Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 2019 

• http://www.regulations.gov. Follow 

the on-line instructions for submitting 

comments. 

• E-mail: videtich.callie@epa.gov and 

komp.mark@epa.gov. 

• Fax: (303) 312–6064 (please alert 

the individual listed in the FOR FURTHER

INFORMATION CONTACT section if you are 

faxing comments). 

• Mail: Callie Videtich, Director, Air 

Program, Environmental Protection 

Agency (EPA), Region 8, Mailcode 8P– 

AR, 1595 Wynkoop Street, Denver, 

Colorado 80202–1129. 

• Hand Delivery: Callie Videtich, 

Director, Air Program, Environmental 

Protection Agency (EPA), Region 8, 

Mailcode 8P–AR, 1595 Wynkoop Street, 

Denver, Colorado 80202–1129. Such 

deliveries are only accepted Monday 

through Friday, 8 a.m. to 4:30 p.m., 

excluding Federal holidays. Special 

arrangements should be made for 

deliveries of boxed information. 

Please see the direct final rule which 

is located in the Rules Section of this 

Federal Register for detailed 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: 

Mark Komp, Air Program, U.S. 

Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop, Denver, Colorado 80202– 

1129, (303) 312–6022, 

komp.mark@epa.gov. 

SUPPLEMENTARY INFORMATION: See the 

information provided in the Direct Final 

Action of the same title which is located 

in the Rules and Regulations Section of 

this Federal Register. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: November 24, 2008. 

Stephen S. Tuber, 

Acting Regional Administrator, Region 8. 

[FR Doc. E9–522 Filed 1–13–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 070514119–81404–02] 

RIN 0648–AV51 

Magnuson–Stevens Fishery 

Conservation and Management 

Reauthorization Act; Proposed Rule to 

Implement Identification and 

Certification Procedures to Address 

Illegal, Unreported, and Unregulated 

(IUU) Fishing Activities and Bycatch of 

Protected Living Marine Resources 

(PLMRs) 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: NMFS proposes to implement 

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 

objective of these procedures is to 

promote the sustainability of 

transboundary and shared fishery stocks 

and to enhance the conservation and 

recovery of PLMRs. The proposed 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 by U.S. 

fishermen. NMFS is seeking public 

comment on these procedures and on 

the sources and types of information to 

be considered in these procedures. 

DATES: Written comments must be 

received no later than 5 p.m. Eastern 

time on May 14, 2009. 

ADDRESSES: Written comments on this 

action, identified by RIN 0648–AV51, 

may be submitted by any of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov. 

• Mail: Laura Cimo, Trade and Marine 

Stewardship Division, Office of 

International Affairs, NMFS, 1315 East– 

West Highway, Silver Spring, MD 

20910. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All personal identifying information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit confidential business 

information or otherwise sensitive or 

protected information. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields, if you wish to 

remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Laura Cimo, Trade and Marine 

Stewardship Division, Office of 

International Affairs, NMFS, at (301) 

713–9090. 

SUPPLEMENTARY INFORMATION: NMFS is 

soliciting feedback on the proposed 

rule. Information and comments 

concerning this proposed rule may be 

submitted by any one of several 

methods (see ADDRESSES). NMFS will 

also seek feedback from other nations on 

the proposed rule at bilateral and 

multilateral meetings, as appropriate. 

Information related to the international 

fisheries provisions of the Moratorium 

Protection Act can be found on the 

NMFS Web site at http:// 

www.nmfs.noaa.gov/msa2007/. NMFS 

will consider all comments and 

information received during the 

comment period in preparing a final 

rule. 

National Environmental Policy Act 

(NEPA) 

NMFS prepared a draft Environmental 

Assessment (EA) to accompany this 

proposed rule. The EA was developed 

as an integrated document that includes 

a Regulatory Impact Review (RIR) and 

an Initial Regulatory Flexibility 

Analysis (RFA). Copies of the draft EA/ 

RIR/RFA analysis are available at the 

following address: Office of 

International Affairs, F/IA, National 

Marine Fisheries Service, 1315 East– 

West Highway, Silver Spring, MD 

20910. Copies are also available via the 

Internet at the NMFS website at http:// 

www.nmfs.noaa.gov/msa2007/. 

Electronic Access 

This proposed rule is accessible via 

the Internet at the Government Printing 

Office website at http:// 

www.access.gpo.gov/suldocs/. 

Background 

The Magnuson–Stevens Fishery 

Conservation and Management 

Reauthorization Act of 2006 (MSRA), 


sroberts on PROD1PC70 with PROPOSALS
2020 Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 

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. Specifically, 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. NMFS has 

determined that this language applies to 

vessels entitled to fly the flag of the 

nation in question. The Moratorium 

Protection Act also requires the 

establishment of procedures to certify 

whether nations identified in the 

biennial report are taking appropriate 

corrective actions 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 proposed rule sets 

forth procedures to implement these 

requirements of the Moratorium 

Protection Act. 

Definitions under the Moratorium 

Protection Act 

In this rulemaking, NMFS proposes to 

include several definitions at 50 CFR 

300.201 for purposes of implementing 

the Moratorium Protection Act. 

NMFS was required to publish a 

definition of IUU fishing for purposes of 

the Moratorium Protection Act. See 16 

U.S.C. 1826j. This definition of IUU 

fishing was originally published in the 

Federal Register on April 12, 2007 (72 

FR 18404). In the proposed rule, NMFS 

proposes to codify this definition at 50 

CFR part 300 under subpart N for ease 

of reference. At this time, NMFS is not 

proposing to revise the definition of IUU 

fishing that was originally published. 

However, NMFS plans to consider 

revising this definition at a later date in 

order to take into account, as 

appropriate, outcomes of negotiations in 

international fora that are of relevance 

to IUU fishing, including the United 

Nations Food and Agriculture 

Organization (FAO) Technical 

Consultations to develop a global 

binding agreement on minimum 

standards for port State measures to 

combat IUU fishing. 

NMFS is actively soliciting comments 

from the public on the IUU definition. 

Specifically, NMFS is seeking comment 

on whether to broaden the definition to 

include such activities as illegal 

incursions of a nation’s vessels into the 

waters of other nations, flagrant 

reflagging, beneficial ownership, and 

lack of registration. 

The definition of PLMR is defined in 

the Moratorium Protection Act at 16 

U.S.C. 1826k. The definition of PLMR 

will be codified at 50 CFR 300.201 for 

ease of reference. 

