[Federal Register Volume 76, Number 8 (Wednesday, January 12, 2011)]
[Rules and Regulations]
[Pages 2011-2027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-507]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 070514119-0452-03]
RIN 0648-AV51


High Seas Driftnet Fishing Moratorium Protection Act; 
Identification and Certification Procedures To Address Illegal, 
Unreported, and Unregulated Fishing Activities and Bycatch of Protected 
Living Marine Resources

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

ACTION: Final rule.

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SUMMARY: This final action implements identification and certification 
procedures to address illegal, unreported, and unregulated (IUU) 
fishing activities and bycatch of protected living marine resources 
(PLMRs) pursuant to the High Seas Driftnet Fishing Moratorium 
Protection Act (Moratorium Protection Act). The objectives of these 
procedures are to promote the sustainability of transboundary and 
shared fishery stocks and to enhance the conservation and recovery of 
PLMRs. The final rule is intended to implement existing U.S. statutory 
authorities to address noncompliance with international fisheries 
management and conservation agreements, and encourage the use of 
bycatch reduction methods in international fisheries that are 
comparable to methods used in U.S. fisheries. Agency actions and 
recommendations under this rule will be in accordance with U.S. 
obligations under applicable international trade law, including the 
World Trade Organization (WTO) Agreement.

DATES: This final rule is effective on January 12, 2011, except for 
Sec. Sec.  302.205(b)(2), 300.206, and 300.207, which contain 
information collection requirements that have not yet been approved by 
the Office of Management and Budget (OMB) under the Paperwork Reduction 
Act (PRA). A document will be published in the Federal Register 
announcing the effective dates of these provisions after OMB provides 
its approval.

FOR FURTHER INFORMATION CONTACT: Laura Cimo, Trade and Marine 
Stewardship Division, Office of International Affairs, NMFS, at (301) 
713-9090.

SUPPLEMENTARY INFORMATION:

Background

    The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 (MSRA), which was signed into law in 
January 2007, amends the Moratorium Protection Act to require that 
actions be taken by the United States to strengthen international 
fishery management organizations and address IUU fishing and bycatch of 
PLMRs. IUU fishing has been defined in the Moratorium Protection Act 
and implemented through regulation at 50 CFR 300.201 as follows:
    1. Fishing activities that violate conservation and management 
measures required under an international fishery management agreement 
to which the United States is a party, including catch limits or 
quotas, capacity restrictions, and bycatch reduction requirements;
    2. Overfishing of fish stocks shared by the United States, for 
which there are no applicable international conservation or management 
measures or in areas with no applicable international fishery 
management organization or agreement, that has adverse impacts on such 
stocks; and
    3. Fishing activity that has an adverse impact on seamounts, 
hydrothermal vents, and cold water corals located beyond national 
jurisdiction, for which there are no applicable conservation or 
management measures or in areas with no applicable international 
fishery management organization or agreement.

This final action amends the regulatory definition at Sec.  300.201 to 
make the definition more consistent with the United Nations General 
Assembly Resolution 65-105.
    The Moratorium Protection Act requires the Secretary of Commerce to 
identify in a biennial report to Congress those foreign nations whose 
fishing vessels are engaged in IUU fishing or fishing activities or 
practices that result in bycatch of PLMRs. The Moratorium Protection 
Act also requires the establishment of procedures to certify whether 
appropriate corrective actions have been taken to address IUU fishing 
or bycatch of PLMRs by fishing vessels of those nations. Identified 
nations that are not positively certified by the Secretary of Commerce 
could be subject to prohibitions on the importation of certain 
fisheries products into the United States and other measures, including 
limitations on port access, under the High Seas Driftnet Fisheries 
Enforcement Act (Enforcement Act) (16 U.S.C. 1826a). This final rule 
sets forth procedures to implement the identification and certification 
requirements of the Moratorium Protection Act.
    NMFS published an Advance Notice of Proposed Rulemaking (ANPR) on 
June 11, 2007 (72 FR 32052), to announce that it was developing 
certification procedures to address IUU fishing and bycatch of PLMRs 
pursuant to the Moratorium Protection Act and, based upon comments 
received, a proposed rule was published on January 14, 2009 (74 FR 
2019). Public comments were solicited on the proposed rule for a period 
of 120 days. In conjunction with publication of the proposed rule, NMFS 
held public hearings in 2009 in locations where it expected substantial 
public interest in the proposed procedures. These sessions were held in 
Boston, MA (March 16, 2009); Silver Spring, MD (April 6, 2009); San 
Diego, CA (April 13, 2009); Seattle, WA (April 14, 2009); Honolulu, HI 
(April 27, 2009);

[[Page 2012]]

and Miami, FL (May 12, 2009). The public hearings provided valuable 
opportunities for NMFS to explain the proposed rule, respond to 
questions, and receive feedback from the public. A summary of the 
comments received on the proposed rule and how these comments were 
addressed in the final rule can be found below. Further background is 
provided in the above-referenced Federal Register documents and is not 
repeated here.
    NMFS prepared a final Environmental Assessment (EA) to accompany 
this final rule. The EA was developed as an integrated document that 
includes a Regulatory Impact Review (RIR) and a Final Regulatory 
Flexibility Analysis (FRFA). Copies of the draft EA/RIR/FRFA analysis 
are available at the following address: Office of International 
Affairs, F/IA, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910. Copies are also available via the 
Internet at the NMFS Web site at http://www.nmfs.noaa.gov/msa2007/.

Major Aspects of the Final Action

    This final action sets forth procedures for both the identification 
and certification of foreign nations whose fishing vessels are engaged 
in IUU fishing or bycatch of PLMRs. As discussed above, the Moratorium 
Protection Act requires that NMFS identify foreign nations whose 
fishing vessels are engaged in IUU fishing or bycatch of PLMRs and list 
these nations in a biennial report to Congress, the first of which was 
due in January 2009. The Act does not require publication of 
identification procedures in a rule, but in the interest of 
transparency and to provide context for subsequent certification 
determinations, NMFS decided to address identification in this action. 
NMFS made its first identifications in the January 2009 Biennial Report 
to Congress based on authority provided in the Moratorium Protection 
Act only, as these regulations were not yet in place.

Procedures To Identify Nations Engaged in IUU Fishing

    As required under the Moratorium Protection Act, NMFS will 
identify, and list in the biennial report to Congress, that those 
nations whose fishing vessels are engaged, or have been engaged at any 
point during the preceding 2 years, in IUU fishing.
    When determining whether to identify a nation as having fishing 
vessels engaged in IUU fishing, NMFS will exercise due diligence in 
evaluating appropriate information and evidence available to the 
agency. This information could include data, gathered by the U.S. 
Government as well as offered by other nations, international 
organizations (such as regional fisheries management organizations 
(RFMOs)), institutions, or arrangements that, if true, could support a 
determination that a nation's vessels have been engaged in IUU fishing. 
NMFS will review and verify the pertinent information when determining, 
for the purposes of identification, whether a nation's fishing vessels 
are engaged, or have been engaged, during the preceding 2 years in IUU 
fishing as defined under the Moratorium Protection Act.
    Once NMFS has determined that the information received is credible 
and provides a reasonable basis to believe or suspect that a nation's 
fishing vessels are engaged in IUU fishing, NMFS, acting through or in 
consultation with the State Department, will initiate bilateral 
discussions with the nation to:
    <bullet> Seek corroboration of the alleged IUU activity or credible 
information that refutes such allegations;
    <bullet> Communicate the requirements of the Moratorium Protection 
Act to the nation; and
    <bullet> Encourage such nation to take action to address the 
alleged IUU fishing activity in question.
    Prior to making identifications, NMFS will consider measures taken 
by the nation to address the IUU fishing activity of its vessels, 
information refuting allegations of IUU fishing activity, and domestic 
laws or regulatory programs designed to address IUU fishing activity, 
along with all verified information on alleged IUU fishing activity.
    In determining whether to make an IUU fishing identification, NMFS 
will consider whether a nation has implemented and is enforcing 
measures that are deemed comparable in effectiveness to measures 
implemented by the United States to address the pertinent IUU fishing 
activity. NMFS will also consider if an international fishery 
management organization exists with a mandate to regulate the fishery 
in which the IUU activity in question takes place, whether or not the 
nation is party to or maintains cooperating status with the 
organization, and whether or not the relevant RFMO has adopted measures 
that are deemed by NMFS to be effective at addressing such IUU fishing 
activity. If the nation is a party or cooperating non-party to the 
relevant RFMO, NMFS will consider whether the nation has implemented 
and is enforcing measures of that organization.
    Measures by nations to address IUU fishing could include those that 
reflect the recommendations of international organizations to prevent, 
deter and eliminate IUU fishing. Such flag State measures and actions, 
as relevant, may include, but are not limited to, those that fall into 
the following categories:
    <bullet> Data collection and catch reporting programs, including 
observer programs, catch documentation programs, and trade tracking 
schemes;
    <bullet> Trade-related measures that seek to reduce or eliminate 
trade in fish, and fish products derived from IUU fishing;
    <bullet> At-sea or dockside boarding and inspection schemes;
    <bullet> Programs documenting whether fish were caught in a manner 
consistent with conservation and management measures;
    <bullet> IUU vessel lists identifying fishing vessels that violate 
and/or undermine conservation and management measures;
    <bullet> Port State measures to prohibit landings or transshipment 
of unauthorized or other IUU catch;
    <bullet> Catch and effort monitoring, including licensing and 
permitting schemes, reporting, and vessel monitoring systems (VMS);
    <bullet> 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;
    <bullet> 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;
    <bullet> Efforts to improve and enhance fisheries enforcement and 
compliance, including through the development of effective sanctions 
and monitoring, control and surveillance (MCS) capacity; and
    <bullet> Participation in voluntary international efforts to combat 
IUU fishing (e.g., the International Monitoring, Control, and 
Surveillance (MCS) Network or other cooperative enforcement and 
compliance networks).
    NMFS will also examine whether adequate enforcement measures and 
capacity exist to help promote compliance.

Notification of and Consultations With Nations Identified as Having 
Fishing Vessels Engaged in IUU Fishing

    Upon identifying a nation whose vessels have been engaged in IUU 
fishing activities in the biennial report to Congress, the Secretary of 
Commerce

[[Page 2013]]

will notify the President of such identification. Within 60 days after 
submission of the biennial report to Congress, the Secretary of 
Commerce, acting through or in consultation with the Secretary of 
State, will notify:
    1. Nations that have been identified in the biennial report as 
having fishing vessels that are currently engaged, or were engaged at 
any point during the preceding 2 calendar years, in IUU fishing 
activities;
    2. Identified nations of the requirements under the Moratorium 
Protection Act and this subpart; and
    3. Any relevant international fishery management organization of 
actions taken by the United States to identify nations whose fishing 
vessels are engaged in IUU fishing.
    Within 60 days after submission of the biennial report to Congress, 
the Secretary of Commerce, acting through or in consultation with the 
Secretary of State, will initiate consultations with nations that have 
been identified in the biennial report as having fishing vessels that 
are currently engaged, or were engaged at any point during the 
preceding 2 calendar years, in IUU fishing activities for the purpose 
of encouraging such nations to take appropriate corrective action with 
respect to the IUU fishing activities described in the biennial report.

