures. To
qualify for the alternative certification
procedures, NMFS must determine,
based on the best available information,
that the relevant vessel has not engaged
in IUU fishing, or been identified by an
international fishery management
organization as participating in IUU
fishing activities.
Section 610(c)(4) of the Moratorium
Protection Act requires the Secretary of
Commerce to establish alternative
procedures for importing fish or fish
products from a vessel of a harvesting
nation identified under section 610(a) of
the Act in the event that the Secretary
cannot reach a certification
determination for such identified nation
by the time of the next biennial report.
The alternative procedures shall not
apply to fish or fish products from
identified nations that have received
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either a negative or a positive
certification under this Act. Under these
alternative procedures, the Secretary of
Commerce may allow entry of fish or
fish products on a shipment-byshipment, shipper-by-shipper, or other
basis as long as specified conditions are
met.
To qualify for the alternative
certification procedures, NMFS must
determine that imports were harvested
by practices that do not result in
bycatch of a protected living marine
resource, or were harvested by practices
comparable to those required in the
United States, taking into account
different conditions that affect the
feasibility and efficacy of such practices,
and which, in the case of pelagic
longline fishing, includes mandatory
use of circle hooks, careful handling and
release equipment, and training and
observer programs. NMFS must also
determine that the vessel collects
species-specific bycatch data that can be
used to support international and
regional assessments and efforts to
conserve PLMRs. NMFS will make these
determinations in accordance with
international law, including the WTO
Agreement, regarding adoption of trade
measures in a fair, transparent, and nondiscriminatory manner.
In its implementation of alternative
certification procedures, NMFS will
seek appropriate documentation to
verify that imports were harvested in a
manner consistent with the
requirements of this subpart, such as
chain-of-custody information, VMS
reports, or other forms of verification.
To the extent practicable, NMFS will
rely on existing trade tracking programs
to implement alternative procedures.
Responses to Comments on the
Proposed Rule
NMFS received comments on the
proposed rule, including comments
from U.S. industry, non-governmental
organizations, Marine Mammal
Commission, private citizens, and other
nations. Several comments received
were not germane to this rulemaking
and are not addressed in this section.
These comments include potential
legislative changes and other actions
outside the scope of the statutory
mandate.
Several commenters provided broad
suggestions that pertain to the overall
implementation of the rule. Specifically,
many commenters expressed their
support for the certification process
under the Moratorium Protection Act
and the application of trade measures,
including sanctions.
NMFS received numerous comments
asking the agency to adopt the strongest
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measures possible to address IUU
fishing and the bycatch of PLMRs, as
mandated by Congress, in order
conserve these resources and level the
playing field for U.S. fisherman. Several
commenters recommended that NMFS
hold other nations to the same rigorous
and strict standards to which U.S.
fishermen are subject, especially for
Atlantic bluefin tuna fishing, and
expressed dissatisfaction that NMFS is
not aggressively utilizing trade
sanctions as a tool to combat IUU
fishing of shared highly migratory fish
stocks.
A comment was made that the threat
of trade sanctions is often more effective
than the actual imposition and that
sanctions should only be used as a last
resort if at all.
In the following section, NMFS
addresses the issues that directly relate
to the measures in the rulemaking.
General Comments
Comment 1: One commenter
recommended that NMFS coordinate
the proposed rule with the European
Union’s approach in order to have a
unified global process to address IUU
fishing.
Response: NMFS is obligated to
adhere to the Moratorium Protection Act
that sets forth identification,
consultation, and certification
procedures to address IUU fishing and
the bycatch of PLMRs. These procedures
differ from the regulatory process of the
European Union (EU) to address IUU
fishing. EU Council Regulation 1005/
2008, which was passed in the fall of
2008, requires, among other things, that
most exports of seafood to the European
market be accompanied by a catch
document signed by a flag-state
competent authority that the product
was caught legally. NMFS is committed
to working with our partners in the
European Union in order address the
global problem of IUU fishing and the
bycatch of PLMRs.
Comment 2: A commenter expressed
concern that the implementation of the
proposed rule will result in increased
expenses to U.S. suppliers as well as to
the Federal government.
Response: The regulations will not
directly increase costs to U.S. suppliers.
However, it is possible to anticipate
increased costs to U.S. suppliers. If a
foreign nation’s ability to import certain
fish or fish products into the United
States is limited upon receipt of a
negative certification and application of
trade restrictive measures, this may
impact the ability of U.S. suppliers to
access fish or fish products from that
nation. Alternative sources of fish and
fish products could mitigate the impacts
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of restrictions on U.S. suppliers’ access
to fish and fish products.
Comment 3: Several commenters
suggested that NMFS should include in
the biennial report to Congress
information on the status of the RFMOs’
compliance committees and the
performance reviews as an indicator of
the effectiveness of the RFMOs actions
related to implementing measures to
avoid IUU and bycatch of PLMRs.
Response: NMFS will include in the
biennial report to Congress relevant
information on RFMOs and their
measures to address IUU fishing and the
bycatch of PLMRs.
Comment 4: A suggestion was made
that NMFS prioritize situations where
IUU is rampant or bycatch of PLMRs is
clearly excessive, thus focusing the
imposition of trade measures on the
most egregious situations.
Response: NMFS is required to
address IUU fishing activity and the
PLMR bycatch. When making
identification decisions for both IUU
fishing and bycatch, NMFS will
consider the history, nature,
circumstances, extent, duration, and
gravity of the activity in question.
Definition of IUU Fishing
Comment 5: Several commenters
suggested that NMFS should expand the
definition of IUU fishing. Suggestions
included addressing unreported fishing
and fishing activities that are
misreported to the relevant national or
international fishery management
authority, as well as violations of
agreements to which the United States
is not a party. Others suggested
broadening the IUU fishing definition to
include illegal incursions of a nation’s
vessels into the waters of other nations
(including U.S. waters), flagrant
reflagging under flags of convenience,
beneficial ownership, and lack of
registration.
Commenters also recommended that
the definition of IUU fishing be as
consistent as possible with the United
Nation’s International Plan of Action to
Prevent, Defer and Eliminate Illegal,
Unreported and Unregulated Fishing
(IPOA–IUU), as well as the UNFAO
Agreement on Port State Measures.
Response: At this time, NMFS
believes it is not appropriate to modify
the definition of IUU fishing through
this regulatory action. NMFS
appreciates the public is interested in
having this definition modified, but
NMFS has decided not to revise the
definition until the agency is able to
understand the implications for
implementing the United Nations Food
and Agriculture Organization’s
Agreement on Port State Measures to
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Prevent, Deter and Eliminate Illegal,
Unreported and Unregulated Fishing
(Port State Measures Agreement).
Although this agreement has been
signed by the United States, it has not
been ratified. At present, NOAA plans
to revise the definition of IUU fishing in
a subsequent rulemaking action to help
ensure that the definition complies with
our international as well as statutory
obligations. In its development of the
new definition, NMFS will consider
what clarifications may be helpful for
the definition, and will seek and take
public comments on the definition.
NMFS will also take the comments
received in response to this rulemaking
into account when formulating the new
definition of IUU fishing.
Comment 6: Several commenters were
encouraged that NMFS’ definition of
fishing vessels relative to its definition
of IUU fishing extended to ‘‘vessels that
are used for fishing or any activity
relating to fishing, including, but not
limited to, preparation, supply, storage,
refrigeration, transportation, or
processing, bunkering or purchasing
catch, aiding or assisting one or more
vessels at sea in the performance of such
activity.’’
Response: NMFS has decided to
retain the proposed definition of
‘‘fishing vessels’’ in the final rule
without amendment.
Comment 7: A nation commented that
the failure to meet the commitments of
Resolution 61/105 of the United Nations
General Assembly and the International
Guidelines for the Management of Deepsea Fisheries in the High Seas should
not be defined as IUU fishing, as there
are no internationally agreed upon
standards that would support such a
determination. In addition, the nation
suggested that NMFS only consider
including flag State responsibilities
related to these guidelines for deep seas
fisheries in the definition of IUU fishing
after the establishment of
internationally agreed criteria for
assessing flag State performance.
Response: The portion of the
definition of IUU fishing referenced by
the commenter is mandatory under the
Moratorium Protection Act. The aspect
of the IUU fishing definition the
commenter refers to includes fishing
activity that has a significant adverse
impact on seamounts, hydrothermal
vents, cold water corals and other
vulnerable marine ecosystems located
beyond any national jurisdiction, for
which there are no applicable
conservation or management measures,
including those in areas with no
applicable international fishery
management organization or agreement.
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This portion of the definition is required
under the Moratorium Protection Act.
