[Federal Register Volume 87, Number 130 (Friday, July 8, 2022)]
[Proposed Rules]
[Pages 40763-40777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14034]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 300

[Docket No. 220603-0130]
RIN 0648-BG11


Implementation of Provisions of the Illegal, Unreported, and 
Unregulated Fishing Enforcement Act of 2015 and the Ensuring Access to 
Pacific Fisheries Act

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 a rule to implement certain provisions of the 
Illegal, Unreported, and Unregulated Fishing Enforcement Act of 2015 
and the Ensuring Access to Pacific Fisheries Act, and to amend the 
definition of illegal, unreported, or unregulated (IUU) fishing in the 
regulations that implement the High Seas Driftnet Fishing Moratorium 
Protection Act.

DATES: Written comments must be received on or before September 6, 
2022.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2016-0164, by any of the following methods:
    Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and 
enter NOAA-NMFS-2016-0164 in the Search box. Click on the ``Comment'' 
icon, complete the required fields, and enter or attach your comments.
    Mail: Submit written comments to Christopher Rogers, Office of 
International Affairs, Trade, and Commerce, National Marine Fisheries 
Service, 1315 East-West Highway (F/IS5), Silver Spring, MD 20910.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
https://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to the Office of International Affairs, 
Trade, and Commerce and by submission to Information Collection Review 
(https://www.reginfo.gov/public/do/PRAMain).

FOR FURTHER INFORMATION CONTACT: Christopher Rogers, Office of 
International Affairs, Trade, and Commerce, National Marine Fisheries 
Service (phone: 301-427-8350; or email: <a href="/cdn-cgi/l/email-protection#d8bbb0aab1abacb7a8b0bdaaf6aab7bfbdaaab98b6b7b9b9f6bfb7ae"><span class="__cf_email__" data-cfemail="77141f051e040318071f120559051810120504371918161659101801">[email protected]</span></a>).

SUPPLEMENTARY INFORMATION:

Background

    This proposed rule would implement the Port State Measures 
Agreement Act of 2015 and certain other provisions of the Illegal, 
Unreported, and Unregulated Fishing Enforcement Act of 2015 (IUU 
Fishing Act), Public Law 114-81 (November 15, 2015), and would 
implement certain provisions of the Ensuring Access to Pacific 
Fisheries Act (Pacific Fisheries Act), Public Law 114-327 (December 16, 
2016). As explained below, these two Acts amended several existing 
statutes. Thus, authority for this rulemaking comes from those existing 
statutes, as amended.
    This proposed rule would also amend the definition of IUU fishing 
in regulations that implement the High Seas Driftnet Fishing Moratorium 
Protection Act (Moratorium Protection Act) (16 U.S.C. 1826d et seq.). 
Title IV of the Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act of 2006 (Pub. L. 109-479) amended the Moratorium 
Protection Act to direct the Secretary of Commerce to promulgate a 
regulatory definition of IUU fishing. See 16 U.S.C. 1826j(e).

Statutory Background

    On November 15, 2015, President Obama signed into law the IUU 
Fishing Act, which can be found at: https://www.congress.gov/114/plaws/publ81/PLAW-114publ81.pdf, and consists of three Titles. Title I amends 
several regional fishery management agreements' implementing statutes 
to harmonize their enforcement provisions with those found in the 
Magnuson-Stevens Fisheries Conservation and Management Act, 16 U.S.C. 
1801 et seq., and addresses other administrative matters. Title II 
provides authority to implement the Antigua Convention, which was 
negotiated to strengthen and replace the 1949 Convention for the 
Establishment of an Inter-American Tropical Tuna Commission. Title III 
provides the authority to implement the provisions of the Agreement on 
Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported 
and Unregulated Fishing (Port State Measures Agreement or PSMA) of the 
Food and Agriculture Organization of the United Nations. The Port State 
Measures Agreement has been signed and ratified by the United States 
and, as of February 2022, joined by 69 other Parties, including the 
European Union on behalf of its Member States.
    On December 16, 2016, President Obama signed into law the Pacific 
Fisheries Act. This Act provides authority to implement the Convention 
on the Conservation and Management of High Seas Fisheries Resources in 
the North Pacific Ocean, the Convention on the Conservation and 
Management of High Seas Fishery Resources in the South Pacific Ocean, 
and the amendments to the Convention on Future Multilateral Cooperation 
in the Northwest Atlantic Fisheries. The Pacific Fisheries Act also 
addresses other matters, including harmonizing amendments to the 
Moratorium Protection Act (16 U.S.C. 1826d-k), which are detailed 
below.
    This proposed rule would implement only certain provisions of the 
IUU Fishing Act and the Pacific Fisheries Act, by: revising the 
regulatory penalty provisions under the Pacific Salmon Treaty Act 
(1985) (16 U.S.C. 3631) and the Dolphin Protection Consumer Information 
Act (16 U.S.C. 1385); amending the procedures for identifying and 
certifying nations under the Moratorium Protection Act; reducing the 
period of validity for vessel permits issued under the High Seas 
Fishing Compliance Act (16 U.S.C. 5501 et seq.); and expanding the set 
of information

[[Page 40764]]

required to be submitted by foreign fishing vessels requesting entry 
into U.S. ports as required by the Port State Measures Agreement. The 
proposed rule also updates a reference to subsequent subparts in the 
general definitions section of 50 CFR part 300, subpart A (50 CFR 
300.2).
    Title II of the IUU Fishing Act (implementing the Antigua 
Convention) has already been addressed through a separate final rule 
published on August 1, 2016 (81 FR 50401). Additionally, Titles I, II, 
III, V, and VI of the Pacific Fisheries Act will be implemented, as 
needed, through separate rulemakings.

Strengthening Fisheries Enforcement Mechanisms

    This proposed rule would implement several amendments made by the 
IUU Fishing Act to the fisheries enforcement mechanisms of a number of 
existing statutes implementing U.S. obligations to regional fisheries 
management organizations and other international conservation 
organizations, as described below. Rulemaking is needed to implement 
these amended enforcement provisions and to ensure their consistent 
application nationally. Specifically, the penalties section of the 
regulations implementing the Pacific Salmon Treaty Act (1985) (16 
U.S.C. 3631) would be revised to reference the updated enforcement 
provisions of the High Seas Driftnet Fishing Moratorium Protection Act 
(16 U.S.C. 1826g), described above.
    In addition, this proposed rule would revise the Dolphin Protection 
Consumer Information Act (DPCIA) (16 U.S.C. 1385) regulations to remove 
the existing paragraph describing penalties. Given that the IUU Fishing 
Act makes the updated enforcement and penalties provisions of the High 
Seas Driftnet Fishing Moratorium Protection Act (codified at 16 U.S.C. 
1826g) applicable to the DPCIA, a separate penalties section for the 
DPCIA regulations is no longer needed.

Amendments to Procedures To Identify and Certify Nations

    The Moratorium Protection Act requires the Secretary of Commerce to 
identify and certify nations whose fishing vessels are engaged in 
illegal, unreported, or unregulated fishing, bycatch of protected 
living marine resources, or shark catch on the high seas without a 
regulatory program comparable to that of the U.S. See 16 U.S.C. 
1826j(a), (d) and 1826k(a), (c) (setting forth identification and 
certification requirements) and 50 CFR 300.201-300.204 (definitions and 
identification, notification, and certification procedures). Such 
identifications and certifications are notified to Congress through a 
biennial report, available at https://www.fisheries.noaa.gov/foreign/international-affairs/identification-iuu-fishing-activities#magnuson-stevens-reauthorization-act-biennial-reports-to-congress. Nations 
identified in the Biennial Report receive notification as provided in 
50 CFR 300.202-300.204. To facilitate analysis and report preparation, 
the Pacific Fisheries Act changes the due date of the biennial report 
to June 1 of a reporting year. While adjustment of the reporting date 
is a statutory provision that does not require a regulatory change, we 
are providing notice of this change in the preamble to this rule.
    Consistent with the Pacific Fisheries Act, this proposed rule would 
amend the Moratorium Protection Act's implementing regulations for 
identifying nations (50 CFR part 300, subpart N). Specifically, the 
proposed regulatory change would expand to three years the time period 
for which a nation's fishing activities will be considered for 
identification for IUU fishing (originally 2 years), for bycatch of 
protected living marine resources (originally 1 year), or for fishing 
activities that target or incidentally catch sharks in waters beyond 
any national jurisdiction without having adopted a regulatory program 
comparable to that of the United States (originally 1 year).
    The proposed rule also would amend the existing procedures for 
certifying nations to clarify the effect of negative certification of a 
nation, including the duration of a negative certification, denial of 
port privileges, and import restrictions on fish or fish products from 
negatively certified nations. In addition, consistent with a statutory 
amendment, the proposed rule would limit the applicability of 
provisions for denial of port privileges and prohibition of imports 
only to identified nations that receive a negative certification under 
the Moratorium Protection Act. Currently, 50 CFR 300.205 addresses 
situations where a nation ``does not receive a positive 
certification,'' because the Act originally provided for the assessment 
of sanctions on a nation if that nation received a negative 
certification or if a nation has not been certified either positively 
or negatively in the subsequent biennial report. The Pacific Fisheries 
Act eliminated the option of not certifying a nation, thus existing 
regulations would be revised to reflect this change.