Procedures To Certify Nations Identified as Having Fishing Vessels 
Engaged in IUU Fishing

    Subsequent to the identification, notification, and consultation 
processes outlined above, the Secretary will provide either a positive 
or negative certification to nations that have been identified in the 
biennial report as having fishing vessels engaged in IUU fishing. The 
Secretary of Commerce shall issue a positive certification to an 
identified nation upon making a determination that such nation has 
taken appropriate corrective action to address the activities for which 
such nation has been identified in the biennial report to Congress. 
When making such determination, the Secretary shall take into account 
whether a nation has provided documentary evidence that it has taken 
appropriate corrective action to address the IUU fishing activity 
described in the biennial report, or the relevant international fishery 
management organization has implemented measures that are effective in 
addressing the IUU fishing activity by vessels of the nation. NMFS will 
notify nations prior to a formal certification determination, and will 
provide such nations an opportunity to support and/or refute 
preliminary certification determinations, and communicate any 
corrective actions taken to address the IUU fishing activity described 
in the biennial report to Congress.
    Corrective actions that NMFS will consider include, but are not 
limited to, a nation's:
    <bullet> Efforts towards improving data collection, catch 
monitoring, and reporting programs;
    <bullet> Record of implementation of or compliance with 
international measures to address IUU fishing;
    <bullet> Participation in technical assistance and capacity 
building programs to address IUU fishing and enhance regulatory 
efforts, as well as enforcement;
    <bullet> Adequacy of surveillance, enforcement, and prosecution to 
promote compliance with conservation and management measures and 
respond to non-compliance;
    <bullet> Response to IUU fishing activity;
    <bullet> 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
    <bullet> 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:
    <bullet> Catch and effort monitoring, including licensing and 
permitting schemes, reporting, and vessel monitoring systems (VMS);
    <bullet> Programs for data collection and sharing, including 
observer programs;
    <bullet> 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;
    <bullet> 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;
    <bullet> Programs that document fish were caught in a manner 
consistent with, or that does not undermine, conservation and 
management measures;
    <bullet> Port State control measures;
    <bullet> At-sea and dockside inspection schemes;
    <bullet> 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;
    <bullet> Systems to improve monitoring, control, and surveillance 
of fishing activities;
    <bullet> Sufficient sanctions and legal frameworks to support 
effective enforcement; and
    <bullet> Measures to protect VMEs from significant adverse impacts 
from bottom fishing activities in waters beyond any national 
jurisdiction.
    The Secretary of Commerce will make certification determinations 
pursuant to provisions of the Moratorium Protection Act in accordance 
with international law, including the WTO Agreement, regarding adoption 
of trade measures in a fair, transparent, and non-discriminatory 
manner. When considering whether appropriate corrective action has been 
taken to warrant a positive certification, NMFS will take into account 
the outcome of consultations with the identified nation and comments 
received from such nation. NMFS will also evaluate actions taken by the 
relevant nation and applicable RFMO to address the IUU fishing activity 
described in the biennial report, including participation in applicable 
RFMOs and requests for assistance in building fisheries management and 
enforcement capacity. NMFS will also consider, as appropriate, whether 
the affected nation has implemented and is enforcing RFMO conservation 
and management measures designed to address IUU fishing activities.
    The Secretary of Commerce will make the first certification 
determinations no later than 90 days after promulgation of this rule. 
Subsequent certification determinations will be published in the 
biennial report. Identified nations will receive notice of 
certification determinations.
    Once certification determinations are published in the biennial 
report, NMFS will, working through or in consultation with the 
Department of State, continue consultations with negatively certified 
nations and provide them an opportunity to take corrective action with 
respect to the IUU fishing activities described in the biennial report 
to Congress.

[[Page 2014]]

Procedures To Identify Nations Engaged in PLMR Bycatch

    As required under the Moratorium Protection Act, NMFS will also 
identify, and list in the biennial report to Congress, nations whose 
fishing vessels are engaged, or have been engaged during the preceding 
calendar year in fishing activities either in waters beyond any 
national jurisdiction that result in PLMR bycatch, or beyond the U.S. 
exclusive economic zone (EEZ) that result in bycatch of a PLMR shared 
by the United States.
    When determining whether to identify a nation as having fishing 
vessels engaged in the bycatch of PLMRs, NMFS will evaluate, review, 
and verify appropriate information and evidence that are available to 
the agency. During this review, NMFS will take into account the extent 
of the PLMR bycatch and the impact of bycatch on sustainability of the 
PLMR. NMFS will also consider any actions taken by the nation to 
address the bycatch, information refuting the allegations of PLMR 
bycatch, and participation in cooperative research activities designed 
to address such bycatch. In addition, NMFS will consider whether 
adequate enforcement authority and capacity exist to promote 
compliance.
    NMFS will also examine if an international organization for the 
conservation and protection of such PLMR, or an international or 
regional fishery management organization with a mandate to regulate the 
fishery in which the bycatch activity in question occurred, exists; and 
whether the nation whose fishing vessels are engaged, or have been 
engaged during the preceding calendar year, in bycatch of PLMRs is 
party to or maintains cooperating status with the relevant 
international body. NMFS will examine whether the relevant 
international body has adopted measures that have been demonstrated to 
end or reduce bycatch of PLMRs; whether the nation is a party or 
cooperating non-party to the organization; and whether the nation has 
implemented, and is enforcing, such measures. If an identified nation 
is not party to the relevant international or regional body, NMFS will 
examine whether the nation has implemented measures deemed to be 
effective at addressing the bycatch of such PLMRs, including any 
measures that have been recommended by a relevant international body. 
Such measures, where appropriate, may include, but are not limited to:
    <bullet> Programs for data collection and sharing, including 
programs to assess the abundance and status of PLMRs and observer 
programs;
    <bullet> Bycatch reduction and mitigation strategies, techniques, 
and equipment, such as gear restrictions and gear modifications; and
    <bullet> 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:
    <bullet> Seek to corroborate the alleged PLMR bycatch or credible 
information that refutes such allegations;
    <bullet> Communicate the requirements of the Moratorium Protection 
Act to the nation; and
    <bullet> Encourage such nation to take action to address the 
alleged PLMR bycatch.
    Pursuant to the requirements under the Moratorium Protection Act, 
NMFS will publish a list of nations that have been identified as having 
fishing vessels engaged in bycatch of PLMRs in the biennial report to 
Congress.

Notification and Consultation With Nations Identified as Having Fishing 
Vessels Engaged in Bycatch of PLMRs

    After submission of the biennial report to Congress, the Secretary 
of Commerce, acting through the Secretary of State, will officially 
notify nations that have been identified in the biennial report as 
having fishing vessels that are engaged in bycatch of PLMRs. Within 60 
days after submission of the biennial report to Congress, NMFS, acting 
through or in consultation with the State Department, will notify such 
nations of the requirements of the Moratorium Protection Act and 
initiate consultations regarding the bycatch of PLMRs.
    Upon submission of the biennial report to Congress, the Secretary 
of Commerce, acting through or in consultation with the Secretary of 
State, will:
    1. Initiate consultations with the governments of identified 
nations for the purposes of entering into bilateral and multilateral 
agreements and treaties with such nations to protect the PLMRs from 
bycatch activities described in the biennial report; and
    2. Seek agreements through the appropriate international 
organizations calling for international restrictions on the fishing 
activities or practices described in the biennial report that result in 
bycatch of PLMRs and, as necessary, request that the Secretary of State 
initiate the amendment of any existing international treaty to which 
the United States is a party for the protection and conservation of the 
PLMRs in question to make such agreements consistent with this subpart.

International Cooperation and Assistance

    To the greatest extent possible consistent with existing authority 
and the availability of funds, NMFS shall provide assistance to nations 
identified as having vessels engaged in PLMR bycatch. NMFS will also 
provide assistance to international organizations of which those 
nations are members to assist with qualifying for a positive 
certification. Assistance activities may include, where appropriate, 
cooperative research activities on species assessments and improved 
bycatch mitigation techniques, improved governance structures, or 
improved enforcement capacity. NMFS will also encourage and facilitate 
the transfer of appropriate technology to identified nations or the 
organizations of which they are members to assist identified nations in 
qualifying for a positive certification and to assist those identified 
nations or organizations in designing and implementing appropriate fish 
harvesting methods that minimize bycatch of PLMRs.

Procedures To Certify Nations Identified as Having Fishing Vessels 
Engaged in Bycatch of PLMRs

    Based on the identification, notification, and consultation 
processes outlined above, NMFS will certify nations that have been 
identified in the biennial report as having fishing vessels engaged in 
bycatch of PLMRs. NMFS will notify nations prior to a formal 
certification determination and will provide such nations an 
opportunity to support and/or refute preliminary certification 
determinations, and communicate any corrective actions taken to address 
the bycatch of PLMRs described in the biennial report to Congress.
    Identified nations will receive either a positive or negative 
certification from the Secretary of Commerce. A positive certification 
indicates that a nation has:
    1. Provided documentary evidence of the adoption of a regulatory 
program governing the conservation of the PLMR that is comparable to 
that of the United States, taking into account different conditions, 
and which, in the case of pelagic longline fishing, includes mandatory 
use of circle hooks, careful

[[Page 2015]]

handling and release equipment, and training and observer programs; and
    2. Established a management plan containing requirements that will 
assist in gathering species-specific data to support international 
stock assessments and conservation enforcement efforts for PLMRs. Stock 
assessments include population assessments.
    When determining whether a nation's regulatory program is 
comparable to measures required in the United States, NMFS will 
consider whether the program is comparable in effectiveness, taking 
into account different conditions that could bear on the feasibility 
and efficacy of comparable measures. If other measures could address 
bycatch of the PLMRs in question that are comparable in effectiveness, 
then the implementation of such measures by a nation may be deemed 
sufficient for purposes of the Moratorium Protection Act. As relevant, 
NMFS will also consider whether measures have been implemented and 
effectively enforced including, but not limited to:
    <bullet> Programs for data collection and sharing, including 
programs to assess the abundance and status of PLMRs and observer 
programs;
    <bullet> Bycatch reduction and mitigation strategies, techniques, 
and equipment (including training and assistance for bycatch reduction 
technology and equipment);
    <bullet> Improved monitoring, control, and surveillance of fishing 
activities;
    <bullet> Efforts towards improving data collection, bycatch 
monitoring, and reporting programs;
    <bullet> Record of implementation of or compliance with 
international measures to address bycatch of PLMRs;
    <bullet> Participation in technical assistance and capacity 
building programs to reduce bycatch;
    <bullet> Surveillance, enforcement, and prosecution program and 
their adequacy for promoting compliance with conservation and 
management measures and responding to non-compliance;
    <bullet> Response to PLMR bycatch; and
    <bullet> Cooperation with other governments in enforcement, 
apprehension, and prosecution efforts related to those vessels of the 
identified nation that have engaged in PLMR bycatch.
    The Secretary of Commerce will make certification determinations 
pursuant to provisions of the Moratorium Protection Act in accordance 
with international law, including the WTO Agreement, regarding adoption 
of trade measures in a fair, transparent, and non-discriminatory 
manner. When making certification determinations, the Secretary of 
Commerce will, in consultation with the Secretary of State, evaluate 
the information discussed above, comments received from such nation, 
the consultations with each identified nation, and subsequent actions 
taken by the relevant nation to address the bycatch of PLMRs described 
in the biennial report, including requests for assistance in the 
implementation of measures comparable to those of the United States and 
establishment of an appropriate management plan. The Secretary of 
Commerce will also take into account whether the nation participates in 
existing certification programs, such as that authorized under section 
609 of Public Law 101-162, or the affirmative finding process under the 
International Dolphin Conservation Program Act (111 Stat. 1122). 
Nothing in this rulemaking will modify such existing certification 
procedures.
    The Secretary of Commerce will publish certification determinations 
in the biennial report to the Congress. Identified nations will receive 
notice of certification determinations.
    Once certification determinations are published in the biennial 
report, NMFS will, working through or in consultation with the 
Department of State, continue consultations with the negatively-
certified nations and provide them an opportunity to take corrective 
action with respect to the bycatch of PLMRs described in the biennial 
report to Congress.