Biennial Report to Congress on 

International Compliance 

Pursuant to the requirements of the 

Moratorium Protection Act (see 16 

U.S.C. 1826h), the Secretary of 

Commerce, in consultation with the 

Secretary of State, will provide a report 

to Congress (by no later than January 12, 

2009, and every two years thereafter) 

which includes: 

• The state of knowledge on the 

status of international living marine 

resources shared by the United States or 

managed under treaties or agreements to 

which the United States is a party, 

including a list of all such fish stocks 

classified as overfished, overexploited, 

depleted, endangered, or threatened 

with extinction by any international or 

other authority charged with 

management or conservation of living 

marine resources; 

• A list of nations identified pursuant 

to the Moratorium Protection Act whose 

fishing vessels are engaged, or have 

been engaged, in IUU fishing or bycatch 

of PLMRs, including the specific 

offending activities and any 

enforcement or other responsive actions 

taken by the nation; 

• A description of efforts taken by 

nations on the list of identified nations 

to take appropriate corrective actions to 

address IUU fishing activities of their 

flagged vessels, including by the 

implementation and enforcement of 

effective conservation and management 

measures, and an evaluation of the 

progress of those actions, including 

steps taken by the United States to 

encourage corrective action and 

improve international compliance; 

• Progress at the international level to 

strengthen the efforts of Regional 

Fishery Management Organizations 

(RFMOs) to end IUU fishing; and 

• Steps taken by the Secretary at the 

international level to encourage the 

adoption of international measures 

comparable to those of the United States 

to reduce impacts of fishing practices on 

PLMRs, if no international agreement to 

achieve such goal exists, or if the 

relevant international fishery or 

conservation organization has failed to 

implement effective measures to end or 

reduce the adverse impacts of fishing 

practices on such species. 

The biennial report will also include 

information on whether nations 

identified in the previous report have 

taken corrective actions to address IUU 

fishing or bycatch of PLMRs by fishing 

vessels of that nation. Specifically, the 

report will include information on 

whether: 

• The government of each nation 

identified in the previous biennial 

report as having fishing vessels engaged 

in IUU fishing has provided evidence 

documenting that it has taken 

appropriate enforcement or other 

responsive action to address the IUU or 

bycatch activities of its fishing vessels 

identified in the report; 

• The relevant RFMO has adopted 

and the identified member state has 

implemented, and is enforcing, effective 

measures to prevent, deter and 

eliminate IUU fishing activity; 

• The government of each nation 

identified in the previous biennial 

report as having fishing vessels engaged 

in bycatch of PLMRs has provided 

evidence documenting the adoption and 

enforcement of a regulatory program to 

end or reduce bycatch of PLMRs that is 

comparable to that of the United States, 

accounting for different conditions; and 

• The government of each nation 

identified in the previous biennial 

report as having fishing vessels engaged 

in bycatch of PLMRs has established, 

and is enforcing, a management plan 

containing requirements that will assist 

in gathering species–specific data to 

support international stock assessments 

and conservation enforcement efforts for 

PLMRs. 

Proposed Rulemaking 

Despite actions taken by the United 

States, other nations, and international 

organizations to address IUU fishing 

and bycatch of PLMRs, these problems 

continue to threaten the sustainability of 

living marine resources. The regulatory 

measures proposed here encourage 

nations to cooperate with the United 

States towards ending IUU fishing and 

reducing the bycatch of PLMRs. NMFS 

is proposing these procedures pursuant 

to its rulemaking authority under the 

Moratorium Protection Act. 

Although not mandated by the 

Moratorium Protection Act, NMFS is 

proposing to promulgate, through 

rulemaking, procedures for the 

identification of foreign nations whose 

fishing vessels are engaged in IUU 

fishing or bycatch of PLMRs, in order to 

provide the public an opportunity to 

review and comment on these 

procedures. Since the identification of 

nations under the Moratorium 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 2021 

Protection Act triggers the need for a 

certification, NMFS is proposing to 

promulgate identification procedures 

and certification procedures in a single 

rulemaking. The Agency believes this 

approach will promote transparency in 

the identification and certification 

processes. 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 is due in 

January 2009. Because identification 

and certification procedures will not be 

implemented prior to publication of the 

first biennial report to Congress, NMFS 

will make its first identifications, as 

appropriate, under authority provided 

in the Moratorium Protection Act. 

The Moratorium Protection Act 

envisions a multilateral process to 

implement effective measures to end 

IUU fishing, and eliminate or reduce the 

bycatch of PLMRs by those nations that 

receive a negative certification. In the 

case of bycatch of PLMRs, NMFS will 

work on a bilateral and/or multilateral 

basis to assist nations with the adoption 

of regulatory regimes designed to end or 

reduce bycatch that are comparable in 

effectiveness to those measures that are 

required in the United States, taking 

into account relevant environmental 

and/or socioeconomic conditions that 

may bear on their feasibility or 

effectiveness. 

Identification Procedures 

As required under the Moratorium 

Protection Act, NMFS will identify, and 

list in the biennial report to Congress, 

those nations whose fishing vessels are 

engaged, or have been engaged at any 

point during the preceding two calendar 

years, in IUU fishing. NMFS will also 

identify 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 bycatch of a PLMR, or beyond 

the U.S. exclusive economic zone (EEZ) 

that result in bycatch of a PLMR shared 

by the United States. 

Procedures to Identify Nations Engaged 

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 

that are available to the agency. This 

information could include data gathered 

by the U.S. Government as well as data 

offered by other nations, or international 

organizations (such as regional fisheries 

management organizations), 

institutions, or arrangements that could, 

if true, 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 previous two 

calendar years in IUU fishing as defined 

under the Moratorium Protection Act. 

Once NMFS has determined that the 

information is credible and supports, for 

the purposes of identification, a finding 

that a nation’s fishing vessels are 

engaged in IUU fishing, NMFS, acting 

through or in cooperation 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 

corrective action to address the IUU 

fishing activity in question. 

Corrective actions taken by the nation 

or information refuting allegations of 

IUU fishing activity will be considered 

by NMFS, along with all verified 

information on alleged IUU fishing 

activity, prior to making identifications. 

In identifying nations whose fishing 

vessels are engaged, or have been 

engaged, in IUU fishing under the 

Moratorium Protection Act, NMFS will 

take into account, and list in the 

biennial report, whether or not the 

nation has implemented, and is 

enforcing, measures that are deemed to 

be comparable in effectiveness to 

measures implemented by the United 

States to address the pertinent IUU 

fishing activity. NMFS will also 

consider if an RFMO 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, whether or not the 

relevant RFMO has adopted measures 

that are deemed by NMFS to be effective 

at addressing such IUU fishing activity, 

and whether, if the nation is a party or 

cooperating non–party, the nation has 

implemented, and is enforcing, such 

measures. If a nation is not party to the 

relevant RFMO in which the IUU 

activity occurs, NMFS will consider 

whether the nation has implemented, 

and is enforcing, measures deemed to be 

effective at addressing the IUU activity, 

including any measures that have been 

recommended by such RFMO. 

Effective measures by nations to 

address IUU fishing could include 

measures 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 

management measures; 

• Port state measures to prohibit 

landings and 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, techniques, and equipment, if 

the IUU fishing activity includes a 

violation of bycatch reduction 

requirements of an international fishery 

management agreement to which the 

United States is a party; 

• In the case of fishing activities 

having an adverse impact on vulnerable 

marine ecosystems (VMEs), programs or 

measures for the identification and 

protection of VMEs in waters beyond 

any national jurisdiction (including 

seamounts, hydrothermal vents, and 

cold water corals) from significant 

adverse impacts due to 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; 

• 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). 

