[Federal Register Volume 74, Number 9 (Wednesday, January 14, 2009)]
[Proposed Rules]
[Pages 2019-2032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-609]


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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.

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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:
    <bullet> Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov.
    <bullet> 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/su_docs/.

Background

    The Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 (MSRA),

[[Page 2020]]

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:
    <bullet> 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;
    <bullet> 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;
    <bullet> 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;
    <bullet> Progress at the international level to strengthen the 
efforts of Regional Fishery Management Organizations (RFMOs) to end IUU 
fishing; and
    <bullet> 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:
    <bullet> 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;
    <bullet> 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;
    <bullet> 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
    <bullet> 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

[[Page 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:
    <bullet> Seek corroboration of the alleged IUU activity or credible 
information that refutes such allegations;
    <bullet> Communicate the requirements of the Moratorium Protection 
Act to the nation; and
    <bullet> Encourage such nation to take 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:
    <bullet> Data collection and catch reporting programs, including 
observer programs, catch documentation programs, and trade tracking 
schemes;
    <bullet> Trade-related measures that seek to reduce or eliminate 
trade in fish and fish products derived from IUU fishing;
    <bullet> At-sea or dockside boarding and inspection schemes;
    <bullet> Programs documenting whether fish were caught in a manner 
consistent with conservation and management measures;
    <bullet> IUU vessel lists identifying fishing vessels that violate 
and/or undermine management measures;
    <bullet> Port state measures to prohibit landings and transshipment 
of unauthorized or other IUU catch;
    <bullet> Catch and effort monitoring, including licensing and 
permitting schemes, reporting, and vessel monitoring systems (VMS);
    <bullet> Bycatch reduction and mitigation strategies, 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;
    <bullet> 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;
    <bullet> Efforts to improve and enhance fisheries enforcement and 
compliance, including through the development of effective sanctions 
and monitoring, control and surveillance (MCS) capacity;
    <bullet> Participation in voluntary international efforts to combat 
IUU fishing (e.g., the International Monitoring, Control, and 
Surveillance (MCS) network or other cooperative enforcement and 
compliance networks).
    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.

[[Page 2022]]

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:
    <bullet> Seek corroboration of the alleged PLMR bycatch or credible 
information that refutes such allegations;
    <bullet> Communicate the requirements of the Moratorium Protection 
Act to the nation; and
    <bullet> Encourage such nation to take 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:
    <bullet> Programs for data collection and sharing, including 
observer programs;
    <bullet> Bycatch reduction and mitigation strategies, techniques, 
and equipment, including gear restrictions and gear modifications; and
    <bullet> 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

[[Page 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:
    <bullet> Efforts towards improving data collection, catch 
monitoring, and reporting programs;
    <bullet> Record of implementation of or compliance with 
international measures to address IUU fishing and/or bycatch of PLMRs;
    <bullet> Participation in technical assistance and capacity 
building programs to address IUU fishing and/or reduce bycatch and 
enhance enforcement;
    <bullet> Adequacy of surveillance, enforcement, and prosecution to 
promote compliance with conservation and management measures and 
respond to non-compliance;
    <bullet> A nation's response to IUU fishing activity and/or PLMR 
bycatch; and
    <bullet> Participation in voluntary international efforts to combat 
IUU fishing (e.g., the International Monitoring, Control, and 
Surveillance (MCS) network or other cooperative enforcement and 
compliance networks);
    <bullet> Cooperation with other governments in enforcement, 
apprehension, and prosecution efforts related to those vessels of the 
identified nation that have engaged in IUU fishing 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:
    <bullet> Catch and effort monitoring, including licensing and 
permitting schemes, reporting, and vessel monitoring systems (VMS);
    <bullet> Programs for data collection and sharing, including 
observer programs;
    <bullet> Catch documentation and trade tracking schemes that 
identify the origin and document the legality of fish from the point of 
harvest through the point of market/import;
    <bullet> Trade-related measures, such as import and export controls 
or prohibitions, to reduce or eliminate trade in fish and fish products 
derived from IUU fishing;
    <bullet> Programs that document fish were caught in a manner 
consistent with, or that does not undermine, conservation and 
management measures;
    <bullet> Port state control measures;
    <bullet> At-sea and dockside inspection schemes;
    <bullet> Bycatch reduction and mitigation strategies, 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;
    <bullet> Systems to improve monitoring, control, and surveillance 
of fishing activities;
    <bullet> Sufficient sanctions and legal frameworks to support 
effective enforcement; and
    <bullet> Measures to protect VMEs from significant adverse impacts 
from 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:

[[Page 2024]]

    <bullet> Programs for data collection and sharing, including 
observer programs;
    <bullet> Bycatch reduction and mitigation strategies, techniques, 
and equipment (including training and assistance for bycatch reduction 
technology and equipment); and
    <bullet> 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:
    <bullet> Corroboration of testimony and evidence;
    <bullet> Whether multiple sources have been able to provide 
information in support of an identification;
    <bullet> The methodology used to collect the information;
    <bullet> Specificity of the information provided; and
    <bullet> Susceptibility of the information to falsification and 
alteration; and
    <bullet> 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,

[[Page 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:
    <bullet> Assess whether individual bottom fishing activities would 
have significant adverse impacts on VMEs and, if so,

[[Page 2026]]

manage such fishing to prevent such impacts or not authorize it to 
proceed;
    <bullet> 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;
    <bullet> 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;
    <bullet> 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
    <bullet> 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

[[Page 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

[[Page 2028]]

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 Sec. Sec.  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 <a href="/cdn-cgi/l/email-protection#6125001708053e330e12150a0413210e0c034f040e114f060e17"><span class="__cf_email__" data-cfemail="1054716679744f427f63647b7562507f7d723e757f603e777f66">[email protected]</span></a> 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.


Sec.  300.200  Purpose and scope.

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


Sec.  300.201  Definitions.

    For the purposes of the Moratorium Protection Act:

[[Page 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.


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

    (a) Procedures to identify nations whose fishing vessels are 
engaged in IUU fishing. (1) NMFS will identify and list, in a biennial 
report to Congress, nations whose fishing vessels are engaged, or have 
been engaged at any point during the preceding two 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

[[Page 2030]]

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.


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

    (a) Procedures to identify nations whose fishing vessels are 
engaged in PLMR bycatch. (1) NMFS will identify and list 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.


Sec.  300.204  Effect of certification.

    (a) If an identified nation does not receive a positive 
certification under this subpart (i.e., the nation receives a negative 
certification or no certification is made), the fishing vessels of such 
nation are, to the extent consistent with international law, subject to 
the denial of entry into any place in the United States and to the 
navigable waters of the United States. At the recommendation of the 
Secretary of Commerce, certain fish or fish products from fishing 
vessels

[[Page 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.


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

    (a) Scope of Applicability. (1) If a nation identified in the 
biennial report under Sec.  300.202(a) or 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 Sec.  
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 Sec.  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

[[Page 2032]]

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 Sec.  
300.205 shall no longer apply. The Secretary of Commerce, with the 
concurrence of the Secretary of State and in cooperation with the 
Secretary of Treasury, will notify such nations and will file with the 
Office of the Federal Register for publication notification of the 
removal of the import restrictions effective on the date of 
publication.


Sec.  300.206  Alternative procedures for IUU fishing activities.

    (a) The alternative procedures in this section apply to the 
certification of fish or fish products from a nation identified under 
Sec.  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.


Sec.  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 
Sec.  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


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