Effect of Certification Determinations

    If nations identified as having fishing vessels engaged in IUU 
fishing and/or bycatch of PLMRs receive a positive certification from 
the Secretary of Commerce pursuant to the Moratorium Protection Act, no 
actions will be taken against such nations.
    If an identified nation fails to take sufficient action to address 
IUU fishing and/or bycatch of PLMRs and does not receive a positive 
certification from the Secretary of Commerce, the nation could face 
denial of port privileges for its fishing vessels, prohibitions on the 
import of certain fish and fish products into the United States, and 
other appropriate measures. In determining the appropriate course of 
action to recommend to the President, the Secretary of Commerce and 
other Federal agencies, as appropriate, will take into account the 
nature, circumstances, extent, duration, and gravity of the fishing 
activity for which the initial identification was made; the degree of 
culpability; any history of prior IUU fishing activities or bycatch of 
PLMRs; and other relevant matters. The Secretary of Commerce, in 
cooperation with the Secretary of State, may initiate further 
consultations with identified nations that fail to receive a positive 
certification prior to determining an appropriate course of action.
    The Secretary of Commerce will recommend to the President 
appropriate measures, including trade restrictive measures, to be taken 
against identified nations that have not received a positive 
certification, to address the relevant IUU fishing activity and/or 
fishing activities or practices that result in PLMR bycatch for which 
such nations were identified in the biennial report. The Secretary will 
make such recommendations on a case by case basis in accordance with 
international obligations, including the WTO Agreement. Adoption of 
trade measures will be done in a fair, transparent, and non-
discriminatory manner. If certain fish or fish products of a nation are 
subject to import prohibitions, to facilitate enforcement, NMFS may 
require that other fish or fish products from that nation that are not 
subject to the import prohibitions be accompanied by documentation of 
admissibility to be developed by NMFS. If NMFS decides to require that 
such fish or fish products be accompanied by documentation of 
admissibility, it will develop this documentation through a future 
rulemaking action and give the public an opportunity to review and 
provide comment.
    In implementing the certification procedures under the Moratorium 
Protection Act, in order to inform U.S. ports that cargo originating 
from a foreign port may be subject to import restrictions, NMFS intends 
to collaborate with other Federal agencies and, as appropriate, take 
advantage of existing prior notification procedures, such as those 
required under section 343(a) of the Trade Act of 2002, or those 
proposed for further development under the International Trade Data 
System (ITDS) established under the Security and Accountability for 
Every (SAFE) Port Act of 2006 (Pub. L. 109-347). NMFS also intends to 
utilize existing documentation schemes developed by RFMOs, as 
appropriate. These efforts will be undertaken to help mitigate the 
effects of a negative certification determination on U.S. industry.
    If certain fish or fish products are prohibited from entering the 
United States, within six months after the imposition of the 
prohibition, the Secretary of Commerce shall determine whether the 
prohibition is insufficient to cause that nation to effectively address 
the IUU fishing described in the biennial report, or that nation has 
retaliated against the United States as a result of that prohibition. 
The Secretary

[[Page 2016]]

of Commerce shall certify to the President each affirmative 
determination that an import prohibition is insufficient to cause a 
nation to effectively address such IUU fishing activity or that a 
nation has taken retaliatory action against the United States. This 
certification is deemed to be a certification under section 1978(a) of 
Title 22, which provides that the President may direct the Secretary of 
the Treasury to prohibit the bringing or the importation into the 
United States of any products from the offending country for any 
duration as the President determines appropriate and to the extent that 
such prohibition is sanctioned by the WTO.

Alternative Procedures

    Section 609(d)(2) of the Moratorium Protection Act authorizes the 
Secretary of Commerce to establish alternative procedures for importing 
fish or fish products from a vessel of a harvesting nation identified 
under section 609(a) of the Act in the event that the Secretary cannot 
reach a certification determination for such identified nation by the 
time of the next biennial report. The alternative procedures shall not 
apply to fish or fish products from identified nations that have 
received either a negative or a positive certification under this Act. 
Under these alternative procedures, the Secretary of Commerce may allow 
entry of fish or fish products on a shipment-by-shipment, shipper-by-
shipper, or other basis as long as specified conditions are met.
    For nations that have been identified as having fishing vessels 
engaged in IUU fishing and have not received a certification from the 
Secretary of Commerce, certain fish or fish products of that nation may 
be eligible for alternative certification procedures. To qualify for 
the alternative certification procedures, NMFS must determine, based on 
the best available information, that the relevant vessel has not 
engaged in IUU fishing, or been identified by an international fishery 
management organization as participating in IUU fishing activities.
    Section 610(c)(4) of the Moratorium Protection Act requires the 
Secretary of Commerce to establish alternative procedures for importing 
fish or fish products from a vessel of a harvesting nation identified 
under section 610(a) of the Act in the event that the Secretary cannot 
reach a certification determination for such identified nation by the 
time of the next biennial report. The alternative procedures shall not 
apply to fish or fish products from identified nations that have 
received either a negative or a positive certification under this Act. 
Under these alternative procedures, the Secretary of Commerce may allow 
entry of fish or fish products on a shipment-by-shipment, shipper-by-
shipper, or other basis as long as specified conditions are met.
    To qualify for the alternative certification procedures, NMFS must 
determine that imports were harvested by practices that do not result 
in bycatch of a protected living marine resource, or were harvested by 
practices comparable to those required in the United States, taking 
into account different conditions that affect the feasibility and 
efficacy of such practices, and which, in the case of pelagic longline 
fishing, includes mandatory use of circle hooks, careful handling and 
release equipment, and training and observer programs. NMFS must also 
determine that the vessel collects species-specific bycatch data that 
can be used to support international and regional assessments and 
efforts to conserve PLMRs. NMFS will make these determinations in 
accordance with international law, including the WTO Agreement, 
regarding adoption of trade measures in a fair, transparent, and non-
discriminatory manner.
    In its implementation of alternative certification procedures, NMFS 
will seek appropriate documentation to verify that imports were 
harvested in a manner consistent with the requirements of this subpart, 
such as chain-of-custody information, VMS reports, or other forms of 
verification. To the extent practicable, NMFS will rely on existing 
trade tracking programs to implement alternative procedures.

Responses to Comments on the Proposed Rule

    NMFS received comments on the proposed rule, including comments 
from U.S. industry, non-governmental organizations, Marine Mammal 
Commission, private citizens, and other nations. Several comments 
received were not germane to this rulemaking and are not addressed in 
this section. These comments include potential legislative changes and 
other actions outside the scope of the statutory mandate.
    Several commenters provided broad suggestions that pertain to the 
overall implementation of the rule. Specifically, many commenters 
expressed their support for the certification process under the 
Moratorium Protection Act and the application of trade measures, 
including sanctions.
    NMFS received numerous comments asking the agency to adopt the 
strongest measures possible to address IUU fishing and the bycatch of 
PLMRs, as mandated by Congress, in order conserve these resources and 
level the playing field for U.S. fisherman. Several commenters 
recommended that NMFS hold other nations to the same rigorous and 
strict standards to which U.S. fishermen are subject, especially for 
Atlantic bluefin tuna fishing, and expressed dissatisfaction that NMFS 
is not aggressively utilizing trade sanctions as a tool to combat IUU 
fishing of shared highly migratory fish stocks.
    A comment was made that the threat of trade sanctions is often more 
effective than the actual imposition and that sanctions should only be 
used as a last resort if at all.
    In the following section, NMFS addresses the issues that directly 
relate to the measures in the rulemaking.

General Comments

    Comment 1: One commenter recommended that NMFS coordinate the 
proposed rule with the European Union's approach in order to have a 
unified global process to address IUU fishing.
    Response: NMFS is obligated to adhere to the Moratorium Protection 
Act that sets forth identification, consultation, and certification 
procedures to address IUU fishing and the bycatch of PLMRs. These 
procedures differ from the regulatory process of the European Union 
(EU) to address IUU fishing. EU Council Regulation 1005/2008, which was 
passed in the fall of 2008, requires, among other things, that most 
exports of seafood to the European market be accompanied by a catch 
document signed by a flag-state competent authority that the product 
was caught legally. NMFS is committed to working with our partners in 
the European Union in order address the global problem of IUU fishing 
and the bycatch of PLMRs.
    Comment 2: A commenter expressed concern that the implementation of 
the proposed rule will result in increased expenses to U.S. suppliers 
as well as to the Federal government.
    Response: The regulations will not directly increase costs to U.S. 
suppliers. However, it is possible to anticipate increased costs to 
U.S. suppliers. If a foreign nation's ability to import certain fish or 
fish products into the United States is limited upon receipt of a 
negative certification and application of trade restrictive measures, 
this may impact the ability of U.S. suppliers to access fish or fish 
products from that nation. Alternative sources of fish and fish 
products could mitigate the impacts

[[Page 2017]]

of restrictions on U.S. suppliers' access to fish and fish products.
    Comment 3: Several commenters suggested that NMFS should include in 
the biennial report to Congress information on the status of the RFMOs' 
compliance committees and the performance reviews as an indicator of 
the effectiveness of the RFMOs actions related to implementing measures 
to avoid IUU and bycatch of PLMRs.
    Response: NMFS will include in the biennial report to Congress 
relevant information on RFMOs and their measures to address IUU fishing 
and the bycatch of PLMRs.
    Comment 4: A suggestion was made that NMFS prioritize situations 
where IUU is rampant or bycatch of PLMRs is clearly excessive, thus 
focusing the imposition of trade measures on the most egregious 
situations.
    Response: NMFS is required to address IUU fishing activity and the 
PLMR bycatch. When making identification decisions for both IUU fishing 
and bycatch, NMFS will consider the history, nature, circumstances, 
extent, duration, and gravity of the activity in question.

Definition of IUU Fishing

    Comment 5: Several commenters suggested that NMFS should expand the 
definition of IUU fishing. Suggestions included addressing unreported 
fishing and fishing activities that are misreported to the relevant 
national or international fishery management authority, as well as 
violations of agreements to which the United States is not a party. 
Others suggested broadening the IUU fishing definition to include 
illegal incursions of a nation's vessels into the waters of other 
nations (including U.S. waters), flagrant reflagging under flags of 
convenience, beneficial ownership, and lack of registration.
    Commenters also recommended that the definition of IUU fishing be 
as consistent as possible with the United Nation's International Plan 
of Action to Prevent, Defer and Eliminate Illegal, Unreported and 
Unregulated Fishing (IPOA-IUU), as well as the UNFAO Agreement on Port 
State Measures.
    Response: At this time, NMFS believes it is not appropriate to 
modify the definition of IUU fishing through this regulatory action. 
NMFS appreciates the public is interested in having this definition 
modified, but NMFS has decided not to revise the definition until the 
agency is able to understand the implications for implementing the 
United Nations Food and Agriculture Organization's Agreement on Port 
State Measures to Prevent, Deter and Eliminate Illegal, Unreported and 
Unregulated Fishing (Port State Measures Agreement). Although this 
agreement has been signed by the United States, it has not been 
ratified. At present, NOAA plans to revise the definition of IUU 
fishing in a subsequent rulemaking action to help ensure that the 
definition complies with our international as well as statutory 
obligations. In its development of the new definition, NMFS will 
consider what clarifications may be helpful for the definition, and 
will seek and take public comments on the definition. NMFS will also 
take the comments received in response to this rulemaking into account 
when formulating the new definition of IUU fishing.
    Comment 6: Several commenters were encouraged that NMFS' definition 
of fishing vessels relative to its definition of IUU fishing extended 
to ``vessels that are used for fishing or any activity relating to 
fishing, including, but not limited to, preparation, supply, storage, 
refrigeration, transportation, or processing, bunkering or purchasing 
catch, aiding or assisting one or more vessels at sea in the 
performance of such activity.''
    Response: NMFS has decided to retain the proposed definition of 
``fishing vessels'' in the final rule without amendment.
    Comment 7: A nation commented that the failure to meet the 
commitments of Resolution 61/105 of the United Nations General Assembly 
and the International Guidelines for the Management of Deep-sea 
Fisheries in the High Seas should not be defined as IUU fishing, as 
there are no internationally agreed upon standards that would support 
such a determination. In addition, the nation suggested that NMFS only 
consider including flag State responsibilities related to these 
guidelines for deep seas fisheries in the definition of IUU fishing 
after the establishment of internationally agreed criteria for 
assessing flag State performance.
    Response: The portion of the definition of IUU fishing referenced 
by the commenter is mandatory under the Moratorium Protection Act. The 
aspect of the IUU fishing definition the commenter refers to includes 
fishing activity that has a significant adverse impact on seamounts, 
hydrothermal vents, cold water corals and other vulnerable marine 
ecosystems located beyond any national jurisdiction, for which there 
are no applicable conservation or management measures, including those 
in areas with no applicable international fishery management 
organization or agreement. This portion of the definition is required 
under the Moratorium Protection Act.
    Comment 8: One commenter recommended that NMFS include in its 
definition of IUU fishing the failure of the flag State to report the 
catch of its fishing vessels to the RFMO that it is party to, or other 
applicable authorities in its definition of IUU fishing.
    Response: Under the Moratorium Protection Act, NMFS is authorized 
to identify nations based on the IUU fishing activity of their vessels. 
If the vessels of a flag State fail to report their catch to the 
relevant RFMO and this action is required under a conservation and 
management measure of an RFMO to which the United States is a party, 
then failure to report the catch could be a potential basis for 
identifying the nation.