In evaluating whether or not a nation 

has implemented measures that will 

effectively address IUU fishing, NMFS 

will also examine whether adequate 

enforcement measures and capacity 

exist to help promote compliance. 


sroberts on PROD1PC70 with PROPOSALS
2022 Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 

Procedures to Identify Nations Engaged 

in PLMR Bycatch 

When determining whether to 

identify a nation as having fishing 

vessels engaged in the bycatch of 

PLMRs, NMFS will evaluate appropriate 

information and evidence. In 

determining whether a nation’s fishing 

vessels are engaged, or have been 

engaged in the previous calendar year, 

in fishing activities or practices that 

result in bycatch of PLMRs, in 

accordance with the Moratorium 

Protection Act, NMFS will review and 

verify the pertinent information and 

evidence. Once NMFS has determined 

that the information is credible and 

supports, for the purposes of 

identification, a finding that a nation’s 

fishing vessels are engaged in bycatch of 

PLMRs, NMFS, acting through or in 

cooperation with the State Department, 

will initiate bilateral discussions with 

the nation to: 

• Seek corroboration of 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 

corrective action to address the PLMR 

bycatch. 

In its determination whether to 

identify nations as having fishing 

vessels engaged in bycatch of PLMRs, 

NMFS will examine whether the nation 

has implemented measures that are 

deemed to be effective to end or reduce 

bycatch of the relevant PLMRs as well 

as any corrective actions taken by the 

nation or information refuting the 

allegations of PLMR bycatch. NMFS will 

also examine if an international 

organization for the conservation and 

protection of such PLMR, or an 

international or regional fishery 

organization with jurisdiction over or 

responsibility for bycatch of such PLMR 

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 consider whether the 

relevant international body has or has 

not adopted measures which have been 

demonstrated to end or reduce bycatch 

of PLMRs, and whether, if the nation is 

a party or cooperating non–party, the 

nation has implemented, and is 

enforcing, such measures. If an 

identified nation is not party to the 

international body with jurisdiction 

over or responsibility for bycatch of the 

PLMRs in question, NMFS will consider 

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 the relevant 

international body. Such measures, 

where appropriate, may include, but are 

not limited to, those that fall into the 

following categories: 

• Programs for data collection and 

sharing, including observer programs; 

• Bycatch reduction and mitigation 

strategies, techniques, and equipment, 

including gear restrictions and gear 

modifications; and 

• Improved monitoring, control, and 

surveillance of fishing activities. 

In its evaluation whether or not a 

nation has implemented measures that 

will effectively address bycatch of 

PLMRs, NMFS will examine whether or 

not adequate enforcement measures and 

capacity exist to promote compliance. 

When determining whether to 

identify nations as having fishing 

vessels engaged in bycatch of PLMRs, 

NMFS will also consider whether or not 

the nation has adopted, and is 

enforcing, measures designed to end or 

reduce bycatch of the PLMRs in 

question that are comparable in 

effectiveness to measures required in 

the United States, taking into account 

different conditions (oceanographic or 

other 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. 

Notification of Identification Decisions 

and Consultation 

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 IUU fishing and/or bycatch 

of PLMRs in the biennial report to 

Congress. 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 IUU fishing 

and/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 enter into 

consultations regarding the IUU fishing 

activity and/or bycatch of PLMRs. 

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 

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 cooperation 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. 

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 as having fishing vessels 

that are currently engaged, or were 

engaged at any point during the 

preceding two 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. 

Notification for and Consultation with 

Nations Identified as Having Fishing 

Vessels Engaged in Bycatch of PLMRs 

Upon submission of the biennial 

report to Congress, the Secretary of 

Commerce, acting through or in 

cooperation with the Secretary of State, 

will: 

(1) initiate consultations as soon as 

possible 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, initiate the amendment of 

any existing international treaty to 

which the United States is a party for 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 2023 

the protection and conservation of the 

PLMRs in question to make such 

agreements consistent with this subpart. 

Certification Procedures 

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 IUU fishing and/or 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 

IUU fishing activity and/or 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 

taken appropriate corrective action 

pursuant to the Moratorium Protection 

Act to address the IUU fishing activity 

and/or bycatch of PLMRs described in 

the biennial report, and a negative 

certification indicates that a nation has 

failed to take appropriate corrective 

action. When evaluating whether 

appropriate corrective action has been 

taken by a nation to address IUU fishing 

and/or bycatch of PLMRs, NMFS will 

consider relevant criteria, including but 

not limited to: 

• Efforts towards improving data 

collection, catch monitoring, and 

reporting programs; 

• Record of implementation of or 

compliance with international measures 

to address IUU fishing and/or bycatch of 

PLMRs; 

• Participation in technical assistance 

and capacity building programs to 

address IUU fishing and/or reduce 

bycatch and enhance enforcement; 

• Adequacy of surveillance, 

enforcement, and prosecution to 

promote compliance with conservation 

and management measures and respond 

to non–compliance; 

• A nation’s response to IUU fishing 

activity and/or PLMR bycatch; 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); 

• Cooperation with other 

governments in enforcement, 

apprehension, and prosecution efforts 

related to those vessels of the identified 

nation that have engaged in IUU fishing 

and/or PLMR bycatch. 

When evaluating whether appropriate 

corrective action has been taken by a 

nation, NMFS will also consider the 

extent to which nations have taken 

action to implement measures intended 

to address IUU fishing and/or PLMR 

bycatch. 

The Secretary of Commerce will make 

the first certification determinations no 

later than 90 days after promulgation of 

a final rule establishing identification 

and certification procedures pursuant to 

the Moratorium Protection Act. 

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 the affected nations 

and provide them an opportunity to take 

corrective action with respect to the IUU 

fishing activities or bycatch of PLMRs 

described in the biennial report to 

Congress. 

NMFS is proposing to develop 

separate procedures for the certification 

of nations that have been identified as 

having fishing vessels engaged in IUU 

fishing and those nations that have been 

identified as having fishing vessels 

engaged in PLMR bycatch. 

Procedures to Certify Nations Identified 

as Having Fishing Vessels Engaged in 

IUU Fishing 

To determine whether appropriate 

corrective action has been taken by 

nations to warrant a positive 

certification, NMFS will consider the 

extent to which the IUU fishing 

activities described in the biennial 

report have been effectively addressed 

and future IUU activity deterred. When 

evaluating whether the relevant 

identified member nation has 

implemented effective measures to 

address the IUU fishing activities 

described in the biennial report, NMFS 

will examine whether measures have 

been implemented, and are being 

effectively enforced, that are comparable 

in effectiveness to measures 

implemented by the United States. Such 

flag State measures may include, but are 

not limited to, those that fall into the 

following categories: 

• 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, techniques, and equipment, if 

the IUU fishing activity includes a 

violation of bycatch reduction 

requirements of an international fishery 

management 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 fishing 

activities in waters beyond any national 

jurisdiction. 

When considering whether 

appropriate corrective action has been 

taken to warrant a positive certification, 

NMFS, in consultation with the 

Secretary of State, will take into account 

the outcome of consultations with the 

identified nation, comments received 

from such nation, and subsequent 

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. 