IUU Fishing Definition Amendments

    This proposed rule would also amend the definition of ``Illegal, 
unreported, or unregulated (IUU) fishing'' in the regulations 
implementing the Moratorium Protection Act (50 CFR 300.201). Congress 
authorized the Secretary of Commerce to establish a definition of IUU 
fishing for the purposes of the Act and required the definition to 
include, among other elements, fishing activities that violate 
conservation and management measures required under international 
fishery management agreements to which the United States is a party. 16 
U.S.C. 1826j(e).
    This proposed rule would add two new elements to the regulatory 
definition of IUU fishing for identifications and certifications under 
the Act. The first proposed element would be new paragraph (6) in the 
definition of IUU fishing in 50 CFR 300.201, which would add fishing in 
waters under the jurisdiction of a nation, without the permission of 
that nation, or in contravention of its laws and regulations. The 
United States is a contracting party to a number of regional fishery 
management organizations (RFMOs) that have adopted IUU fishing vessel-
listing procedures that presume unauthorized fishing within waters 
under the jurisdiction of another nation to be IUU fishing. For 
example, see Recommendation 2018-08 of the International Commission for 
the Conservation of Atlantic Tunas (https://www.iccat.int) and 
Conservation and Management Measure 2019-07 of the Western and Central 
Pacific Fisheries Commission (https://www.wcpfc.int).
    In addition, paragraph 3.1.1 of the United Nations Food and 
Agriculture Organization (FAO) International Plan of Action to Prevent, 
Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA 
IUU) includes fishing in the waters under the jurisdiction of a state 
without permission or in contravention of the laws of that state in its 
description of activities constituting IUU fishing (https://www.fao.org/3/y1224e/Y1224E.pdf). Consistent with the IPOA IUU, this 
proposed change to the IUU fishing definition could lead to 
identification of nations by the United States even when the 
unauthorized incursion is not a violation of any specific RFMO 
conservation measure or an RFMO has not posted any involved vessels of 
the identified flag state to its IUU fishing vessel list.
    The proposed change to the definition of IUU fishing would allow

[[Page 40765]]

identification of a nation under the Moratorium Protection Act for a 
failure to exercise effective flag state control, as evidenced by 
persistent and pervasive fishing activities by the nation's vessels in 
waters recognized by the United States as being under the jurisdiction 
of another nation without the authorization of that nation or otherwise 
in contravention of that nation's laws. The flag nation would be 
considered for identification unless there has been effective 
resolution of such illegal fishing by the flag State, on a bilateral 
basis, or through a relevant international fishery management 
organization.
    As with identifications for other aspects of IUU fishing, the 
process and procedures of 50 CFR 300.202(a) would be applied to 
consider the history, nature, circumstances, extent, duration and 
gravity of any unauthorized fishing in waters under the jurisdiction of 
a coastal nation. NMFS will also take into account any actions already 
taken or on-going proceedings by the United States and/or flag State to 
address the IUU fishing activity of concern as well as the 
effectiveness of such actions.
    NMFS notes that the Joint Explanatory Statement to Division B of 
the Consolidated Appropriations Act, 2021 (Pub. L. 116-260) directs 
NOAA to revise existing regulations defining IUU fishing in 50 CFR 
300.201 (Moratorium Protection Act regulations) to be consistent with 
the definition codified in section 3532(6) of Public Law 116-92 
(Maritime Security and Fisheries Enforcement (SAFE) Act). Under section 
3532(6), IUU fishing ``means illegal fishing, unreported fishing, or 
unregulated fishing (as such terms are defined in paragraph 3 of the 
International Plan of Action to Prevent, Deter, and Eliminate Illegal, 
Unreported and Unregulated Fishing [IPOA IUU], adopted at the 24th 
Session of the Committee on Fisheries in Rome on March 2, 2001).''
    The Joint Explanatory Statement does not amend the Moratorium 
Protection Act, which prescribes specific, minimum elements for the 
regulatory definition of IUU fishing. While the IPOA IUU generally 
describes activities considered illegal fishing, unreported fishing, or 
unregulated fishing, an operational definition of IUU fishing is needed 
in order to implement the identification and certification procedures 
of the Moratorium Protection Act. NMFS believes that the IUU fishing 
definition, as amended by proposed paragraph (6) in the definition in 
Sec.  300.201, is consistent with the IPOA IUU and Moratorium 
Protection Act, and can be used to implement the Act's procedures.
    The second proposed element would add paragraph (7) to the 
definition of IUU fishing in 50 CFR 300.201, which would amend the 
definition to include fishing activities in waters beyond any national 
jurisdiction that involve the use of forced labor. Because the 
Moratorium Protection Act sets forth ``minimum'' elements for the IUU 
fishing definition, NMFS has discretion to consider whether other 
elements should be added. Significant concerns have been raised about 
the use of forced labor in the course of fishing activity on fishing 
vessels in international waters. As stated by NMFS on page 77 of its 
2019 report to Congress, Improving International Fisheries Management 
(available at https://www.fisheries.noaa.gov/foreign/international-affairs/identification-iuu-fishing-activities), there is a growing body 
of evidence documenting severe abuses and exploitation on board fishing 
vessels. Workers on fishing vessels may be particularly vulnerable due 
to isolated workplaces and length of time at sea, which physically 
restricts workers' abilities to leave or escape abusive situations. 
Fisheries also frequently recruit migrant workers, who may not be 
protected by the flag state's domestic laws, and are therefore more 
vulnerable to exploitation. Further, such abuses and exploitation are 
known to occur in conjunction with other IUU fishing activities. These 
practices may include charging workers recruitment fees, confiscating 
and withholding workers' passports or identity documents, threats or 
physical violence, and using fraudulent recruitment tactics such as 
contract switching.
    To facilitate implementation, paragraph (7) in the definition of 
IUU fishing in Sec.  300.201 is focused on fishing activities ``in 
waters beyond any national jurisdiction.'' This is consistent with the 
Moratorium Protection Act's bycatch and shark identification 
provisions, 16 U.S.C. 1826k(a)(1)(A), (2)(A). The proposed rule uses 
the definition of ``forced labor'' in Section 307 of the Tariff Act of 
1930, as amended (19 U.S.C. 1307) with a few edits: ``all work or 
service which is exacted from any person under the menace of any 
penalty for its nonperformance and for which the worker does not offer 
[themself] voluntarily. For purposes of this subpart, forced labor 
includes forced child labor.'' As forced labor can include ``indentured 
labor'' and the latter term is not separately defined, the proposed 
rule does not include ``indentured labor.'' In addition, one 
grammatical edit is noted in brackets.
    As previously discussed, the Joint Explanatory Statement directs 
that the definition of IUU fishing be consistent with the definition 
codified in section 3532(6) of Public Law 116-92 (Maritime Security and 
Fisheries Enforcement (SAFE) Act). Under section 3532(6), IUU fishing 
``means illegal fishing, unreported fishing, or unregulated fishing (as 
such terms are defined in paragraph 3 of the International Plan of 
Action to Prevent, Deter, and Eliminate Illegal, Unreported and 
Unregulated Fishing [IPOA IUU], adopted at the 24th Session of the 
Committee on Fisheries in Rome on March 2, 2001).'' Under the IPOA IUU 
paragraph 3,

    Illegal fishing refers to activities: 3.1.1 conducted by 
national or foreign vessels in waters under the jurisdiction of a 
State . . . in contravention of its laws and regulations; . . . 
3.1.3 in violation of national laws or international obligations, 
including those undertaken by cooperating States to a relevant 
regional fisheries management organization.