Comment 8: One commenter
recommended that NMFS include in its
definition of IUU fishing the failure of
the flag State to report the catch of its
fishing vessels to the RFMO that it is
party to, or other applicable authorities
in its definition of IUU fishing.
Response: Under the Moratorium
Protection Act, NMFS is authorized to
identify nations based on the IUU
fishing activity of their vessels. If the
vessels of a flag State fail to report their
catch to the relevant RFMO and this
action is required under a conservation
and management measure of an RFMO
to which the United States is a party,
then failure to report the catch could be
a potential basis for identifying the
nation.
Concerns Regarding IUU Fishing
Comment 9: A comment was made in
regards to a statement in the biennial
report to Congress that ‘‘* * * more than
one vessel must be engaged in IUU
fishing for purposes of identification.’’
The commenter recommended that
NMFS reinterpret the statute or attempt
to remove legislative language limiting
the criterion for identification that a
nation must have more than one vessel
engaged in IUU fishing. The commenter
suggested that nations should be held
responsible for any and all IUU fishing
activity of their flagged vessels.
Response: NMFS’ interpretation of the
statute that more than one vessel of a
nation must be engaged, or have been
engaged, in IUU fishing activity to
warrant identification under the
Moratorium Protection Act is consistent
with the statutory language.
Comment 10: NMFS received a
comment recommending improvements
in traceability of catches to prevent IUU
fishing. It was suggested that Catch
Documentation Schemes (CDS) would
help with these improvements.
Response: NMFS agrees with the
commenter and supports the adoption
of tools to address traceability of catch,
including catch documentation
schemes, to help address IUU fishing,
consistent with the purposes of the
Moratorium Protection Act.
Definition of Bycatch of PLMRs
Comment 11: One commenter advised
NMFS to revise the definition of bycatch
of PLMRs to encompass any interaction
with a non-target living marine resource
that results in the capture, serious injury
or mortality of that resource, regardless
of whether the resource is discarded or
kept for personal or commercial use.
The commenter was concerned that the
way the current definition is phrased
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might suggest that if non-target living
marine resources were to be kept on the
vessel, they would not be considered
bycatch, which would undermine
efforts to conserve these species and
reduce their bycatch.
Another commenter recommended
that NMFS’ definition of bycatch of
PLMRs be revised to explicitly refer to
any encounter of non-target living
marine resources with fishing gear, not
just encounters that result in mortality
or serious injury.
Response: NMFS sought to address
these comments in the definition of
bycatch in the final rule. The revised
definition of PLMRs in the final rule is
as follows: ‘‘Bycatch means the
incidental or discarded catch of
protected living marine resources or
entanglement of such resources with
fishing gear.’’
Concerns Regarding the Bycatch of
PLMRs
Comment 12: NMFS received a
comment from the Marine Mammal
Commission regarding the lack of
available information and standards
with respect to the bycatch of PLMRs,
as well as the incomparable reporting
requirement timelines and deadlines
between IUU fishing and bycatch of
PLMRs. Specifically, under the IUU
fishing provisions, the Secretary has 60
days after submission of the biennial
report to Congress to notify identified
nations and to initiate consultations,
whereas the proposed rule only suggests
that this occur ‘‘as soon as possible’’
with respect to the bycatch of PLMRs.
Therefore, the Marine Mammal
Commission recommends that NMFS
establish deadlines for notification,
consultation, and certification findings
with respect to PLMR bycatch.
Response: NMFS sought to address
these comments by standardizing the
timelines and deadlines for information
collection, notification, consultation,
and certification decisions for IUU
fishing and bycatch of PLMRs under the
Moratorium Protection Act, in a manner
consistent with the statutory text of the
Act.
With respect to nations that are
identified as having fishing vessels
engaged in IUU fishing or bycatch of
PLMRs, NMFS, acting through or in
cooperation with the State Department,
will notify such nations of the
requirements of the Moratorium
Protection Act and initiate consultations
within 60 days of submission of the
biennial report to Congress.
Certification determinations will be
made for nations that are identified as
having vessels engaged in IUU fishing or
bycatch of PLMRs on a biennial basis to
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coincide with publication of the
biennial report to Congress.
Comment 13: The Marine Mammal
Commission commented that the lack of
basic information on pelagic and
transboundary PLMRs that are often
caught as bycatch is of serious concern,
as this will severely hamper NMFS’
efforts to identify bycatch problems and
evaluate the adequacy of a nation’s
regulatory program.
Response: NMFS shares the concerns
raised by the commenter regarding the
lack of basic information on PLMR
bycatch and, based on the absence of
this information, recognizes the
challenges associated with identifying
nations whose fishing vessels are
engaged in bycatch of PLMRs and
evaluating other nations’ regulatory
programs. To address this concern, as
explained in the prior response, NMFS
plans to examine PLMR bycatch
information from as broad a timeframe
as possible under the Act.
Comment 14: The Marine Mammal
Commission recommended that NMFS
work with the Department of State to
protect PLMRs by promoting protective
actions in relevant international fora,
and through amendments to treaties to
which the United States is party, such
as requiring the collection and sharing
of data pertaining to fishery
interactions, stock status, and bycatch
estimates and implementing of bycatch
mitigation measures.
Response: Consistent with the
legislative intent of the Moratorium
Protection Act, NMFS will work with
the Department of State to protect
PLMRs through the adoption of
measures in the relevant international
fora that require reporting of bycatch
data and use of bycatch mitigation gear.
NMFS will also continue its efforts to
work cooperatively with nations that
lack sufficient capacity for fisheries
monitoring, control, surveillance, and
bycatch mitigation and assist these
nations achieve sustainable fisheries.
Comment 15: A commenter suggested
that NMFS distinguish between a
particular instance of fishing activity
that results in bycatch of PLMRs, and a
consistent disregard of bycatch
reduction measures.
Response: NMFS has addressed this
comment in the final rule by requiring
that the agency take into account all
relevant matters when determining
whether to identify nations whose
vessels engaged in PLMR bycatch
including, but not limited to, the
history, nature, circumstances, extent,
duration, and gravity of the bycatch
activity in question.
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Comparability
Comment 16: NMFS received
numerous comments regarding the
effectiveness of measures to reduce IUU
fishing and bycatch of PLMRs.
Specifically, the Marine Mammal
Commission suggested that the
framework to determine the
comparability of effectiveness between
countries’ measures was too broad, and
that NMFS needs to specify what
standards will be used to assess
comparability in effectiveness by other
nations, especially with respect to the
bycatch of PLMRs.
Response: In order to identify a nation
for PLMR bycatch, under this final rule
NMFS will also determine that the
nation has not implemented measures
designed to end or reduce such bycatch
that are comparable in effectiveness to
U.S. regulatory requirements, and that
the relevant international organization
has not adopted effective measures to
end or reduce bycatch of such species.
In its determination of whether
programs to address IUU fishing or
PLMR bycatch are comparable in
effectiveness to those of the United
States, NMFS will examine programs
that have been adopted by the United
States to address the relevant activity for
which a nation has been identified, and
compare such programs with those that
have been adopted by the nation, taking
into account different conditions that
could bear on the program’s feasibility
and efficacy. Given the different IUU
fishing and bycatch activities for which
a nation could be identified under the
Act, it may be difficult and overly
prescriptive to establish specific criteria
for programs addressing all such
activities. NMFS may, however, seek to
provide further clarification on its
identification and certification
procedures, including any standards,
through internal guidance.
Data Utilized for Certification
Comment 17: Several comments
recommended that in addition to
evaluating evidence ‘‘available’’ to
NMFS, the proposed rule should clearly
state that the NMFS will actively seek
out information from industry groups
and foundations, international fishery
management bodies, and nations
wishing to export fish or fish products
into the United States. Similarly, a
commenter suggested that in addition to
using data offered by other international
organizations and from among other
sources to make an identification
determination, as indicated in the
proposed rule, NMFS should also seek
information from industry groups such
as the International Seafood
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Sustainability Foundation (ISSF) and
individual companies. The Marine
Mammal Commission recommended
that NMFS establish procedures to
allow various U.S. government agencies,
foreign governments, international
fishery management organizations,
NGOs, industry organizations and the
public to provide and exchange
pertinent information for the
identification and certification process.
Response: NMFS concurs with the
comments provided and will actively
seek information from relevant sources
with respect to the identification
processes under the Moratorium
Protection Act. As an illustration, NMFS
published and circulated two notices in
the Federal Register on March 5, 2010
(75 FR 10213), and April 6, 2010 (75 FR
17379), soliciting information on IUU
fishing and PLMR bycatch activities
prior to the development of the list of
nations that were identified in the
January 2009 Biennial Report to
Congress, and that will be identified in
the 2011 report. NMFS will continue to
solicit information from the public that
could be used for the identification
processes under the Moratorium
Protection Act, actively seek
information from RFMOs and
international organizations for the
protection of PLMRs, and examine other
information deemed relevant for our
decision-making processes.