Concerns Regarding IUU Fishing

    Comment 9: A comment was made in regards to a statement in the 
biennial report to Congress that ``* * * more than one vessel must be 
engaged in IUU fishing for purposes of identification.'' The commenter 
recommended that NMFS reinterpret the statute or attempt to remove 
legislative language limiting the criterion for identification that a 
nation must have more than one vessel engaged in IUU fishing. The 
commenter suggested that nations should be held responsible for any and 
all IUU fishing activity of their flagged vessels.
    Response: NMFS' interpretation of the statute that more than one 
vessel of a nation must be engaged, or have been engaged, in IUU 
fishing activity to warrant identification under the Moratorium 
Protection Act is consistent with the statutory language.
    Comment 10: NMFS received a comment recommending improvements in 
traceability of catches to prevent IUU fishing. It was suggested that 
Catch Documentation Schemes (CDS) would help with these improvements.
    Response: NMFS agrees with the commenter and supports the adoption 
of tools to address traceability of catch, including catch 
documentation schemes, to help address IUU fishing, consistent with the 
purposes of the Moratorium Protection Act.

Definition of Bycatch of PLMRs

    Comment 11: One commenter advised NMFS to revise the definition of 
bycatch of PLMRs to encompass any interaction with a non-target living 
marine resource that results in the capture, serious injury or 
mortality of that resource, regardless of whether the resource is 
discarded or kept for personal or commercial use. The commenter was 
concerned that the way the current definition is phrased

[[Page 2018]]

might suggest that if non-target living marine resources were to be 
kept on the vessel, they would not be considered bycatch, which would 
undermine efforts to conserve these species and reduce their bycatch.
    Another commenter recommended that NMFS' definition of bycatch of 
PLMRs be revised to explicitly refer to any encounter of non-target 
living marine resources with fishing gear, not just encounters that 
result in mortality or serious injury.
    Response: NMFS sought to address these comments in the definition 
of bycatch in the final rule. The revised definition of PLMRs in the 
final rule is as follows: ``Bycatch means the incidental or discarded 
catch of protected living marine resources or entanglement of such 
resources with fishing gear.''

Concerns Regarding the Bycatch of PLMRs

    Comment 12: NMFS received a comment from the Marine Mammal 
Commission regarding the lack of available information and standards 
with respect to the bycatch of PLMRs, as well as the incomparable 
reporting requirement timelines and deadlines between IUU fishing and 
bycatch of PLMRs. Specifically, under the IUU fishing provisions, the 
Secretary has 60 days after submission of the biennial report to 
Congress to notify identified nations and to initiate consultations, 
whereas the proposed rule only suggests that this occur ``as soon as 
possible'' with respect to the bycatch of PLMRs. Therefore, the Marine 
Mammal Commission recommends that NMFS establish deadlines for 
notification, consultation, and certification findings with respect to 
PLMR bycatch.
    Response: NMFS sought to address these comments by standardizing 
the timelines and deadlines for information collection, notification, 
consultation, and certification decisions for IUU fishing and bycatch 
of PLMRs under the Moratorium Protection Act, in a manner consistent 
with the statutory text of the Act.
    With respect to nations that are identified as having fishing 
vessels engaged in IUU fishing or bycatch of PLMRs, NMFS, acting 
through or in cooperation with the State Department, will notify such 
nations of the requirements of the Moratorium Protection Act and 
initiate consultations within 60 days of submission of the biennial 
report to Congress.
    Certification determinations will be made for nations that are 
identified as having vessels engaged in IUU fishing or bycatch of PLMRs 
on a biennial basis to coincide with publication of the biennial report 
to Congress.
    Comment 13: The Marine Mammal Commission commented that the lack of 
basic information on pelagic and transboundary PLMRs that are often 
caught as bycatch is of serious concern, as this will severely hamper 
NMFS' efforts to identify bycatch problems and evaluate the adequacy of 
a nation's regulatory program.
    Response: NMFS shares the concerns raised by the commenter 
regarding the lack of basic information on PLMR bycatch and, based on 
the absence of this information, recognizes the challenges associated 
with identifying nations whose fishing vessels are engaged in bycatch 
of PLMRs and evaluating other nations' regulatory programs. To address 
this concern, as explained in the prior response, NMFS plans to examine 
PLMR bycatch information from as broad a timeframe as possible under 
the Act.
    Comment 14: The Marine Mammal Commission recommended that NMFS work 
with the Department of State to protect PLMRs by promoting protective 
actions in relevant international fora, and through amendments to 
treaties to which the United States is party, such as requiring the 
collection and sharing of data pertaining to fishery interactions, 
stock status, and bycatch estimates and implementing of bycatch 
mitigation measures.
    Response: Consistent with the legislative intent of the Moratorium 
Protection Act, NMFS will work with the Department of State to protect 
PLMRs through the adoption of measures in the relevant international 
fora that require reporting of bycatch data and use of bycatch 
mitigation gear. NMFS will also continue its efforts to work 
cooperatively with nations that lack sufficient capacity for fisheries 
monitoring, control, surveillance, and bycatch mitigation and assist 
these nations achieve sustainable fisheries.
    Comment 15: A commenter suggested that NMFS distinguish between a 
particular instance of fishing activity that results in bycatch of 
PLMRs, and a consistent disregard of bycatch reduction measures.
    Response: NMFS has addressed this comment in the final rule by 
requiring that the agency take into account all relevant matters when 
determining whether to identify nations whose vessels engaged in PLMR 
bycatch including, but not limited to, the history, nature, 
circumstances, extent, duration, and gravity of the bycatch activity in 
question.

Comparability

    Comment 16: NMFS received numerous comments regarding the 
effectiveness of measures to reduce IUU fishing and bycatch of PLMRs. 
Specifically, the Marine Mammal Commission suggested that the framework 
to determine the comparability of effectiveness between countries' 
measures was too broad, and that NMFS needs to specify what standards 
will be used to assess comparability in effectiveness by other nations, 
especially with respect to the bycatch of PLMRs.
    Response: In order to identify a nation for PLMR bycatch, under 
this final rule NMFS will also determine that the nation has not 
implemented measures designed to end or reduce such bycatch that are 
comparable in effectiveness to U.S. regulatory requirements, and that 
the relevant international organization has not adopted effective 
measures to end or reduce bycatch of such species.
    In its determination of whether programs to address IUU fishing or 
PLMR bycatch are comparable in effectiveness to those of the United 
States, NMFS will examine programs that have been adopted by the United 
States to address the relevant activity for which a nation has been 
identified, and compare such programs with those that have been adopted 
by the nation, taking into account different conditions that could bear 
on the program's feasibility and efficacy. Given the different IUU 
fishing and bycatch activities for which a nation could be identified 
under the Act, it may be difficult and overly prescriptive to establish 
specific criteria for programs addressing all such activities. NMFS 
may, however, seek to provide further clarification on its 
identification and certification procedures, including any standards, 
through internal guidance.

Data Utilized for Certification

    Comment 17: Several comments recommended that in addition to 
evaluating evidence ``available'' to NMFS, the proposed rule should 
clearly state that the NMFS will actively seek out information from 
industry groups and foundations, international fishery management 
bodies, and nations wishing to export fish or fish products into the 
United States. Similarly, a commenter suggested that in addition to 
using data offered by other international organizations and from among 
other sources to make an identification determination, as indicated in 
the proposed rule, NMFS should also seek information from industry 
groups such as the International Seafood

[[Page 2019]]

Sustainability Foundation (ISSF) and individual companies. The Marine 
Mammal Commission recommended that NMFS establish procedures to allow 
various U.S. government agencies, foreign governments, international 
fishery management organizations, NGOs, industry organizations and the 
public to provide and exchange pertinent information for the 
identification and certification process.
    Response: NMFS concurs with the comments provided and will actively 
seek information from relevant sources with respect to the 
identification processes under the Moratorium Protection Act. As an 
illustration, NMFS published and circulated two notices in the Federal 
Register on March 5, 2010 (75 FR 10213), and April 6, 2010 (75 FR 
17379), soliciting information on IUU fishing and PLMR bycatch 
activities prior to the development of the list of nations that were 
identified in the January 2009 Biennial Report to Congress, and that 
will be identified in the 2011 report. NMFS will continue to solicit 
information from the public that could be used for the identification 
processes under the Moratorium Protection Act, actively seek 
information from RFMOs and international organizations for the 
protection of PLMRs, and examine other information deemed relevant for 
our decision-making processes.
    Comment 19: A commenter recommended that NMFS give preference to 
government information, information that has undergone a peer-review 
process, or information that has been agreed upon through tribunals or 
some other legal mechanism in making decisions regarding certification.
    Several commenters also recommended that NMFS utilize ``additional 
resources'' to verify documentation on which a certification will be 
made; however, none of the commentators identified what those 
``additional resources'' would be.
    Further, NMFS received numerous comments with respect to both IUU 
fishing and the bycatch of PLMRs, regarding the lack of abundance and 
poor quality of the information that would be available and possibly 
used to identify and certify nations.
    Response: When determining whether to identify a nation as having 
fishing vessels engaged in IUU fishing or bycatch of PLMRs, as well as 
certifying an identified nation, NMFS will analyze and assess all 
available information from a variety of sources. NMFS will exercise due 
diligence in evaluating which information and evidence is most 
appropriate for use in identifying and certifying nations. This 
information could include data actively gathered by the U.S. Government 
as well as data offered by other nations, or international 
organizations (such as RFMOs), institutions, or arrangements that 
provides a reasonable basis to believe or suspect that a nation's 
vessels have been engaged in IUU fishing or bycatch of PLMRs.
    Comment 20: A commenter recommended that NMFS establish a process 
to notify nations and international fishery management bodies of the 
Moratorium Protection Act requirements.
    Response: The Moratorium Protection Act requires notification and 
as such, the final regulations lay out what NMFS will communicate to 
nations. NMFS has been actively conducting outreach and communicating 
the requirements of the Moratorium Protection Act to nations and 
international fishery management organizations over the past 3 years.
    Comment 21: One commenter requested that NMFS provide information 
regarding the efforts that the United States has undertaken to 
eliminate its own IUU fishing and PLMR bycatch. The commenter expressed 
that this would not only facilitate earlier compliance, but also help 
in information-gathering and negotiations.
    Response: NMFS will summarize efforts to address PLMR bycatch and, 
as appropriate, may provide information on efforts to address IUU 
fishing in the biennial report to Congress.
    Comment 22: A comment was made by a nation that NMFS should publish 
all information sources used in the certification process.
    Response: NMFS will publish the information sources, as 
appropriate, that are used in the certification decision-making under 
the Moratorium Protection Act in the biennial report to Congress.