    The IPOA IUU does not specifically mention forced labor. However, 
the Maritime SAFE Act refers to ``IUU fishing, including its links to 
forced labor and transnational organized illegal activity.'' 16 U.S.C. 
8003(1). It also indicates that trafficking and forced labor are 
``other'' crimes ``associated'' with IUU fishing. 16 U.S.C. 8013(d)(9). 
The Maritime SAFE Act also references the ties of IUU fishing to human 
trafficking, poor working conditions, and labor abuses. See, e.g., 16 
U.S.C. 8003 (11), (12).
    While the Maritime SAFE Act does not require that forced labor be 
included as an element of IUU fishing, the addition of paragraph (7) to 
the definition in Sec.  300.21 is not inconsistent with the Maritime 
SAFE Act and the IPOA IUU. Specifically, the proposed addition of 
``forced labor'' uses the established definition embodied in U.S. law 
and widely adopted international obligations. The definition, which 
comes from Section 307 of the Tariff Act of 1930, is consistent with 
Article 2 of the Forced Labor Convention of 1930. The 1998 ILO 
Declaration on Fundamental Principles and Rights at Work confirms that 
all ILO Members have an obligation, arising from the very fact of 
membership in the organization, to respect, promote and realize, in 
good faith, the principles concerning fundamental labor rights. One of 
those principles is the elimination of forced or compulsory labor. In 
addition, the primary international instrument

[[Page 40766]]

concerning human trafficking,\1\ which has been widely ratified, 
provides a framework for countries to criminalize trafficking in 
persons in all its forms, including for the purpose of forced labor; to 
prevent the crime; to protect the victims; and to facilitate 
international cooperation. If finalized, the inclusion of forced labor 
in the definition of IUU fishing would apply only in the Moratorium 
Protection Act context and would not modify other legal authorities.
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    \1\ The Protocol to Prevent, Suppress and Punish Trafficking in 
Persons Especially Women and Children, supplementing the United 
Nations Convention against Transnational Organized Crime (Protocol), 
defines trafficking in persons as the recruitment, transportation, 
transfer, harboring or receipt of persons, by means of the threat or 
use of force or other forms of coercion, of abduction, of fraud, of 
deception, of the abuse of power or of a position of vulnerability 
or of the giving or receiving of payments or benefits to achieve the 
consent of a person having control over another person, for the 
purpose of exploitation. The Protocol provides that exploitation 
includes forced labor or services. See also the Trafficking Victims 
Protection Act of 2000, 22 U.S.C. 7102 (defining ``severe forms of 
trafficking in persons'' to include ``the recruitment, harboring, 
transportation, provision, or obtaining of a person for labor or 
services, through the use of force, fraud, or coercion for the 
purpose of subjection to involuntary servitude, peonage, debt 
bondage, or slavery''); see also 18 U.S.C. 1589 (Forced Labor) 
(punishing whoever ``knowingly provides or obtains the labor or 
services of a person'' by means of force, threats of force, threats 
of serious harm, or other means set forth in section 1589).
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Revisions to the IUU Fishing Identification Procedures

    With regard to the triggers for identification, the Moratorium 
Protection Act provides that, for actions of its fishing vessels, a 
nation is identified for IUU fishing if it violates measures required 
under an international fishery management organization and the 
violations undermine the effectiveness of such measures, or the nation 
fails to effectively address or regulate IUU fishing in areas where no 
international fishery management organization exists with a mandate to 
regulate the fishing activity in question. 16 U.S.C. 1826j(a). NOAA is 
committed to engaging with such organizations to take any appropriate 
actions on forced labor issues. But given that no such organization has 
adopted a binding forced labor measure yet, proposed Sec.  
300.202(a)(1)(iii) adds a new basis for identifying a nation for its 
fishing vessels' IUU fishing actions ``[a]s defined under paragraph (7) 
of the definition of IUU fishing in Sec.  300.201.''
    As with identifications for other aspects of IUU fishing, NMFS 
would apply the process and considerations under 50 CFR 300.202(a). 
Given the expertise of other Departments and agencies on labor issues, 
the proposed rule adds that NMFS may consider relevant documentation, 
information, and advice from other Departments and agencies during the 
identification and certification process and may engage with other 
Departments and agencies during the consultation process with 
identified nations ((50 CFR 300.202(a)(3), (c), and (d)(2)).
    NMFS seeks comment on the proposed addition of paragraph (7) to the 
definition of IUU fishing in Sec.  300.201, the related, new basis for 
identification of nations, and other conforming provisions; on whether 
other alternatives would be more appropriate or preferable; on which 
factors should be considered when identifying and certifying nations 
that are engaged in fishing activities that involve the use of forced 
labor; and on any other considerations concerning the implementation of 
the proposed measures to address forced labor under the Moratorium 
Protection Act.
    NMFS also proposes a revision to the identification criteria for 
IUU fishing (50 CFR 300.202) to conform with a statutory amendment to 
the Moratorium Protection Act. Under the revised identification 
criteria, NMFS could also identify a nation for actions or inactions 
that undermine a conservation measure of an RFMO to which the United 
States is a party even in situations where there is no direct evidence 
of activities by specific vessels. For example, identification could 
occur when a nation does not report catch and effort data as required 
by the RFMO to assess stocks or monitor catch allocations. NMFS could 
also identify a nation if its vessels are engaged in activities defined 
as IUU fishing in areas where no RFMO has been established and 
therefore no specific conservation measures would pertain.
    New Sec.  300.202(a)(3) contains existing regulatory text that is 
proposed to be reordered and, as explained above, adds a reference to 
possible consultation with other relevant Departments and agencies 
regarding information on forced labor in specific fisheries including, 
but not limited to, information provided under section 131 of the 
Trafficking Victims Protection Reauthorization Act (TVPRA) and Withhold 
Release Orders and Findings issued pursuant to section 307 of the 
Tariff Act of 1930. This paragraph (a)(3) provides discretion to 
examine the full context of the IUU fishing activity and relevant 
mitigating circumstances when deciding to identify a nation. These 
discretionary provisions would apply to both paragraph (a)(1) as 
proposed to be revised and paragraph (a)(2) as proposed to be added. 
Under new paragraph (a)(2), a nation could be identified on the basis 
of certain actions/inactions as a flag state. NMFS would not need to 
have detailed information about the actions of specific vessels when 
applying the provisions of proposed paragraph (a)(2). For example, 
failure to implement required monitoring, control and surveillance 
measures for its fleet or report annual catch data to the relevant RFMO 
could lead to an identification under paragraph (a)(2).

Definition of ``Nation''

    This proposed rule would also add a regulatory definition for 
``nation'' to address a corresponding provision of the IUU Fishing Act. 
Consistent with the amended statutory text, this provision specifies 
that in addition to nations, an entity having the competency to enter 
into international fisheries management agreements could be identified 
as a nation under the Moratorium Protection Act process.

Consolidation of Alternative Procedures Provisions

    Proposed revisions to Sec.  300.207 consolidate text in existing 
Sec. Sec.  300.207 (IUU fishing), 300.208 (bycatch) and 300.209 (shark 
catch) on alternative procedures for products not subject to trade 
restrictions under circumstances of a negative certification of a 
nation. Under the Moratorium Protection Act and current procedures, the 
Secretary of Commerce may make a determination that a vessel has not 
engaged in IUU fishing under an international fishery management 
agreement to which the United States is a party. The proposed rule 
would delete the reference to an agreement, given the proposed edits 
related to forced labor and interest in ensuring that trade 
restrictions are applied fairly and consistently.