Comment 19: A commenter
recommended that NMFS give
preference to government information,
information that has undergone a peerreview process, or information that has
been agreed upon through tribunals or
some other legal mechanism in making
decisions regarding certification.
Several commenters also
recommended that NMFS utilize
‘‘additional resources’’ to verify
documentation on which a certification
will be made; however, none of the
commentators identified what those
‘‘additional resources’’ would be.
Further, NMFS received numerous
comments with respect to both IUU
fishing and the bycatch of PLMRs,
regarding the lack of abundance and
poor quality of the information that
would be available and possibly used to
identify and certify nations.
Response: When determining whether
to identify a nation as having fishing
vessels engaged in IUU fishing or
bycatch of PLMRs, as well as certifying
an identified nation, NMFS will analyze
and assess all available information
from a variety of sources. NMFS will
exercise due diligence in evaluating
which information and evidence is most
appropriate for use in identifying and
certifying nations. This information
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could include data actively gathered by
the U.S. Government as well as data
offered by other nations, or international
organizations (such as RFMOs),
institutions, or arrangements that
provides a reasonable basis to believe or
suspect that a nation’s vessels have been
engaged in IUU fishing or bycatch of
PLMRs.
Comment 20: A commenter
recommended that NMFS establish a
process to notify nations and
international fishery management
bodies of the Moratorium Protection Act
requirements.
Response: The Moratorium Protection
Act requires notification and as such,
the final regulations lay out what NMFS
will communicate to nations. NMFS has
been actively conducting outreach and
communicating the requirements of the
Moratorium Protection Act to nations
and international fishery management
organizations over the past 3 years.
Comment 21: One commenter
requested that NMFS provide
information regarding the efforts that
the United States has undertaken to
eliminate its own IUU fishing and
PLMR bycatch. The commenter
expressed that this would not only
facilitate earlier compliance, but also
help in information-gathering and
negotiations.
Response: NMFS will summarize
efforts to address PLMR bycatch and, as
appropriate, may provide information
on efforts to address IUU fishing in the
biennial report to Congress.
Comment 22: A comment was made
by a nation that NMFS should publish
all information sources used in the
certification process.
Response: NMFS will publish the
information sources, as appropriate, that
are used in the certification decisionmaking under the Moratorium
Protection Act in the biennial report to
Congress.
Identification and Certification
Comment 23: A comment suggested
that in order to make the task of
identifying and listing a nation easier,
the proposed language for section
608(c)(1) of the High Seas Driftnet
Fishing Moratorium Protection Act in
H.R. 1080 section 2(b), should be
clarified so that if vessels and vessel
owners are identified as engaging in
IUU fishing by an international fishery
management organization or through an
international agreement, the vessel
would automatically be added to the
Secretary’s list and subject to possible
action under the proposed section
608(c)(2).
Response: Legislative changes are
outside the scope of this action.
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However, NMFS notes that, when
considering an IUU fishing
identification under the Moratorium
Protection Act, NMFS will examine
information regarding vessels flagged to
a nation that is identified by an
international fishery management
organization to which the United States
is a party as having engaged in IUU
fishing. The Moratorium Protection Act
provides for consideration of vessels’
IUU fishing activities during the
preceding 2 years.
Comment 24: A commenter
recommended that, in addition to
identifying nations based on vesselspecific activity, NMFS also utilize
trade analysis that compares reported
catches and trade data for the purposes
of identifying IUU fishing occurring in
a fishery. The commenter is concerned
that in some situations vessel level
information will not be sufficient to
support identification, but rather trade
analysis could be a strong indication
that the fishery as a whole is not being
adequately monitored and enforced by
the particular country or set of countries
and therefore the products from that
fishery should be considered IUUderived.
Response: Under the Moratorium
Protection Act, NMFS is required to
identify nations whose vessels engage in
IUU fishing activity or bycatch of
PLMRs. Therefore, a determination must
be made based upon vessel specific
information.
Comment 25: A comment
recommended that the United States
pursue schemes requiring all fishing
vessels to have International Maritime
Organization numbers, or an equivalent
system for smaller vessels. It was
suggested that in order to encourage
vessel owners to register with an
International Maritime Organization
system, NMFS could automatically list
any unregistered vessel.
Response: NMFS supports efforts
made at the international level to
enhance the identification and
encourage registration of all fishing
vessels, which would improve the
tracking of vessel activities and
compliance with international
registration requirements. To the extent
that vessels of a nation are fishing
without authorization in violation of a
conservation and management measure
of an RFMO, NMFS will consider
identification of these nations as
required under the Moratorium
Protection Act.
Comment 26: One comment
recommended that NMFS not only
identify and list nations for having
vessels engaged in IUU fishing, but also
the specific vessel as well as the
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fisheries in which they are engaged. The
commenter was concerned that, under
the current regulations, all fishing
vessels flying the flag of an identified
country will be incriminated, as
opposed to only those vessels or
fisheries actually engaged in IUU
fishing.
Response: NMFS will, to the extent
practicable, identify the specific vessels
of a nation that are engaged in IUU
fishing activities for purposes of
identification under the Moratorium
Protection Act in the biennial report to
Congress.
Comment 27: A nation commented
that it was pleased to see that
consultation is a key aspect of the
identification and certification process.
The nation recommended that NMFS
consult in a way to ensure the
transparency and fairness of these
processes.
Response: NMFS agrees that
consultations are a key aspect of the
identification and certification
processes under the Moratorium
Protection Act. NMFS will seek to
implement the Moratorium Protection
Act to ensure fairness and transparency.
Comment 28: NMFS received a
question from a nation requesting
clarification of the documentation
required with respect to § 300.205(b)(1)
(Such finding may include a
requirement that fish or fish products
from such nations be accompanied by
documentation of admissibility.).
Response: If an identified nation fails
to receive a positive certification from
the Secretary of Commerce, and the
President determines that certain fish
and fish products from that nation are
ineligible for entry into the United
States and U.S. territories, then NMFS
may require that fish or fish products
not subject to the import restrictions
from the nation be accompanied by
admissibility documentation to be
developed by NMFS. This requirement
would be put into place if deemed
necessary to assist with monitoring and
compliance with the import
prohibitions.
Comment 29: A comment from a
nation stated that with respect to
§ 300.205(a)(2) (‘‘* * * If there is no
applicable international fishery
agreement, the Secretary of Commerce
shall not recommend import
prohibitions that would apply to fish or
fish products caught by vessels not
engaged in IUU fishing * * *’’), both the
intent and the language of this article
are unclear. The nation recommended
that NMFS clearly explain the effects of
negative certification and to whom it
applies in relation to bycatch of PLMRs.
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Response: NMFS has revised the final
rule to mirror the text of the Act more
closely. In response to the comment
provided, NMFS clarifies that, for
nations identified under § 300.202(a)
that are not positively certified, NMFS
believes that import prohibition
recommendations should be made with
respect to fish or fish products managed
under the applicable international
fishery agreement. If there is no
applicable agreement, import
prohibition recommendations should be
made with respect to fish or fish
products caught by vessels engaged in
the IUU fishing activity. For nations
identified under § 300.203(a) that are
not positively certified, NMFS believes
that import prohibition
recommendations should be made with
respect to fish or fish products caught
by the vessels engaged in the relevant
activity for which the nation was
identified.
Comment 30: A nation requested that
NMFS clarify § 300.203(d)(2)(ii) (‘‘Such
nation has established a management
plan that will assist in the collection of
species-specific data on PLMR bycatch
to support international stock
assessments and conservation efforts for
PLMRs’’). Specifically, the nation
wanted to know if PLMRs include
species that are managed by an
international fishery management
organization, and the likelihood of
having international stock assessments
and conservation efforts for PLMRs. The
nation recommended that NMFS delete
‘‘international stock assessments’’ as
they are captured under broader
‘‘conservation efforts.’’
Response: The definition of PLMRs
set forth in the Moratorium Protection
Act exempts those species, with the
exception of sharks, that are managed by
an RFMO. The statute requires that
nations identified as having vessels
engaged in PLMR bycatch establish a
management plan that will assist in the
collection of species-specific data for
use in international assessments in
order to receive a positive certification.
Comment 31: A commenter
recommended that the United States
place the burden of proof on the nations
wishing to export product to the United
States that they have not engaged in IUU
fishing or PLMR bycatch. The
commenter suggested that by placing
the burden of proof on the exporting
nation, the United States will encourage
other nations to enhance their
monitoring and enforcement
requirements to eliminate IUU fishing
and bycatch of PLMRs.
