Federal Register / Vol. 76, No. 8 / Wednesday, January 12, 2011 / Rules and Regulations 2011 

(2) NPR 8831.2, Facility Maintenance 

Management. 

[Insert any real property related Center 

requirements here] 

(b) Within 30 calendar days following 

award, the Contractor shall provide a plan for 

maintenance of Government real property 

provided for use under this contract. The 

Contractor’s maintenance program shall 

enable the identification, disclosure, and 

performance of normal and routine 

preventative maintenance and repair. The 

Contractor shall disclose and report to the 

Contracting Officer the need for replacement 

and/or capital rehabilitation. Upon 

acceptance by the Contracting Officer, the 

program shall become a requirement under 

this contract. 

(c) Title to parts replaced by the Contractor 

in carrying out its normal maintenance 

obligations shall pass to and vest in the 

Government upon completion of their 

installation in the facilities. The Contractor 

shall keep the property free and clear of all 

liens and encumbrances. 

(d) The Contractor shall keep records of all 

work done to real property, including plans, 

drawings, charts, warranties, and manuals. 

Records shall be complete and current. 

Record of all transactions shall be auditable. 

The Government shall have access to these 

records at all reasonable times, for the 

purposes of reviewing, inspecting, and 

evaluating the Contractor’s real property 

management effectiveness. When real 

property is disposed of under this contract, 

the Contractor shall deliver the related 

records to the Government. 

(e) The Contracting Officer may direct the 

Contractor in writing to reduce the work 

required by the maintenance program 

authorized in paragraph (b) of this clause at 

any time. 

(End of clause) 

[FR Doc. 2010–32741 Filed 1–11–11; 8:45 am] 

BILLING CODE 7510–01–P 

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. 

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 

§§ 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 § 300.201 to make the 

definition more consistent with the 

United Nations General Assembly 

Resolution 65–105. 

The Moratorium Protection Act 

requires the Secretary of Commerce to 

identify in a biennial report to Congress 

those foreign nations whose fishing 

vessels are engaged in IUU fishing or 

fishing activities or practices that result 

in bycatch of PLMRs. The Moratorium 

Protection Act also requires the 

establishment of procedures to certify 

whether appropriate corrective actions 

have been taken to address IUU fishing 

or bycatch of PLMRs by fishing vessels 

of those nations. Identified nations that 

are not positively certified by the 

Secretary of Commerce could be subject 

to prohibitions on the importation of 

certain fisheries products into the 

United States and other measures, 

including limitations on port access, 

under the High Seas Driftnet Fisheries 

Enforcement Act (Enforcement Act) (16 

U.S.C. 1826a). This final rule sets forth 

procedures to implement the 

identification and certification 

requirements of the Moratorium 

Protection Act. 

NMFS published an Advance Notice 

of Proposed Rulemaking (ANPR) on 

June 11, 2007 (72 FR 32052), to 

announce that it was developing 

certification procedures to address IUU 

fishing and bycatch of PLMRs pursuant 

to the Moratorium Protection Act and, 

based upon comments received, a 

proposed rule was published on January 

14, 2009 (74 FR 2019). Public comments 

were solicited on the proposed rule for 

a period of 120 days. In conjunction 

with publication of the proposed rule, 

NMFS held public hearings in 2009 in 

locations where it expected substantial 

public interest in the proposed 

procedures. These sessions were held in 

Boston, MA (March 16, 2009); Silver 

Spring, MD (April 6, 2009); San Diego, 

CA (April 13, 2009); Seattle, WA (April 

14, 2009); Honolulu, HI (April 27, 2009); 

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and Miami, FL (May 12, 2009). The 

public hearings provided valuable 

opportunities for NMFS to explain the 

proposed rule, respond to questions, 

and receive feedback from the public. A 

summary of the comments received on 

the proposed rule and how these 

comments were addressed in the final 

rule can be found below. Further 

background is provided in the abovereferenced Federal Register documents 

and is not repeated here. 

NMFS prepared a final Environmental 

Assessment (EA) to accompany this 

final rule. The EA was developed as an 

integrated document that includes a 

Regulatory Impact Review (RIR) and a 

Final Regulatory Flexibility Analysis 

(FRFA). Copies of the draft EA/RIR/ 

FRFA analysis are available at the 

following address: Office of 

International Affairs, F/IA, National 

Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD 

20910. Copies are also available via the 

Internet at the NMFS Web site at 

http://www.nmfs.noaa.gov/msa2007/. 

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: 

• Seek corroboration of the alleged 

IUU activity or credible information that 

refutes such allegations; 

• Communicate the requirements of 

the Moratorium Protection Act to the 

nation; and 

• Encourage such nation to take 

action to address the alleged IUU fishing 

activity in question. 

Prior to making identifications, NMFS 

will consider measures taken by the 

nation to address the IUU fishing 

activity of its vessels, information 

refuting allegations of IUU fishing 

activity, and domestic laws or 

regulatory programs designed to address 

IUU fishing activity, along with all 

verified information on alleged IUU 

fishing activity. 

In determining whether to make an 

IUU fishing identification, NMFS will 

consider whether a nation has 

implemented and is enforcing measures 

that are deemed comparable in 

effectiveness to measures implemented 

by the United States to address the 

pertinent IUU fishing activity. NMFS 

will also consider if an international 

fishery management organization exists 

with a mandate to regulate the fishery 

in which the IUU activity in question 

takes place, whether or not the nation is 

party to or maintains cooperating status 

with the organization, and whether or 

not the relevant RFMO has adopted 

measures that are deemed by NMFS to 

be effective at addressing such IUU 

fishing activity. If the nation is a party 

or cooperating non-party to the relevant 

RFMO, NMFS will consider whether the 

nation has implemented and is 

enforcing measures of that organization. 

Measures by nations to address IUU 

fishing could include those that reflect 

the recommendations of international 

organizations to prevent, deter and 

eliminate IUU fishing. Such flag State 

measures and actions, as relevant, may 

include, but are not limited to, those 

that fall into the following categories: 

• Data collection and catch reporting 

programs, including observer programs, 

catch documentation programs, and 

trade tracking schemes; 

• Trade-related measures that seek to 

reduce or eliminate trade in fish, and 

fish products derived from IUU fishing; 

• At-sea or dockside boarding and 

inspection schemes; 

• Programs documenting whether fish 

were caught in a manner consistent with 

conservation and management 

measures; 

• IUU vessel lists identifying fishing 

vessels that violate and/or undermine 

conservation and management 

measures; 

• Port State measures to prohibit 

landings or transshipment of 

unauthorized or other IUU catch; 

• Catch and effort monitoring, 

including licensing and permitting 

schemes, reporting, and vessel 

monitoring systems (VMS); 

• Bycatch reduction and mitigation 

strategies and techniques, such as gear 

restrictions or requirements, if the IUU 

fishing activity includes a violation of 

bycatch reduction or mitigation 

conservation and management 

measures; 

• Programs or measures to identify 

and protect vulnerable marine 

ecosystems (VMEs) in waters beyond 

any national jurisdiction (including 

seamounts, hydrothermal vents, and 

cold water corals) from significant 

adverse impacts due to bottom fishing 

activities; 

• Efforts to improve and enhance 

fisheries enforcement and compliance, 

including through the development of 

effective sanctions and monitoring, 

control and surveillance (MCS) 

capacity; and 

• Participation in voluntary 

international efforts to combat IUU 

fishing (e.g., the International 

Monitoring, Control, and Surveillance 

(MCS) Network or other cooperative 

enforcement and compliance networks). 

NMFS will also examine whether 

adequate enforcement measures and 

capacity exist to help promote 

compliance. 

Notification of and Consultations With 

Nations Identified as Having Fishing 

Vessels Engaged in IUU Fishing 

Upon identifying a nation whose 

vessels have been engaged in IUU 

fishing activities in the biennial report 

to Congress, the Secretary of Commerce 

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will notify the President of such 

identification. Within 60 days after 

submission of the biennial report to 

Congress, the Secretary of Commerce, 

acting through or in consultation with 

the Secretary of State, will notify: 

1. Nations that have been identified in 

the biennial report as having fishing 

vessels that are currently engaged, or 

were engaged at any point during the 

preceding 2 calendar years, in IUU 

fishing activities; 

2. Identified nations of the 

requirements under the Moratorium 

Protection Act and this subpart; and 

3. Any relevant international fishery 

management organization of actions 

taken by the United States to identify 

nations whose fishing vessels are 

engaged in IUU fishing. 

Within 60 days after submission of 

the biennial report to Congress, the 

Secretary of Commerce, acting through 

or in consultation with the Secretary of 

State, will initiate consultations with 

nations that have been identified in the 

biennial report as having fishing vessels 

that are currently engaged, or were 

engaged at any point during the 

preceding 2 calendar years, in IUU 

fishing activities for the purpose of 

encouraging such nations to take 

appropriate corrective action with 

respect to the IUU fishing activities 

described in the biennial report. 

Procedures To Certify Nations 

Identified as Having Fishing Vessels 

Engaged in IUU Fishing 

Subsequent to the identification, 

notification, and consultation processes 

outlined above, the Secretary will 

provide either a positive or negative 

certification to nations that have been 

identified in the biennial report as 

having fishing vessels engaged in IUU 

fishing. The Secretary of Commerce 

shall issue a positive certification to an 

identified nation upon making a 

determination that such nation has 

taken appropriate corrective action to 

address the activities for which such 

nation has been identified in the 

biennial report to Congress. When 

making such determination, the 

Secretary shall take into account 

whether a nation has provided 

documentary evidence that it has taken 

appropriate corrective action to address 

the IUU fishing activity described in the 

biennial report, or the relevant 

international fishery management 

organization has implemented measures 

that are effective in addressing the IUU 

fishing activity by vessels of the nation. 

NMFS will notify nations prior to a 

formal certification determination, and 

will provide such nations an 

opportunity to support and/or refute 

preliminary certification 

determinations, and communicate any 

corrective actions taken to address the 

IUU fishing activity described in the 

biennial report to Congress. 

Corrective actions that NMFS will 

consider include, but are not limited to, 

a nation’s: 

• Efforts towards improving data 

collection, catch monitoring, and 

reporting programs; 

• Record of implementation of or 

compliance with international measures 

to address IUU fishing; 

• Participation in technical assistance 

and capacity building programs to 

address IUU fishing and enhance 

regulatory efforts, as well as 

enforcement; 

• Adequacy of surveillance, 

enforcement, and prosecution to 

promote compliance with conservation 

and management measures and respond 

to non-compliance; 

• Response to IUU fishing activity; 

• Participation in voluntary 

international efforts to combat IUU 

fishing (e.g., the International 

Monitoring, Control, and Surveillance 

(MCS) network or other cooperative 

enforcement and compliance networks); 

and 

• Cooperation with other 

governments in enforcement, 

apprehension, and prosecution efforts 

related to those vessels of the identified 

nation that have engaged in IUU fishing. 