Procedures to Certify Nations Identified 

as Having Fishing Vessels Engaged in 

Bycatch of PLMRs 

When determining whether nations 

identified as having fishing vessels 

engaged in bycatch of PLMRs have 

taken appropriate corrective action to 

warrant a positive certification, the 

Secretary of Commerce will consider 

whether the government of each nation 

identified in the biennial report as 

having fishing vessels engaged in 

bycatch of PLMRs has implemented 

measures to end or reduce bycatch of 

the relevant PLMRs that are comparable 

in effectiveness to those required in the 

United States. As relevant, NMFS will 

consider whether measures have been 

implemented and effectively enforced 

including, but not limited to, those that 

fall into the following categories: 


sroberts on PROD1PC70 with PROPOSALS
2024 Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 

• Programs for data collection and 

sharing, including observer programs; 

• Bycatch reduction and mitigation 

strategies, techniques, and equipment 

(including training and assistance for 

bycatch reduction technology and 

equipment); and 

• Improved monitoring, control, and 

surveillance of fishing activities. 

The Secretary of Commerce will 

examine if conditions exist that could 

bear on the feasibility and effectiveness 

of comparable measures. In some 

circumstances, comparable measures 

may not be feasible or effective at 

addressing bycatch of the PLMRs in 

question. Under these circumstances, 

NMFS will assist identified nations, to 

the extent practicable, with the 

implementation of alternative measures 

designed to end or reduce bycatch. To 

qualify for a positive certification 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. 

When determining if nations 

identified in the biennial report as 

having vessels engaged in the bycatch of 

PLMRs qualify for a positive 

certification, NMFS will also consider 

whether the government of each 

identified nation has established a 

management plan with requirements 

that will assist in the collection of data 

on bycatch of the pertinent PLMRs in 

support of international stock 

assessments and conservation efforts. 

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 those authorized 

under Section 609 of Public Law 101– 

162, or the affirmative finding process 

under the International Dolphin 

Conservation Program Act. Nothing in 

this rulemaking will modify such 

existing certification procedures. 

Effect of Certification Determinations 

If nations identified as having fishing 

vessels engaged in IUU fishing and/or 

PLMR bycatch 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 PLMR bycatch and does not 

receive a positive certification from the 

Secretary of Commerce, the nation 

could face denial of port privileges, 

prohibitions on the import of certain 

fish and fish products into the United 

States, as well as 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 IUU fishing activity and/ 

or bycatch of PLMRs for which the 

initial identification was made. With 

respect to the nation whose fishing 

vessels are engaged in IUU fishing and/ 

or bycatch of PLMRs, the Secretary of 

Commerce will also consider the degree 

of culpability, any history of prior IUU 

fishing activities and/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. 

When recommending actions to the 

U.S. President to be taken against 

identified nations that have not received 

a positive certification, the Secretary of 

Commerce will recommend appropriate 

measures, including trade restrictive 

measures, to address the relevant IUU 

fishing activity and/or PLMR bycatch 

for which such nations were identified 

in the biennial report. Trade restrictive 

measures will be implemented in 

accordance with international law, 

including the WTO Agreement, in a fair, 

transparent, and non–discriminatory 

manner. To facilitate enforcement, 

nations that do not receive a positive 

certification may be required to submit 

documentation of admissibility along 

with fish or fish products not subject to 

the import restrictions that are offered 

for entry into the United States. 

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 not be permitted to 

enter into the United States, 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. These efforts will be 

undertaken to help mitigate the effects 

of a negative certification determination 

on U.S. industry. 

Information for Identification and 

Certification Determinations 

Reliable and timely information is 

critical to making accurate and effective 

use of identification and certification 

provisions under the Moratorium 

Protection Act. Potential sources of 

information include NOAA and other 

U.S. government agencies; foreign, state, 

and local governments; international 

organizations, including RFMOs; 

nongovernmental organizations, 

including industry organizations; and 

citizens and citizen groups. 

Other potential sources of information 

for identification and certification 

determinations include fishing vessel 

records; testimony and reports from off– 

loading facilities, port–side government 

officials, enforcement agents, military 

personnel, port inspectors, 

transshipment vessel workers and fish 

importers; government vessel registries; 

IUU vessel lists from RFMOs; RFMO 

catch documents and statistical 

document programs; appropriate 

certification programs; and 

governments, international 

organizations, or nongovernmental 

organizations. NMFS will consider all 

available information when making a 

determination whether or not to identify 

a particular nation. 

In determining whether information is 

appropriate for use in making 

identification and certification 

determinations, NMFS will consider 

several criteria, including but not 

limited to: 

• Corroboration of testimony and 

evidence; 

• Whether multiple sources have 

been able to provide information in 

support of an identification; 

• The methodology used to collect 

the information; 

• Specificity of the information 

provided; and 

• Susceptibility of the information to 

falsification and alteration; and 

• Credibility of the individuals or 

organization providing the information. 

Based on the considerations outlined 

above, NMFS will validate information 

and evidence provided for use in 

making identification and certification 

determinations through methods that 

include, but are not limited to, 

corroboration with governments, 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 2025 

RFMOs, international organizations, 

non–governmental organizations, and 

other available sources. If information or 

evidence is deemed by NMFS to be 

inaccurate, unfounded, or unreliable, it 

will not be used in support of an 

identification determination or in a 

certification determination. 

Alternative Procedures 

Section 609(d)(2) of the Moratorium 

Protection Act authorizes the Secretary 

of Commerce to establish alternative 

procedures for the certification of fish or 

fish products from a nation identified 

under section 609(a) of the Act in the 

event that the Secretary cannot reach a 

certification determination for such 

identified nation by the time of the next 

biennial report. The alternative 

procedures shall not apply to fish or fish 

products from identified nations that 

have received either a negative or a 

positive certification under this Act. 

Under these alternative procedures, the 

Secretary of Commerce may allow entry 

of fish or fish products on a shipment– 

by–shipment, shipper–by–shipper, or 

other basis as long as specified 

conditions are met. 

For nations that have been identified 

as having fishing vessels engaged in IUU 

fishing and have not received a 

certification from the Secretary of 

Commerce, certain fish or fish products 

of that nation may be eligible for 

alternative certification procedures. To 

qualify for the alternative certification 

procedures, NMFS must determine 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 the certification of fish or 

fish products from a nation identified 

under section 610(a) of the Act in the 

event that the Secretary cannot reach a 

certification determination for such 

identified nation by the time of the next 

biennial report. The alternative 

procedures shall not apply to fish or fish 

products from identified nations that 

have received either a negative or a 

positive certification under this Act. 

Under these alternative procedures, the 

Secretary of Commerce may allow entry 

of fish or fish products on a shipment– 

by–shipment, shipper–by–shipper, or 

other basis as long as specified 

conditions are met. To qualify for the 

alternative certification procedures, 

NMFS must determine that imports 

were harvested by practices that do not 

result in bycatch of a protected living 

marine resource, or were harvested by 

practices comparable to those required 

in the United States, accounting for 

different conditions that affect the 

feasibility and efficacy of such practices. 

NMFS must also determine that the 

vessel collects species–specific bycatch 

data that can be used to support 

international stock assessments and 

efforts to conserve PLMRs. If such 

imports were harvested by a vessel 

engaged in pelagic longline fishing, they 

can qualify for the alternative 

certification procedure only if the vessel 

is required to use circle hooks, careful 

handling and release equipment, and 

training and observer programs. 