Response: NMFS does not have
authority under the Moratorium
Protection Act to require that nations
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bear the burden of proving that their
exports to the United States were
harvested by vessels that have not
engaged in IUU fishing or PLMR
bycatch.
Comment 32: Several commenters
recommended that deadlines for
certification findings with respect to
bycatch of PLMRs need to be
established. Specifically, a timeline
should be created by which nations are
to meet the applicable comparability
requirements or face certification.
Response: In this final rule, NMFS
clarifies that nations identified for
having vessels engaged in PLMR
bycatch meet the requirements for a
positive certification prior to the
subsequent biennial report to Congress.
Therefore, each identified nation will
have approximately 2 years to take
sufficient corrective action before a
certification decision is made.
Comment 33: A commenter suggested
that NMFS should evaluate not only the
statutory or regulatory requirements that
apply to a fishery but also the
effectiveness of a nation’s efforts to
achieve compliance with those
requirements. Thus, the proposed rule
should provide greater detail on the
types of data and information that will
be required from nations and the
standards that will be used to judge the
sufficiency of documentary evidence for
certification.
Response: In its implementation of
the Moratorium Protection Act, NMFS
will evaluate whether a nation
identified as having fishing vessels
engaged in IUU fishing or PLMR
bycatch has taken appropriate corrective
action and is implementing and
enforcing such actions. In its evaluation,
NMFS will consider several types of
documentary evidence and will work
with the nation to examine what
information is available to determine
whether appropriate corrective action is
taken. For example, NMFS will examine
logbook data, laws and regulations to
address IUU fishing activity, and
written documentation of permit
revocation, among other things.
Comment 34: A comment was made
regarding revising the timeline for
reporting on the identification process.
A commenter suggested that stipulating
such reports as ‘‘biennial’’ alone is
insufficient, as subsequent reports could
be provided two years to the calendar
year rather than the calendar date.
Specifically, a commenter
recommended that the language in
§ 300.202(a)(1) of the proposed
regulation be revised to read: ‘‘NMFS
will identify and list, in a biennial
report provided to Congress, no later
than 2 years after the date of the prior
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biennial report, nations whose fishing
vessels are engaged, or have been
engaged at any point during the
preceding two calendar years, in IUU
fishing’’ (recommended modifications in
italics).
Response: NMFS is retaining the text
as proposed, as it is consistent with
section 607 of the Moratorium
Protection Act, which requires the
biennial report to be produced 2 years
after enactment of the MSRA and every
2 years thereafter.
Comment 35: Several comments
recommended that the time period in
which IUU and bycatch activities are
considered for identifying countries
should be extended to 3 years.
Commenters expressed concern that if
NMFS reports on a biennial basis and
only considers bycatch of PLMRs during
the previous calendar year, data from
every other year would not be
considered in the report. Secondly,
several commenters expressed concern
that the current two-year time period
limits NMFS from effectively collecting
sufficient catch data and information on
bycatch.
Response: As reflected in prior
comments and responses above, NMFS
recognizes the concerns regarding the
availability of data and information for
purposes of making identifications
under the Moratorium Protection Act.
NMFS plans to examine PLMR bycatch
information from as broad a timeframe
as possible under the Act. For IUU
fishing, NMFS will examine information
on IUU fishing activities during a 2-year
period, consistent with the Act.
Comment 36: NMFS received several
comments in support of the idea of
having alternative certification
procedures on a shipper-by-shipper
basis. In addition, the Marine Mammal
Commission commented that alternative
certification procedures should require
rigorous chain-of-custody
documentation, greater controls on
transshipment than currently exist, and
real-time monitoring and verification to
substantiate that individual vessels,
shipments, or shippers fully comply
with the bycatch reduction measures.
They also recommended that NMFS
defer the implementation of alternative
certification procedures until nations or
RMFOs can adopt monitoring and
verification procedures coupled with
mandatory real-time tracking and
documentation of products obtained in
compliance with bycatch reduction
procedures.
Response: NMFS recognizes the value
of establishing alternative certification
procedures on a shipper-by-shipper
basis for those identified nations that
have not received a certification
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decision from the Secretary of
Commerce. In the implementation of the
Moratorium Protection Act, the
Secretary of Commerce intends to issue
a positive or negative certification
decision for each nation that is
identified as having vessels engaged in
either IUU fishing or PLMR bycatch.
However, NMFS will use alternative
procedures in the case that a
certification decision cannot be reached.
For nations that are negatively certified,
entry of fish or fish products not subject
to the import prohibitions could be
facilitated by accompaniment of these
products by documentation of
admissibility under § 300.205(b)(2).
Comment 37: One commenter
recommended that NMFS recognize the
existing traceability system used for
tuna products and its proven track
record, and clarify that for tuna
products the Secretary intends to use
the alternative procedures authority,
absent some new information.
Response: NMFS recognizes the
effective existing systems used for
tracking the trade of tuna products. In
its implementation of alternative
certification procedures for this
particular species, NMFS will rely on
existing trade tracking programs and
seek chain-of-custody documentation,
real-time monitoring and verification to
substantiate that individual vessels,
shipments, or shippers fully comply
with requirements of these procedures.
Comment 38: A commenter
recommended that a strict set of criteria
be put in place so that countries know
what is expected of them in terms of
making adequate reforms, and so that
the public can understand the criteria
by which decisions are made in terms
of certifications.
Response: Given the broad scope of
IUU fishing and bycatch activities for
which a nation could be identified, it is
difficult to predict what types of data
and information will be required of
nations, or what standards would need
to be met to receive a positive
certification in each specific case.
Rather, NMFS will determine the data,
information, and standards on a case-bycase basis.
Comment 39: A commenter
recommended that public consultations
be built into the certification process as
this will help ensure transparency in
decision making about how a positive or
negative certification is made.
Response: The Moratorium Protection
Act requires the Secretary of Commerce
to notify nations prior to certification,
and provide such nations with an
opportunity to comment on the
certification determinations. NMFS will
provide notice of the official
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certifications in the subsequent biennial
report to Congress.
Trade Sanctions
Comment 40: A few commenters
stated that the Moratorium Protection
Act specifies that the negative
certification of a nation, or lack of
certification with respect to IUU fishing
activity or bycatch of PLMRs, triggers
mandatory import prohibitions and
provides that the President ‘‘shall’’ direct
that importation of fish and fish
products be prohibited immediately
upon being notified that a nation is
identified as having engaged in IUU
fishing or PLMR bycatch, or if
consultations with the government of
such a nation have not concluded
satisfactorily within 90 days. However,
the commenter finds that the rule
conflicts with the Act, as it states that
such nations ‘‘may be subject’’ to import
prohibitions. The commenter
recommends that NMFS clarify the rule
to reflect the mandatory requirements of
the Act, as well as the stated timeline
for implementing import prohibitions.
Response: The Secretary of Commerce
only has the authority to make
recommendations to the President on
import prohibitions of fish or fish
products. Thus, the rule was drafted to
focus on the Secretary’s roles and
actions.
Comment 41: NMFS received a
comment recommending that the
proposed rule clearly identify which
fish products or fishing vessels of
negatively certified nations would be
subject to the import prohibitions.
Similarly, a nation expressed that it is
not clear from the proposed rule
whether all fish products or all fishing
vessels of a negatively certified nation
would be subject to import prohibitions.
The nation recommended that if import
prohibitions are applied only to some
fish products or some fishing vessels,
NMFS should clarify the criteria that
will be used to make that determination.
Response: The scope of any traderelated actions would be at the
discretion of the President. However, in
making recommendations to the
President with respect to prohibitions
on the importation of fish and fish
products from nations identified as
having vessels engaged in IUU fishing or
PLMR bycatch that did not receive a
positive certification from the Secretary
of Commerce, NMFS will take into
account the fish and fish products
affected by the IUU fishing or PLMR
bycatch activity in question.
Comment 42: One commenter
suggested that punitive measures should
not be limited solely to nations;
penalties or trade restrictions should
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also be imposed on vessel operators,
fishing masters, senior executives,
directors of companies, and traders
deemed to be engaged in, involved with,
or benefitting from IUU fishing.
Response: The Moratorium Protection
Act only provides authority for the
Secretary of Commerce to identify and
certify nations for the activities of its
vessels.
Changes From Proposed Action
In addition to streamlining the final
rule to reduce duplication and ease
readability, NMFS has made several
changes in the final rule to respond to
public comments, provide clarification,
and revise some text to reflect better text
in the Act. The key changes are outlined
below.