To determine whether a positive 

certification is warranted, NMFS will 

consider the extent to which the IUU 

fishing activities described in the 

biennial report have been effectively 

addressed, the likely effectiveness of the 

nation’s actions to deter future IUU 

activity, and whether measures that are 

comparable in effectiveness to measures 

implemented by the United States have 

been implemented and are being 

effectively enforced. Such flag State 

measures may include, but are not 

limited to: 

• Catch and effort monitoring, 

including licensing and permitting 

schemes, reporting, and vessel 

monitoring systems (VMS); 

• Programs for data collection and 

sharing, including observer programs; 

• Catch documentation and trade 

tracking schemes that identify the origin 

and document the legality of fish from 

the point of harvest through the point of 

market/import; 

• Trade-related measures, such as 

import and export controls or 

prohibitions, to reduce or eliminate 

trade in fish and fish products derived 

from IUU fishing; 

• Programs that document fish were 

caught in a manner consistent with, or 

that does not undermine, conservation 

and management measures; 

• Port State control measures; 

• At-sea and dockside inspection 

schemes; 

• Bycatch reduction and mitigation 

strategies and techniques, such as gear 

restrictions or requirements, if the IUU 

fishing activity includes a violation of 

bycatch reduction and mitigation 

requirements of an international 

agreement to which the United States is 

a party; 

• Systems to improve monitoring, 

control, and surveillance of fishing 

activities; 

• Sufficient sanctions and legal 

frameworks to support effective 

enforcement; and 

• Measures to protect VMEs from 

significant adverse impacts from bottom 

fishing activities in waters beyond any 

national jurisdiction. 

The Secretary of Commerce will make 

certification determinations pursuant to 

provisions of the Moratorium Protection 

Act in accordance with international 

law, including the WTO Agreement, 

regarding adoption of trade measures in 

a fair, transparent, and nondiscriminatory manner. When 

considering whether appropriate 

corrective action has been taken to 

warrant a positive certification, NMFS 

will take into account the outcome of 

consultations with the identified nation 

and comments received from such 

nation. NMFS will also evaluate actions 

taken by the relevant nation and 

applicable RFMO to address the IUU 

fishing activity described in the biennial 

report, including participation in 

applicable RFMOs and requests for 

assistance in building fisheries 

management and enforcement capacity. 

NMFS will also consider, as 

appropriate, whether the affected nation 

has implemented and is enforcing 

RFMO conservation and management 

measures designed to address IUU 

fishing activities. 

The Secretary of Commerce will make 

the first certification determinations no 

later than 90 days after promulgation of 

this rule. Subsequent certification 

determinations will be published in the 

biennial report. Identified nations will 

receive notice of certification 

determinations. 

Once certification determinations are 

published in the biennial report, NMFS 

will, working through or in consultation 

with the Department of State, continue 

consultations with negatively certified 

nations and provide them an 

opportunity to take corrective action 

with respect to the IUU fishing activities 

described in the biennial report to 

Congress. 

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Procedures To Identify Nations 

Engaged in PLMR Bycatch 

As required under the Moratorium 

Protection Act, NMFS will also identify, 

and list in the biennial report to 

Congress, nations whose fishing vessels 

are engaged, or have been engaged 

during the preceding calendar year in 

fishing activities either in waters 

beyond any national jurisdiction that 

result in PLMR bycatch, or beyond the 

U.S. exclusive economic zone (EEZ) that 

result in bycatch of a PLMR shared by 

the United States. 

When determining whether to 

identify a nation as having fishing 

vessels engaged in the bycatch of 

PLMRs, NMFS will evaluate, review, 

and verify appropriate information and 

evidence that are available to the 

agency. During this review, NMFS will 

take into account the extent of the 

PLMR bycatch and the impact of 

bycatch on sustainability of the PLMR. 

NMFS will also consider any actions 

taken by the nation to address the 

bycatch, information refuting the 

allegations of PLMR bycatch, and 

participation in cooperative research 

activities designed to address such 

bycatch. In addition, NMFS will 

consider whether adequate enforcement 

authority and capacity exist to promote 

compliance. 

NMFS will also examine if an 

international organization for the 

conservation and protection of such 

PLMR, or an international or regional 

fishery management organization with a 

mandate to regulate the fishery in which 

the bycatch activity in question 

occurred, exists; and whether the nation 

whose fishing vessels are engaged, or 

have been engaged during the preceding 

calendar year, in bycatch of PLMRs is 

party to or maintains cooperating status 

with the relevant international body. 

NMFS will examine whether the 

relevant international body has adopted 

measures that have been demonstrated 

to end or reduce bycatch of PLMRs; 

whether the nation is a party or 

cooperating non-party to the 

organization; and whether the nation 

has implemented, and is enforcing, such 

measures. If an identified nation is not 

party to the relevant international or 

regional body, NMFS will examine 

whether the nation has implemented 

measures deemed to be effective at 

addressing the bycatch of such PLMRs, 

including any measures that have been 

recommended by a relevant 

international body. Such measures, 

where appropriate, may include, but are 

not limited to: 

• Programs for data collection and 

sharing, including programs to assess 

the abundance and status of PLMRs and 

observer programs; 

• Bycatch reduction and mitigation 

strategies, techniques, and equipment, 

such as gear restrictions and gear 

modifications; and 

• Improved monitoring, control, and 

surveillance of fishing activities. 

Once NMFS has determined that 

information on PLMR bycatch is 

credible and provides a reasonable basis 

to believe or suspect that a nation’s 

fishing vessels are engaged in bycatch of 

PLMRs, NMFS, acting through or in 

consultation with the State Department, 

will initiate bilateral discussions with 

the identified nation. These discussions 

will, among other things: 

• Seek to corroborate the alleged 

PLMR bycatch or credible information 

that refutes such allegations; 

• Communicate the requirements of 

the Moratorium Protection Act to the 

nation; and 

• Encourage such nation to take 

action to address the alleged PLMR 

bycatch. 

Pursuant to the requirements under 

the Moratorium Protection Act, NMFS 

will publish a list of nations that have 

been identified as having fishing vessels 

engaged in bycatch of PLMRs in the 

biennial report to Congress. 

Notification and Consultation With 

Nations Identified as Having Fishing 

Vessels Engaged in Bycatch of PLMRs 

After submission of the biennial 

report to Congress, the Secretary of 

Commerce, acting through the Secretary 

of State, will officially notify nations 

that have been identified in the biennial 

report as having fishing vessels that are 

engaged in bycatch of PLMRs. Within 60 

days after submission of the biennial 

report to Congress, NMFS, acting 

through or in consultation with the 

State Department, will notify such 

nations of the requirements of the 

Moratorium Protection Act and initiate 

consultations regarding the bycatch of 

PLMRs. 

Upon submission of the biennial 

report to Congress, the Secretary of 

Commerce, acting through or in 

consultation with the Secretary of State, 

will: 

1. Initiate consultations with the 

governments of identified nations for 

the purposes of entering into bilateral 

and multilateral agreements and treaties 

with such nations to protect the PLMRs 

from bycatch activities described in the 

biennial report; and 

2. Seek agreements through the 

appropriate international organizations 

calling for international restrictions on 

the fishing activities or practices 

described in the biennial report that 

result in bycatch of PLMRs and, as 

necessary, request that the Secretary of 

State initiate the amendment of any 

existing international treaty to which 

the United States is a party for the 

protection and conservation of the 

PLMRs in question to make such 

agreements consistent with this subpart. 

International Cooperation and 

Assistance 

To the greatest extent possible 

consistent with existing authority and 

the availability of funds, NMFS shall 

provide assistance to nations identified 

as having vessels engaged in PLMR 

bycatch. NMFS will also provide 

assistance to international organizations 

of which those nations are members to 

assist with qualifying for a positive 

certification. Assistance activities may 

include, where appropriate, cooperative 

research activities on species 

assessments and improved bycatch 

mitigation techniques, improved 

governance structures, or improved 

enforcement capacity. NMFS will also 

encourage and facilitate the transfer of 

appropriate technology to identified 

nations or the organizations of which 

they are members to assist identified 

nations in qualifying for a positive 

certification and to assist those 

identified nations or organizations in 

designing and implementing 

appropriate fish harvesting methods that 

minimize bycatch of PLMRs. 

Procedures To Certify Nations 

Identified as Having Fishing Vessels 

Engaged in Bycatch of PLMRs 

Based on the identification, 

notification, and consultation processes 

outlined above, NMFS will certify 

nations that have been identified in the 

biennial report as having fishing vessels 

engaged in bycatch of PLMRs. NMFS 

will notify nations prior to a formal 

certification determination and will 

provide such nations an opportunity to 

support and/or refute preliminary 

certification determinations, and 

communicate any corrective actions 

taken to address the bycatch of PLMRs 

described in the biennial report to 

Congress. 

Identified nations will receive either a 

positive or negative certification from 

the Secretary of Commerce. A positive 

certification indicates that a nation has: 

1. Provided documentary evidence of 

the adoption of a regulatory program 

governing the conservation of the PLMR 

that is comparable to that of the United 

States, taking into account different 

conditions, and which, in the case of 

pelagic longline fishing, includes 

mandatory use of circle hooks, careful 

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handling and release equipment, and 

training and observer programs; and 

2. Established a management plan 

containing requirements that will assist 

in gathering species-specific data to 

support international stock assessments 

and conservation enforcement efforts for 

PLMRs. Stock assessments include 

population assessments. 

When determining whether a nation’s 

regulatory program is comparable to 

measures required in the United States, 

NMFS will consider whether the 

program is comparable in effectiveness, 

taking into account different conditions 

that could bear on the feasibility and 

efficacy of comparable measures. If 

other measures could address bycatch of 

the PLMRs in question that are 

comparable in effectiveness, then the 

implementation of such measures by a 

nation may be deemed sufficient for 

purposes of the Moratorium Protection 

Act. As relevant, NMFS will also 

consider whether measures have been 

implemented and effectively enforced 

including, but not limited to: 

• Programs for data collection and 

sharing, including programs to assess 

the abundance and status of PLMRs and 

observer programs; 

• Bycatch reduction and mitigation 

strategies, techniques, and equipment 

(including training and assistance for 

bycatch reduction technology and 

equipment); 

• Improved monitoring, control, and 

surveillance of fishing activities; 

• Efforts towards improving data 

collection, bycatch monitoring, and 

reporting programs; 

• Record of implementation of or 

compliance with international measures 

to address bycatch of PLMRs; 

• Participation in technical assistance 

and capacity building programs to 

reduce bycatch; 

• Surveillance, enforcement, and 

prosecution program and their adequacy 

for promoting compliance with 

conservation and management measures 

and responding to non-compliance; 

• Response to PLMR bycatch; and 

• Cooperation with other 

governments in enforcement, 

apprehension, and prosecution efforts 

related to those vessels of the identified 

nation that have engaged in PLMR 

bycatch. 