Identification and Certification

    Comment 23: A comment suggested that in order to make the task of 
identifying and listing a nation easier, the proposed language for 
section 608(c)(1) of the High Seas Driftnet Fishing Moratorium 
Protection Act in H.R. 1080 section 2(b), should be clarified so that 
if vessels and vessel owners are identified as engaging in IUU fishing 
by an international fishery management organization or through an 
international agreement, the vessel would automatically be added to the 
Secretary's list and subject to possible action under the proposed 
section 608(c)(2).
    Response: Legislative changes are outside the scope of this action. 
However, NMFS notes that, when considering an IUU fishing 
identification under the Moratorium Protection Act, NMFS will examine 
information regarding vessels flagged to a nation that is identified by 
an international fishery management organization to which the United 
States is a party as having engaged in IUU fishing. The Moratorium 
Protection Act provides for consideration of vessels' IUU fishing 
activities during the preceding 2 years.
    Comment 24: A commenter recommended that, in addition to 
identifying nations based on vessel-specific activity, NMFS also 
utilize trade analysis that compares reported catches and trade data 
for the purposes of identifying IUU fishing occurring in a fishery. The 
commenter is concerned that in some situations vessel level information 
will not be sufficient to support identification, but rather trade 
analysis could be a strong indication that the fishery as a whole is 
not being adequately monitored and enforced by the particular country 
or set of countries and therefore the products from that fishery should 
be considered IUU-derived.
    Response: Under the Moratorium Protection Act, NMFS is required to 
identify nations whose vessels engage in IUU fishing activity or 
bycatch of PLMRs. Therefore, a determination must be made based upon 
vessel specific information.
    Comment 25: A comment recommended that the United States pursue 
schemes requiring all fishing vessels to have International Maritime 
Organization numbers, or an equivalent system for smaller vessels. It 
was suggested that in order to encourage vessel owners to register with 
an International Maritime Organization system, NMFS could automatically 
list any unregistered vessel.
    Response: NMFS supports efforts made at the international level to 
enhance the identification and encourage registration of all fishing 
vessels, which would improve the tracking of vessel activities and 
compliance with international registration requirements. To the extent 
that vessels of a nation are fishing without authorization in violation 
of a conservation and management measure of an RFMO, NMFS will consider 
identification of these nations as required under the Moratorium 
Protection Act.
    Comment 26: One comment recommended that NMFS not only identify and 
list nations for having vessels engaged in IUU fishing, but also the 
specific vessel as well as the

[[Page 2020]]

fisheries in which they are engaged. The commenter was concerned that, 
under the current regulations, all fishing vessels flying the flag of 
an identified country will be incriminated, as opposed to only those 
vessels or fisheries actually engaged in IUU fishing.
    Response: NMFS will, to the extent practicable, identify the 
specific vessels of a nation that are engaged in IUU fishing activities 
for purposes of identification under the Moratorium Protection Act in 
the biennial report to Congress.
    Comment 27: A nation commented that it was pleased to see that 
consultation is a key aspect of the identification and certification 
process. The nation recommended that NMFS consult in a way to ensure 
the transparency and fairness of these processes.
    Response: NMFS agrees that consultations are a key aspect of the 
identification and certification processes under the Moratorium 
Protection Act. NMFS will seek to implement the Moratorium Protection 
Act to ensure fairness and transparency.
    Comment 28: NMFS received a question from a nation requesting 
clarification of the documentation required with respect to Sec.  
300.205(b)(1) (Such finding may include a requirement that fish or fish 
products from such nations be accompanied by documentation of 
admissibility.).
    Response: If an identified nation fails to receive a positive 
certification from the Secretary of Commerce, and the President 
determines that certain fish and fish products from that nation are 
ineligible for entry into the United States and U.S. territories, then 
NMFS may require that fish or fish products not subject to the import 
restrictions from the nation be accompanied by admissibility 
documentation to be developed by NMFS. This requirement would be put 
into place if deemed necessary to assist with monitoring and compliance 
with the import prohibitions.
    Comment 29: A comment from a nation stated that with respect to 
Sec.  300.205(a)(2) (``* * * If there is no applicable international 
fishery agreement, the Secretary of Commerce shall not recommend import 
prohibitions that would apply to fish or fish products caught by 
vessels not engaged in IUU fishing * * *''), both the intent and the 
language of this article are unclear. The nation recommended that NMFS 
clearly explain the effects of negative certification and to whom it 
applies in relation to bycatch of PLMRs.
    Response: NMFS has revised the final rule to mirror the text of the 
Act more closely. In response to the comment provided, NMFS clarifies 
that, for nations identified under Sec.  300.202(a) that are not 
positively certified, NMFS believes that import prohibition 
recommendations should be made with respect to fish or fish products 
managed under the applicable international fishery agreement. If there 
is no applicable agreement, import prohibition recommendations should 
be made with respect to fish or fish products caught by vessels engaged 
in the IUU fishing activity. For nations identified under Sec.  
300.203(a) that are not positively certified, NMFS believes that import 
prohibition recommendations should be made with respect to fish or fish 
products caught by the vessels engaged in the relevant activity for 
which the nation was identified.
    Comment 30: A nation requested that NMFS clarify Sec.  
300.203(d)(2)(ii) (``Such nation has established a management plan that 
will assist in the collection of species-specific data on PLMR bycatch 
to support international stock assessments and conservation efforts for 
PLMRs''). Specifically, the nation wanted to know if PLMRs include 
species that are managed by an international fishery management 
organization, and the likelihood of having international stock 
assessments and conservation efforts for PLMRs. The nation recommended 
that NMFS delete ``international stock assessments'' as they are 
captured under broader ``conservation efforts.''
    Response: The definition of PLMRs set forth in the Moratorium 
Protection Act exempts those species, with the exception of sharks, 
that are managed by an RFMO. The statute requires that nations 
identified as having vessels engaged in PLMR bycatch establish a 
management plan that will assist in the collection of species-specific 
data for use in international assessments in order to receive a 
positive certification.
    Comment 31: A commenter recommended that the United States place 
the burden of proof on the nations wishing to export product to the 
United States that they have not engaged in IUU fishing or PLMR 
bycatch. The commenter suggested that by placing the burden of proof on 
the exporting nation, the United States will encourage other nations to 
enhance their monitoring and enforcement requirements to eliminate IUU 
fishing and bycatch of PLMRs.
    Response: NMFS does not have authority under the Moratorium 
Protection Act to require that nations bear the burden of proving that 
their exports to the United States were harvested by vessels that have 
not engaged in IUU fishing or PLMR bycatch.
    Comment 32: Several commenters recommended that deadlines for 
certification findings with respect to bycatch of PLMRs need to be 
established. Specifically, a timeline should be created by which 
nations are to meet the applicable comparability requirements or face 
certification.
    Response: In this final rule, NMFS clarifies that nations 
identified for having vessels engaged in PLMR bycatch meet the 
requirements for a positive certification prior to the subsequent 
biennial report to Congress. Therefore, each identified nation will 
have approximately 2 years to take sufficient corrective action before 
a certification decision is made.
    Comment 33: A commenter suggested that NMFS should evaluate not 
only the statutory or regulatory requirements that apply to a fishery 
but also the effectiveness of a nation's efforts to achieve compliance 
with those requirements. Thus, the proposed rule should provide greater 
detail on the types of data and information that will be required from 
nations and the standards that will be used to judge the sufficiency of 
documentary evidence for certification.
    Response: In its implementation of the Moratorium Protection Act, 
NMFS will evaluate whether a nation identified as having fishing 
vessels engaged in IUU fishing or PLMR bycatch has taken appropriate 
corrective action and is implementing and enforcing such actions. In 
its evaluation, NMFS will consider several types of documentary 
evidence and will work with the nation to examine what information is 
available to determine whether appropriate corrective action is taken. 
For example, NMFS will examine logbook data, laws and regulations to 
address IUU fishing activity, and written documentation of permit 
revocation, among other things.
    Comment 34: A comment was made regarding revising the timeline for 
reporting on the identification process. A commenter suggested that 
stipulating such reports as ``biennial'' alone is insufficient, as 
subsequent reports could be provided two years to the calendar year 
rather than the calendar date. Specifically, a commenter recommended 
that the language in Sec.  300.202(a)(1) of the proposed regulation be 
revised to read: ``NMFS will identify and list, in a biennial report 
provided to Congress, no later than 2 years after the date of the prior

[[Page 2021]]

biennial report, nations whose fishing vessels are engaged, or have 
been engaged at any point during the preceding two calendar years, in 
IUU fishing'' (recommended modifications in italics).
    Response: NMFS is retaining the text as proposed, as it is 
consistent with section 607 of the Moratorium Protection Act, which 
requires the biennial report to be produced 2 years after enactment of 
the MSRA and every 2 years thereafter.
    Comment 35: Several comments recommended that the time period in 
which IUU and bycatch activities are considered for identifying 
countries should be extended to 3 years. Commenters expressed concern 
that if NMFS reports on a biennial basis and only considers bycatch of 
PLMRs during the previous calendar year, data from every other year 
would not be considered in the report. Secondly, several commenters 
expressed concern that the current two-year time period limits NMFS 
from effectively collecting sufficient catch data and information on 
bycatch.
    Response: As reflected in prior comments and responses above, NMFS 
recognizes the concerns regarding the availability of data and 
information for purposes of making identifications under the Moratorium 
Protection Act. NMFS plans to examine PLMR bycatch information from as 
broad a timeframe as possible under the Act. For IUU fishing, NMFS will 
examine information on IUU fishing activities during a 2-year period, 
consistent with the Act.
    Comment 36: NMFS received several comments in support of the idea 
of having alternative certification procedures on a shipper-by-shipper 
basis. In addition, the Marine Mammal Commission commented that 
alternative certification procedures should require rigorous chain-of-
custody documentation, greater controls on transshipment than currently 
exist, and real-time monitoring and verification to substantiate that 
individual vessels, shipments, or shippers fully comply with the 
bycatch reduction measures. They also recommended that NMFS defer the 
implementation of alternative certification procedures until nations or 
RMFOs can adopt monitoring and verification procedures coupled with 
mandatory real-time tracking and documentation of products obtained in 
compliance with bycatch reduction procedures.
    Response: NMFS recognizes the value of establishing alternative 
certification procedures on a shipper-by-shipper basis for those 
identified nations that have not received a certification decision from 
the Secretary of Commerce. In the implementation of the Moratorium 
Protection Act, the Secretary of Commerce intends to issue a positive 
or negative certification decision for each nation that is identified 
as having vessels engaged in either IUU fishing or PLMR bycatch. 
However, NMFS will use alternative procedures in the case that a 
certification decision cannot be reached. For nations that are 
negatively certified, entry of fish or fish products not subject to the 
import prohibitions could be facilitated by accompaniment of these 
products by documentation of admissibility under Sec.  300.205(b)(2).
    Comment 37: One commenter recommended that NMFS recognize the 
existing traceability system used for tuna products and its proven 
track record, and clarify that for tuna products the Secretary intends 
to use the alternative procedures authority, absent some new 
information.
    Response: NMFS recognizes the effective existing systems used for 
tracking the trade of tuna products. In its implementation of 
alternative certification procedures for this particular species, NMFS 
will rely on existing trade tracking programs and seek chain-of-custody 
documentation, real-time monitoring and verification to substantiate 
that individual vessels, shipments, or shippers fully comply with 
requirements of these procedures.
    Comment 38: A commenter recommended that a strict set of criteria 
be put in place so that countries know what is expected of them in 
terms of making adequate reforms, and so that the public can understand 
the criteria by which decisions are made in terms of certifications.
    Response: Given the broad scope of IUU fishing and bycatch 
activities for which a nation could be identified, it is difficult to 
predict what types of data and information will be required of nations, 
or what standards would need to be met to receive a positive 
certification in each specific case. Rather, NMFS will determine the 
data, information, and standards on a case-by-case basis.
    Comment 39: A commenter recommended that public consultations be 
built into the certification process as this will help ensure 
transparency in decision making about how a positive or negative 
certification is made.
    Response: The Moratorium Protection Act requires the Secretary of 
Commerce to notify nations prior to certification, and provide such 
nations with an opportunity to comment on the certification 
determinations. NMFS will provide notice of the official certifications 
in the subsequent biennial report to Congress.