Reformatting Revisions

    Finally, this proposed rule would also renumber several provisions 
of the Moratorium Protection Act's implementing regulations to fix 
erroneous formatting in the existing regulatory text.
Validity Period for High Seas Fishing Compliance Act Permits
    This proposed rule would revise the High Seas Fishing Compliance 
Act (HSFCA) (16 U.S.C. 5501 et seq.) regulations to indicate that a 
high seas permit becomes void upon the expiration, revocation, or 
suspension of any other permit or authorization also required for the 
conduct of the particular high seas fishing activity (see

[[Page 40767]]

e.g., 50 CFR 635.4, requiring permits for Atlantic Highly Migratory 
Species Fisheries; 50 CFR 660.707 requiring permits for West Coast 
Fisheries for Highly Migratory Species; 50 CFR 665.13 requiring permits 
to fish for Western Pacific Pelagic Fisheries).
    In addition, this proposed rule would clarify that a high seas 
permit will no longer be issued for a period of validity of 5 years as 
the IUU Fishing Act eliminated this requirement in amending the HSFCA. 
NMFS instead proposes to set the length of validity of these high seas 
permits to 1 year to ensure that vessels are compliant with monitoring, 
reporting, and record-keeping requirements through an annual review 
upon receipt of a renewal application. Additionally, the annual review 
will ensure that any underlying permits necessary to obtain an HSFCA 
permit for a specific fishery, many of which require annual renewal, 
are concurrently valid. NMFS notes that the proposed regulatory text 
does not specify a 1 year period, but states that HSFCA permits are 
valid from their dates of issuance to dates of expiration. This 
approach provides NMFS with flexibility to consider changing a HSFCA 
permit's validity period, in light of changes to the validity periods 
of the underlying permits, if any, needed to authorize the high seas 
fishing activity.
    The HSFCA applies, and requires a permit, for a vessel of the 
United States (or subject to the jurisdiction of the United States) 
used or intended for use on the high seas; for the purpose of the 
commercial exploitation of living marine resources; and as a harvesting 
vessel, as a mother ship, or as any other support vessel directly 
engaged in a fishing operation. 16 U.S.C. 5502(4). Under the US 
implementing regulations for several RFMO conventions, permits are 
required throughout the convention area whether fishing in the U.S. 
Exclusive Economic Zone (EEZ) or beyond. The statutory requirements 
overlap, thus it is appropriate to coordinate permits for consistent 
periods of validity. The overlapping fisheries are identified in the 
regulations at 50 CFR 300.334(a).
    Because annual renewal would reduce the period of validity for high 
seas permits from the existing five years, the proposed rule requires 
modifications to an existing information collection subject to approval 
by the Office of Management and Budget (OMB) under the Paperwork 
Reduction Act (OMB Control Number 0648-0304). As explained below, NMFS 
has revised the reporting burden associated with renewal of these 
permits. In addition, NMFS has implemented an automated permitting 
system for initial permits and renewal permits, so no additional staff 
would be needed to accomplish annual renewals.
    NMFS requests comment on the proposal to renew HSFCA vessel permits 
on an annual basis. In addition, should the proposed action be 
implemented, NMFS requests comment on the appropriate transition to 
annual permits. Options could include converting HSFCA permits as they 
expire over the next few years, recalling all current permits and 
reissuing them for a one-year period of validity, or re-issuing HSFCA 
vessel permits together with any underlying permits held by the vessel 
according to the same period of validity for those other permits. NMFS 
will also consider other transition options submitted during the 
comment period on this proposed rule.
Transshipment and Catch on the High Seas
    Sections 300.339 and 300.341 of 50 CFR part 300, subpart R, 
concerning transshipment and catch by U.S-flagged vessels on the high 
seas, are proposed to be revised for formatting purposes only. The 
procedures for notification and reporting of high seas transshipment, 
and for reporting catch, that are currently in effect would not be 
altered by these formatting changes.
Implementation of the Port State Measures Agreement
    This proposed rule would implement the Port State Measures 
Agreement, as authorized by Title III of the IUU Fishing Act. The main 
purpose of the Port State Measures Agreement, which can be found at 
https://www.fao.org/3/a-i5469t.pdf, is to prevent, deter, and eliminate 
IUU fishing through the implementation of minimum standards for 
effective port state measures. The Port State Measures Agreement is 
intended to enhance regional and international cooperation and the 
ability of nations to detect and intercept products of IUU fishing 
before they enter into national and international markets. NOAA 
proposes to incorporate the PSMA by reference.
    The regulations authorizing actions against IUU fishing vessels (50 
CFR part 300, subpart P) would be amended to incorporate certain 
definitions included in the IUU Fishing Act. In particular, a 
definition of ``IUU fishing'' would be added to reflect the description 
of IUU fishing included in the International Plan of Action to Prevent, 
Deter and Eliminate Illegal, Unreported and Unregulated Fishing of the 
FAO, which was incorporated by reference into the Port State Measures 
Agreement. This definition would establish the criteria for denial of 
port access or port privileges to a vessel known to be engaged in IUU 
fishing or for which there are reasonable grounds to believe it to be 
engaged in IUU fishing. It is not inconsistent with, and is distinct 
from, the definition of IUU fishing as laid out in 50 CFR part 300, 
subpart N, which serves as the basis to identify nations for engaging 
in IUU fishing under the Moratorium Protection Act.
    NOAA likewise proposes to incorporate by reference FAO's 2001 
International Plan of Action to Prevent, Deter and Eliminate Illegal, 
Unreported and Unregulated Fishing, which can found at https://www.fao.org/3/y1224e/Y1224E.pdf. That Plan of Action addresses the 
nature and scope of IUU fishing and adopts objectives and principles to 
prevent, deter, and eliminate IUU Fishing. In particular, NMFS proposes 
to incorporate by reference the description of activities deemed to 
constitute IUU fishing and apply that description for the purposes of 
screening foreign fishing vessels seeking entry to U.S. ports.
    In current subpart P, the regulations address U.S. obligations to 
RFMOs that have included vessels on IUU fishing vessel lists. This 
proposed rule would add to subpart P those obligations of the U.S. as a 
party to PSMA. RFMOs decide how to define IUU fishing for the purposes 
of listing IUU fishing vessels. The addition of PSMA obligations to 
these regulations expands U.S. requirements to take action against 
vessels engaged in IUU fishing, or for which there are reasonable 
grounds to believe it has been engaged, even if the vessels were not 
previously posted to RFMO IUU fishing vessel lists. The IPOA IUU 
description of IUU fishing activities would be used as a basis to take 
action against vessels not listed by an RFMO.
    The respective RFMO definitions of IUU fishing would continue to be 
used to take obligatory action against RFMO listed vessels. The subpart 
N definition of IUU fishing would be used as a basis for action to 
identify and negatively certify a nation under the Moratorium 
Protection Act, and port access restrictions would pertain. The subpart 
P definition would be used as a basis for action under PSMA 
obligations. In some instances, there could be more than one statutory 
authority that could lead to a denial of port access and/or port 
privileges. The specific actions of the vessel and the pertinent 
authority for the situation would determine how port access would be 
denied or granted.
    Ports to which foreign vessels may request entry pursuant to the 
PSMA,

[[Page 40768]]