The Secretary of Commerce will make 

certification determinations pursuant to 

provisions of the Moratorium Protection 

Act in accordance with international 

law, including the WTO Agreement, 

regarding adoption of trade measures in 

a fair, transparent, and nondiscriminatory manner. When making 

certification determinations, the 

Secretary of Commerce will, in 

consultation with the Secretary of State, 

evaluate the information discussed 

above, comments received from such 

nation, the consultations with each 

identified nation, and subsequent 

actions taken by the relevant nation to 

address the bycatch of PLMRs described 

in the biennial report, including 

requests for assistance in the 

implementation of measures comparable 

to those of the United States and 

establishment of an appropriate 

management plan. The Secretary of 

Commerce will also take into account 

whether the nation participates in 

existing certification programs, such as 

that authorized under section 609 of 

Public Law 101–162, or the affirmative 

finding process under the International 

Dolphin Conservation Program Act (111 

Stat. 1122). Nothing in this rulemaking 

will modify such existing certification 

procedures. 

The Secretary of Commerce will 

publish certification determinations in 

the biennial report to the Congress. 

Identified nations will receive notice of 

certification determinations. 

Once certification determinations are 

published in the biennial report, NMFS 

will, working through or in consultation 

with the Department of State, continue 

consultations with the negativelycertified nations and provide them an 

opportunity to take corrective action 

with respect to the bycatch of PLMRs 

described in the biennial report to 

Congress. 

Effect of Certification Determinations 

If nations identified as having fishing 

vessels engaged in IUU fishing and/or 

bycatch of PLMRs receive a positive 

certification from the Secretary of 

Commerce pursuant to the Moratorium 

Protection Act, no actions will be taken 

against such nations. 

If an identified nation fails to take 

sufficient action to address IUU fishing 

and/or bycatch of PLMRs and does not 

receive a positive certification from the 

Secretary of Commerce, the nation 

could face denial of port privileges for 

its fishing vessels, prohibitions on the 

import of certain fish and fish products 

into the United States, and other 

appropriate measures. In determining 

the appropriate course of action to 

recommend to the President, the 

Secretary of Commerce and other 

Federal agencies, as appropriate, will 

take into account the nature, 

circumstances, extent, duration, and 

gravity of the fishing activity for which 

the initial identification was made; the 

degree of culpability; any history of 

prior IUU fishing activities or bycatch of 

PLMRs; and other relevant matters. The 

Secretary of Commerce, in cooperation 

with the Secretary of State, may initiate 

further consultations with identified 

nations that fail to receive a positive 

certification prior to determining an 

appropriate course of action. 

The Secretary of Commerce will 

recommend to the President appropriate 

measures, including trade restrictive 

measures, to be taken against identified 

nations that have not received a positive 

certification, to address the relevant IUU 

fishing activity and/or fishing activities 

or practices that result in PLMR bycatch 

for which such nations were identified 

in the biennial report. The Secretary 

will make such recommendations on a 

case by case basis in accordance with 

international obligations, including the 

WTO Agreement. Adoption of trade 

measures will be done in a fair, 

transparent, and non-discriminatory 

manner. If certain fish or fish products 

of a nation are subject to import 

prohibitions, to facilitate enforcement, 

NMFS may require that other fish or fish 

products from that nation that are not 

subject to the import prohibitions be 

accompanied by documentation of 

admissibility to be developed by NMFS. 

If NMFS decides to require that such 

fish or fish products be accompanied by 

documentation of admissibility, it will 

develop this documentation through a 

future rulemaking action and give the 

public an opportunity to review and 

provide comment. 

In implementing the certification 

procedures under the Moratorium 

Protection Act, in order to inform U.S. 

ports that cargo originating from a 

foreign port may be subject to import 

restrictions, NMFS intends to 

collaborate with other Federal agencies 

and, as appropriate, take advantage of 

existing prior notification procedures, 

such as those required under section 

343(a) of the Trade Act of 2002, or those 

proposed for further development under 

the International Trade Data System 

(ITDS) established under the Security 

and Accountability for Every (SAFE) 

Port Act of 2006 (Pub. L. 109–347). 

NMFS also intends to utilize existing 

documentation schemes developed by 

RFMOs, as appropriate. These efforts 

will be undertaken to help mitigate the 

effects of a negative certification 

determination on U.S. industry. 

If certain fish or fish products are 

prohibited from entering the United 

States, within six months after the 

imposition of the prohibition, the 

Secretary of Commerce shall determine 

whether the prohibition is insufficient 

to cause that nation to effectively 

address the IUU fishing described in the 

biennial report, or that nation has 

retaliated against the United States as a 

result of that prohibition. The Secretary 

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of Commerce shall certify to the 

President each affirmative 

determination that an import 

prohibition is insufficient to cause a 

nation to effectively address such IUU 

fishing activity or that a nation has 

taken retaliatory action against the 

United States. This certification is 

deemed to be a certification under 

section 1978(a) of Title 22, which 

provides that the President may direct 

the Secretary of the Treasury to prohibit 

the bringing or the importation into the 

United States of any products from the 

offending country for any duration as 

the President determines appropriate 

and to the extent that such prohibition 

is sanctioned by the WTO. 

Alternative Procedures 

Section 609(d)(2) of the Moratorium 

Protection Act authorizes the Secretary 

of Commerce to establish alternative 

procedures for importing fish or fish 

products from a vessel of a harvesting 

nation identified under section 609(a) of 

the Act in the event that the Secretary 

cannot reach a certification 

determination for such identified nation 

by the time of the next biennial report. 

The alternative procedures shall not 

apply to fish or fish products from 

identified nations that have received 

either a negative or a positive 

certification under this Act. Under these 

alternative procedures, the Secretary of 

Commerce may allow entry of fish or 

fish products on a shipment-byshipment, shipper-by-shipper, or other 

basis as long as specified conditions are 

met. 

For nations that have been identified 

as having fishing vessels engaged in IUU 

fishing and have not received a 

certification from the Secretary of 

Commerce, certain fish or fish products 

of that nation may be eligible for 

alternative certification procedures. To 

qualify for the alternative certification 

procedures, NMFS must determine, 

based on the best available information, 

that the relevant vessel has not engaged 

in IUU fishing, or been identified by an 

international fishery management 

organization as participating in IUU 

fishing activities. 

Section 610(c)(4) of the Moratorium 

Protection Act requires the Secretary of 

Commerce to establish alternative 

procedures for importing fish or fish 

products from a vessel of a harvesting 

nation identified under section 610(a) of 

the Act in the event that the Secretary 

cannot reach a certification 

determination for such identified nation 

by the time of the next biennial report. 

The alternative procedures shall not 

apply to fish or fish products from 

identified nations that have received 

either a negative or a positive 

certification under this Act. Under these 

alternative procedures, the Secretary of 

Commerce may allow entry of fish or 

fish products on a shipment-byshipment, shipper-by-shipper, or other 

basis as long as specified conditions are 

met. 

To qualify for the alternative 

certification procedures, NMFS must 

determine that imports were harvested 

by practices that do not result in 

bycatch of a protected living marine 

resource, or were harvested by practices 

comparable to those required in the 

United States, taking into account 

different conditions that affect the 

feasibility and efficacy of such practices, 

and which, in the case of pelagic 

longline fishing, includes mandatory 

use of circle hooks, careful handling and 

release equipment, and training and 

observer programs. NMFS must also 

determine that the vessel collects 

species-specific bycatch data that can be 

used to support international and 

regional assessments and efforts to 

conserve PLMRs. NMFS will make these 

determinations in accordance with 

international law, including the WTO 

Agreement, regarding adoption of trade 

measures in a fair, transparent, and nondiscriminatory manner. 

In its implementation of alternative 

certification procedures, NMFS will 

seek appropriate documentation to 

verify that imports were harvested in a 

manner consistent with the 

requirements of this subpart, such as 

chain-of-custody information, VMS 

reports, or other forms of verification. 

To the extent practicable, NMFS will 

rely on existing trade tracking programs 

to implement alternative procedures. 

Responses to Comments on the 

Proposed Rule 

NMFS received comments on the 

proposed rule, including comments 

from U.S. industry, non-governmental 

organizations, Marine Mammal 

Commission, private citizens, and other 

nations. Several comments received 

were not germane to this rulemaking 

and are not addressed in this section. 

These comments include potential 

legislative changes and other actions 

outside the scope of the statutory 

mandate. 

Several commenters provided broad 

suggestions that pertain to the overall 

implementation of the rule. Specifically, 

many commenters expressed their 

support for the certification process 

under the Moratorium Protection Act 

and the application of trade measures, 

including sanctions. 

NMFS received numerous comments 

asking the agency to adopt the strongest 

measures possible to address IUU 

fishing and the bycatch of PLMRs, as 

mandated by Congress, in order 

conserve these resources and level the 

playing field for U.S. fisherman. Several 

commenters recommended that NMFS 

hold other nations to the same rigorous 

and strict standards to which U.S. 

fishermen are subject, especially for 

Atlantic bluefin tuna fishing, and 

expressed dissatisfaction that NMFS is 

not aggressively utilizing trade 

sanctions as a tool to combat IUU 

fishing of shared highly migratory fish 

stocks. 

A comment was made that the threat 

of trade sanctions is often more effective 

than the actual imposition and that 

sanctions should only be used as a last 

resort if at all. 

In the following section, NMFS 

addresses the issues that directly relate 

to the measures in the rulemaking. 

General Comments 

Comment 1: One commenter 

recommended that NMFS coordinate 

the proposed rule with the European 

Union’s approach in order to have a 

unified global process to address IUU 

fishing. 

Response: NMFS is obligated to 

adhere to the Moratorium Protection Act 

that sets forth identification, 

consultation, and certification 

procedures to address IUU fishing and 

the bycatch of PLMRs. These procedures 

differ from the regulatory process of the 

European Union (EU) to address IUU 

fishing. EU Council Regulation 1005/ 

2008, which was passed in the fall of 

2008, requires, among other things, that 

most exports of seafood to the European 

market be accompanied by a catch 

document signed by a flag-state 

competent authority that the product 

was caught legally. NMFS is committed 

to working with our partners in the 

European Union in order address the 

global problem of IUU fishing and the 

bycatch of PLMRs. 