Trade Sanctions

    Comment 40: A few commenters stated that the Moratorium Protection 
Act specifies that the negative certification of a nation, or lack of 
certification with respect to IUU fishing activity or bycatch of PLMRs, 
triggers mandatory import prohibitions and provides that the President 
``shall'' direct that importation of fish and fish products be 
prohibited immediately upon being notified that a nation is identified 
as having engaged in IUU fishing or PLMR bycatch, or if consultations 
with the government of such a nation have not concluded satisfactorily 
within 90 days. However, the commenter finds that the rule conflicts 
with the Act, as it states that such nations ``may be subject'' to 
import prohibitions. The commenter recommends that NMFS clarify the 
rule to reflect the mandatory requirements of the Act, as well as the 
stated timeline for implementing import prohibitions.
    Response: The Secretary of Commerce only has the authority to make 
recommendations to the President on import prohibitions of fish or fish 
products. Thus, the rule was drafted to focus on the Secretary's roles 
and actions.
    Comment 41: NMFS received a comment recommending that the proposed 
rule clearly identify which fish products or fishing vessels of 
negatively certified nations would be subject to the import 
prohibitions. Similarly, a nation expressed that it is not clear from 
the proposed rule whether all fish products or all fishing vessels of a 
negatively certified nation would be subject to import prohibitions. 
The nation recommended that if import prohibitions are applied only to 
some fish products or some fishing vessels, NMFS should clarify the 
criteria that will be used to make that determination.
    Response: The scope of any trade-related actions would be at the 
discretion of the President. However, in making recommendations to the 
President with respect to prohibitions on the importation of fish and 
fish products from nations identified as having vessels engaged in IUU 
fishing or PLMR bycatch that did not receive a positive certification 
from the Secretary of Commerce, NMFS will take into account the fish 
and fish products affected by the IUU fishing or PLMR bycatch activity 
in question.
    Comment 42: One commenter suggested that punitive measures should 
not be limited solely to nations; penalties or trade restrictions 
should

[[Page 2022]]

also be imposed on vessel operators, fishing masters, senior 
executives, directors of companies, and traders deemed to be engaged 
in, involved with, or benefitting from IUU fishing.
    Response: The Moratorium Protection Act only provides authority for 
the Secretary of Commerce to identify and certify nations for the 
activities of its vessels.

Changes From Proposed Action

    In addition to streamlining the final rule to reduce duplication 
and ease readability, NMFS has made several changes in the final rule 
to respond to public comments, provide clarification, and revise some 
text to reflect better text in the Act. The key changes are outlined 
below.

1. Outreach Prior to Identification

    In its implementation of the identification procedures under the 
Moratorium Protection Act, NMFS will communicate with nations regarding 
alleged IUU fishing and bycatch activities prior to a formal 
identification. This outreach process, which was described in the 
preamble of the proposed rule, will provide NMFS with a means of 
verifying information and building a more robust record in support of 
identification decisions. In the preamble of the final rule, NMFS 
clarified that it will consider action taken by nations in response to 
IUU fishing, as well as cooperative research conducted by nations to 
address bycatch activities prior to making formal identification 
decisions. This will allow NMFS to use the identification and 
certification procedures effectively to address IUU fishing and 
bycatch, rather than penalize nations that have already taken 
corrective action and/or are working cooperatively to reduce their 
bycatch.

2. Enforcement and Implementation of International Measures

    In the proposed rule, NMFS stated that it would consider whether a 
nation has implemented and is enforcing international measures to 
address IUU fishing or PLMR bycatch when making identification and 
certification decisions. In the preamble of the final rule, NMFS 
clarified that when evaluating whether a nation has implemented and is 
enforcing measures that will address IUU fishing and PLMR bycatch when 
making identification decisions, the agency will also examine whether 
adequate enforcement measures and capacity exist to help promote 
compliance. In some cases, NMFS may be able to provide international 
assistance to a nation to help such nation achieve more sustainable 
fisheries and obtain a positive certification.

3. Bycatch Definition

    In the proposed rule, bycatch was defined as ``the discarded catch 
of any living marine resource and/or mortality or serious injury of 
such resource due to an encounter with fishing gear that does not 
result in the capture of such resource.'' This definition was revised 
in response to public comments that bycatch should include resources 
that are caught incidentally due to an encounter with fishing gear, 
regardless of whether the resource is retained. The bycatch definition 
was also revised based on concerns that the terms ``mortality and/or 
serious injury'' would establish unintentional standards that could not 
be applied consistently to all protected living marine resources. The 
definition of bycatch was revised in the final rule to ``the incidental 
or discarded catch of protected living marine resources or entanglement 
of such resources with fishing gear.''

4. Definition of International Fishery Management Agreement

    In the proposed rule, this term was defined as ``any bilateral or 
multilateral treaty, convention, or agreement that governs direct 
harvest of fish and/or directly governs bycatch of fish, sea turtles, 
or marine mammals.'' This definition was revised for clarity in the 
final rule and consistent with the definition of ``international 
fishery management organization'' as ``any bilateral or multilateral 
treaty, convention, or agreement for the conservation and management of 
fish.''

5. Notification and Initiation of Consultations for PLMR Bycatch

    As specified in the Moratorium Protection Act, the proposed rule 
required that NMFS notify nations of their identification for having 
vessels engaged in IUU fishing, and initiate consultations within 60 
days after submission of the biennial report to Congress. The proposed 
rule did not, however, establish a specific deadline for the 
notification and initiation of consultations with nations identified 
for having vessels engaged in PLMR bycatch. In response to public 
comments, NMFS will require that nations identified for having vessels 
engaged in PLMR bycatch be notified of their identification and 
consultations be initiated within 60 days after submission of the 
biennial report to Congress, consistent with the requirements for 
nations identified for having vessels engaged in IUU fishing.

6. International Cooperation and Assistance

    In the final rule, NMFS specified that the agency is required to 
work cooperatively with nations that are identified for having vessels 
engaged in PLMR bycatch to address such bycatch and provide appropriate 
assistance to help such nations obtain a positive certification. These 
requirements have been included for transparency in the process by 
which NMFS plans to work cooperatively with other nations and provide 
assistance where necessary to help achieve sustainable fisheries 
globally.

7. Scope of Import Prohibitions

    NMFS received several public comments asking for clarification 
regarding the scope of trade sanctions that would be recommended by the 
Secretary of Commerce to the President when identified nations fail to 
receive a positive certification. NMFS has revised the final rule to 
mirror the text of the Act more closely. In the response to comments in 
this final rule, NMFS explains that, for nations identified under Sec.  
300.202(a) that are not positively certified, NMFS believes that import 
prohibition recommendations should be made with respect to fish or fish 
products managed under the applicable international fishery agreement. 
If there is no applicable agreement, import prohibition recommendations 
should be made with respect to fish or fish products caught by vessels 
engaged in the IUU fishing activity. For nations identified under Sec.  
300.203(a) that are not positively certified, NMFS believes that import 
prohibition recommendations should be made with respect to fish or fish 
products caught by vessels engaging in the relevant activity for which 
the nation was identified.

Classification

    This final rule is published under the authority of the Moratorium 
Protection Act, 16 U.S.C. 1826d-1826k.
    This rulemaking has been determined to be significant for the 
purposes of Executive Order 12866.
    A final regulatory flexibility analysis (FRFA) was prepared, as 
required by section 603 of the RFA. The FRFA describes the economic 
impact this rule would have on small entities. A description of the 
action, why it is being considered, and the legal basis for this action 
are contained at the beginning of this section in the preamble and in 
the SUMMARY section of the preamble. A summary of the analysis follows. 
A copy of this analysis is available from NMFS (see ADDRESSES).

[[Page 2023]]

    NMFS received public comments on the proposed rule, and made some 
revisions to the final rule to clarify provisions. A summary of public 
comments on the proposed rule and agency responses is provided above. 
NMFS did not receive comments specifically on the IRFA or on issues 
related to the IRFA.
    This final rule does not apply directly to any U.S. small business, 
as the rulemaking is aimed at foreign nations whose vessels engage in 
fishing activities. The universe of potentially indirectly affected 
industries includes the following: U.S. ports and U.S. seafood 
harvesters, processors, wholesalers, and importers. Ports generate 
economic activity across many sectors, including surface 
transportation; maritime services; cargo handling; federal, state, and 
local governments; port authorities; importers and consignees; and the 
banking and insurance sectors. Maritime services include pilots, 
handlers (food and other supplies), towing, bunkering (fuel), marine 
surveyors, and shipyard and marine construction. Cargo handling 
services include longshoremen, stevedoring, terminal operators, 
warehouse operators, and container leasing and repair.
    No U.S. industry is directly affected by this rulemaking, although 
indirect effects may cause short term disruptions in the flow of 
seafood imports, and thus potentially impact U.S. businesses. NMFS does 
not anticipate that national net benefits and costs would change 
significantly in the long term as a result of the implementation of the 
proposed alternatives.
    Although this action will not have significant economic impacts on 
a substantial number of small U.S. entities, NMFS decided to analyze 
different alternatives in the FRFA for the certification procedures in 
this rule. In order to meet the objectives of the Moratorium Protection 
Act and this final rule, NMFS cannot exempt small entities, change 
reporting requirements only for small entities, or use performance or 
design standards in lieu of the regulatory requirements in the rule. 
Sections 2.2 and 2.3 of the Environmental Assessment describe the 
alternatives analyzed for certification procedures for IUU fishing and 
bycatch.
    The Alternatives for Certification for nations whose vessels are 
engaged, or have been engaged in, IUU fishing activities are as 
follows: Under Alternative I-1, the No Action Alternative, NMFS would 
not develop any new procedures to address the certification of nations 
identified in the biennial report to Congress (called for in section 
609(a) of the Moratorium Protection Act) as having vessels that are 
engaged, or have been engaged during the preceding 2 calendar years, in 
IUU fishing activities. Under Alternative I-2, the Secretary would 
provide a positive certification to a nation identified in the biennial 
report to Congress (called for in section 609(a) of the Moratorium 
Protection Act) as having vessels that are engaged, or have been 
engaged during the preceding 2 calendar years, in IUU fishing 
activities, if such nation has taken corrective action against the 
offending vessels, or the relevant RFMO has implemented measures that 
are effective in ending the IUU fishing activities by vessels of the 
identified nation. Under Alternative I-3, the Secretary would provide a 
positive certification to a nation identified in the biennial report to 
Congress (called for in section 609(a) of the Moratorium Protection 
Act) as having vessels that are engaged, or have been engaged during 
the preceding 2 calendar years, in IUU fishing activities, if such 
nation has taken corrective action against the offending vessels, and 
the relevant RFMO has implemented measures that are effective in ending 
the IUU fishing activities by vessels of the identified nation.
    The Alternatives for Certification for nations whose vessels are 
engaged, or have been engaged in, bycatch of PLMRs are as follows: 
Under Alternative B-1, the No action alternative, NMFS would not 
develop any new procedures to address certification of nations 
identified in the biennial report to Congress (called for in section 
610(a) of the Moratorium Protection Act) as having vessels that are 
engaged, or have been engaged during the preceding calendar year in 
bycatch of PLMRs. Under Alternative B-2, to receive a positive 
certification from the Secretary of Commerce, nations identified in the 
biennial report to Congress (called for in section 610(a) of the 
Moratorium Protection Act) as having vessels that are engaged, or have 
been engaged during the preceding calendar year in bycatch of PLMRs 
must provide documentary evidence of their adoption of a regulatory 
program governing the conservation of the PLMR that is comparable in 
effectiveness with that of the United States, taking into account 
different conditions, and establish a management plan that will assist 
in species-specific data collection to support international stock 
assessments and conservation enforcement efforts for the PLMR. Under 
Alternative B-3, identified nations must provide documentary evidence 
of the adoption of a regulatory program for PLMR bycatch that is 
comparable with that of the United States', taking into account 
different conditions. Identified nations must also show proof of the 
identified nation's participation with an international organization 
governing the conservation of the PLMRs, if one exists, and establish a 
management plan that will assist in species-specific data collection to 
support international assessments and conservation efforts, including 
but not limited to enforcement efforts for PLMRs.
    As noted above, NMFS does not anticipate significant economic 
impacts to U.S. businesses from any of the alternatives analyzed. 
However, certain importers may be affected by import prohibitions that 
are imposed on fish or fish products coming into the United States from 
an identified nation that fails to receive a positive certification. 
IUU Alternative I-3 may produce more socioeconomic benefits than IUU 
Alternative I-2. Likewise for the bycatch alternatives, Alternative B-3 
may produce more benefits than Alternative B-2. Due to the consultative 
nature of this rulemaking, it may be possible for the costs to U.S. 
businesses to be ameliorated by new port state controls, substituting 
different transportation modes, or substituting different products all 
together. As a result, it is difficult to know if costs will also be 
higher moving from the less restrictive IUU Alternative I-2 or bycatch 
Alternative B-2 to IUU Alternative I-3 or bycatch Alternative B-3. 
Because Alternatives I-2 and B-2 most closely mirror the text of the 
Moratorium Protection Act, NMFS has decided to implement them in this 
final rule.
    Pursuant to 5 U.S.C 553(d)(3), NOAA finds that there is good cause 
to waive the 30-day delay in the effective date of this rule. This rule 
is procedural in nature: It only creates procedures for the agency to 
follow when determining identification and certification of nations 
whose fishing vessels are engaged in IUU fishing and/or bycatch of 
PLMRs. Importantly, the rule does not modify, add, or revoke any 
existing rights and obligations of the public or any private parties, 
because the rule only applies to NOAA. Accordingly, NOAA finds that 
there is good cause, within the meaning of 5 U.S.C. 553(d)(3) and in 
accordance with the Congressional Review Act, 5 U.S.C. 808(2), to waive 
the 30-day delay in effectiveness of this rule and to make this rule 
effective immediately.
    This final rule contains collection-of-information requirements for 
Sec. Sec.  300.205(b)(2), 300.206(c), and 300.207(c) subject to review 
and