include those Customs Ports of Entry listed in 19 CFR 101.3 and those 
specified under any existing international fisheries agreement. NMFS 
interprets the latter as referring to any such agreements that are in 
force, not just those existing when the IUU Fishing Act was enacted in 
2015. The regulatory provisions for vessel inspection under subpart P 
would apply to either a situation where an RFMO has placed the vessel 
on its IUU fishing vessel list (U.S. obligation to the RFMO) or a 
situation where the vessel is not listed by an RFMO but is suspected of 
having engaged in IUU fishing as that term is defined in subpart P 
(U.S. obligation under the PSMA). Vessel inspections will be carried 
out as necessary to meet all U.S. obligations that pertain to the 
circumstances applicable to the vessel.
    In addition, the proposed action would expand the set of 
information required to be submitted by foreign vessels when such 
vessels request entry into U.S. ports. The term ``vessel'' is defined 
by the Act at 16 U.S.C. 7402(8) as ``any vessel, ship of another type, 
or boat used for, equipped to be used for, or intended to be used for, 
fishing or fishing related activities''. The regulations would also 
specify the criteria under which port entry and access to port 
privileges is authorized or denied, and procedures for communicating 
the decisions regarding port entry and access to port privileges.
    U.S. Coast Guard regulations currently require foreign-flagged 
vessels to give advance notice prior to arrival at a U.S. port or place 
of destination, as defined in 33 CFR 160.202. In accordance with 33 CFR 
160.206, vessels are currently required to report electronically, 
through the U.S. Coast Guard's electronic Notice of Arrival and 
Departure (eNOAD) system. Under current U.S. Coast Guard regulations, 
information to be submitted includes the vessel name, voyage number, 
cargo on board, crewmembers, and other related information. This 
information must be reported to the Coast Guard's National Vessel 
Movement Center (NVMC) at least 96 hours before entering the port or 
place of destination or, if an exemption applies, in accordance with 
the timeframe stipulated at 33 CFR 160.212.
    Annex A of the Port State Measures Agreement is titled Information 
to be Provided in Advance by Vessels Requesting Port Entry. The 
information specified in Annex A must be collected from foreign vessels 
when they are bound for a U.S. port. Annex A information includes: 
specific vessel information, including external and RFMO vessel 
identification numbers, the type of vessel and its dimensions, the type 
of Vessel Monitoring System aboard the vessel, details about relevant 
fishing and transshipment authorizations for the vessel, as well as a 
description of the total catch onboard the vessel and the catch to be 
offloaded at the requested port of entry.
    Therefore, the proposed rule would require vessel operators to 
submit this additional information through the eNOAD system and 
outlines expanded requirements with respect to the Notice of Arrival 
process for vessels bound for U.S. ports listed in 19 CFR 101.3. 
Supplemental submission may be needed if the PSMA Annex A information 
is incomplete. Vessel operators submitting a notice of arrival are 
already familiar with and using the eNOAD system. It is anticipated 
that only a few hundred foreign fishing vessels will be affected 
annually by the additional information requirement. No additional 
operators on board foreign fishing vessels are likely needed to collect 
and transmit this information.
    This would be a new information collection subject to approval by 
OMB under the Paperwork Reduction Act (OMB Control Number to be 
assigned). NMFS has coordinated closely with the U.S. Coast Guard to 
ensure that these proposed regulations would be compatible with 
existing U.S. Coast Guard regulations and operations.
    Once this new information collection is approved, compliance 
guidance documents outlining the requirements of the information 
collection, as well as the revised process of requesting port entry, 
will be made available through the NMFS Office of Law Enforcement and 
the U.S. Coast Guard (USCG). Should the proposed action be implemented, 
NMFS will provide for a period of delayed effectiveness that will allow 
USCG time for software development, testing and deployment, and to 
allow shippers and vessel operators the time needed to become familiar 
with the new information requirements and notification procedures. NMFS 
requests comment on the additional time needed for operators of foreign 
fishing vessels before the new reporting requirement becomes mandatory 
for acceptance of a notice of arrival.

Classification

    This rulemaking is published under the authority of the Illegal, 
Unreported, and Unregulated Fishing Enforcement Act of 2015, Public Law 
114-81 (November 15, 2015); the Ensuring Access to Pacific Fisheries 
Act, Public Law 114-327 (December 16, 2016); the High Seas Driftnet 
Fishing Moratorium Protection Act, 16 U.S.C. 1826d-k; 16 U.S.C. 1801 et 
seq.; 16 U.S.C. 5501 et seq.; Antarctic Marine Living Resource 
Conservation Act of 1984, 16 U.S.C. 2431 et seq.; 31 U.S.C. 9701 et 
seq.; the High Seas Driftnet Fishing Enforcement Act, 16 U.S.C. 1826a-
1826c; the Marine Mammal Protection Act, 16 U.S.C. 1361 et seq.; the 
Atlantic Tunas Convention Act, 16 U.S.C. 971 et seq.; the Northwest 
Atlantic Fisheries Convention Act, 16 U.S.C. 5601 et seq.; and the 
Pacific Salmon Treaty Act, 16 U.S.C. 3631 et seq.; the Tunas Convention 
Act, 16 U.S.C. 951 et seq., the Magnuson-Stevens Fishery Management and 
Conservation Act, 16 U.S.C. 1801 et seq.; and the High Seas Fishing 
Compliance Act, 16 U.S.C. 5501 et seq. The NMFS Assistant Administrator 
has determined that this proposed rule is consistent with the above 
referenced statutes and other applicable law, subject to further 
consideration after public comment.
    This rulemaking has been determined to be significant for the 
purposes of Executive Order (E.O.) 12866. Details on the estimated 
costs and potential benefits of this proposed rule can be found in the 
associated Regulatory Impact Review. NMFS requests comments on the 
benefit-cost analysis, including whether the most likely net impacts 
are reasonable, and solicits additional information to better 
characterize the indirect effects of this rulemaking on curtailing IUU 
fishing activity.
    As described in the Background section above, certain provisions of 
two different Acts would be implemented through this rulemaking: the 
IUU Fishing Act (Pub. L. 114-81), implementation of which includes a 
proposed new information-collection; and the Pacific Fisheries Act 
(Pub. L. 114-327), implementation of which includes a proposed revision 
to an existing information-collection.

Regulatory Flexibility Act

    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA) to 
describe the economic impact that this proposed rule would have on 
small entities in accordance with section 603 of the Regulatory 
Flexibility Act (RFA), 5 U.S.C. 603. A description of the proposed 
rule, why it is being considered, and the objectives of, and legal 
basis for, this proposed rule are contained in the SUMMARY section of 
the preamble. A copy of the full analysis is available on the Federal 
e-Rulemaking Portal (see ADDRESSES). A summary of the IRFA follows.

[[Page 40769]]