Comment 2: A commenter expressed 

concern that the implementation of the 

proposed rule will result in increased 

expenses to U.S. suppliers as well as to 

the Federal government. 

Response: The regulations will not 

directly increase costs to U.S. suppliers. 

However, it is possible to anticipate 

increased costs to U.S. suppliers. If a 

foreign nation’s ability to import certain 

fish or fish products into the United 

States is limited upon receipt of a 

negative certification and application of 

trade restrictive measures, this may 

impact the ability of U.S. suppliers to 

access fish or fish products from that 

nation. Alternative sources of fish and 

fish products could mitigate the impacts 

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of restrictions on U.S. suppliers’ access 

to fish and fish products. 

Comment 3: Several commenters 

suggested that NMFS should include in 

the biennial report to Congress 

information on the status of the RFMOs’ 

compliance committees and the 

performance reviews as an indicator of 

the effectiveness of the RFMOs actions 

related to implementing measures to 

avoid IUU and bycatch of PLMRs. 

Response: NMFS will include in the 

biennial report to Congress relevant 

information on RFMOs and their 

measures to address IUU fishing and the 

bycatch of PLMRs. 

Comment 4: A suggestion was made 

that NMFS prioritize situations where 

IUU is rampant or bycatch of PLMRs is 

clearly excessive, thus focusing the 

imposition of trade measures on the 

most egregious situations. 

Response: NMFS is required to 

address IUU fishing activity and the 

PLMR bycatch. When making 

identification decisions for both IUU 

fishing and bycatch, NMFS will 

consider the history, nature, 

circumstances, extent, duration, and 

gravity of the activity in question. 

Definition of IUU Fishing 

Comment 5: Several commenters 

suggested that NMFS should expand the 

definition of IUU fishing. Suggestions 

included addressing unreported fishing 

and fishing activities that are 

misreported to the relevant national or 

international fishery management 

authority, as well as violations of 

agreements to which the United States 

is not a party. Others suggested 

broadening the IUU fishing definition to 

include illegal incursions of a nation’s 

vessels into the waters of other nations 

(including U.S. waters), flagrant 

reflagging under flags of convenience, 

beneficial ownership, and lack of 

registration. 

Commenters also recommended that 

the definition of IUU fishing be as 

consistent as possible with the United 

Nation’s International Plan of Action to 

Prevent, Defer and Eliminate Illegal, 

Unreported and Unregulated Fishing 

(IPOA–IUU), as well as the UNFAO 

Agreement on Port State Measures. 

Response: At this time, NMFS 

believes it is not appropriate to modify 

the definition of IUU fishing through 

this regulatory action. NMFS 

appreciates the public is interested in 

having this definition modified, but 

NMFS has decided not to revise the 

definition until the agency is able to 

understand the implications for 

implementing the United Nations Food 

and Agriculture Organization’s 

Agreement on Port State Measures to 

Prevent, Deter and Eliminate Illegal, 

Unreported and Unregulated Fishing 

(Port State Measures Agreement). 

Although this agreement has been 

signed by the United States, it has not 

been ratified. At present, NOAA plans 

to revise the definition of IUU fishing in 

a subsequent rulemaking action to help 

ensure that the definition complies with 

our international as well as statutory 

obligations. In its development of the 

new definition, NMFS will consider 

what clarifications may be helpful for 

the definition, and will seek and take 

public comments on the definition. 

NMFS will also take the comments 

received in response to this rulemaking 

into account when formulating the new 

definition of IUU fishing. 

Comment 6: Several commenters were 

encouraged that NMFS’ definition of 

fishing vessels relative to its definition 

of IUU fishing extended to ‘‘vessels that 

are used for fishing or any activity 

relating to fishing, including, but not 

limited to, preparation, supply, storage, 

refrigeration, transportation, or 

processing, bunkering or purchasing 

catch, aiding or assisting one or more 

vessels at sea in the performance of such 

activity.’’ 

Response: NMFS has decided to 

retain the proposed definition of 

‘‘fishing vessels’’ in the final rule 

without amendment. 

Comment 7: A nation commented that 

the failure to meet the commitments of 

Resolution 61/105 of the United Nations 

General Assembly and the International 

Guidelines for the Management of Deepsea Fisheries in the High Seas should 

not be defined as IUU fishing, as there 

are no internationally agreed upon 

standards that would support such a 

determination. In addition, the nation 

suggested that NMFS only consider 

including flag State responsibilities 

related to these guidelines for deep seas 

fisheries in the definition of IUU fishing 

after the establishment of 

internationally agreed criteria for 

assessing flag State performance. 

Response: The portion of the 

definition of IUU fishing referenced by 

the commenter is mandatory under the 

Moratorium Protection Act. The aspect 

of the IUU fishing definition the 

commenter refers to includes fishing 

activity that has a significant adverse 

impact on seamounts, hydrothermal 

vents, cold water corals and other 

vulnerable marine ecosystems located 

beyond any national jurisdiction, for 

which there are no applicable 

conservation or management measures, 

including those in areas with no 

applicable international fishery 

management organization or agreement. 

This portion of the definition is required 

under the Moratorium Protection Act. 

Comment 8: One commenter 

recommended that NMFS include in its 

definition of IUU fishing the failure of 

the flag State to report the catch of its 

fishing vessels to the RFMO that it is 

party to, or other applicable authorities 

in its definition of IUU fishing. 

Response: Under the Moratorium 

Protection Act, NMFS is authorized to 

identify nations based on the IUU 

fishing activity of their vessels. If the 

vessels of a flag State fail to report their 

catch to the relevant RFMO and this 

action is required under a conservation 

and management measure of an RFMO 

to which the United States is a party, 

then failure to report the catch could be 

a potential basis for identifying the 

nation. 

Concerns Regarding IUU Fishing 

Comment 9: A comment was made in 

regards to a statement in the biennial 

report to Congress that ‘‘* * * more than 

one vessel must be engaged in IUU 

fishing for purposes of identification.’’ 

The commenter recommended that 

NMFS reinterpret the statute or attempt 

to remove legislative language limiting 

the criterion for identification that a 

nation must have more than one vessel 

engaged in IUU fishing. The commenter 

suggested that nations should be held 

responsible for any and all IUU fishing 

activity of their flagged vessels. 

Response: NMFS’ interpretation of the 

statute that more than one vessel of a 

nation must be engaged, or have been 

engaged, in IUU fishing activity to 

warrant identification under the 

Moratorium Protection Act is consistent 

with the statutory language. 

Comment 10: NMFS received a 

comment recommending improvements 

in traceability of catches to prevent IUU 

fishing. It was suggested that Catch 

Documentation Schemes (CDS) would 

help with these improvements. 

Response: NMFS agrees with the 

commenter and supports the adoption 

of tools to address traceability of catch, 

including catch documentation 

schemes, to help address IUU fishing, 

consistent with the purposes of the 

Moratorium Protection Act. 

Definition of Bycatch of PLMRs 

Comment 11: One commenter advised 

NMFS to revise the definition of bycatch 

of PLMRs to encompass any interaction 

with a non-target living marine resource 

that results in the capture, serious injury 

or mortality of that resource, regardless 

of whether the resource is discarded or 

kept for personal or commercial use. 

The commenter was concerned that the 

way the current definition is phrased 

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might suggest that if non-target living 

marine resources were to be kept on the 

vessel, they would not be considered 

bycatch, which would undermine 

efforts to conserve these species and 

reduce their bycatch. 

Another commenter recommended 

that NMFS’ definition of bycatch of 

PLMRs be revised to explicitly refer to 

any encounter of non-target living 

marine resources with fishing gear, not 

just encounters that result in mortality 

or serious injury. 

Response: NMFS sought to address 

these comments in the definition of 

bycatch in the final rule. The revised 

definition of PLMRs in the final rule is 

as follows: ‘‘Bycatch means the 

incidental or discarded catch of 

protected living marine resources or 

entanglement of such resources with 

fishing gear.’’ 

Concerns Regarding the Bycatch of 

PLMRs 

Comment 12: NMFS received a 

comment from the Marine Mammal 

Commission regarding the lack of 

available information and standards 

with respect to the bycatch of PLMRs, 

as well as the incomparable reporting 

requirement timelines and deadlines 

between IUU fishing and bycatch of 

PLMRs. Specifically, under the IUU 

fishing provisions, the Secretary has 60 

days after submission of the biennial 

report to Congress to notify identified 

nations and to initiate consultations, 

whereas the proposed rule only suggests 

that this occur ‘‘as soon as possible’’ 

with respect to the bycatch of PLMRs. 

Therefore, the Marine Mammal 

Commission recommends that NMFS 

establish deadlines for notification, 

consultation, and certification findings 

with respect to PLMR bycatch. 

Response: NMFS sought to address 

these comments by standardizing the 

timelines and deadlines for information 

collection, notification, consultation, 

and certification decisions for IUU 

fishing and bycatch of PLMRs under the 

Moratorium Protection Act, in a manner 

consistent with the statutory text of the 

Act. 

With respect to nations that are 

identified as having fishing vessels 

engaged in IUU fishing or bycatch of 

PLMRs, NMFS, acting through or in 

cooperation with the State Department, 

will notify such nations of the 

requirements of the Moratorium 

Protection Act and initiate consultations 

within 60 days of submission of the 

biennial report to Congress. 

Certification determinations will be 

made for nations that are identified as 

having vessels engaged in IUU fishing or 

bycatch of PLMRs on a biennial basis to 

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 

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Sustainability Foundation (ISSF) and 

individual companies. The Marine 

Mammal Commission recommended 

that NMFS establish procedures to 

allow various U.S. government agencies, 

foreign governments, international 

fishery management organizations, 

NGOs, industry organizations and the 

public to provide and exchange 

pertinent information for the 

identification and certification process. 

Response: NMFS concurs with the 

comments provided and will actively 

seek information from relevant sources 

with respect to the identification 

processes under the Moratorium 

Protection Act. As an illustration, NMFS 

published and circulated two notices in 

the Federal Register on March 5, 2010 

(75 FR 10213), and April 6, 2010 (75 FR 

17379), soliciting information on IUU 

fishing and PLMR bycatch activities 

prior to the development of the list of 

nations that were identified in the 

January 2009 Biennial Report to 

Congress, and that will be identified in 

the 2011 report. NMFS will continue to 

solicit information from the public that 

could be used for the identification 

processes under the Moratorium 

Protection Act, actively seek 

information from RFMOs and 

international organizations for the 

protection of PLMRs, and examine other 

information deemed relevant for our 

decision-making processes. 

Comment 19: A commenter 

recommended that NMFS give 

preference to government information, 

information that has undergone a peerreview process, or information that has 

been agreed upon through tribunals or 

some other legal mechanism in making 

decisions regarding certification. 