[[Page 2024]]

approval by OMB under the Paperwork Reduction Act (PRA). However, NMFS 
is delaying the effective date of these sections until NMFS receives 
OMB approval for these collections. After OMB approval is received, 
NMFS will publish the effective date for these sections in the Federal 
Register.

List of Subjects in 50 CFR Part 300

    Administrative practice and procedure, Antarctica, Canada, Exports, 
Fish, Fisheries, Fishing, Imports, Indians, Labeling, Marine resources, 
Reporting and recordkeeping requirements, Russian Federation, 
Transportation, Treaties, Wildlife.

    Dated: January 7, 2011.
Eric C. Schwaab,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 300 as 
follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

0
1. Subpart N is revised to read as follows:
Subpart N--Identification and Certification of Nations
Sec.
300.200 Purpose and scope.
300.201 Definitions.
300.202 Identification and certification of nations engaged in 
illegal, unreported, or unregulated fishing activities.
300.203 Identification and certification of nations engaged in 
bycatch of protected living marine resources.
300.204 Effect of certification.
300.205 Denial of port privileges and import restrictions on fish or 
fish products.
300.206 Alternative procedures for IUU fishing activities.
300.207 Alternative procedures for bycatch of PLMRs.

    Authority: 16 U.S.C. 1826d et seq.

Subpart N--Identification and Certification of Nations


Sec.  300.200  Purpose and scope.

    The purpose of this subpart is to implement the requirements in the 
High Seas Driftnet Fishing Moratorium Protection Act (``Moratorium 
Protection Act'') to identify and certify nations whose vessels are 
engaged in illegal, unreported, or unregulated fishing or whose fishing 
activities result in bycatch of protected living marine resources. This 
language applies to vessels entitled to fly the flag of the nation in 
question. Identified nations that do not receive a positive 
certification may be subject to trade restrictive measures for certain 
fishery products. The Moratorium Protection Act also authorizes 
cooperation and assistance to nations that are taking action to combat 
illegal, unreported, or unregulated fishing or reduce bycatch of 
protected living marine resources.


Sec.  300.201  Definitions.

    For the purposes of the Moratorium Protection Act:
    Bycatch means: the incidental or discarded catch of protected 
living marine resources or entanglement of such resources with fishing 
gear.
    Fishing vessel means: any vessel, boat, ship, or other craft which 
is used for, equipped to be used for, or of a type which is normally 
used for--
    (1) Fishing; or
    (2) Any activity relating to fishing, including, but not limited 
to, preparation, supply, storage, refrigeration, transportation, or 
processing, bunkering or purchasing catch, or aiding or assisting one 
or more vessels at sea in the performance of such activity.
    Illegal, unreported, or unregulated (IUU) fishing means:
    (1) Fishing activities that violate conservation and management 
measures required under an international fishery management agreement 
to which the United States is a party, including but not limited to 
catch limits or quotas, capacity restrictions, and bycatch reduction 
requirements;
    (2) Overfishing of fish stocks shared by the United States, for 
which there are no applicable international conservation or management 
measures or in areas with no applicable international fishery 
management organization or agreement, that has adverse impacts on such 
stocks; or,
    (3) Fishing activity that has a significant adverse impact on 
seamounts, hydrothermal vents, cold water corals and other vulnerable 
marine ecosystems located beyond any national jurisdiction, for which 
there are no applicable conservation or management measures, including 
those in areas with no applicable international fishery management 
organization or agreement.
    International agreement means: an agreement between two or more 
States, agencies of two or more States, or intergovernmental 
organizations which is legally binding and governed by international 
law.
    International fishery management agreement means: any bilateral or 
multilateral treaty, convention, or agreement for the conservation and 
management of fish.
    International fishery management organization means: an 
international organization established by any bilateral or multilateral 
treaty, convention, or agreement for the conservation and management of 
fish.
    Protected living marine resources (PLMRs) means: non-target fish, 
sea turtles, or marine mammals that are protected under United States 
law or international agreement, including the Marine Mammal Protection 
Act, the Endangered Species Act, the Shark Finning Prohibition Act, and 
the Convention on International Trade in Endangered Species of Wild 
Flora and Fauna; but they do not include species, except sharks, that 
are managed under the Magnuson-Stevens Fishery Conservation and 
Management Act, the Atlantic Tunas Convention Act, or by any 
international fishery management agreement.


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

    (a) Procedures to identify nations whose fishing vessels are 
engaged in IUU fishing--(1) NMFS will identify and list, in a biennial 
report to Congress, nations whose fishing vessels are engaged, or have 
been engaged at any point during the preceding two years, in IUU 
fishing.
    (2) When determining whether to identify a nation as having fishing 
vessels engaged in IUU fishing, NMFS will take into account all 
relevant matters, including but not limited to the history, nature, 
circumstances, extent, duration, and gravity of the IUU fishing 
activity in question, and any measures that the nation has implemented 
to address the IUU fishing activity. NMFS will also take into account 
whether an international fishery management organization exists with a 
mandate to regulate the fishery in which the IUU activity in question 
takes place. If such an organization exists, NMFS will consider whether 
the relevant international fishery management organization has adopted 
measures that are effective at addressing the IUU fishing activity in 
question and, if the nation whose fishing vessels are engaged, or have 
been engaged, in IUU fishing is a party to, or maintains cooperating 
status with, the organization.
    (b) Notification of nations identified as having fishing vessels 
engaged in IUU fishing. Upon identifying a nation whose vessels have 
been engaged in IUU fishing activities in the biennial report to 
Congress, the Secretary of Commerce will notify the President of such 
identification. Within 60 days after submission of the biennial report 
to Congress, the Secretary of Commerce,

[[Page 2025]]

acting through or in consultation with the Secretary of State, will:
    (1) Notify nations that have been identified in the biennial report 
as having fishing vessels that are currently engaged, or were engaged 
at any point during the preceding two calendar years, in IUU fishing 
activities;
    (2) Notify identified nations of the requirements under the 
Moratorium Protection Act and this subpart; and
    (3) Notify any relevant international fishery management 
organization of actions taken by the United States to identify nations 
whose fishing vessels are engaged in IUU fishing and initiate 
consultations with such nations.
    (c) Consultation with nations identified as having fishing vessels 
engaged in IUU fishing. Within 60 days after submission of the biennial 
report to Congress, the Secretary of Commerce, acting through or in 
cooperation with the Secretary of State, will initiate consultations 
with nations that have been identified in the biennial report for the 
purpose of encouraging such nations to take appropriate corrective 
action with respect to the IUU fishing activities described in the 
biennial report.
    (d) Procedures to certify nations identified as having fishing 
vessels engaged in IUU fishing. Each nation that is identified as 
having fishing vessels engaged in IUU fishing shall receive either a 
positive or a negative certification from the Secretary of Commerce, 
and this certification will be published in the biennial report to 
Congress. A positive certification indicates that a nation has taken 
appropriate corrective action to address the IUU fishing activity 
described in the biennial report. A negative certification indicates 
that a nation has not taken appropriate corrective action.
    (1) The Secretary of Commerce shall issue a positive certification 
to an identified nation upon making a determination that such nation 
has taken appropriate corrective action to address the activities for 
which such nation has been identified in the biennial report to 
Congress. When making such determination, the Secretary shall take into 
account the following:
    (i) Whether the government of the nation identified pursuant to 
paragraph (a) of this section has provided evidence documenting that it 
has taken corrective action to address the IUU fishing activity 
described in the biennial report; or
    (ii) Whether the relevant international fishery management 
organization has adopted and, if applicable, the identified member 
nation has implemented and is enforcing, measures to effectively 
address the IUU fishing activity of the identified nation's fishing 
vessels described in the biennial report.
    (2) Prior to a formal certification determination, nations will be 
provided with preliminary certification determinations and an 
opportunity to support and/or refute the preliminary determinations and 
communicate any corrective actions taken to address the activities for 
which such nations were identified. The Secretary of Commerce shall 
consider any information received during the course of these 
consultations when making the subsequent certification determinations.


Sec.  300.203  Identification and certification of nations engaged in 
bycatch of protected living marine resources.