Advance Notice of Proposed 

Rulemaking and Public Participation 

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. 

Public comments were solicited for a 

period of 45 days. In conjunction with 

publication of the ANPR, NMFS held 

three public input sessions in July 2007 

in locations where it expected 

substantial public interest in the 

proposed certification procedures. 

These sessions were held in Silver 

Spring, Maryland (July 2, 2007); Seattle, 

Washington (July 5, 2007); and Long 

Beach, California (July 5, 2007). In 

addition, NMFS hosted a meeting of 

representatives from foreign embassies 

(July 9, 2007) to explain the ANPR and 

solicit their comments. These meetings 

provided valuable opportunities for 

NMFS to explain the ANPR, respond to 

questions, and receive feedback from 

the public. A summary of the comments 

received on the ANPR and how these 

comments were addressed in the 

proposed rule can be found below. 

Responses to Comments on the ANPR 

In addition to the comments received 

on the ANPR at various meetings, NMFS 

received 14 sets of comments on the 

ANPR (by electronic mail, mail, or fax). 

Comments were submitted by 

governmental entities, individuals, and 

organizations. Comments received were 

compiled and posted at http:// 

www.nmfs.noaa.gov/msa2007/. In this 

proposed rule notice, NMFS addresses 

the following issues that directly relate 

to the measures in the proposed 

rulemaking. 

Definition of Bycatch 

Comment 1: NMFS received several 

questions regarding the pertinent 

definition of ‘‘bycatch’’ for purposes of 

the rulemaking. Notably, the term 

bycatch is not defined in the 

Moratorium Protection Act. 

Response: NMFS proposes to use a 

definition of bycatch for purposes of the 

Moratorium Protection Act based upon 

the definitions of bycatch in pertinent 

U.S. law (Magnuson–Stevens Fishery 

Conservation and Management Act, and 

Marine Mammal Protection Act); a 1998 

NMFS report titled, ‘‘Managing Our 

Nation’s Bycatch’’; and a 2004 NMFS 

report titled, ‘‘Evaluating Bycatch: A 

National Approach to Standardized 

Bycatch Monitoring Programs.’’ 

Definition of IUU Fishing 

Comment 2: Several commenters 

suggested that the IUU definition in the 

ANPR was overly broad to include 

fishing activities that have an adverse 

impact on seamounts, hydrothermal 

vents, and cold water corals in areas 

beyond national jurisdiction. A 

suggestion was made that NMFS use the 

guidance on IUU fishing in the United 

Nation Food and Agriculture 

Organization’s International Plan of 

Action to Prevent, Deter, and Eliminate 

Illegal, Unreported and Unregulated 

Fishing (IPOA–IUU). 

Response: The Moratorium Protection 

Act requires that the definition of IUU 

fishing include several elements, 

including ‘‘fishing activity that has an 

adverse impact on seamounts, 

hydrothermal vents, and cold water 

corals beyond any national jurisdiction, 

for which there are no applicable 

conservation or management measures 

or in areas with no applicable 

international fishery management 

organization or agreement’’ (see 16 

U.S.C. 1826j). Accordingly, the 

definition provided in the ANPR and 

the proposed rule reflects these 

elements as required in the Moratorium 

Protection Act. 

Recent efforts by the international 

community to address sustainable 

fisheries support the inclusion of fishing 

activities that have an adverse impact 

on VMEs in the definition of IUU 

fishing. The informal consultations on 

the 2006 United Nations General 

Assembly (UNGA) Sustainable Fisheries 

resolution (A/Res/61/105) reviewed 

domestic and international progress on 

protecting VMEs, such as seamounts, 

cold–water corals and hydrothermal 

vents, from destructive fishing practices 

and the impacts of fishing, as called for 

in UNGA resolution 59/25 (2004), and 

proposed further recommendations. 

Resolution 61/105 (2006) calls upon 

RFMOs and regional fishery 

management agreements to: 

• Assess whether individual bottom 

fishing activities would have significant 

adverse impacts on VMEs and, if so, 


sroberts on PROD1PC70 with PROPOSALS
2026 Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 

manage such fishing to prevent such 

impacts or not authorize it to proceed; 

• Identify where VMEs are and 

determine if bottom fishing would cause 

significant adverse impacts to either the 

VMEs and long term sustainability of 

deep sea fish stocks through, among 

others, scientific research, data 

collection and sharing, and new and 

exploratory fisheries; 

• Close areas to bottom fishing if 

VMEs are present or are likely to be, 

based on the best available scientific 

information, and not allow such fishing 

to proceed unless conservation and 

management measures are in place to 

prevent significant adverse impacts on 

VMEs; 

• Cease bottom fishing if a VME is 

encountered and report the location so 

that appropriate measures can be 

adopted in respect of the relevant site; 

and 

• Make the relevant measures 

adopted in accordance with resolution 

61/105 public. 

The text calls for RFMOs or regional 

fishery management agreements to 

comply with these provisions by 

December 31, 2008. For States 

participating in negotiations to establish 

new RFMOs or regional fishery 

management agreements to regulate 

bottom fisheries, the text calls for those 

States to implement interim measures, 

consistent with the above provisions, by 

December 31, 2007. Further, the text 

calls for flag States to adopt and 

implement the above measures or to 

cease authorizing bottom fishing in 

areas where there is no competent 

RFMO or regional fishery management 

agreement, or where no interim 

measures have been adopted in 

conjunction with negotiations to 

establish a new RFMO or regional 

fishery management agreement. Finally, 

States agreed to review actions taken in 

accordance with the resolution, and, if 

necessary, propose further 

recommendations at the 2009 UNGA 

fisheries resolution negotiations. The 

2007 UNGA sustainable fisheries 

resolution (A/RES/62/177) reaffirmed 

the call for RFMOs, regional fishery 

management agreements, and Flag 

States to implement these measures. 

Definition of PLMRs 

Comment 3: One commenter stated 

that the definition of PLMRs in the 

ANPR is overly broad and that the 

regulations under Section 610(a) of the 

Moratorium Protection Act should only 

be applied to commercial fisheries to 

reflect the intent behind the certification 

procedures. 

Response: PLMRs are defined in the 

Moratorium Protection Act. This 

definition is reflected in the proposed 

rule. 

Section 610 of the Moratorium 

Protection Act seeks to encourage the 

United States to work with other nations 

to implement measures to eliminate or 

reduce the bycatch of PLMRs that are 

comparable in effectiveness to those in 

the United States. There is no 

distinction made in this statute to 

support the position that only 

commercial fishing vessels should be 

subject to these provisions. Thus, the 

proposed rule does not specify that the 

requirements of the Moratorium 

Protection Act only apply to commercial 

fishing vessels. 

Consistency with Plans of Action to 

Address IUU Fishing 

Comment 4: A commenter pointed to 

the detailed guidance provided in the 

United Nations Food and Agriculture 

Organization’s IPOA–IUU, as well as the 

U.S. strategies, techniques, and 

equipment to combat IUU fishing, and 

suggested that these documents serve as 

a source of information to NMFS in its 

implementation of the requirements of 

the Moratorium Protection Act. 