Several commenters also 

recommended that NMFS utilize 

‘‘additional resources’’ to verify 

documentation on which a certification 

will be made; however, none of the 

commentators identified what those 

‘‘additional resources’’ would be. 

Further, NMFS received numerous 

comments with respect to both IUU 

fishing and the bycatch of PLMRs, 

regarding the lack of abundance and 

poor quality of the information that 

would be available and possibly used to 

identify and certify nations. 

Response: When determining whether 

to identify a nation as having fishing 

vessels engaged in IUU fishing or 

bycatch of PLMRs, as well as certifying 

an identified nation, NMFS will analyze 

and assess all available information 

from a variety of sources. NMFS will 

exercise due diligence in evaluating 

which information and evidence is most 

appropriate for use in identifying and 

certifying nations. This information 

could include data actively gathered by 

the U.S. Government as well as data 

offered by other nations, or international 

organizations (such as RFMOs), 

institutions, or arrangements that 

provides a reasonable basis to believe or 

suspect that a nation’s vessels have been 

engaged in IUU fishing or bycatch of 

PLMRs. 

Comment 20: A commenter 

recommended that NMFS establish a 

process to notify nations and 

international fishery management 

bodies of the Moratorium Protection Act 

requirements. 

Response: The Moratorium Protection 

Act requires notification and as such, 

the final regulations lay out what NMFS 

will communicate to nations. NMFS has 

been actively conducting outreach and 

communicating the requirements of the 

Moratorium Protection Act to nations 

and international fishery management 

organizations over the past 3 years. 

Comment 21: One commenter 

requested that NMFS provide 

information regarding the efforts that 

the United States has undertaken to 

eliminate its own IUU fishing and 

PLMR bycatch. The commenter 

expressed that this would not only 

facilitate earlier compliance, but also 

help in information-gathering and 

negotiations. 

Response: NMFS will summarize 

efforts to address PLMR bycatch and, as 

appropriate, may provide information 

on efforts to address IUU fishing in the 

biennial report to Congress. 

Comment 22: A comment was made 

by a nation that NMFS should publish 

all information sources used in the 

certification process. 

Response: NMFS will publish the 

information sources, as appropriate, that 

are used in the certification decisionmaking under the Moratorium 

Protection Act in the biennial report to 

Congress. 

Identification and Certification 

Comment 23: A comment suggested 

that in order to make the task of 

identifying and listing a nation easier, 

the proposed language for section 

608(c)(1) of the High Seas Driftnet 

Fishing Moratorium Protection Act in 

H.R. 1080 section 2(b), should be 

clarified so that if vessels and vessel 

owners are identified as engaging in 

IUU fishing by an international fishery 

management organization or through an 

international agreement, the vessel 

would automatically be added to the 

Secretary’s list and subject to possible 

action under the proposed section 

608(c)(2). 

Response: Legislative changes are 

outside the scope of this action. 

However, NMFS notes that, when 

considering an IUU fishing 

identification under the Moratorium 

Protection Act, NMFS will examine 

information regarding vessels flagged to 

a nation that is identified by an 

international fishery management 

organization to which the United States 

is a party as having engaged in IUU 

fishing. The Moratorium Protection Act 

provides for consideration of vessels’ 

IUU fishing activities during the 

preceding 2 years. 

Comment 24: A commenter 

recommended that, in addition to 

identifying nations based on vesselspecific activity, NMFS also utilize 

trade analysis that compares reported 

catches and trade data for the purposes 

of identifying IUU fishing occurring in 

a fishery. The commenter is concerned 

that in some situations vessel level 

information will not be sufficient to 

support identification, but rather trade 

analysis could be a strong indication 

that the fishery as a whole is not being 

adequately monitored and enforced by 

the particular country or set of countries 

and therefore the products from that 

fishery should be considered IUUderived. 

Response: Under the Moratorium 

Protection Act, NMFS is required to 

identify nations whose vessels engage in 

IUU fishing activity or bycatch of 

PLMRs. Therefore, a determination must 

be made based upon vessel specific 

information. 

Comment 25: A comment 

recommended that the United States 

pursue schemes requiring all fishing 

vessels to have International Maritime 

Organization numbers, or an equivalent 

system for smaller vessels. It was 

suggested that in order to encourage 

vessel owners to register with an 

International Maritime Organization 

system, NMFS could automatically list 

any unregistered vessel. 

Response: NMFS supports efforts 

made at the international level to 

enhance the identification and 

encourage registration of all fishing 

vessels, which would improve the 

tracking of vessel activities and 

compliance with international 

registration requirements. To the extent 

that vessels of a nation are fishing 

without authorization in violation of a 

conservation and management measure 

of an RFMO, NMFS will consider 

identification of these nations as 

required under the Moratorium 

Protection Act. 

Comment 26: One comment 

recommended that NMFS not only 

identify and list nations for having 

vessels engaged in IUU fishing, but also 

the specific vessel as well as the 

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fisheries in which they are engaged. The 

commenter was concerned that, under 

the current regulations, all fishing 

vessels flying the flag of an identified 

country will be incriminated, as 

opposed to only those vessels or 

fisheries actually engaged in IUU 

fishing. 

Response: NMFS will, to the extent 

practicable, identify the specific vessels 

of a nation that are engaged in IUU 

fishing activities for purposes of 

identification under the Moratorium 

Protection Act in the biennial report to 

Congress. 

Comment 27: A nation commented 

that it was pleased to see that 

consultation is a key aspect of the 

identification and certification process. 

The nation recommended that NMFS 

consult in a way to ensure the 

transparency and fairness of these 

processes. 

Response: NMFS agrees that 

consultations are a key aspect of the 

identification and certification 

processes under the Moratorium 

Protection Act. NMFS will seek to 

implement the Moratorium Protection 

Act to ensure fairness and transparency. 

Comment 28: NMFS received a 

question from a nation requesting 

clarification of the documentation 

required with respect to § 300.205(b)(1) 

(Such finding may include a 

requirement that fish or fish products 

from such nations be accompanied by 

documentation of admissibility.). 

Response: If an identified nation fails 

to receive a positive certification from 

the Secretary of Commerce, and the 

President determines that certain fish 

and fish products from that nation are 

ineligible for entry into the United 

States and U.S. territories, then NMFS 

may require that fish or fish products 

not subject to the import restrictions 

from the nation be accompanied by 

admissibility documentation to be 

developed by NMFS. This requirement 

would be put into place if deemed 

necessary to assist with monitoring and 

compliance with the import 

prohibitions. 

Comment 29: A comment from a 

nation stated that with respect to 

§ 300.205(a)(2) (‘‘* * * If there is no 

applicable international fishery 

agreement, the Secretary of Commerce 

shall not recommend import 

prohibitions that would apply to fish or 

fish products caught by vessels not 

engaged in IUU fishing * * *’’), both the 

intent and the language of this article 

are unclear. The nation recommended 

that NMFS clearly explain the effects of 

negative certification and to whom it 

applies in relation to bycatch of PLMRs. 

Response: NMFS has revised the final 

rule to mirror the text of the Act more 

closely. In response to the comment 

provided, NMFS clarifies that, for 

nations identified under § 300.202(a) 

that are not positively certified, NMFS 

believes that import prohibition 

recommendations should be made with 

respect to fish or fish products managed 

under the applicable international 

fishery agreement. If there is no 

applicable agreement, import 

prohibition recommendations should be 

made with respect to fish or fish 

products caught by vessels engaged in 

the IUU fishing activity. For nations 

identified under § 300.203(a) that are 

not positively certified, NMFS believes 

that import prohibition 

recommendations should be made with 

respect to fish or fish products caught 

by the vessels engaged in the relevant 

activity for which the nation was 

identified. 

Comment 30: A nation requested that 

NMFS clarify § 300.203(d)(2)(ii) (‘‘Such 

nation has established a management 

plan that will assist in the collection of 

species-specific data on PLMR bycatch 

to support international stock 

assessments and conservation efforts for 

PLMRs’’). Specifically, the nation 

wanted to know if PLMRs include 

species that are managed by an 

international fishery management 

organization, and the likelihood of 

having international stock assessments 

and conservation efforts for PLMRs. The 

nation recommended that NMFS delete 

‘‘international stock assessments’’ as 

they are captured under broader 

‘‘conservation efforts.’’ 

Response: The definition of PLMRs 

set forth in the Moratorium Protection 

Act exempts those species, with the 

exception of sharks, that are managed by 

an RFMO. The statute requires that 

nations identified as having vessels 

engaged in PLMR bycatch establish a 

management plan that will assist in the 

collection of species-specific data for 

use in international assessments in 

order to receive a positive certification. 

Comment 31: A commenter 

recommended that the United States 

place the burden of proof on the nations 

wishing to export product to the United 

States that they have not engaged in IUU 

fishing or PLMR bycatch. The 

commenter suggested that by placing 

the burden of proof on the exporting 

nation, the United States will encourage 

other nations to enhance their 

monitoring and enforcement 

requirements to eliminate IUU fishing 

and bycatch of PLMRs. 

Response: NMFS does not have 

authority under the Moratorium 

Protection Act to require that nations 

bear the burden of proving that their 

exports to the United States were 

harvested by vessels that have not 

engaged in IUU fishing or PLMR 

bycatch. 

Comment 32: Several commenters 

recommended that deadlines for 

certification findings with respect to 

bycatch of PLMRs need to be 

established. Specifically, a timeline 

should be created by which nations are 

to meet the applicable comparability 

requirements or face certification. 

Response: In this final rule, NMFS 

clarifies that nations identified for 

having vessels engaged in PLMR 

bycatch meet the requirements for a 

positive certification prior to the 

subsequent biennial report to Congress. 

Therefore, each identified nation will 

have approximately 2 years to take 

sufficient corrective action before a 

certification decision is made. 

Comment 33: A commenter suggested 

that NMFS should evaluate not only the 

statutory or regulatory requirements that 

apply to a fishery but also the 

effectiveness of a nation’s efforts to 

achieve compliance with those 

requirements. Thus, the proposed rule 

should provide greater detail on the 

types of data and information that will 

be required from nations and the 

standards that will be used to judge the 

sufficiency of documentary evidence for 

certification. 

Response: In its implementation of 

the Moratorium Protection Act, NMFS 

will evaluate whether a nation 

identified as having fishing vessels 

engaged in IUU fishing or PLMR 

bycatch has taken appropriate corrective 

action and is implementing and 

enforcing such actions. In its evaluation, 

NMFS will consider several types of 

documentary evidence and will work 

with the nation to examine what 

information is available to determine 

whether appropriate corrective action is 

taken. For example, NMFS will examine 

logbook data, laws and regulations to 

address IUU fishing activity, and 

written documentation of permit 

revocation, among other things. 