    The proposed action and new information collection under the IUU 
Fishing Act would directly affect approximately 300 foreign fishing 
vessels and foreign vessels engaged in fishing-related activities that 
seek access to U.S. ports. The foreign fishing vessel's notice of 
arrival, including the PSMA Annex A information, would identify the 
vessel's flag State and the fishing activities authorized by the flag 
State. If NMFS has concerns about fraudulent representations, the 
reported information can be verified by the flag State. If NMFS has 
concerns about the RFMO compliance status of flag States, a vessel 
allowed in port could be subject to inspection. The existing notice of 
arrival process would not provide sufficient information regarding 
fishing authorizations by the flag State. If the PSMA Annex A 
information is not collected via eNOAD, NMFS would have to obtain that 
information via other sources.
    The requirement for PSMA Annex A information would indirectly 
affect some U.S. suppliers of port services should vessels be denied 
entry. However, these suppliers of port services would not be subject 
to any of the requirements of this rulemaking and the number of vessels 
denied entry or denied port services under this proposed rule is 
estimated to be small. While there may be some minor indirect impacts 
on suppliers due to port denials, such impacts on small entities to 
which the rulemaking would not apply are not analyzed under the IRFA.
    For the potentially affected foreign vessels, only a small 
percentage would likely receive a Denial of Entry Notice. Because 
foreign vessels engaged in fishing-related activities outside of U.S. 
waters are not regulated by NMFS or any other U.S. Federal or State 
agency, information is not available to enable an estimate of the 
number of those vessels that might be expected to receive a Denial of 
Entry Notice. However, otherwise admissible foreign fishing vessels 
that are unable to meet the notice of arrival information requirements 
are unlikely to seek entry into U.S. ports. Those eligible foreign 
fishing vessels that can meet the notice of arrival requirements, 
including PSMA Annex A information, are unlikely to be denied port 
access unless they submit obviously fraudulent or suspicious 
information.
    With respect to the Pacific Fisheries Act, this proposed rule 
includes regulatory provisions to implement Title IV of the Act, which 
would make conforming amendments to regulations implementing the 
statutes amended by the Act, specifically amendments to the High Seas 
Driftnet Fishing Moratorium Protection Act. Titles I, II, III, V, and 
VI of the Pacific Fisheries Act have been or will be implemented, as 
needed, through separate rulemakings.
    As discussed above, the Pacific Fisheries Act removed the 
requirement that a high seas fishing permit be issued for a period of 
validity of five years. Instead, NMFS proposes that the validity of the 
high seas permit be limited to one year.
    A 1 year period is more appropriate than the current 5 year period 
in order to ensure that high seas fishing vessels are compliant with 
all other relevant requirements and that underlying permits necessary 
to participate in the fisheries authorized by an HSFCA permit are 
concurrently valid. The objective of the change is to coordinate 
issuance and renewal of the HSFCA permit with other required permits 
for the particular fishery. NMFS examined the permit programs for those 
other fisheries and determined that annual renewal of HSFCA permits 
would coincide with renewal of other permits required to participate in 
the fisheries when those vessels operate on the high seas.
    The HSFCA permit is required of, and issued to, U.S. flag vessels 
fishing on the high seas, not to foreign fishing vessels. U.S. vessels 
are not subject to the PSMA requirements for entry into U.S. ports, 
only foreign fishing vessels. There would be no supply chain impacts to 
the proposed annual renewal of HSFCA permits, because the number of 
permits is either not limited for some fisheries or limited by other 
pre-existing regulations for those fisheries.
    This change to annual permit renewal would have potential impacts 
to small entities. Therefore, the analysis focuses primarily on the 
effects of the change of the permit frequency to permit holders.
    Small entities include ``small businesses,'' ``small 
organizations,'' and ``small governmental jurisdictions.'' The Small 
Business Administration (SBA) has established size standards for all 
major industry sectors in the U.S. including commercial seafood 
processors (North American Industry Classification System (NAICS) code 
311710). A business primarily involved in seafood processing is 
classified as a small business if it is independently owned and 
operated, is not dominant in its field of operation (including its 
affiliates), and has combined annual employment not in excess of 750 
employees for all its affiliated operations worldwide. A small 
organization is any not-for-profit enterprise that is independently 
owned and operated and is not dominant in its field. Small governmental 
jurisdictions are governments of cities, counties, towns, townships, 
villages, school districts, or special districts, with populations of 
less than 50,000.
    On December 29, 2015, NMFS issued a final rule establishing a small 
business size standard of $11 million in annual gross receipts for all 
businesses primarily engaged in the commercial fishing industry (NAICS 
11411) for RFA compliance purposes only (80 FR 81194). The $11 million 
standard became effective on July 1, 2016, and is to be used in place 
of the U.S. SBA current standards of $20.5 million, $5.5 million, and 
$7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), 
and other marine fishing (NAICS 114119) sectors of the U.S. commercial 
fishing industry in all NMFS rules subject to the RFA after July 1, 
2016. Id. at 81194.
    The proposed 1 year permit renewal would apply to owners and 
operators of U.S. permitted fishing vessels operating on the high seas, 
including harvesting vessels operating on the high seas, refrigerated 
cargo vessels, or other vessels used to support fishing. As of March 
2022, there are 347 registered U.S. vessels permitted to fish on the 
high seas. The majority of these permitted vessels are longliners, 
trollers, purse seiners, and pole and line vessels. There is also a 
small percentage of gillnetting, squid jigging, line fishing, 
multipurpose, and trawl vessels. A small number of the affected 
entities are freezer vessels involved in seafood processing.
    In the IRFA, an individual permitted vessel was used as the proxy 
for each business entity. Although a single business entity may own 
multiple vessels, NMFS does not have a reliable means at this time to 
track ownership of multiple vessels to a single business entity. For 
this reason, an assumption that each vessel is owned by a unique 
business entity may overestimate the number of small businesses 
affected by the proposed rule.
    The NMFS annual report, Fisheries of the United States, for 2019 
provides an aggregate total revenue for the active vessels (permit 
holders reporting catch) listed as fishing on ``High Seas or off 
Foreign Shores'' of $394 million in 2018 and and $347 million in 2019. 
Using these revenue figures and the current number of permitted 
vessels, average annual revenues for an individual U.S. high seas 
vessel over the 2 year period is estimated at $1.1 million. Based on 
the best available financial information about the affected fishing 
vessels (i.e., permit holders), NMFS believes that all the affected 
fish harvesting businesses

[[Page 40770]]

would be small entities as defined by the RFA; that is, they are 
independently owned and operated and not dominant in their fields of 
operation, and have annual receipts of no more than $11 million. Also, 
this sector has an employee-based size standard different from other 
sectors. A size standard of less than 750 employees would classify 
these business as small. Based on available information on freezer 
vessels, NMFS believes the entities would have fewer than 750 employees 
and therefore, would be considered small entities as well.
    If promulgated, the proposed action would require entities to renew 
the permit annually, increasing the cost over the current requirement 
of a renewal only every 5 years. NMFS reevaluated the cost of the 
application process under the annual renewal cycle and due to automated 
renewal procedures recently implemented for this program. As a result 
of automation, NMFS lowered the permit fee from $129.00 to $56.00 for 
each application/renewal. While the automation represents a decrease 
for each application, the proposed change from 5-year renewal to annual 
renewals would result in an increase in permitting fees from an average 
of $11.20 per year to $56.00 per year. The HSFCA authorizes the 
Secretary of Commerce to retain permit fees for the administration of 
the program and such funds remain available until expended. Collected 
fees have been used for development, operations and maintenance of the 
National Permits System including enhancements to automate issuance of 
HSFCA vessel permits.
    NMFS has estimated the burden and cost associated with the 
information collection that would be imposed on the entities. NMFS 
estimates that the total public burden for the proposed information 
collection and fee will apply to all permitted entities that would have 
to comply with the changes in permit validity as part of the proposed 
regulation. These estimates include the time required to review the 
instructions and update any information from the previous year that may 
have changed (e.g., upload a new picture of vessel) and pay the 
associated permit fee via the U.S. Treasury financial management system 
(www.pay.gov). The detailed analysis is provided in the request to OMB 
for approval of revisions to the information collection under Control 
Number 0648-0304.
    The labor burden estimates of the proposed action were based on a 
permit holder's hours of activity required to comply with the proposed 
regulation to require an annual permit renewal application and fee, 
rather than the current five-year renewal. Over 5 years, this equates 
to completion of four additional permit applications and payment of the 
application processing fee each year. NMFS previously estimated one-
half hour to complete the paper application form based on the number of 
required data elements and the need to mail the form. With the ability 
to apply for new permits and renew permits online, previously recorded 
data elements are pre-populated in the system, thus reducing data entry 
time. Because the annual renewal process is automated and available 
online, NMFS has reduced its estimate of the average time burden by 50 
percent from 0.5 hours per application to 0.25 hours. For the purpose 
of burden analysis, NMFS assumed that an upper bound of 400 vessels 
would apply for or maintain HSFCA permits. Given the reduced time per 
application in the automated environment (15 minutes), NMFS estimates 
that the total burden to all 400 permit holders for the information 
collection would require an additional 80 labor hours annually to 
comply with the proposed regulation compared to current regulation 
(i.e., each vessel owner completing four additional permit applications 
over a 5 year period).
    NMFS assumes the administrative burden to complete the permit is 
the same for all entities (i.e., permit holders), regardless of whether 
the entity harvests or processes seafood. NMFS estimated the labor cost 
of $5.28 per application using the Bureau of Labor and Statistics 2021 
mean hourly wage for Bookkeeping, Accounting, and Auditing Clerks of 
$21.10 and a mean time of 15 minutes per application/renewal. There is 
no additional recordkeeping or reporting requirements associated with 
the proposed annual permit renewal. There is no additional capital or 
operational and maintenance cost associated with the proposed 
regulation. If promulgated, the total cost (processing fee plus 
application process labor) per entity is estimated to be $61.28 per 
year ($24,512 for an estimated 400 permit holders). This represents an 
insignifcant fraction of the average revenue for the high seas fishing 
permit holders who actively engaged in fishing in 2018 and 2019.
    The proposed action in this rule does not limit an entity's ability 
to harvest or process fish and, therefore, would not impose a 
significant adverse impact on an entity's profitability. All entities 
are expected to be able to absorb the cost associated with the proposed 
action as part of their normal cost of operations. Therefore, based on 
the results of the analysis and all available information, if 
promulgated, NMFS does not anticipate that this proposed action would 
impose significant adverse or long-term economic impacts on a 
substantial number of small entities.
    Relative to this proposed regulation, no duplicative, overlapping, 
or conflicting Federal rules have been identified. The annual renewal 
of HSFCA permits would not require changes to observer deployment under 
the other applicable authorities for regulating high seas fisheries 
(e.g., Atlantic Highly Migratory Species, Western Pacific Pelagic 
Fisheries, and Pacific Highly Migratory Species). Therefore, annual 
renewal under HSFCA would not affect the schedule for dockside safety 
exams necessary for observer deployment.
    In addition to analyzing the proposed action, NMFS considered and 
rejected a no-action alternative, whereby NMFS would leave the length 
of validity of the permit at 5 years. The no-action alternative to the 
proposed rule would impose the least burden or economic impact on small 
entities, but it does not allow NMFS the ability to best fulfill its 
obligations to monitor and control its fishing vessels operating in 
areas beyond any national jurisdiction.
    Although NMFS did consider other lengths of validity for this 
permit (i.e., 2 or 3 years), the proposed annual permit renewal is the 
preferred alternative because it will synchronize renewals with the 
underlying fisheries permits that each high seas permit holder must 
also carry. These underlying permits are required to operate the vessel 
on the high seas for the specifically authorized fisheries and these 
other permits must be renewed annually. Issuing a vessel permit under 
HSFCA authority for a time period inconsistent with another required 
permit can lead to confusion about the actual fishing authorization. In 
addition, as discussed above, it will also provide the United States 
with a better ability to monitor and control its high seas fishing 
fleet by ensuring that any delinquent reports are submitted at the time 
of initial permit application or annual renewal.