    (a) Procedures to identify nations whose fishing vessels are 
engaged in PLMR bycatch--(1) NMFS will identify and list, in the 
biennial report to Congress, nations whose fishing vessels are engaged, 
or have been engaged during the preceding calendar year prior to 
publication of the biennial report to Congress, in fishing activities 
or practices either in waters beyond any national jurisdiction that 
result in bycatch of a PLMR, or in waters beyond the U.S. EEZ that 
result in bycatch of a PLMR that is shared by the United States. When 
determining whether to identify nations as having fishing vessels 
engaged in PLMR bycatch, NMFS will take into account all relevant 
matters including, but not limited to, the history, nature, 
circumstances, extent, duration, and gravity of the bycatch activity in 
question.
    (2) NMFS will also examine whether there is an international 
organization with jurisdiction over the conservation and protection of 
the relevant PLMRs or a relevant international or regional fishery 
organization. If such organization exists, NMFS will examine whether 
the organization has adopted measures to effectively end or reduce 
bycatch of such species; and if the nation whose fishing vessels are 
engaged, or have been engaged during the preceding calendar year prior 
to publication of the biennial report to Congress, in bycatch of PLMRs 
is a party to or maintains cooperating status with the relevant 
international organization.
    (3) NMFS will also examine whether the nation has implemented 
measures designed to end or reduce such bycatch that are comparable in 
effectiveness to U.S. regulatory requirements. In considering whether a 
nation has implemented measures that are comparable in effectiveness to 
those of the United States, NMFS will evaluate if different conditions 
exist that could bear on the feasibility and efficiency of such 
measures to end or reduce bycatch of the pertinent PLMRs.
    (b) Notification of nations identified as having fishing vessels 
engaged in PLMR bycatch. Upon identifying a nation whose vessels have 
been engaged in bycatch of PLMRs in the biennial report to Congress, 
the Secretary of Commerce will notify the President of such 
identification. Within 60 days after submission of the biennial report 
to Congress, the Secretary of Commerce, acting through or in 
consultation with the Secretary of State, will notify identified 
nations about the requirements under the Moratorium Protection Act and 
this subpart.
    (c) Consultations and negotiations. Upon submission of the biennial 
report to Congress, the Secretary of Commerce, acting through or in 
consultation with the Secretary of State, will:
    (1) Initiate consultations within 60 days after submission of the 
biennial report to Congress with the governments of identified nations 
for the purposes of entering into bilateral and multilateral treaties 
with such nations to protect the PLMRs from bycatch activities 
described in the biennial report; and
    (2) Seek agreements through the appropriate international 
organizations calling for international restrictions on the fishing 
activities or practices described in the biennial report that result in 
bycatch of PLMRs and, as necessary, request the Secretary of State to 
initiate the amendment of any existing international treaty to which 
the United States is a party for the protection and conservation of the 
PLMRs in question to make such agreements consistent with this subpart.
    (d) International Cooperation and Assistance. To the greatest 
extent possible, consistent with existing authority and the 
availability of funds, the Secretary shall:
    (1) Provide appropriate assistance to nations identified by the 
Secretary under paragraph (a) of this section and international 
organizations of which those nations are members to assist those 
nations in qualifying for a positive certification under paragraph(e) 
of this section;
    (2) Undertake, where appropriate, cooperative research activities 
on species assessments and improved bycatch mitigation techniques, with 
those nations or organizations;
    (3) Encourage and facilitate the transfer of appropriate technology 
to those nations or organizations to assist those nations in qualifying 
for positive certification under paragraph (e) of this section; and

[[Page 2026]]

    (4) Provide assistance to those nations or organizations in 
designing and implementing appropriate fish harvesting plans.
    (e) Procedures to certify nations identified as having fishing 
vessels engaged in PLMR bycatch--(1) Each nation that is identified as 
having fishing vessels engaged in PLMR bycatch shall receive either a 
positive or a negative certification from the Secretary of Commerce, 
and this certification will be published in the biennial report to 
Congress. The Secretary of Commerce shall issue a positive 
certification to an identified nation upon making a determination that:
    (i) Such nation has provided evidence documenting its adoption of a 
regulatory program to end or reduce bycatch of such PLMRs that is 
comparable in effectiveness to regulatory measures required under U.S. 
law to address bycatch in the relevant fisheries, taking into account 
different conditions that could bear on the feasibility and efficacy of 
these measures, and which, in the case of an identified nation with 
fishing vessels engaged in pelagic longline fishing, includes the 
mandatory use of circle hooks, careful handling and release equipment, 
training and observer programs; and
    (ii) Such nation has established a management plan that will assist 
in the collection of species-specific data on PLMR bycatch to support 
international stock assessments and conservation efforts for PLMRs.
    (2) Nations will be notified prior to a formal certification 
determination and will be provided with an opportunity to support and/
or refute preliminary certification determinations, and communicate any 
corrective actions taken to address the activities for which such 
nations were identified. The Secretary of Commerce shall consider any 
information received during the course of these consultations when 
making the subsequent certification determinations.


Sec.  300.204  Effect of certification.

    (a) If an identified nation does not receive a positive 
certification under this subpart (i.e., the nation receives a negative 
certification or no certification is made), the fishing vessels of such 
nation are, to the extent consistent with international law, subject to 
the denial of entry into any place in the United States and to the 
navigable waters of the United States.
    (b) At the recommendation of the Secretary of Commerce (see Sec.  
300.205), certain fish or fish products from such nation may be subject 
to import prohibitions.
    (c) Any action recommended under this paragraph (c) shall be 
consistent with international obligations, including the WTO Agreement.
    (d) If certain fish or fish products are prohibited from entering 
the United States, within six months after the imposition of the 
prohibition, the Secretary of Commerce shall determine whether the 
prohibition is insufficient to cause that nation to effectively address 
the IUU fishing described in the biennial report, or that nation has 
retaliated against the United States as a result of that prohibition. 
The Secretary of Commerce shall certify to the President each 
affirmative determination that an import prohibition is insufficient to 
cause a nation to effectively address such IUU fishing activity or that 
a nation has taken retaliatory action against the United States. This 
certification is deemed to be a certification under section 1978(a) of 
Title 22, which provides that the President may direct the Secretary of 
the Treasury to prohibit the bringing or the importation into the 
United States of any products from the offending country for any 
duration as the President determines appropriate and to the extent that 
such prohibition is sanctioned by the World Trade Organization.
    (e) Duration of certification. Any nation identified in the 
biennial report to Congress and negatively certified will remain 
negatively certified until the Secretary of Commerce determines that 
the nation has taken appropriate corrective action to address the IUU 
fishing activity and/or bycatch of PLMRs for which it was identified in 
the biennial report. Receipt of a positive certification determination 
will demonstrate that appropriate corrective action has been taken by a 
nation to address the relevant IUU fishing activity and/or bycatch of 
PLMRs.
    (f) Consultations. NMFS will, working through or in consultation 
with the Department of State, continue consultations with nations that 
receive a negative certification with respect to the IUU fishing 
activities or bycatch of PLMRs described in the biennial report to 
Congress. The Secretary of Commerce shall take the results of such 
consultations into consideration when making a subsequent certification 
determination for such nation.


Sec.  300.205  Denial of port privileges and import restrictions on 
fish or fish products.

    (a) Scope of Applicability--(1) If a nation identified in the 
biennial report under Sec.  300.202(a) or Sec.  300.203(a) is not 
positively certified by the Secretary of Commerce, and fishing vessels 
of the nation are allowed entry to any place in the United States and 
to the navigable waters of the United States under this subpart, those 
vessels will be subject to inspection and may be prohibited from 
landing, processing, or transshipping fish and fish products. Services, 
including the refueling and re-supplying of such fishing vessels, may 
be prohibited, with the exception of services essential to the safety, 
health, and welfare of the crew. Fishing vessels will not be denied 
port access or services in cases of force majeure or distress.
    (2) For nations identified in the biennial report under Sec.  
300.202(a) that are not positively certified, the Secretary of Commerce 
shall recommend import prohibitions with respect to fish or fish 
products from those nations. Such recommendations on import 
prohibitions would not apply to fish or fish products not managed under 
an applicable international fishery agreement, or if there is no 
applicable international fishery agreement, to the extent that such 
provisions would apply to fish or fish products caught by vessels not 
engaged in illegal, unreported, or unregulated fishing. For nations 
identified under Sec.  300.203(a) that are not positively certified, 
the Secretary of Commerce shall also recommend import prohibitions; 
such prohibitions shall not apply to fish or fish products not caught 
by the vessels engaged in the relevant activity for which the nation 
was identified.
    (3) Any action recommended under this paragraph (a)(3) shall be 
consistent with international obligations, including the WTO Agreement.
    (b) Imposition of import restrictions--(1) Notification. Where the 
Secretary of Commerce cannot make positive certifications for 
identified nations, and the President determines that certain fish and 
fish products from such nations are ineligible for entry into the 
United States and U.S. territories, the Secretary of Commerce, with the 
concurrence of the Secretary of State and in cooperation with the 
Secretary of Treasury, will file a notice with the Office of the 
Federal Register.
    (2) Documentation of admissibility. If certain fish or fish 
products are subject to import prohibitions, NMFS may publish in the 
Federal Register the requirement that other fish or fish products from 
the relevant nation that are not subject to the prohibitions be 
accompanied by documentation of admissibility. The documentation of 
admissibility must be executed by a duly authorized official of the 
identified

[[Page 2027]]

nation and validated by a responsible official(s) designated by NMFS. 
The documentation must be executed and submitted in a format 
(electronic facsimile (fax), the Internet, etc.) specified by NMFS.
    (3) Effective date of import restrictions. Effective upon the date 
of publication of such finding, shipments of fish or fish products 
found to be ineligible will be denied entry to the United States. Entry 
will not be denied for any such shipment that, on the date of 
publication, was in transit to the United States.
    (4) Removal of negative certifications and import restrictions. 
Upon a determination by the Secretary of Commerce that an identified 
nation that was not certified positively has satisfactorily met the 
conditions in this subpart and that nation has been positively 
certified, the provisions of Sec.  300.205 shall no longer apply. The 
Secretary of Commerce, with the concurrence of the Secretary of State 
and in cooperation with the Secretary of Treasury, will notify such 
nations and will file with the Office of the Federal Register for 
publication notification of the removal of the import restrictions 
effective on the date of publication.


Sec.  300.206  Alternative procedures for IUU fishing activities.

    (a) These certification procedures may be applied to fish or fish 
products from a vessel of a harvesting nation that has been identified 
under Sec.  300.202 in the event that the Secretary cannot reach a 
certification determination for that nation by the time of the next 
biennial report. These procedures shall not apply to fish or fish 
products from identified nations that have received either a negative 
or a positive certification under this subpart.
    (b) Consistent with paragraph (a) of this section, the Secretary of 
Commerce may allow entry of fish or fish products on a shipment-by-
shipment, shipper-by-shipper, or other basis if the Secretary 
determines that:
    (1) The vessel has not engaged in IUU fishing under an 
international fishery management agreement to which the U.S. is a 
party; or
    (2) The vessel is not identified by an international fishery 
management organization as participating in IUU fishing activities.
    (c) Fish or fish products offered for entry under this paragraph 
(c) must be accompanied by a completed documentation of admissibility 
available from NMFS. The documentation of admissibility must be 
executed by a duly authorized official of the identified nation and 
must be validated by a responsible official(s) designated by NMFS. The 
documentation must be executed and submitted in a format (electronic 
facsimile (fax), the Internet, etc.) specified by NMFS.


Sec.  300.207  Alternative procedures for bycatch of PLMRs.

    (a) These certification procedures may be applied to fish or fish 
products from a vessel of a harvesting nation that has been identified 
under Sec.  300.203 in the event that the Secretary cannot reach a 
certification determination for that nation by the time of the next 
biennial report. These procedures shall not apply to fish or fish 
products from identified nations that have received either a negative 
or a positive certification under this subpart.
    (b) Consistent with paragraph (a) of this section, the Secretary of 
Commerce may allow entry of fish or fish products on a shipment-by-
shipment, shipper-by-shipper, or other basis if the Secretary 
determines that imports were harvested by practices that do not result 
in bycatch of a protected marine species, or were harvested by 
practices that--
    (1) Are comparable to those of the United States, taking into 
account different conditions, and which, in the case of pelagic 
longline fisheries, the regulatory program of an identified nation 
includes mandatory use of circle hooks, careful handling and release 
equipment, and training and observer programs; and
    (2) Include the gathering of species specific data that can be used 
to support international and regional assessments and conservation 
efforts for protected living marine resources.
    (c) Fish or fish products offered for entry under this section must 
be accompanied by a completed documentation of admissibility available 
from NMFS. The documentation of admissibility must be executed by a 
duly authorized official of the identified nation and validated by a 
responsible official(s) designated by NMFS. The documentation must be 
executed and submitted in a format (electronic facsimile (fax), the 
Internet, etc.) specified by NMFS.

[FR Doc. 2011-507 Filed 1-11-11; 8:45 am]
BILLING CODE 3510-22-P