Comment 34: A comment was made 

regarding revising the timeline for 

reporting on the identification process. 

A commenter suggested that stipulating 

such reports as ‘‘biennial’’ alone is 

insufficient, as subsequent reports could 

be provided two years to the calendar 

year rather than the calendar date. 

Specifically, a commenter 

recommended that the language in 

§ 300.202(a)(1) of the proposed 

regulation be revised to read: ‘‘NMFS 

will identify and list, in a biennial 

report provided to Congress, no later 

than 2 years after the date of the prior 

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biennial report, nations whose fishing 

vessels are engaged, or have been 

engaged at any point during the 

preceding two calendar years, in IUU 

fishing’’ (recommended modifications in 

italics). 

Response: NMFS is retaining the text 

as proposed, as it is consistent with 

section 607 of the Moratorium 

Protection Act, which requires the 

biennial report to be produced 2 years 

after enactment of the MSRA and every 

2 years thereafter. 

Comment 35: Several comments 

recommended that the time period in 

which IUU and bycatch activities are 

considered for identifying countries 

should be extended to 3 years. 

Commenters expressed concern that if 

NMFS reports on a biennial basis and 

only considers bycatch of PLMRs during 

the previous calendar year, data from 

every other year would not be 

considered in the report. Secondly, 

several commenters expressed concern 

that the current two-year time period 

limits NMFS from effectively collecting 

sufficient catch data and information on 

bycatch. 

Response: As reflected in prior 

comments and responses above, NMFS 

recognizes the concerns regarding the 

availability of data and information for 

purposes of making identifications 

under the Moratorium Protection Act. 

NMFS plans to examine PLMR bycatch 

information from as broad a timeframe 

as possible under the Act. For IUU 

fishing, NMFS will examine information 

on IUU fishing activities during a 2-year 

period, consistent with the Act. 

Comment 36: NMFS received several 

comments in support of the idea of 

having alternative certification 

procedures on a shipper-by-shipper 

basis. In addition, the Marine Mammal 

Commission commented that alternative 

certification procedures should require 

rigorous chain-of-custody 

documentation, greater controls on 

transshipment than currently exist, and 

real-time monitoring and verification to 

substantiate that individual vessels, 

shipments, or shippers fully comply 

with the bycatch reduction measures. 

They also recommended that NMFS 

defer the implementation of alternative 

certification procedures until nations or 

RMFOs can adopt monitoring and 

verification procedures coupled with 

mandatory real-time tracking and 

documentation of products obtained in 

compliance with bycatch reduction 

procedures. 

Response: NMFS recognizes the value 

of establishing alternative certification 

procedures on a shipper-by-shipper 

basis for those identified nations that 

have not received a certification 

decision from the Secretary of 

Commerce. In the implementation of the 

Moratorium Protection Act, the 

Secretary of Commerce intends to issue 

a positive or negative certification 

decision for each nation that is 

identified as having vessels engaged in 

either IUU fishing or PLMR bycatch. 

However, NMFS will use alternative 

procedures in the case that a 

certification decision cannot be reached. 

For nations that are negatively certified, 

entry of fish or fish products not subject 

to the import prohibitions could be 

facilitated by accompaniment of these 

products by documentation of 

admissibility under § 300.205(b)(2). 

Comment 37: One commenter 

recommended that NMFS recognize the 

existing traceability system used for 

tuna products and its proven track 

record, and clarify that for tuna 

products the Secretary intends to use 

the alternative procedures authority, 

absent some new information. 

Response: NMFS recognizes the 

effective existing systems used for 

tracking the trade of tuna products. In 

its implementation of alternative 

certification procedures for this 

particular species, NMFS will rely on 

existing trade tracking programs and 

seek chain-of-custody documentation, 

real-time monitoring and verification to 

substantiate that individual vessels, 

shipments, or shippers fully comply 

with requirements of these procedures. 

Comment 38: A commenter 

recommended that a strict set of criteria 

be put in place so that countries know 

what is expected of them in terms of 

making adequate reforms, and so that 

the public can understand the criteria 

by which decisions are made in terms 

of certifications. 

Response: Given the broad scope of 

IUU fishing and bycatch activities for 

which a nation could be identified, it is 

difficult to predict what types of data 

and information will be required of 

nations, or what standards would need 

to be met to receive a positive 

certification in each specific case. 

Rather, NMFS will determine the data, 

information, and standards on a case-bycase basis. 

Comment 39: A commenter 

recommended that public consultations 

be built into the certification process as 

this will help ensure transparency in 

decision making about how a positive or 

negative certification is made. 

Response: The Moratorium Protection 

Act requires the Secretary of Commerce 

to notify nations prior to certification, 

and provide such nations with an 

opportunity to comment on the 

certification determinations. NMFS will 

provide notice of the official 

certifications in the subsequent biennial 

report to Congress. 

Trade Sanctions 

Comment 40: A few commenters 

stated that the Moratorium Protection 

Act specifies that the negative 

certification of a nation, or lack of 

certification with respect to IUU fishing 

activity or bycatch of PLMRs, triggers 

mandatory import prohibitions and 

provides that the President ‘‘shall’’ direct 

that importation of fish and fish 

products be prohibited immediately 

upon being notified that a nation is 

identified as having engaged in IUU 

fishing or PLMR bycatch, or if 

consultations with the government of 

such a nation have not concluded 

satisfactorily within 90 days. However, 

the commenter finds that the rule 

conflicts with the Act, as it states that 

such nations ‘‘may be subject’’ to import 

prohibitions. The commenter 

recommends that NMFS clarify the rule 

to reflect the mandatory requirements of 

the Act, as well as the stated timeline 

for implementing import prohibitions. 

Response: The Secretary of Commerce 

only has the authority to make 

recommendations to the President on 

import prohibitions of fish or fish 

products. Thus, the rule was drafted to 

focus on the Secretary’s roles and 

actions. 

Comment 41: NMFS received a 

comment recommending that the 

proposed rule clearly identify which 

fish products or fishing vessels of 

negatively certified nations would be 

subject to the import prohibitions. 

Similarly, a nation expressed that it is 

not clear from the proposed rule 

whether all fish products or all fishing 

vessels of a negatively certified nation 

would be subject to import prohibitions. 

The nation recommended that if import 

prohibitions are applied only to some 

fish products or some fishing vessels, 

NMFS should clarify the criteria that 

will be used to make that determination. 

Response: The scope of any traderelated actions would be at the 

discretion of the President. However, in 

making recommendations to the 

President with respect to prohibitions 

on the importation of fish and fish 

products from nations identified as 

having vessels engaged in IUU fishing or 

PLMR bycatch that did not receive a 

positive certification from the Secretary 

of Commerce, NMFS will take into 

account the fish and fish products 

affected by the IUU fishing or PLMR 

bycatch activity in question. 

Comment 42: One commenter 

suggested that punitive measures should 

not be limited solely to nations; 

penalties or trade restrictions should 

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also be imposed on vessel operators, 

fishing masters, senior executives, 

directors of companies, and traders 

deemed to be engaged in, involved with, 

or benefitting from IUU fishing. 

Response: The Moratorium Protection 

Act only provides authority for the 

Secretary of Commerce to identify and 

certify nations for the activities of its 

vessels. 

Changes From Proposed Action 

In addition to streamlining the final 

rule to reduce duplication and ease 

readability, NMFS has made several 

changes in the final rule to respond to 

public comments, provide clarification, 

and revise some text to reflect better text 

in the Act. The key changes are outlined 

below. 

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 § 300.202(a) that are not 

positively certified, NMFS believes that 

import prohibition recommendations 

should be made with respect to fish or 

fish products managed under the 

applicable international fishery 

agreement. If there is no applicable 

agreement, import prohibition 

recommendations should be made with 

respect to fish or fish products caught 

by vessels engaged in the IUU fishing 

activity. For nations identified under 

§ 300.203(a) that are not positively 

certified, NMFS believes that import 

prohibition recommendations should be 

made with respect to fish or fish 

products caught by vessels engaging in 

the relevant activity for which the 

nation was identified. 

Classification 

This final rule is published under the 

authority of the Moratorium Protection 

Act, 16 U.S.C. 1826d–1826k. 

This rulemaking has been determined 

to be significant for the purposes of 

Executive Order 12866. 

A final regulatory flexibility analysis 

(FRFA) was prepared, as required by 

section 603 of the RFA. The FRFA 

describes the economic impact this rule 

would have on small entities. A 

description of the action, why it is being 

considered, and the legal basis for this 

action are contained at the beginning of 

this section in the preamble and in the 

SUMMARY section of the preamble. A 

summary of the analysis follows. A copy 

of this analysis is available from NMFS 

(see ADDRESSES). 

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NMFS received public comments on 

the proposed rule, and made some 

revisions to the final rule to clarify 

provisions. A summary of public 

comments on the proposed rule and 

agency responses is provided above. 

NMFS did not receive comments 

specifically on the IRFA or on issues 

related to the IRFA. 

This final rule does not apply directly 

to any U.S. small business, as the 

rulemaking is aimed at foreign nations 

whose vessels engage in fishing 

activities. The universe of potentially 

indirectly affected industries includes 

the following: U.S. ports and U.S. 

seafood harvesters, processors, 

wholesalers, and importers. Ports 

generate economic activity across many 

sectors, including surface 

transportation; maritime services; cargo 

handling; federal, state, and local 

governments; port authorities; importers 

and consignees; and the banking and 

insurance sectors. Maritime services 

include pilots, handlers (food and other 

supplies), towing, bunkering (fuel), 

marine surveyors, and shipyard and 

marine construction. Cargo handling 

services include longshoremen, 

stevedoring, terminal operators, 

warehouse operators, and container 

leasing and repair. 

No U.S. industry is directly affected 

by this rulemaking, although indirect 

effects may cause short term disruptions 

in the flow of seafood imports, and thus 

potentially impact U.S. businesses. 

NMFS does not anticipate that national 

net benefits and costs would change 

significantly in the long term as a result 

of the implementation of the proposed 

alternatives. 

Although this action will not have 

significant economic impacts on a 

substantial number of small U.S. 

entities, NMFS decided to analyze 

different alternatives in the FRFA for 

the certification procedures in this rule. 

In order to meet the objectives of the 

Moratorium Protection Act and this 

final rule, NMFS cannot exempt small 

entities, change reporting requirements 

only for small entities, or use 

performance or design standards in lieu 

of the regulatory requirements in the 

rule. Sections 2.2 and 2.3 of the 

Environmental Assessment describe the 

alternatives analyzed for certification 

procedures for IUU fishing and bycatch. 