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1. Outreach Prior to Identification
In its implementation of the
identification procedures under the
Moratorium Protection Act, NMFS will
communicate with nations regarding
alleged IUU fishing and bycatch
activities prior to a formal
identification. This outreach process,
which was described in the preamble of
the proposed rule, will provide NMFS
with a means of verifying information
and building a more robust record in
support of identification decisions. In
the preamble of the final rule, NMFS
clarified that it will consider action
taken by nations in response to IUU
fishing, as well as cooperative research
conducted by nations to address bycatch
activities prior to making formal
identification decisions. This will allow
NMFS to use the identification and
certification procedures effectively to
address IUU fishing and bycatch, rather
than penalize nations that have already
taken corrective action and/or are
working cooperatively to reduce their
bycatch.
2. Enforcement and Implementation of
International Measures
In the proposed rule, NMFS stated
that it would consider whether a nation
has implemented and is enforcing
international measures to address IUU
fishing or PLMR bycatch when making
identification and certification
decisions. In the preamble of the final
rule, NMFS clarified that when
evaluating whether a nation has
implemented and is enforcing measures
that will address IUU fishing and PLMR
bycatch when making identification
decisions, the agency will also examine
whether adequate enforcement
measures and capacity exist to help
promote compliance. In some cases,
NMFS may be able to provide
international assistance to a nation to
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help such nation achieve more
sustainable fisheries and obtain a
positive certification.
3. Bycatch Definition
In the proposed rule, bycatch was
defined as ‘‘the discarded catch of any
living marine resource and/or mortality
or serious injury of such resource due to
an encounter with fishing gear that does
not result in the capture of such
resource.’’ This definition was revised in
response to public comments that
bycatch should include resources that
are caught incidentally due to an
encounter with fishing gear, regardless
of whether the resource is retained. The
bycatch definition was also revised
based on concerns that the terms
‘‘mortality and/or serious injury’’ would
establish unintentional standards that
could not be applied consistently to all
protected living marine resources. The
definition of bycatch was revised in the
final rule to ‘‘the incidental or discarded
catch of protected living marine
resources or entanglement of such
resources with fishing gear.’’
4. Definition of International Fishery
Management Agreement
In the proposed rule, this term was
defined as ‘‘any bilateral or multilateral
treaty, convention, or agreement that
governs direct harvest of fish and/or
directly governs bycatch of fish, sea
turtles, or marine mammals.’’ This
definition was revised for clarity in the
final rule and consistent with the
definition of ‘‘international fishery
management organization’’ as ‘‘any
bilateral or multilateral treaty,
convention, or agreement for the
conservation and management of fish.’’
5. Notification and Initiation of
Consultations for PLMR Bycatch
As specified in the Moratorium
Protection Act, the proposed rule
required that NMFS notify nations of
their identification for having vessels
engaged in IUU fishing, and initiate
consultations within 60 days after
submission of the biennial report to
Congress. The proposed rule did not,
however, establish a specific deadline
for the notification and initiation of
consultations with nations identified for
having vessels engaged in PLMR
bycatch. In response to public
comments, NMFS will require that
nations identified for having vessels
engaged in PLMR bycatch be notified of
their identification and consultations be
initiated within 60 days after
submission of the biennial report to
Congress, consistent with the
requirements for nations identified for
having vessels engaged in IUU fishing.
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6. International Cooperation and
Assistance
In the final rule, NMFS specified that
the agency is required to work
cooperatively with nations that are
identified for having vessels engaged in
PLMR bycatch to address such bycatch
and provide appropriate assistance to
help such nations obtain a positive
certification. These requirements have
been included for transparency in the
process by which NMFS plans to work
cooperatively with other nations and
provide assistance where necessary to
help achieve sustainable fisheries
globally.
7. Scope of Import Prohibitions
NMFS received several public
comments asking for clarification
regarding the scope of trade sanctions
that would be recommended by the
Secretary of Commerce to the President
when identified nations fail to receive a
positive certification. NMFS has revised
the final rule to mirror the text of the
Act more closely. In the response to
comments in this final rule, NMFS
explains that, for nations identified
under § 300.202(a) that are not
positively certified, NMFS believes that
import prohibition recommendations
should be made with respect to fish or
fish products managed under the
applicable international fishery
agreement. If there is no applicable
agreement, import prohibition
recommendations should be made with
respect to fish or fish products caught
by vessels engaged in the IUU fishing
activity. For nations identified under
§ 300.203(a) that are not positively
certified, NMFS believes that import
prohibition recommendations should be
made with respect to fish or fish
products caught by vessels engaging in
the relevant activity for which the
nation was identified.
Classification
This final rule is published under the
authority of the Moratorium Protection
Act, 16 U.S.C. 1826d–1826k.
This rulemaking has been determined
to be significant for the purposes of
Executive Order 12866.
A final regulatory flexibility analysis
(FRFA) was prepared, as required by
section 603 of the RFA. The FRFA
describes the economic impact this rule
would have on small entities. A
description of the action, why it is being
considered, and the legal basis for this
action are contained at the beginning of
this section in the preamble and in the
SUMMARY section of the preamble. A
summary of the analysis follows. A copy
of this analysis is available from NMFS
(see ADDRESSES).
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NMFS received public comments on
the proposed rule, and made some
revisions to the final rule to clarify
provisions. A summary of public
comments on the proposed rule and
agency responses is provided above.
NMFS did not receive comments
specifically on the IRFA or on issues
related to the IRFA.
This final rule does not apply directly
to any U.S. small business, as the
rulemaking is aimed at foreign nations
whose vessels engage in fishing
activities. The universe of potentially
indirectly affected industries includes
the following: U.S. ports and U.S.
seafood harvesters, processors,
wholesalers, and importers. Ports
generate economic activity across many
sectors, including surface
transportation; maritime services; cargo
handling; federal, state, and local
governments; port authorities; importers
and consignees; and the banking and
insurance sectors. Maritime services
include pilots, handlers (food and other
supplies), towing, bunkering (fuel),
marine surveyors, and shipyard and
marine construction. Cargo handling
services include longshoremen,
stevedoring, terminal operators,
warehouse operators, and container
leasing and repair.
No U.S. industry is directly affected
by this rulemaking, although indirect
effects may cause short term disruptions
in the flow of seafood imports, and thus
potentially impact U.S. businesses.
NMFS does not anticipate that national
net benefits and costs would change
significantly in the long term as a result
of the implementation of the proposed
alternatives.
Although this action will not have
significant economic impacts on a
substantial number of small U.S.
entities, NMFS decided to analyze
different alternatives in the FRFA for
the certification procedures in this rule.
In order to meet the objectives of the
Moratorium Protection Act and this
final rule, NMFS cannot exempt small
entities, change reporting requirements
only for small entities, or use
performance or design standards in lieu
of the regulatory requirements in the
rule. Sections 2.2 and 2.3 of the
Environmental Assessment describe the
alternatives analyzed for certification
procedures for IUU fishing and bycatch.
The Alternatives for Certification for
nations whose vessels are engaged, or
have been engaged in, IUU fishing
activities are as follows: Under
Alternative I–1, the No Action
Alternative, NMFS would not develop
any new procedures to address the
certification of nations identified in the
biennial report to Congress (called for in
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section 609(a) of the Moratorium
Protection Act) as having vessels that
are engaged, or have been engaged
during the preceding 2 calendar years,
in IUU fishing activities. Under
Alternative I–2, the Secretary would
provide a positive certification to a
nation identified in the biennial report
to Congress (called for in section 609(a)
of the Moratorium Protection Act) as
having vessels that are engaged, or have
been engaged during the preceding 2
calendar years, in IUU fishing activities,
if such nation has taken corrective
action against the offending vessels, or
the relevant RFMO has implemented
measures that are effective in ending the
IUU fishing activities by vessels of the
identified nation. Under Alternative I–3,
the Secretary would provide a positive
certification to a nation identified in the
biennial report to Congress (called for in
section 609(a) of the Moratorium
Protection Act) as having vessels that
are engaged, or have been engaged
during the preceding 2 calendar years,
in IUU fishing activities, if such nation
has taken corrective action against the
offending vessels, and the relevant
RFMO has implemented measures that
are effective in ending the IUU fishing
activities by vessels of the identified
nation.
The Alternatives for Certification for
nations whose vessels are engaged, or
have been engaged in, bycatch of PLMRs
are as follows: Under Alternative B–1,
the No action alternative, NMFS would
not develop any new procedures to
address certification of nations
identified in the biennial report to
Congress (called for in section 610(a) of
the Moratorium Protection Act) as
having vessels that are engaged, or have
been engaged during the preceding
calendar year in bycatch of PLMRs.