Response: NMFS concurs that these 

documents are valuable sources of 

information. Through this rulemaking, 

NMFS seeks to achieve the goals 

espoused in these plans. 

IUU Vessels Lists 

Comment 5: NMFS received a 

substantial number of questions 

regarding how the Agency plans to treat 

vessels that are listed on RFMO IUU 

vessel lists. Specifically, NMFS was 

asked whether or not vessels on RFMO 

IUU vessel lists would be denied entry 

into U.S. ports under this rulemaking, 

and if so, whether legally harvested 

product aboard such vessels would be 

allowed into the United States. 

Response: The United States is 

obliged to take action, consistent with 

its international obligations, to 

implement conservation and 

management measures that are agreed 

upon at RFMOs to which the United 

States is a party. Such measures may 

establish lists of vessels that have 

engaged in IUU fishing activities and 

require member states to impose 

sanctions on listed vessels, including 

the potential denial of port access and 

services. The Moratorium Protection Act 

does not, however, authorize the United 

States to deny entry of vessels into U.S. 

ports based solely on their inclusion on 

an RFMO IUU vessel list. The 

Moratorium Protection Act authorizes 

the United States to take action to 

address IUU fishing on a nation–by– 

nation basis, rather than on a vessel–by– 

vessel basis. NMFS will be 

implementing its obligations under 

RFMO conservation and management 

measures that establish IUU vessel lists 

in a separate rulemaking. 

Information Collection and Validation 

Comment 6: NMFS received various 

suggestions regarding potential sources 

of information for the identification and 

certification of nations. Some 

commenters expressed concern about 

the existence of balanced and accurate 

data to be used in identifying nations 

whose vessels are engaged in IUU 

fishing or PLMR bycatch. NMFS was 

urged to develop criteria or quality 

control mechanisms to be used in the 

evaluation of collected information. 

Commenters suggested that the United 

States use information that has been 

peer–reviewed, agreed upon by a 

tribunal, and/or corroborated by a U.S. 

or foreign government source. 

Response: Many of the suggestions for 

potential information sources were 

adopted as part of the proposed rule. 

NMFS shares the concerns raised by 

commenters regarding the submission of 

false information. Such information 

could erroneously suggest a nation’s 

vessels are engaged in IUU fishing or 

bycatch of PLMRs. To prevent erroneous 

information from being used in 

identification and certification 

decisions, NMFS plans to carefully 

review and corroborate information 

received on activities of a nation’s 

fishing vessels, in cooperation with 

other appropriate government officials, 

foreign and domestic, before using this 

information to make identification and 

certification decisions under the 

Moratorium Protection Act. 

‘‘Reason to Believe’’ Standard 

Comment 7: NMFS was asked to 

examine the ‘‘reason to believe’’ 

standard in identifying whether a 

nation’s vessels are engaged in IUU 

fishing or bycatch of PLMRs, which was 

addressed by the Court of International 

Trade (CIT) in litigation related to the 

identification of Italy pursuant to the 

Enforcement Act. 

Response: Section 609(a) and Section 

610(a) of the Moratorium Protection Act 

establish a different standard for the 

identification of nations than the 

‘‘reason to believe’’ standard under the 

Enforcement Act. Under the standard 

set forth in Section 609(a), nations must 

be identified if fishing vessels of that 

nation ‘‘are engaged, or have been 

engaged at any point during the 

preceding 2 years, in illegal, unreported, 

or unregulated fishing’’ See 16 U.S.C. 

1826j. Under the standard set forth in 

Section 610(a), nations must be 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 2027 

identified if fishing vessels of that 

nation ‘‘are engaged, or have been 

engaged during the preceding calendar 

year in fishing activities or practices 

that result in bycatch of a protected 

living marine resource ’’ See 16 U.S.C. 

1826k. NMFS believes that this standard 

is a higher threshold for identification, 

relative to the ‘‘reason to believe’’ 

standard set forth in the High Seas 

Driftnet Fisheries Enforcement Act, 

requiring evidence of IUU fishing 

activity and/or bycatch of PLMRs on the 

part of a nation’s vessels for the nation 

to be identified. 

Requirements for Certification 

Comment 8: NMFS received 

comments that the guidelines for 

certification decisions should be clear 

and consistent over time. 

Response: In the proposed rule, 

NMFS sought to outline criteria for 

certification decisions to a greater extent 

than what was addressed in the ANPR. 

These criteria should provide guidance 

and promote greater transparency in the 

decision making process. 

Capacity Building 

Comment 9: NMFS was encouraged to 

use incentives, such as capacity 

building, to assist nations in addressing 

IUU fishing and PLMR bycatch. 

However, concerns were raised that 

current capacity building activities are 

often fragmented, uncoordinated, and 

may be ineffective. A suggestion was 

made to improve the coordination of 

assistance for capacity building across 

the relevant Federal agencies to help 

achieve sustainable fisheries. 

Recommendations were made to 

measure capacity at the start of projects, 

as well as the incremental change 

resulting from the capacity building 

project, to demonstrate progress and the 

need for additional assistance, if 

necessary. 

Response: In fulfillment of the 

objectives outlined in the Moratorium 

Protection Act, NMFS will address IUU 

fishing and PLMR bycatch through 

bilateral and multilateral efforts. 

Further, NMFS will seek to emphasize 

investments in capacity building 

projects that address the full range of 

scientific, legal, and operational 

enforcement issues involved in the 

adoption and enforcement of effective 

management regimes. To the extent 

possible, NMFS will make such 

investments in coordination with other 

Federal agencies and non–Federal 

partners to improve their effectiveness 

and will seek to provide measures of the 

success of such projects. 

Balance between Incentives and 

Penalties 

Comment 10: Commenters suggested 

that NMFS take a balanced approach in 

its rulemaking towards working with 

nations to emphasize capacity building 

activities and imposing trade 

restrictions and penalties to bring 

nations into compliance. 

Response: In its implementation of 

requirements outlined in the 

Moratorium Protection Act, NMFS will 

emphasize bilateral and multilateral 

cooperation with other nations to 

address IUU fishing and bycatch of 

PLMRs. 

To the extent that international 

cooperation and assistance is effective 

in addressing these activities, NMFS 

will work bilaterally and multilaterally 

through RFMOs and other relevant 

international organizations. When 

recommending actions to the U.S. 

President to be taken against identified 

nations that have received a negative 

certification, the Secretary of Commerce 

will recommend appropriate measures, 

including trade restrictive measures, the 

relevant IUU fishing activity and/or 

PLMR bycatch. Furthermore, trade 

restrictive measures will be 

implemented in accordance with 

international law, including the World 

Trade Organization (WTO) Agreement, 

and therefore be implemented in a fair, 

transparent, and non–discriminatory 

manner. 

Classification 

This proposed rule is published under 

the authority of the Moratorium 

Protection Act, 16 U.S.C. 1826d–1826k. 

Under NOAA Administrative Order 

(NAO 216–6), the promulgation of 

regulations that are procedural and 

administrative in nature is subject to a 

categorical exclusion from the 

requirement to prepare an 

Environmental Assessment. However, as 

a component of public involvement in 

the development of the proposed 

certification procedures, NMFS has 

determined that an EA for this proposed 

action is appropriate for two reasons. 