Paperwork Reduction Act

    There are two collection-of-information requirements in this 
proposed rule that are subject to OMB review and approval under the 
Paperwork Reduction Act. The first is a new collection-of-information 
that would be established to comply with the United States' obligations 
under the

[[Page 40771]]

Port State Measures Agreement. This collection-of-information was 
submitted to OMB for approval. The proposed collection-of-information 
would apply to foreign vessels engaged in fishing activities that are 
also seeking access to U.S. ports. The reporting burden would apply 
only to the personnel aboard the foreign vessel who file the eNOAD 
report. USCG will process the information for its purposes (e.g., Ports 
and Waterways Safety Act) while NMFS will process the Annex A 
information to determine if the vessel is listed by RFMOs or is 
otherwise believed to have engaged in IUU fishing.
    The new collection-of-information burden, as proposed under this 
rule, is estimated to be an increase of 0.17 hours per submission over 
the normal eNOAD filing already required of foreign vessels calling on 
U.S. ports. In 2017, the U.S. Coast Guard received a total of 183,582 
vessel Notice of Arrival submissions, 675 of which were classified as 
fishing vessels (defined under the Port State Measures Agreement as 
``any vessel, ship of another type or boat used for, equipped to be 
used for, or intended to be used for, fishing or fishing-related 
activities.'') Of these fishing vessel submissions, 217 were from 
foreign-flagged vessels. For the purpose of estimating reporting 
burden, NMFS is assuming that each submission is made by an individual 
vessel, but this would be an overestimate if some submissions were made 
by the same vessel.
    NMFS anticipates that neither U.S. entities nor foreign entities 
would be significantly affected by this action because it does not pose 
entirely new burdens with regard to the collection and submission of 
information necessary to approve port access and/or port services. 
Further, many of the data elements to be submitted electronically 
through this collection-of-information to grant port access are, to 
some extent, either already collected under the existing U.S. Coast 
Guard Notice of Arrival procedures, collected pursuant to national or 
international trade tracking or catch documentation requirements, or 
collected in support of third-party certification schemes voluntarily 
adopted by the trade.
    The second collection-of-information proposed in this rulemaking 
revises the existing collection-of-information for High Seas Fishing 
Compliance Act permitting (OMB Control Number 0648-0304).
    This information collection is revised to reduce the period of 
validity for high seas permits from 5 years to 1 year. The collection-
of-information burden for the permit requirement proposed by NMFS under 
the discretionary authority afforded by the Pacific Fisheries Act was 
estimated with respect to the annual renewal of high seas permits. The 
revised burden to all permit applicants is estimated to be an increase 
of 80 hours per year. This estimation is based on 400 permits renewed 
annually rather than once every 5 years. However, as of March 2022, 
there are only 347 active HSFCA permits that have been issued. Thus, 
the use of 400 vessels in estimating the reporting burden represents an 
upper bound.
    The information collection requirement under this proposed rule 
does not duplicate or conflict with such requirements under any other 
Federal rules. Potential overlap with other reporting requirements has 
been taken into account to avoid collecting data more than once.
    Send comments on the burden estimates or any other aspects of the 
new and revised collections of information to the Office of 
International Affairs, Trade, and Commerce at the ADDRESSES above, and 
by submission to Information Collection Review (https://www.reginfo.gov/public/do/PRAMain).
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the Paperwork Reduction Act, unless that collection of 
information displays a currently valid OMB control number.

List of Subjects

50 CFR Part 216

    Administrative practice and procedure, Exports, Fish, Imports, 
Indians, Labeling, Marine mammals.

50 CFR Part 300

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

    Dated: June 27, 2022.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, NMFS proposes to amend 50 
CFR parts 216 and 300 as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority for part 216 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq., unless otherwise noted.


Sec.  216.24  [Amended]

0
2. In Sec.  216.24, remove and reserve paragraph (g).

PART 300--INTERNATIONAL FISHERIES REGULATIONS

0
3. The authority for part 300 continues to read as follows:

    Authority:  16 U.S.C. 951 et seq., 16 U.S.C. 1801 et seq., 16 
U.S.C. 5501 et seq., 16 U.S.C. 2431 et seq., 31 U.S.C. 9701 et seq.

Subpart A--General

0
4. The authority for part 300, subpart A, continues to read as follows:

    Authority:  16 U.S.C. 2431 et seq., 31 U.S.C. 9701 et seq.

0
5. In Sec.  300.2, revise the introductory text to read as follows:


Sec.  300.2  Definitions.

    In addition to the definitions in each act, agreement, convention, 
or treaty specified in subparts B through R of this part, the terms 
used in this part have the following meanings, unless defined otherwise 
in the respective subpart:
* * * * *
0
6. Add Sec.  300.9 to read as follows:


Sec.  300.9   Incorporation by reference.

    Certain material is incorporated by reference into this part with 
the approval of the Director of the Federal Register in accordance with 
5 U.S.C. 552(a) and 1 CFR part 51. All approved incorporation by 
reference (IBR) material is available for inspection at the National 
Oceanic and Atmospheric Administration (NOAA) and at the National 
Archives and Records Administration (NARA). Contact NOAA at: the 
National Marine Fisheries Service (NMFS), Office of International 
Affairs, Trade, and Commerce, 1315 East-West Highway, Silver Spring, MD 
20910; phone (301) 427 8350; website: https://www.fisheries.noaa.gov/about/office-international-affairs-trade-and-commerce. For information 
on the availability of this material at NARA, email: 
<a href="/cdn-cgi/l/email-protection#f49286da9d9a87849197809d9b9ab49a958695da939b82"><span class="__cf_email__" data-cfemail="761004581f1805061315021f1918361817041758111900">[email protected]</span></a>, or go to: www.archives.gov/federal-register/cfr/ibr-locations.html. The material may be obtained from the following 
source:
    (a) Food and Agriculture Organization of the United Nations (FAO). 
Viale delle Terme di Caracalla, 00153 Rome, Italy;

[[Page 40772]]

phone: (+39) 06 57051; email: <a href="/cdn-cgi/l/email-protection#c086818fed889180a6a1afeeafb2a7"><span class="__cf_email__" data-cfemail="7432353b593c253412151b5a1b0613">[email protected]</span></a>; website: www.fao.org/publications/.
    (1) Agreement on Port State Measures to Prevent, Deter and 
Eliminate Illegal, Unreported and Unregulated Fishing (Port State 
Measures Agreement), Revised edition, copyright 2016; IBR approved for 
Sec. Sec.  300.300(c); 300.304(a) and (b); 300.306(e).
    (2) International Plan of Action to Prevent, Deter and Eliminate 
Illegal, Unreported and Unregulated Fishing (International Plan of 
Action), published 2001; IBR approved for Sec.  300.301.
    (b) [Reserved]

Subpart F--Fraser River Sockeye and Pink Salmon Fisheries

0
7. The authority for part 300, subpart F, continues to read as follows:

    Authority:  Pacific Salmon Treaty Act, 16 U.S.C. 3636(b).

0
8. Revise Sec.  300.96 to read as follows:


Sec.  300.96   Penalties.

    Any treaty Indian who commits any act that is unlawful under this 
subpart normally will be referred to the applicable tribe for 
prosecution and punishment. If such tribe fails to prosecute such 
persons in a diligent manner for the offense(s) referred to the tribe, 
or if other good cause exists, such treaty Indian may be subject to the 
penalties and procedures set forth in section 606 of the High Seas 
Driftnet Fishing Moratorium Protection Act (16 U.S.C. 1826g).