The Alternatives for Certification for 

nations whose vessels are engaged, or 

have been engaged in, IUU fishing 

activities are as follows: Under 

Alternative I–1, the No Action 

Alternative, NMFS would not develop 

any new procedures to address the 

certification of nations identified in the 

biennial report to Congress (called for in 

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-ofinformation requirements for 

§§ 300.205(b)(2), 300.206(c), and 

300.207(c) subject to review and 

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approval by OMB under the Paperwork 

Reduction Act (PRA). However, NMFS 

is delaying the effective date of these 

sections until NMFS receives OMB 

approval for these collections. After 

OMB approval is received, NMFS will 

publish the effective date for these 

sections in the Federal Register. 

List of Subjects in 50 CFR Part 300 

Administrative practice and 

procedure, Antarctica, Canada, Exports, 

Fish, Fisheries, Fishing, Imports, 

Indians, Labeling, Marine resources, 

Reporting and recordkeeping 

requirements, Russian Federation, 

Transportation, Treaties, Wildlife. 

Dated: January 7, 2011. 

Eric C. Schwaab, 

Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

■ For the reasons set out in the 

preamble, NMFS amends 50 CFR part 

300 as follows: 

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS 

■ 1. Subpart N is revised to read as 

follows: 

Subpart N—Identification and Certification 

of Nations 

Sec. 

300.200 Purpose and scope. 

300.201 Definitions. 

300.202 Identification and certification of 

nations engaged in illegal, unreported, or 

unregulated fishing activities. 

300.203 Identification and certification of 

nations engaged in bycatch of protected 

living marine resources. 

300.204 Effect of certification. 

300.205 Denial of port privileges and 

import restrictions on fish or fish 

products. 

300.206 Alternative procedures for IUU 

fishing activities. 

300.207 Alternative procedures for bycatch 

of PLMRs. 

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

Subpart N—Identification and 

Certification of Nations 

§ 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. 

§ 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. 

§ 300.202 Identification and certification of 

nations engaged in illegal, unreported, or 

unregulated fishing activities. 

(a) Procedures to identify nations 

whose fishing vessels are engaged in 

IUU fishing—(1) NMFS will identify 

and list, in a biennial report to Congress, 

nations whose fishing vessels are 

engaged, or have been engaged at any 

point during the preceding two years, in 

IUU fishing. 

(2) When determining whether to 

identify a nation as having fishing 

vessels engaged in IUU fishing, NMFS 

will take into account all relevant 

matters, including but not limited to the 

history, nature, circumstances, extent, 

duration, and gravity of the IUU fishing 

activity in question, and any measures 

that the nation has implemented to 

address the IUU fishing activity. NMFS 

will also take into account whether an 

international fishery management 

organization exists with a mandate to 

regulate the fishery in which the IUU 

activity in question takes place. If such 

an organization exists, NMFS will 

consider whether the relevant 

international fishery management 

organization has adopted measures that 

are effective at addressing the IUU 

fishing activity in question and, if the 

nation whose fishing vessels are 

engaged, or have been engaged, in IUU 

fishing is a party to, or maintains 

cooperating status with, the 

organization. 

(b) Notification of nations identified 

as having fishing vessels engaged in IUU 

fishing. Upon identifying a nation 

whose vessels have been engaged in 

IUU fishing activities in the biennial 

report to Congress, the Secretary of 

Commerce will notify the President of 

such identification. Within 60 days after 

submission of the biennial report to 

Congress, the Secretary of Commerce, 

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acting through or in consultation with 

the Secretary of State, will: 

(1) Notify nations that have been 

identified in the biennial report as 

having fishing vessels that are currently 

engaged, or were engaged at any point 

during the preceding two calendar 

years, in IUU fishing activities; 

(2) Notify identified nations of the 

requirements under the Moratorium 

Protection Act and this subpart; and 

(3) Notify any relevant international 

fishery management organization of 

actions taken by the United States to 

identify nations whose fishing vessels 

are engaged in IUU fishing and initiate 

consultations with such nations. 

(c) Consultation with nations 

identified as having fishing vessels 

engaged in IUU fishing. Within 60 days 

after submission of the biennial report 

to Congress, the Secretary of Commerce, 

acting through or in cooperation with 

the Secretary of State, will initiate 

consultations with nations that have 

been identified in the biennial report for 

the purpose of encouraging such nations 

to take appropriate corrective action 

with respect to the IUU fishing activities 

described in the biennial report. 

(d) Procedures to certify nations 

identified as having fishing vessels 

engaged in IUU fishing. Each nation that 

is identified as having fishing vessels 

engaged in IUU fishing shall receive 

either a positive or a negative 

certification from the Secretary of 

Commerce, and this certification will be 

published in the biennial report to 

Congress. A positive certification 

indicates that a nation has taken 

appropriate corrective action to address 

the IUU fishing activity described in the 

biennial report. A negative certification 

indicates that a nation has not taken 

appropriate corrective action. 

(1) The Secretary of Commerce shall 

issue a positive certification to an 

identified nation upon making a 

determination that such nation has 

taken appropriate corrective action to 

address the activities for which such 

nation has been identified in the 

biennial report to Congress. When 

making such determination, the 

Secretary shall take into account the 

following: 

(i) Whether the government of the 

nation identified pursuant to paragraph 

(a) of this section has provided evidence 

documenting that it has taken corrective 

action to address the IUU fishing 

activity described in the biennial report; 

or 

(ii) Whether the relevant international 

fishery management organization has 

adopted and, if applicable, the 

identified member nation has 

implemented and is enforcing, measures 

to effectively address the IUU fishing 

activity of the identified nation’s fishing 

vessels described in the biennial report. 

(2) Prior to a formal certification 

determination, nations will be provided 

with preliminary certification 

determinations and an opportunity to 

support and/or refute the preliminary 

determinations and communicate any 

corrective actions taken to address the 

activities for which such nations were 

identified. The Secretary of Commerce 

shall consider any information received 

during the course of these consultations 

when making the subsequent 

certification determinations. 

§ 300.203 Identification and certification of 

nations engaged in bycatch of protected 

living marine resources. 

(a) Procedures to identify nations 

whose fishing vessels are engaged in 

PLMR bycatch—(1) NMFS will identify 

and list, in the biennial report to 

Congress, nations whose fishing vessels 

are engaged, or have been engaged 

during the preceding calendar year prior 

to publication of the biennial report to 

Congress, in fishing activities or 

practices either in waters beyond any 

national jurisdiction that result in 

bycatch of a PLMR, or in waters beyond 

the U.S. EEZ that result in bycatch of a 

PLMR that is shared by the United 

States. When determining whether to 

identify nations as having fishing 

vessels engaged in PLMR bycatch, 

NMFS will take into account all relevant 

matters including, but not limited to, 

the history, nature, circumstances, 

extent, duration, and gravity of the 

bycatch activity in question. 

(2) NMFS will also examine whether 

there is an international organization 

with jurisdiction over the conservation 

and protection of the relevant PLMRs or 

a relevant international or regional 

fishery organization. If such 

organization exists, NMFS will examine 

whether the organization has adopted 

measures to effectively end or reduce 

bycatch of such species; and if the 

nation whose fishing vessels are 

engaged, or have been engaged during 

the preceding calendar year prior to 

publication of the biennial report to 

Congress, in bycatch of PLMRs is a party 

to or maintains cooperating status with 

the relevant international organization. 

(3) NMFS will also examine whether 

the nation has implemented measures 

designed to end or reduce such bycatch 

that are comparable in effectiveness to 

U.S. regulatory requirements. In 

considering whether a nation has 

implemented measures that are 

comparable in effectiveness to those of 

the United States, NMFS will evaluate 

if different conditions exist that could 

bear on the feasibility and efficiency of 

such measures to end or reduce bycatch 

of the pertinent PLMRs. 

(b) Notification of nations identified 

as having fishing vessels engaged in 

PLMR bycatch. Upon identifying a 

nation whose vessels have been engaged 

in bycatch of PLMRs in the biennial 

report to Congress, the Secretary of 

Commerce will notify the President of 

such identification. Within 60 days after 

submission of the biennial report to 

Congress, the Secretary of Commerce, 

acting through or in consultation with 

the Secretary of State, will notify 

identified nations about the 

requirements under the Moratorium 

Protection Act and this subpart. 

(c) Consultations and negotiations. 

Upon submission of the biennial report 

to Congress, the Secretary of Commerce, 

acting through or in consultation with 

the Secretary of State, will: 

(1) Initiate consultations within 60 

days after submission of the biennial 

report to Congress with the governments 

of identified nations for the purposes of 

entering into bilateral and multilateral 

treaties with such nations to protect the 

PLMRs from bycatch activities 

described in the biennial report; and 

(2) Seek agreements through the 

appropriate international organizations 

calling for international restrictions on 

the fishing activities or practices 

described in the biennial report that 

result in bycatch of PLMRs and, as 

necessary, request the Secretary of State 

to initiate the amendment of any 

existing international treaty to which 

the United States is a party for the 

protection and conservation of the 

PLMRs in question to make such 

agreements consistent with this subpart. 

(d) International Cooperation and 

Assistance. To the greatest extent 

possible, consistent with existing 

authority and the availability of funds, 

the Secretary shall: 

(1) Provide appropriate assistance to 

nations identified by the Secretary 

under paragraph (a) of this section and 

international organizations of which 

those nations are members to assist 

those nations in qualifying for a positive 

certification under paragraph(e) of this 

section; 

(2) Undertake, where appropriate, 

cooperative research activities on 

species assessments and improved 

bycatch mitigation techniques, with 

those nations or organizations; 

(3) Encourage and facilitate the 

transfer of appropriate technology to 

those nations or organizations to assist 

those nations in qualifying for positive 

certification under paragraph (e) of this 

section; and 

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(4) Provide assistance to those nations 

or organizations in designing and 

implementing appropriate fish 

harvesting plans. 

(e) Procedures to certify nations 

identified as having fishing vessels 

engaged in PLMR bycatch—(1) Each 

nation that is identified as having 

fishing vessels engaged in PLMR 

bycatch shall receive either a positive or 

a negative certification from the 

Secretary of Commerce, and this 

certification will be published in the 

biennial report to Congress. The 

Secretary of Commerce shall issue a 

positive certification to an identified 

nation upon making a determination 

that: 

(i) Such nation has provided evidence 

documenting its adoption of a 

regulatory program to end or reduce 

bycatch of such PLMRs that is 

comparable in effectiveness to 

regulatory measures required under U.S. 

law to address bycatch in the relevant 

fisheries, taking into account different 

conditions that could bear on the 

feasibility and efficacy of these 

measures, and which, in the case of an 

identified nation with fishing vessels 

engaged in pelagic longline fishing, 

includes the mandatory use of circle 

hooks, careful handling and release 

equipment, training and observer 

programs; and 

(ii) Such nation has established a 

management plan that will assist in the 

collection of species-specific data on 

PLMR bycatch to support international 

stock assessments and conservation 

efforts for PLMRs. 