First, although the proposed action does 

not change any underlying fishery 

management conventions for IUU 

fishing and PLMR bycatch, the EA 

provides the public with a context for 

reviewing the proposed certification 

action by exploring the impacts 

associated with IUU fishing and 

bycatch. Second, because future 

certification determinations would not 

require individual NEPA analysis, this 

EA enhances NOAA’s capacity to seek 

public input on the proposed approach 

for such certifications. 

This proposed rulemaking has been 

determined to be significant for the 

purposes of Executive Order 12866. 

An initial regulatory flexibility 

analysis (IRFA) was prepared, as 

required by section 603 of the RFA. The 

IRFA describes the economic impact 

this proposed rule, if adopted, would 

have on small entities. NMFS is 

specifically seeking comments on 

whether it may be appropriate at the 

final rule stage to certify to the Small 

Business Administration that the rule 

will not have a significant economic 

impact on a substantial number of 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). This proposed 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 the rulemaking, although indirect 

effects may cause short term disruptions 

in the flow of seafood imports 

potentially impacting 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. 

The alternatives described in section 

2.2. and 2.3 of the Environmental 

Assessment provide options for 

certification procedures for IUU fishing 

and bycatch separately. To meet the 

purpose and need, NMFS will select of 

one alternative for IUU fishing and one 

alternative for bycatch. 

The Alternatives for Certification for 

nations whose vessels are engaged, or 

have been engaged in, IUU fishing 


sroberts on PROD1PC70 with PROPOSALS
2028 Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 

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 two 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 two 

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 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 two 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, by the 

identified nation and the relevant 

international organization for the 

conservation and protection of the 

PLMRs or the international/regional 

fishery organization (and proof of the 

identified nation’s participation with 

such organization) governing the 

conservation of the PLMRs, if such 

organization exists, that is comparable 

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 efforts, 

including but not limited to 

enforcement efforts for PLMRs. 

Overall 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 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 1–3 or bycatch Alternative 

B–3. This proposed rule would 

implement Alternatives I–2 and B–2. 

This proposed rule contains 

collection–of–information requirements 

for §§ 300.205(b)(2), 300.206(c), and 

300.207(c) subject to review and 

approval by OMB under the Paperwork 

Reduction Act (PRA). This package is 

being developed by NMFS and will be 

submitted to OMB for approval. 

Public comment is sought regarding: 

whether this proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information shall have practical utility; 

ways to enhance the quality, utility, and 

clarity of the information to be 

collected; and ways to minimize the 

burden of the collection of information, 

including through the use of automated 

collection techniques or other forms of 

information technology. Send comments 

on these or any other aspects of the 

collection of information to NMFS 

Office of International Affairs at the 

ADDRESSES above, and by e–mail to 

DavidlRostker@omb.eop.gov or fax to 

(202) 395–7285. 

List of Subjects in 50 CFR Part 300 

Bycatch, Fisheries, Fishing, Fishing 

vessels, Foreign relations, Illegal, 

unreported or unregulated fishing, 

Protected living marine resources. 

Dated: January 9, 2009. 

James W. Balsiger, 

Acting Assistant Administrator for Fisheries, 

National Marine Fisheries Service. 

For the reasons set out in the 

preamble, NMFS proposes to amend 50 

CFR part 300 as follows: 

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS 

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. 

Subpart N—Identification and 

Certification of Nations 

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

§ 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: 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 2029 

Bycatch means: 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 that resource. 

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 that governs direct harvest of 

fish and/or directly governs bycatch of 

fish, sea turtles, or marine mammals. 

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 

organization. 

§ 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 calendar 

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 nation whose 

fishing vessels are engaged, or have 

been engaged, in IUU fishing is a party 

to, or maintains cooperating status, with 

the organization. NMFS will also 

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, and whether the nation 

has implemented, and is enforcing, such 

measures. 

(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, 

acting through or in cooperation 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 as 

having fishing vessels that are currently 

engaged, or were engaged at any point 

during the preceding two 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. 

(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. 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 subsection 

(a) has provided evidence documenting 

that it has taken corrective action to 

effectively 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 


sroberts on PROD1PC70 with PROPOSALS
2030 Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 

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) The Secretary of Commerce will 

issue a negative certification to an 

identified nation if such nation fails to 

provide information sufficient to 

establish that appropriate corrective 

action has been taken to address the 

IUU fishing activities described in the 

biennial report. 

(3) 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. 

§ 300.203 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 nations in the biennial report to 

Congress 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. exclusive economic zone (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. NMFS will also take into 

account whether there is an 

international organization with 

jurisdiction over the conservation and 

protection of the relevant PLMRs. If 

such organization exists, NMFS will 

consider whether the organization has 

adopted, and is enforcing, 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. 

(2) When determining whether to 

identify nations as having fishing 

vessels engaged in bycatch of PLMRs, 

NMFS will also take into account if 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 submission of the 

biennial report to Congress, the 

Secretary of Commerce, acting through 

or in cooperation 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 during the 

preceding calendar year, 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 shared by the 

United States; and 

(2) Notify, as soon as possible, 

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 cooperation with 

the Secretary of State, will: 

(1) Initiate consultations as soon as 

possible 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, 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) Procedures to certify nations 

identified as having fishing vessels 

engaged in PLMR bycatch. 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. A positive certification 

indicates that a nation has taken 

appropriate corrective action to address 

the PLMR bycatch activity described in 

the biennial report. A negative 

certification indicates that a nation has 

not taken appropriate corrective action. 

(1) The Secretary of Commerce will 

also issue a negative certification for the 

identified nation in the absence of 

information from such nation that 

sufficient action has been taken to 

address the bycatch activities described 

in the biennial report. 

(2) The Secretary of Commerce shall 

issue a positive certification to nation 

identified for having vessels engaged in 

bycatch of a PLMR when: 

(i) Such nation has provided 

documentary evidence of 

implementation, and enforcement, of a 

regulatory program to conserve such 

PLMRs that is comparable in 

effectiveness to regulatory measures 

required under U.S. law to address 

bycatch in the relevant fisheries, 

accounting for different conditions that 

could bear on the feasibility and 

efficiency of these measures, and 

includes, in the case of an identified 

nation with fishing vessels engaged in 

pelagic longline fishing, 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. 

(3) 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. At the recommendation 

of the Secretary of Commerce, certain 

fish or fish products from fishing vessels 


sroberts on PROD1PC70 with PROPOSALS
Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 2031 

of such nation may be subject to import 

prohibitions. 

(b) If certain fish or fish products from 

the vessels of such nation 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. Upon receipt of any such 

subsequent certification, any product 

from the nation may be prohibited from 

import for such duration as the 

President determines appropriate and to 

the extent that such prohibition is 

consistent with obligations under 

international trade agreements, 

including the World Trade Organization 

Agreement. 

(c) Positive certification. (1) If a nation 

identified in the biennial report to 

Congress as having fishing vessels 

engaged in IUU fishing activity is 

positively certified by the Secretary of 

Commerce, the nation is deemed to have 

taken appropriate corrective action in 

accordance with this subpart to address 

the IUU fishing activity of its fishing 

vessels, or the relevant international 

fishery management organization is 

deemed to have adopted measures to 

effectively address the IUU fishing 

activity of the identified nation’s fishing 

vessels. 