Under Alternative B–2, to receive a
positive certification from the Secretary
of Commerce, nations identified in the
biennial report to Congress (called for in
section 610(a) of the Moratorium
Protection Act) as having vessels that
are engaged, or have been engaged
during the preceding calendar year in
bycatch of PLMRs must provide
documentary evidence of their adoption
of a regulatory program governing the
conservation of the PLMR that is
comparable in effectiveness with that of
the United States, taking into account
different conditions, and establish a
management plan that will assist in
species-specific data collection to
support international stock assessments
and conservation enforcement efforts for
the PLMR. Under Alternative B–3,
identified nations must provide
documentary evidence of the adoption
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of a regulatory program for PLMR
bycatch that is comparable with that of
the United States’, taking into account
different conditions. Identified nations
must also show proof of the identified
nation’s participation with an
international organization governing the
conservation of the PLMRs, if one exists,
and establish a management plan that
will assist in species-specific data
collection to support international
assessments and conservation efforts,
including but not limited to
enforcement efforts for PLMRs.
As noted above, NMFS does not
anticipate significant economic impacts
to U.S. businesses from any of the
alternatives analyzed. However, certain
importers may be affected by import
prohibitions that are imposed on fish or
fish products coming into the United
States from an identified nation that
fails to receive a positive certification.
IUU Alternative I–3 may produce more
socioeconomic benefits than IUU
Alternative I–2. Likewise for the bycatch
alternatives, Alternative B–3 may
produce more benefits than Alternative
B–2. Due to the consultative nature of
this rulemaking, it may be possible for
the costs to U.S. businesses to be
ameliorated by new port state controls,
substituting different transportation
modes, or substituting different
products all together. As a result, it is
difficult to know if costs will also be
higher moving from the less restrictive
IUU Alternative I–2 or bycatch
Alternative B–2 to IUU Alternative I–3
or bycatch Alternative B–3. Because
Alternatives I–2 and B–2 most closely
mirror the text of the Moratorium
Protection Act, NMFS has decided to
implement them in this final rule.
Pursuant to 5 U.S.C 553(d)(3), NOAA
finds that there is good cause to waive
the 30-day delay in the effective date of
this rule. This rule is procedural in
nature: It only creates procedures for the
agency to follow when determining
identification and certification of
nations whose fishing vessels are
engaged in IUU fishing and/or bycatch
of PLMRs. Importantly, the rule does
not modify, add, or revoke any existing
rights and obligations of the public or
any private parties, because the rule
only applies to NOAA. Accordingly,
NOAA finds that there is good cause,
within the meaning of 5 U.S.C. 553(d)(3)
and in accordance with the
Congressional Review Act, 5 U.S.C.
808(2), to waive the 30-day delay in
effectiveness of this rule and to make
this rule effective immediately.
This final rule contains collection-ofinformation requirements for
§§ 300.205(b)(2), 300.206(c), and
300.207(c) subject to review and
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approval by OMB under the Paperwork
Reduction Act (PRA). However, NMFS
is delaying the effective date of these
sections until NMFS receives OMB
approval for these collections. After
OMB approval is received, NMFS will
publish the effective date for these
sections in the Federal Register.
List of Subjects in 50 CFR Part 300
Administrative practice and
procedure, Antarctica, Canada, Exports,
Fish, Fisheries, Fishing, Imports,
Indians, Labeling, Marine resources,
Reporting and recordkeeping
requirements, Russian Federation,
Transportation, Treaties, Wildlife.
Dated: January 7, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries,
National Marine Fisheries Service.
For the reasons set out in the
preamble, NMFS amends 50 CFR part
300 as follows:
■
PART 300—INTERNATIONAL
FISHERIES REGULATIONS
1. Subpart N is revised to read as
follows:
■
Subpart N—Identification and Certification
of Nations
Sec.
300.200 Purpose and scope.
300.201 Definitions.
300.202 Identification and certification of
nations engaged in illegal, unreported, or
unregulated fishing activities.
300.203 Identification and certification of
nations engaged in bycatch of protected
living marine resources.
300.204 Effect of certification.
300.205 Denial of port privileges and
import restrictions on fish or fish
products.
300.206 Alternative procedures for IUU
fishing activities.
300.207 Alternative procedures for bycatch
of PLMRs.
Authority: 16 U.S.C. 1826d et seq.
Subpart N—Identification and
Certification of Nations
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§ 300.200
Purpose and scope.
The purpose of this subpart is to
implement the requirements in the High
Seas Driftnet Fishing Moratorium
Protection Act (‘‘Moratorium Protection
Act’’) to identify and certify nations
whose vessels are engaged in illegal,
unreported, or unregulated fishing or
whose fishing activities result in
bycatch of protected living marine
resources. This language applies to
vessels entitled to fly the flag of the
nation in question. Identified nations
that do not receive a positive
certification may be subject to trade
restrictive measures for certain fishery
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products. The Moratorium Protection
Act also authorizes cooperation and
assistance to nations that are taking
action to combat illegal, unreported, or
unregulated fishing or reduce bycatch of
protected living marine resources.
§ 300.201
Definitions.
For the purposes of the Moratorium
Protection Act:
Bycatch means: the incidental or
discarded catch of protected living
marine resources or entanglement of
such resources with fishing gear.
Fishing vessel means: any vessel, boat,
ship, or other craft which is used for,
equipped to be used for, or of a type
which is normally used for—
(1) Fishing; or
(2) Any activity relating to fishing,
including, but not limited to,
preparation, supply, storage,
refrigeration, transportation, or
processing, bunkering or purchasing
catch, or aiding or assisting one or more
vessels at sea in the performance of such
activity.
Illegal, unreported, or unregulated
(IUU) fishing means:
(1) Fishing activities that violate
conservation and management measures
required under an international fishery
management agreement to which the
United States is a party, including but
not limited to catch limits or quotas,
capacity restrictions, and bycatch
reduction requirements;
(2) Overfishing of fish stocks shared
by the United States, for which there are
no applicable international conservation
or management measures or in areas
with no applicable international fishery
management organization or agreement,
that has adverse impacts on such stocks;
or,
(3) Fishing activity that has a
significant adverse impact on
seamounts, hydrothermal vents, cold
water corals and other vulnerable
marine ecosystems located beyond any
national jurisdiction, for which there are
no applicable conservation or
management measures, including those
in areas with no applicable international
fishery management organization or
agreement.
International agreement means: an
agreement between two or more States,
agencies of two or more States, or
intergovernmental organizations which
is legally binding and governed by
international law.
International fishery management
agreement means: any bilateral or
multilateral treaty, convention, or
agreement for the conservation and
management of fish.
International fishery management
organization means: an international
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organization established by any bilateral
or multilateral treaty, convention, or
agreement for the conservation and
management of fish.
Protected living marine resources
(PLMRs) means: non-target fish, sea
turtles, or marine mammals that are
protected under United States law or
international agreement, including the
Marine Mammal Protection Act, the
Endangered Species Act, the Shark
Finning Prohibition Act, and the
Convention on International Trade in
Endangered Species of Wild Flora and
Fauna; but they do not include species,
except sharks, that are managed under
the Magnuson-Stevens Fishery
Conservation and Management Act, the
Atlantic Tunas Convention Act, or by
any international fishery management
agreement.
§ 300.202 Identification and certification of
nations engaged in illegal, unreported, or
unregulated fishing activities.
(a) Procedures to identify nations
whose fishing vessels are engaged in
IUU fishing—(1) NMFS will identify
and list, in a biennial report to Congress,
nations whose fishing vessels are
engaged, or have been engaged at any
point during the preceding two years, in
IUU fishing.
(2) When determining whether to
identify a nation as having fishing
vessels engaged in IUU fishing, NMFS
will take into account all relevant
matters, including but not limited to the
history, nature, circumstances, extent,
duration, and gravity of the IUU fishing
activity in question, and any measures
that the nation has implemented to
address the IUU fishing activity. NMFS
will also take into account whether an
international fishery management
organization exists with a mandate to
regulate the fishery in which the IUU
activity in question takes place. If such
an organization exists, NMFS will
consider whether the relevant
international fishery management
organization has adopted measures that
are effective at addressing the IUU
fishing activity in question and, if the
nation whose fishing vessels are
engaged, or have been engaged, in IUU
fishing is a party to, or maintains
cooperating status with, the
organization.