(2) Nations will be notified prior to a 

formal certification determination and 

will be provided with an opportunity to 

support and/or refute preliminary 

certification determinations, and 

communicate any corrective actions 

taken to address the activities for which 

such nations were identified. The 

Secretary of Commerce shall consider 

any information received during the 

course of these consultations when 

making the subsequent certification 

determinations. 

§ 300.204 Effect of certification. 

(a) If an identified nation does not 

receive a positive certification under 

this subpart (i.e., the nation receives a 

negative certification or no certification 

is made), the fishing vessels of such 

nation are, to the extent consistent with 

international law, subject to the denial 

of entry into any place in the United 

States and to the navigable waters of the 

United States. 

(b) At the recommendation of the 

Secretary of Commerce (see § 300.205), 

certain fish or fish products from such 

nation may be subject to import 

prohibitions. 

(c) Any action recommended under 

this paragraph (c) shall be consistent 

with international obligations, including 

the WTO Agreement. 

(d) If certain fish or fish products are 

prohibited from entering the United 

States, within six months after the 

imposition of the prohibition, the 

Secretary of Commerce shall determine 

whether the prohibition is insufficient 

to cause that nation to effectively 

address the IUU fishing described in the 

biennial report, or that nation has 

retaliated against the United States as a 

result of that prohibition. The Secretary 

of Commerce shall certify to the 

President each affirmative 

determination that an import 

prohibition is insufficient to cause a 

nation to effectively address such IUU 

fishing activity or that a nation has 

taken retaliatory action against the 

United States. This certification is 

deemed to be a certification under 

section 1978(a) of Title 22, which 

provides that the President may direct 

the Secretary of the Treasury to prohibit 

the bringing or the importation into the 

United States of any products from the 

offending country for any duration as 

the President determines appropriate 

and to the extent that such prohibition 

is sanctioned by the World Trade 

Organization. 

(e) Duration of certification. Any 

nation identified in the biennial report 

to Congress and negatively certified will 

remain negatively certified until the 

Secretary of Commerce determines that 

the nation has taken appropriate 

corrective action to address the IUU 

fishing activity and/or bycatch of 

PLMRs for which it was identified in 

the biennial report. Receipt of a positive 

certification determination will 

demonstrate that appropriate corrective 

action has been taken by a nation to 

address the relevant IUU fishing activity 

and/or bycatch of PLMRs. 

(f) Consultations. NMFS will, working 

through or in consultation with the 

Department of State, continue 

consultations with nations that receive 

a negative certification with respect to 

the IUU fishing activities or bycatch of 

PLMRs described in the biennial report 

to Congress. The Secretary of Commerce 

shall take the results of such 

consultations into consideration when 

making a subsequent certification 

determination for such nation. 

§ 300.205 Denial of port privileges and 

import restrictions on fish or fish products. 

(a) Scope of Applicability—(1) If a 

nation identified in the biennial report 

under § 300.202(a) or § 300.203(a) is not 

positively certified by the Secretary of 

Commerce, and fishing vessels of the 

nation are allowed entry to any place in 

the United States and to the navigable 

waters of the United States under this 

subpart, those vessels will be subject to 

inspection and may be prohibited from 

landing, processing, or transshipping 

fish and fish products. Services, 

including the refueling and re-supplying 

of such fishing vessels, may be 

prohibited, with the exception of 

services essential to the safety, health, 

and welfare of the crew. Fishing vessels 

will not be denied port access or 

services in cases of force majeure or 

distress. 

(2) For nations identified in the 

biennial report under § 300.202(a) that 

are not positively certified, the Secretary 

of Commerce shall recommend import 

prohibitions with respect to fish or fish 

products from those nations. Such 

recommendations on import 

prohibitions would not apply to fish or 

fish products not managed under an 

applicable international fishery 

agreement, or if there is no applicable 

international fishery agreement, to the 

extent that such provisions would apply 

to fish or fish products caught by vessels 

not engaged in illegal, unreported, or 

unregulated fishing. For nations 

identified under § 300.203(a) that are 

not positively certified, the Secretary of 

Commerce shall also recommend import 

prohibitions; such prohibitions shall not 

apply to fish or fish products not caught 

by the vessels engaged in the relevant 

activity for which the nation was 

identified. 

(3) Any action recommended under 

this paragraph (a)(3) shall be consistent 

with international obligations, including 

the WTO Agreement. 

(b) Imposition of import restrictions— 

(1) Notification. Where the Secretary of 

Commerce cannot make positive 

certifications for identified nations, and 

the President determines that certain 

fish and fish products from such nations 

are ineligible for entry into the United 

States and U.S. territories, the Secretary 

of Commerce, with the concurrence of 

the Secretary of State and in cooperation 

with the Secretary of Treasury, will file 

a notice with the Office of the Federal 

Register. 

(2) Documentation of admissibility. If 

certain fish or fish products are subject 

to import prohibitions, NMFS may 

publish in the Federal Register the 

requirement that other fish or fish 

products from the relevant nation that 

are not subject to the prohibitions be 

accompanied by documentation of 

admissibility. The documentation of 

admissibility must be executed by a 

duly authorized official of the identified 

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nation and validated by a responsible 

official(s) designated by NMFS. The 

documentation must be executed and 

submitted in a format (electronic 

facsimile (fax), the Internet, etc.) 

specified by NMFS. 

(3) Effective date of import 

restrictions. Effective upon the date of 

publication of such finding, shipments 

of fish or fish products found to be 

ineligible will be denied entry to the 

United States. Entry will not be denied 

for any such shipment that, on the date 

of publication, was in transit to the 

United States. 

(4) Removal of negative certifications 

and import restrictions. Upon a 

determination by the Secretary of 

Commerce that an identified nation that 

was not certified positively has 

satisfactorily met the conditions in this 

subpart and that nation has been 

positively certified, the provisions of 

§ 300.205 shall no longer apply. The 

Secretary of Commerce, with the 

concurrence of the Secretary of State 

and in cooperation with the Secretary of 

Treasury, will notify such nations and 

will file with the Office of the Federal 

Register for publication notification of 

the removal of the import restrictions 

effective on the date of publication. 

§ 300.206 Alternative procedures for IUU 

fishing activities. 

(a) These certification procedures may 

be applied to fish or fish products from 

a vessel of a harvesting nation that has 

been identified under § 300.202 in the 

event that the Secretary cannot reach a 

certification determination for that 

nation by the time of the next biennial 

report. These procedures shall not apply 

to fish or fish products from identified 

nations that have received either a 

negative or a positive certification under 

this subpart. 

(b) Consistent with paragraph (a) of 

this section, the Secretary of Commerce 

may allow entry of fish or fish products 

on a shipment-by-shipment, shipper-byshipper, or other basis if the Secretary 

determines that: 

(1) The vessel has not engaged in IUU 

fishing under an international fishery 

management agreement to which the 

U.S. is a party; or 

(2) The vessel is not identified by an 

international fishery management 

organization as participating in IUU 

fishing activities. 

(c) Fish or fish products offered for 

entry under this paragraph (c) must be 

accompanied by a completed 

documentation of admissibility 

available from NMFS. The 

documentation of admissibility must be 

executed by a duly authorized official of 

the identified nation and must be 

validated by a responsible official(s) 

designated by NMFS. The 

documentation must be executed and 

submitted in a format (electronic 

facsimile (fax), the Internet, etc.) 

specified by NMFS. 

§ 300.207 Alternative procedures for 

bycatch of PLMRs. 

(a) These certification procedures may 

be applied to fish or fish products from 

a vessel of a harvesting nation that has 

been identified under § 300.203 in the 

event that the Secretary cannot reach a 

certification determination for that 

nation by the time of the next biennial 

report. These procedures shall not apply 

to fish or fish products from identified 

nations that have received either a 

negative or a positive certification under 

this subpart. 

(b) Consistent with paragraph (a) of 

this section, the Secretary of Commerce 

may allow entry of fish or fish products 

on a shipment-by-shipment, shipper-byshipper, or other basis if the Secretary 

determines that imports were harvested 

by practices that do not result in 

bycatch of a protected marine species, 

or were harvested by practices that— 

(1) Are comparable to those of the 

United States, taking into account 

different conditions, and which, in the 

case of pelagic longline fisheries, the 

regulatory program of an identified 

nation includes mandatory use of circle 

hooks, careful handling and release 

equipment, and training and observer 

programs; and 

(2) Include the gathering of species 

specific data that can be used to support 

international and regional assessments 

and conservation efforts for protected 

living marine resources. 

(c) Fish or fish products offered for 

entry under this section must be 

accompanied by a completed 

documentation of admissibility 

available from NMFS. The 

documentation of admissibility must be 

executed by a duly authorized official of 

the identified nation and validated by a 

responsible official(s) designated by 

NMFS. The documentation must be 

executed and submitted in a format 

(electronic facsimile (fax), the Internet, 

etc.) specified by NMFS. 

[FR Doc. 2011–507 Filed 1–11–11; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 101006495–0498–01] 

RIN 0648–BA31 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Steller Sea Lion 

Protection Measures for the Bering 

Sea and Aleutian Islands Groundfish 

Fisheries Off Alaska 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Interim final rule, extension of 

comment period. 

SUMMARY: NMFS published an interim 

final rule on December 13, 2010, to 

implement Steller sea lion protection 

measures to ensure that the Bering Sea 

and Aleutian Islands management area 

groundfish fisheries off Alaska are not 

likely to jeopardize the continued 

existence of the western distinct 

population segment of Steller sea lions 

or adversely modify its designated 

critical habitat. A notice correcting 

errors identified in the preamble to the 

interim final rule and in the regulatory 

text was published on December 29, 

2010. The public comment period for 

the interim final rule ends on January 

12, 2011. NMFS has decided to extend 

the public comment period for an 

additional 45 days, to February 28, 

2011, to provide adequate time for 

various stakeholders and other members 

of the public to submit comments. 

DATES: The public comment period for 

this action has been extended for an 

additional 45 days, to February 28, 

2011. Comments must be received no 

later than February 28, 2011. 

ADDRESSES: Send comments to Dr. 

James W. Balsiger, Administrator, 

Alaska Region, NMFS, Attn: Ellen 

Sebastian. You may submit comments, 

identified by RIN 0648–BA31, by any 

one of the following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal at http:// 

www.regulations.gov. 

• Mail: P.O. Box 21668, Juneau, AK 

99802. 

• Fax: (907) 586–7557. 

• Hand delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK. 

All comments received are a part of 

the public record. No comments will be 

posted to http://www.regulations.gov for 

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