(2) If a nation identified in the 

biennial report to Congress as having 

fishing vessels engaged in PLMR 

bycatch is positively certified by the 

Secretary of Commerce, the nation is 

deemed to have taken appropriate 

corrective action in accordance with 

this subpart to address the PLMR 

bycatch of its fishing vessels. 

(d) Negative certification or absence 

of certification. If a nation identified in 

the biennial report to Congress as 

having fishing vessels engaged in IUU 

fishing activity is not positively certified 

by the Secretary of Commerce, the 

nation is deemed not to have taken 

appropriate corrective action in 

accordance with this subpart to address 

the IUU fishing activity of its fishing 

vessels, including by failing to 

implement or enforce measures adopted 

by the relevant international fishery 

management organization to effectively 

address the IUU fishing activity of the 

identified nation’s fishing vessels. If a 

nation identified in the biennial report 

to Congress as having fishing vessels 

engaged in the PLMR bycatch is not 

positively certified by the Secretary of 

Commerce, the nation is deemed not to 

have adopted and implemented a 

regulatory program that is comparable 

in effectiveness to that of the United 

States and the nation has not 

established a management plan in 

accordance with this subpart to reduce 

the bycatch of PLMRs by the identified 

nation’s fishing vessels. 

(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 of its vessels. 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) Certification determinations. 

Certification determinations will be 

published in the biennial report to 

Congress. 

(g) Consultations. 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 affected nations 

and provide them an opportunity to take 

corrective action 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. A nation 

that has not received a positive 

certification shall be eligible for a 

positive certification when such nation 

has demonstrated that it has taken 

appropriate corrective action to address 

the activities for which it was identified 

in the biennial report to Congress. 

§ 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 the 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 only with respect to fish or 

fish products managed under the 

applicable international fishery 

agreement. 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. For nations identified under 

§ 300.203(a) that are not positively 

certified, 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. 

(b) Imposition of import restrictions— 

(1) Notification. Where the Secretary of 

Commerce cannot make positive 

certifications for identified nations, and 

the U.S. 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 with the Office of the 

Federal Register for publication a 

finding to that effect. Such finding may 

include a requirement that fish or fish 

products from such nations be 

accompanied by documentation of 

admissibility. 

(2) Documentation of admissibility. 

The finding in paragraph(b)(1) of this 

section may include a requirement that 

fish or fish products not subject to the 

import restrictions from such nations be 

accompanied by documentation of 

admissibility. Such documentation must 

be submitted to NMFS by electronic 

facsimile (fax), or once available, via the 

Internet, to a number or website 

designated by NMFS. The 

documentation of admissibility must be 

executed by a duly authorized official of 

the country named in the finding and 

the documentation of admissibility must 

be validated by a responsible official(s) 

designated 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 


sroberts on PROD1PC70 with PROPOSALS
2032 Federal Register / Vol. 74, No. 9 / Wednesday, January 14, 2009 / Proposed Rules 

for any such shipment that, on the date 

of publication, was in transit to the 

United States on board a vessel 

operating as a common carrier. 

(4) Removal of 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) The alternative procedures in this 

section apply to the certification of fish 

or fish products from a nation identified 

under § 300.202 in the event that the 

Secretary cannot reach a certification 

determination for such identified nation 

by the time of the next biennial report. 

These 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 subpart. Under 

these alternative procedures, the 

Secretary of Commerce may allow entry 

of fish or fish products on a shipment– 

by–shipment, shipper–by–shipper, or 

other basis as long as the following 

conditions are met. 

(b) To qualify for the alternative 

certification procedures, NMFS must 

determine that: 

(1) The vessel has not engaged in IUU 

fishing in violation of 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 section must be 

accompanied by a completed 

documentation of admissibility form, 

which is available from NMFS. Such 

documentation must be submitted to 

NMFS by electronic facsimile (fax), or 

once available, via the Internet, to a 

number or website designated by NMFS. 

The documentation of admissibility 

must be executed by a duly authorized 

official of the country named in the 

finding and the documentation of 

admissibility must be validated by a 

responsible official(s) designated by 

NMFS. 

§ 300.207 Alternative procedures for 

bycatch of PLMRs. 

(a) The alternative procedures in this 

section apply to the certification of fish 

or fish products from a nation identified 

under § 300.203 in the event that the 

Secretary cannot reach a certification 

determination for such identified nation 

by the time of the next biennial report. 

These 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 subpart. Under 

these alternative procedures, the 

Secretary of Commerce may allow entry 

of fish or fish products on a shipment– 

by–shipment, shipper–by–shipper, or 

other basis as long as the following 

conditions are met. 

(b) 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 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 stock 

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 form, 

which is available from NMFS. Such 

documentation must be submitted to 

NMFS by electronic facsimile (fax), or 

once available, via the Internet, to a 

number or website designated by NMFS. 

The documentation of admissibility 

must be executed by a duly authorized 

official of the country named in the 

finding and the documentation of 

admissibility must be validated by a 

responsible official(s) designated by 

NMFS. 

[FR Doc. E9–609 Filed 1–9–09; 4:15 pm] 

BILLING CODE 3510–22–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 0812311655–81657–01] 

RIN 0648–AX44 

Pacific Halibut Fisheries; Catch 

Sharing Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule. 

SUMMARY: NMFS proposes to approve 

and implement changes to the Pacific 

Halibut Catch Sharing Plan (Plan) for 

the International Pacific Halibut 

Commission’s (IPHC or Commission) 

regulatory Area 2A off Washington, 

Oregon, and California (Area 2A). NMFS 

proposes to implement the portions of 

the Plan and management measures that 

are not implemented through the IPHC, 

which includes tribal regulations and 

the sport fishery allocations and 

management measures for Area 2A. 

These actions are intended to enhance 

the conservation of Pacific halibut, to 

provide greater angler opportunity 

where available, and to protect 

yelloweye rockfish and other overfished 

groundfish species from being 

incidentally caught in the halibut 

fisheries. 

DATES: Comments on the proposed 

changes to the Plan and on the proposed 

domestic Area 2A halibut management 

measures must be received no later than 

5 p.m., local time on February 1, 2009. 

ADDRESSES: Copies of the Plan and 

Regulatory Impact Review (RIR)/Initial 

Regulatory Flexibility Analysis (IRFA) 

are available from D. Robert Lohn, 

Regional Administrator, Northwest 

Region, NMFS, 7600 Sand Point Way 

NE, Seattle, WA 98115–0070. Electronic 

copies of the Plan, including proposed 

changes for 2009, and of the draft RIR/ 

IRFA are also available at the NMFS 

Northwest Region website: http:// 

www.nwr.noaa.gov, click on 

‘‘Groundfish & Halibut.’’ 

You may submit comments, identified 

by RIN 0648–AX44, by any one of the 

following methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal http:// 

www.regulations.gov 

• Fax: 206–526–6736, Attn: Sarah 

Williams. 

• Mail: D. Robert Lohn, 

Administrator, Northwest Region, 


sroberts on PROD1PC70 with PROPOSALS