(b) Notification of nations identified
as having fishing vessels engaged in IUU
fishing. Upon identifying a nation
whose vessels have been engaged in
IUU fishing activities in the biennial
report to Congress, the Secretary of
Commerce will notify the President of
such identification. Within 60 days after
submission of the biennial report to
Congress, the Secretary of Commerce,
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acting through or in consultation with
the Secretary of State, will:
(1) Notify nations that have been
identified in the biennial report as
having fishing vessels that are currently
engaged, or were engaged at any point
during the preceding two calendar
years, in IUU fishing activities;
(2) Notify identified nations of the
requirements under the Moratorium
Protection Act and this subpart; and
(3) Notify any relevant international
fishery management organization of
actions taken by the United States to
identify nations whose fishing vessels
are engaged in IUU fishing and initiate
consultations with such nations.
(c) Consultation with nations
identified as having fishing vessels
engaged in IUU fishing. Within 60 days
after submission of the biennial report
to Congress, the Secretary of Commerce,
acting through or in cooperation with
the Secretary of State, will initiate
consultations with nations that have
been identified in the biennial report for
the purpose of encouraging such nations
to take appropriate corrective action
with respect to the IUU fishing activities
described in the biennial report.
(d) Procedures to certify nations
identified as having fishing vessels
engaged in IUU fishing. Each nation that
is identified as having fishing vessels
engaged in IUU fishing shall receive
either a positive or a negative
certification from the Secretary of
Commerce, and this certification will be
published in the biennial report to
Congress. A positive certification
indicates that a nation has taken
appropriate corrective action to address
the IUU fishing activity described in the
biennial report. A negative certification
indicates that a nation has not taken
appropriate corrective action.
(1) The Secretary of Commerce shall
issue a positive certification to an
identified nation upon making a
determination that such nation has
taken appropriate corrective action to
address the activities for which such
nation has been identified in the
biennial report to Congress. When
making such determination, the
Secretary shall take into account the
following:
(i) Whether the government of the
nation identified pursuant to paragraph
(a) of this section has provided evidence
documenting that it has taken corrective
action to address the IUU fishing
activity described in the biennial report;
or
(ii) Whether the relevant international
fishery management organization has
adopted and, if applicable, the
identified member nation has
implemented and is enforcing, measures
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to effectively address the IUU fishing
activity of the identified nation’s fishing
vessels described in the biennial report.
(2) Prior to a formal certification
determination, nations will be provided
with preliminary certification
determinations and an opportunity to
support and/or refute the preliminary
determinations and communicate any
corrective actions taken to address the
activities for which such nations were
identified. The Secretary of Commerce
shall consider any information received
during the course of these consultations
when making the subsequent
certification determinations.
§ 300.203 Identification and certification of
nations engaged in bycatch of protected
living marine resources.
(a) Procedures to identify nations
whose fishing vessels are engaged in
PLMR bycatch—(1) NMFS will identify
and list, in the biennial report to
Congress, nations whose fishing vessels
are engaged, or have been engaged
during the preceding calendar year prior
to publication of the biennial report to
Congress, in fishing activities or
practices either in waters beyond any
national jurisdiction that result in
bycatch of a PLMR, or in waters beyond
the U.S. EEZ that result in bycatch of a
PLMR that is shared by the United
States. When determining whether to
identify nations as having fishing
vessels engaged in PLMR bycatch,
NMFS will take into account all relevant
matters including, but not limited to,
the history, nature, circumstances,
extent, duration, and gravity of the
bycatch activity in question.
(2) NMFS will also examine whether
there is an international organization
with jurisdiction over the conservation
and protection of the relevant PLMRs or
a relevant international or regional
fishery organization. If such
organization exists, NMFS will examine
whether the organization has adopted
measures to effectively end or reduce
bycatch of such species; and if the
nation whose fishing vessels are
engaged, or have been engaged during
the preceding calendar year prior to
publication of the biennial report to
Congress, in bycatch of PLMRs is a party
to or maintains cooperating status with
the relevant international organization.
(3) NMFS will also examine whether
the nation has implemented measures
designed to end or reduce such bycatch
that are comparable in effectiveness to
U.S. regulatory requirements. In
considering whether a nation has
implemented measures that are
comparable in effectiveness to those of
the United States, NMFS will evaluate
if different conditions exist that could
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2025
bear on the feasibility and efficiency of
such measures to end or reduce bycatch
of the pertinent PLMRs.
(b) Notification of nations identified
as having fishing vessels engaged in
PLMR bycatch. Upon identifying a
nation whose vessels have been engaged
in bycatch of PLMRs in the biennial
report to Congress, the Secretary of
Commerce will notify the President of
such identification. Within 60 days after
submission of the biennial report to
Congress, the Secretary of Commerce,
acting through or in consultation with
the Secretary of State, will notify
identified nations about the
requirements under the Moratorium
Protection Act and this subpart.
(c) Consultations and negotiations.
Upon submission of the biennial report
to Congress, the Secretary of Commerce,
acting through or in consultation with
the Secretary of State, will:
(1) Initiate consultations within 60
days after submission of the biennial
report to Congress with the governments
of identified nations for the purposes of
entering into bilateral and multilateral
treaties with such nations to protect the
PLMRs from bycatch activities
described in the biennial report; and
(2) Seek agreements through the
appropriate international organizations
calling for international restrictions on
the fishing activities or practices
described in the biennial report that
result in bycatch of PLMRs and, as
necessary, request the Secretary of State
to initiate the amendment of any
existing international treaty to which
the United States is a party for the
protection and conservation of the
PLMRs in question to make such
agreements consistent with this subpart.
(d) International Cooperation and
Assistance. To the greatest extent
possible, consistent with existing
authority and the availability of funds,
the Secretary shall:
(1) Provide appropriate assistance to
nations identified by the Secretary
under paragraph (a) of this section and
international organizations of which
those nations are members to assist
those nations in qualifying for a positive
certification under paragraph(e) of this
section;
(2) Undertake, where appropriate,
cooperative research activities on
species assessments and improved
bycatch mitigation techniques, with
those nations or organizations;
(3) Encourage and facilitate the
transfer of appropriate technology to
those nations or organizations to assist
those nations in qualifying for positive
certification under paragraph (e) of this
section; and
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(4) Provide assistance to those nations
or organizations in designing and
implementing appropriate fish
harvesting plans.
(e) Procedures to certify nations
identified as having fishing vessels
engaged in PLMR bycatch—(1) Each
nation that is identified as having
fishing vessels engaged in PLMR
bycatch shall receive either a positive or
a negative certification from the
Secretary of Commerce, and this
certification will be published in the
biennial report to Congress. The
Secretary of Commerce shall issue a
positive certification to an identified
nation upon making a determination
that:
(i) Such nation has provided evidence
documenting its adoption of a
regulatory program to end or reduce
bycatch of such PLMRs that is
comparable in effectiveness to
regulatory measures required under U.S.
law to address bycatch in the relevant
fisheries, taking into account different
conditions that could bear on the
feasibility and efficacy of these
measures, and which, in the case of an
identified nation with fishing vessels
engaged in pelagic longline fishing,
includes the mandatory use of circle
hooks, careful handling and release
equipment, training and observer
programs; and
(ii) Such nation has established a
management plan that will assist in the
collection of species-specific data on
PLMR bycatch to support international
stock assessments and conservation
efforts for PLMRs.
(2) Nations will be notified prior to a
formal certification determination and
will be provided with an opportunity to
support and/or refute preliminary
certification determinations, and
communicate any corrective actions
taken to address the activities for which
such nations were identified. The
Secretary of Commerce shall consider
any information received during the
course of these consultations when
making the subsequent certification
determinations.
mstockstill on DSKH9S0YB1PROD with RULES
§ 300.204
Effect of certification.
(a) If an identified nation does not
receive a positive certification under
this subpart (i.e., the nation receives a
negative certification or no certification
is made), the fishing vessels of such
nation are, to the extent consistent with
international law, subject to the denial
of entry into any place in the United
States and to the navigable waters of the
United States.
(b) At the recommendation of the
Secretary of Commerce (see § 300.205),
certain fish or fish products from such
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nation may be subject to import
prohibitions.
(c) Any action recommended under
this paragraph (c) shall be consistent
with international obligations, including
the WTO Agreement.
(d) If certain fish or fish products are
prohibited from entering the United
States, within six months after the
imposition of the prohibition, the
Secretary of Commerce shall determine
whether the prohibition is insufficient
to cause that nation to effectively
address the IUU fishing described in the
biennial report, or that nation has
retaliated against the United States as a
result of that prohibition. The Secretary
of Commerce shall certify to the
President each affirmative
determination that an import
prohibition is insufficient to cause a
nation to effectively address such IUU
fishing activity or that a nation has
taken retaliatory action against the
United States. This certification is
deemed to be a certification under
section 1978(a) of Title 22, which
provides that the President may direct
the Secretary of the Treasury to prohibit
the bringing or the importation into the
United States of any products from the
offending country for any duration as
the President determines appropriate
and to the extent that such prohibition
is sanctioned by the World Trade
Organization.
(e) Duration of certification. Any
nation identified in the biennial report
to Congress and negatively certified will
remain negatively certified until the
Secretary of Commerce determines that
the nation has taken appropriate
corrective action to address the IUU
fishing activity and/or bycatch of
PLMRs for which it was identified in
the biennial report. Receipt of a positive
certification determination will
demonstrate that appropriate corrective
action has been taken by a nation to
address the relevant IUU fishing activity
and/or bycatch of PLMRs.
(f) Consultations. NMFS will, working
through or in consultation with the
Department of State, continue
consultations with nations that receive
a negative certification with respect to
the IUU fishing activities or bycatch of
PLMRs described in the biennial report
to Congress. The Secretary of Commerce
shall take the results of such
consultations into consideration when
making a subsequent certification
determination for such nation.
§ 300.205 Denial of port privileges and
import restrictions on fish or fish products.
(a) Scope of Applicability—(1) If a
nation identified in the biennial report
under § 300.202(a) or § 300.203(a) is not
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positively certified by the Secretary of
Commerce, and fishing vessels of the
nation are allowed entry to any place in
the United States and to the navigable
waters of the United States under this
subpart, those vessels will be subject to
inspection and may be prohibited from
landing, processing, or transshipping
fish and fish products. Services,
including the refueling and re-supplying
of such fishing vessels, may be
prohibited, with the exception of
services essential to the safety, health,
and welfare of the crew. Fishing vessels
will not be denied port access or
services in cases of force majeure or
distress.
(2) For nations identified in the
biennial report under § 300.202(a) that
are not positively certified, the Secretary
of Commerce shall recommend import
prohibitions with respect to fish or fish
products from those nations. Such
recommendations on import
prohibitions would not apply to fish or
fish products not managed under an
applicable international fishery
agreement, or if there is no applicable
international fishery agreement, to the
extent that such provisions would apply
to fish or fish products caught by vessels
not engaged in illegal, unreported, or
unregulated fishing. For nations
identified under § 300.203(a) that are
not positively certified, the Secretary of
Commerce shall also recommend import
prohibitions; such prohibitions shall not
apply to fish or fish products not caught
by the vessels engaged in the relevant
activity for which the nation was
identified.
(3) Any action recommended under
this paragraph (a)(3) shall be consistent
with international obligations, including
the WTO Agreement.
(b) Imposition of import restrictions—
(1) Notification. Where the Secretary of
Commerce cannot make positive
certifications for identified nations, and
the President determines that certain
fish and fish products from such nations
are ineligible for entry into the United
States and U.S. territories, the Secretary
of Commerce, with the concurrence of
the Secretary of State and in cooperation
with the Secretary of Treasury, will file
a notice with the Office of the Federal
Register.
(2) Documentation of admissibility. If
certain fish or fish products are subject
to import prohibitions, NMFS may
publish in the Federal Register the
requirement that other fish or fish
products from the relevant nation that
are not subject to the prohibitions be
accompanied by documentation of
admissibility. The documentation of
admissibility must be executed by a
duly authorized official of the identified
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nation and validated by a responsible
official(s) designated by NMFS. The
documentation must be executed and
submitted in a format (electronic
facsimile (fax), the Internet, etc.)
specified by NMFS.
(3) Effective date of import
restrictions. Effective upon the date of
publication of such finding, shipments
of fish or fish products found to be
ineligible will be denied entry to the
United States. Entry will not be denied
for any such shipment that, on the date
of publication, was in transit to the
United States.
(4) Removal of negative certifications
and import restrictions. Upon a
determination by the Secretary of
Commerce that an identified nation that
was not certified positively has
satisfactorily met the conditions in this
subpart and that nation has been
positively certified, the provisions of
§ 300.205 shall no longer apply. The
Secretary of Commerce, with the
concurrence of the Secretary of State
and in cooperation with the Secretary of
Treasury, will notify such nations and
will file with the Office of the Federal
Register for publication notification of
the removal of the import restrictions
effective on the date of publication.
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§ 300.206 Alternative procedures for IUU
fishing activities.
(a) These certification procedures may
be applied to fish or fish products from
a vessel of a harvesting nation that has
been identified under § 300.202 in the
event that the Secretary cannot reach a
certification determination for that
nation by the time of the next biennial
report. These procedures shall not apply
to fish or fish products from identified
nations that have received either a
negative or a positive certification under
this subpart.
(b) Consistent with paragraph (a) of
this section, the Secretary of Commerce
may allow entry of fish or fish products
on a shipment-by-shipment, shipper-byshipper, or other basis if the Secretary
determines that:
(1) The vessel has not engaged in IUU
fishing under an international fishery
management agreement to which the
U.S. is a party; or
(2) The vessel is not identified by an
international fishery management
organization as participating in IUU
fishing activities.
(c) Fish or fish products offered for
entry under this paragraph (c) must be
accompanied by a completed
documentation of admissibility
available from NMFS. The
documentation of admissibility must be
executed by a duly authorized official of
the identified nation and must be
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validated by a responsible official(s)
designated by NMFS. The
documentation must be executed and
submitted in a format (electronic
facsimile (fax), the Internet, etc.)
specified by NMFS.
§ 300.207 Alternative procedures for
bycatch of PLMRs.
(a) These certification procedures may
be applied to fish or fish products from
a vessel of a harvesting nation that has
been identified under § 300.203 in the
event that the Secretary cannot reach a
certification determination for that
nation by the time of the next biennial
report. These procedures shall not apply
to fish or fish products from identified
nations that have received either a
negative or a positive certification under
this subpart.
(b) Consistent with paragraph (a) of
this section, the Secretary of Commerce
may allow entry of fish or fish products
on a shipment-by-shipment, shipper-byshipper, or other basis if the Secretary
determines that imports were harvested
by practices that do not result in
bycatch of a protected marine species,
or were harvested by practices that—
(1) Are comparable to those of the
United States, taking into account
different conditions, and which, in the
case of pelagic longline fisheries, the
regulatory program of an identified
nation includes mandatory use of circle
hooks, careful handling and release
equipment, and training and observer
programs; and
(2) Include the gathering of species
specific data that can be used to support
international and regional assessments
and conservation efforts for protected
living marine resources.
(c) Fish or fish products offered for
entry under this section must be
accompanied by a completed
documentation of admissibility
available from NMFS. The
documentation of admissibility must be
executed by a duly authorized official of
the identified nation and validated by a
responsible official(s) designated by
NMFS. The documentation must be
executed and submitted in a format
(electronic facsimile (fax), the Internet,
etc.) specified by NMFS.
[FR Doc. 2011–507 Filed 1–11–11; 8:45 am]
BILLING CODE 3510–22–P
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2027
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 101006495–0498–01]
RIN 0648–BA31
Fisheries of the Exclusive Economic
Zone Off Alaska; Steller Sea Lion
Protection Measures for the Bering
Sea and Aleutian Islands Groundfish
Fisheries Off Alaska
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Interim final rule, extension of
comment period.
AGENCY:
NMFS published an interim
final rule on December 13, 2010, to
implement Steller sea lion protection
measures to ensure that the Bering Sea
and Aleutian Islands management area
groundfish fisheries off Alaska are not
likely to jeopardize the continued
existence of the western distinct
population segment of Steller sea lions
or adversely modify its designated
critical habitat. A notice correcting
errors identified in the preamble to the
interim final rule and in the regulatory
text was published on December 29,
2010. The public comment period for
the interim final rule ends on January
12, 2011. NMFS has decided to extend
the public comment period for an
additional 45 days, to February 28,
2011, to provide adequate time for
various stakeholders and other members
of the public to submit comments.
DATES: The public comment period for
this action has been extended for an
additional 45 days, to February 28,
2011. Comments must be received no
later than February 28, 2011.
ADDRESSES: Send comments to Dr.
James W. Balsiger, Administrator,
Alaska Region, NMFS, Attn: Ellen
Sebastian. You may submit comments,
identified by RIN 0648–BA31, by any
one of the following methods:
• Electronic Submissions: Submit all
electronic public comments via the
Federal eRulemaking Portal at http://
www.regulations.gov.
• Mail: P.O. Box 21668, Juneau, AK
99802.
• Fax: (907) 586–7557.
• Hand delivery to the Federal
Building: 709 West 9th Street, Room
420A, Juneau, AK.
All comments received are a part of
the public record. No comments will be
posted to http://www.regulations.gov for
SUMMARY:
E:\FR\FM\12JAR1.SGM
12JAR1
| File Type | application/pdf |
| File Modified | 2024-06-04 |
| File Created | 2024-06-04 |