Subpart N--Identification and Certification of Nations

0
9. The authority for part 300, subpart N, continues to read as follows:

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

0
10. In Sec.  300.201, add paragraphs (6) and (7) to the definition of 
``Illegal, unreported, or unregulated (IUU) fishing'' and the 
definition of ``Nation'', in alphabetical order, to read as follows:


Sec.  300.201   Definitions.

* * * * *
    Illegal, unreported, or unregulated (IUU) fishing * * *
    (6) Failure to exercise effective flag State control as evidenced 
by persistent and pervasive fishing activities by the nation's vessels 
in waters recognized by the United States as being under the 
jurisdiction of another nation without the authorization of that nation 
or otherwise in contravention of that nation's laws, unless there has 
been effective resolution of such illegal fishing by the flag State, on 
a bilateral basis, or through a relevant international fishery 
management organization.
    (7) Fishing activities in waters beyond any national jurisdiction 
that involve the use of forced labor, which shall mean all work or 
service which is exacted from any person under the menace of any 
penalty for its nonperformance and for which the person does not offer 
themself voluntarily. For purposes of this subpart, forced labor 
includes forced child labor.
* * * * *
    Nation means a country other than the United States, or other 
entity that has competency to enter into international fisheries 
management agreements.
* * * * *
0
11. In Sec.  300.202, revise paragraphs (a), (c), and (d) to read as 
follows:


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

    (a) Procedures to identify nations for IUU fishing--(1) 
Identification for actions of fishing vessels. Based on a cumulative 
compilation and analysis of data collected and provided by 
international fishery management organizations, other nations, non-
governmental and intergovernmental organizations, and Federal, State, 
and other governmental agencies, NMFS will identify, and list in the 
biennial report to Congress, a nation if any fishing vessel of that 
nation is engaged, or has been engaged at any point during the 
preceding three years, in illegal, unreported, or unregulated fishing--
    (i) That undermines the effectiveness of measures required by an 
international fishery management organization, taking into account 
whether the relevant international fishery management organization has 
failed to implement effective measures to end the illegal, unreported, 
or unregulated fishing activity by that nation or the nation is not a 
party to, or does not maintain cooperating status with, such 
organization; or
    (ii) Where no international fishery management organization exists 
with a mandate to regulate the fishing activity in question; or
    (iii) As defined under paragraph (7) of the definition of IUU 
fishing in Sec.  300.201.
    (2) Identification for actions of a nation. Taking into account the 
factors described under paragraph (a)(1) of this section when making a 
report to Congress, NMFS will also identify, and list in such report, a 
nation--
    (i) If it is violating, or has violated at any point during the 
preceding three years, conservation and management measures required 
under an international fishery management organization to which the 
United States is a party and the violations undermine the effectiveness 
of such measures; or
    (ii) If it is failing, or has failed in the preceding three-year 
period, to effectively address or regulate illegal, unreported, or 
unregulated fishing in areas where no international fishery management 
organization exists with a mandate to regulate the fishing activity in 
question.
    (3) Considerations when making identifications. When determining 
whether to identify a nation for 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 
in question, and any measures that the nation has implemented to 
address the IUU fishing. NMFS will also take into account whether an 
international fishery management organization exists with a mandate to 
regulate the fishery in which the IUU fishing in question takes place. 
If such an organization exists, NMFS will consider whether the relevant 
international fishery management organization has adopted measures that 
are effective at addressing the IUU fishing in question and, if the 
nation whose fishing vessel(s) are engaged, or have been engaged, in 
IUU fishing is a party to, or maintains cooperating status with, the 
organization. NMFS will also take into account any actions taken or on-
going proceedings by the United States and/or flag State to address the 
IUU fishing of concern as well as the effectiveness of such actions. 
With regard to making identifications under paragraph (7) of the 
defintion of IUU fishing in Sec.  300.201, NMFS may additionally 
consider any pertinent documentation provided by other relevant 
Departments and agencies, including, but not limited to, information 
provided under section 131 of the Trafficking Victims Protection 
Reauthorization Act (TVPRA); Withhold Release Orders and Findings 
issued pursuant to section 307 of the Tariff Act of 1930; and other 
information on the history, nature, circumstances, extent, duration, 
and gravity of the activity in question, and any measures that the 
nation has implemented to address that activity.
* * * * *
    (c) Consultation with nations identified under paragraph (a) of 
this section. Within 60 days after submission of the biennial report to 
Congress, the Secretary of Commerce, acting through

[[Page 40773]]

or in cooperation with the Secretary of State, will initiate 
consultations with nations that have been identified in the biennial 
report for the purpose of encouraging such nations to take appropriate 
corrective action with respect to the IUU fishing activities described 
in the biennial report. The Secretary of Commerce may engage with other 
Departments and agencies when initiating consultations with nations 
identified under paragraph (7) of the definition of IUU fishing in 
Sec.  300.201 and as appropriate throughout the consultation process.
    (d) Procedures to certify nations identified under paragraph (a) of 
this section. Each nation that is identified under paragraph (a) of 
this section shall receive either a positive or a negative 
certification from the Secretary of Commerce, and this certification 
will be published in the biennial report to Congress. A positive 
certification indicates that a nation has taken appropriate corrective 
action to address the activity described in the biennial report. A 
negative certification indicates that a nation has not taken 
appropriate corrective action.
    (1) The Secretary of Commerce shall issue a positive certification 
to an identified nation upon making a determination that such nation 
has taken appropriate corrective action to address the activities for 
which such nation has been identified in the biennial report to 
Congress. When making such determination, the Secretary shall take into 
account the following:
    (i) Whether the government of the nation identified pursuant to 
paragraph (a) of this section has provided evidence documenting that it 
has taken corrective action to address the IUU fishing activity 
described in the biennial report;
    (ii) Whether the relevant international fishery management 
organization has adopted and, if applicable, the identified member 
nation has implemented and is enforcing, measures to effectively 
address the IUU fishing activity of the identified nation's fishing 
vessels described in the biennial report;
    (iii) Whether the United States has taken enforcement action to 
effectively address the IUU fishing activity of the identified nation 
described in the biennial report; and
    (iv) Whether the identified nation has cooperated in any action 
taken by the United States to address the IUU fishing activity 
described in the biennial report.
    (2) Prior to a formal certification determination, nations will be 
provided with preliminary certification determinations and an 
opportunity to support and/or refute the preliminary determinations and 
communicate any corrective actions taken to address the activities for 
which such nations were identified. The Secretary of Commerce shall 
consider any information received during the course of these 
consultations when making the subsequent certification determinations. 
The Secretary may consider advice or information provided by other 
relevant Departments and agencies in making its preliminary and formal 
certification determinations for identifications made under paragraph 
(7) of the definition of IUU fishing in Sec.  300.201.
0
12. Revise Sec.  300.203 to read as follows:


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

    (a) Criteria for identification. NMFS will identify and list, in 
the biennial report to Congress, nations--
    (1) Whose fishing vessel(s) are engaged, or have been engaged 
during the preceding three years prior to publication of the biennial 
report to Congress, in fishing activities or practices either in waters 
beyond any national jurisdiction that result in bycatch of a PLMR, or 
in waters beyond the U.S. EEZ that result in bycatch of a PLMR that is 
shared by the United States;
    (2) If the nation is a party to or maintains cooperating status 
with the relevant international organization with jurisdiction over the 
conservation and protection of the relevant PLMRs, or a relevant 
international or regional fishery organization, and the organization 
has not adopted measures to effectively end or reduce bycatch of such 
species; and
    (3) The nation has not implemented measures designed to end or 
reduce such bycatch that are comparable in effectiveness to U.S. 
regulatory requirements, taking into account different conditions that 
could bear on the feasibility and efficacy of comparable measures.
    (b) Considerations when making identifications. When determining 
whether to identify a nation as having any fishing vessel(s) 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.
    (c) Effectiveness of comparable measures. NMFS will also examine 
whether the nation has implemented measures designed to end or reduce 
such bycatch that are comparable in effectiveness to U.S. regulatory 
requirements. In considering whether a nation has implemented measures 
that are comparable in effectiveness to those of the United States, 
NMFS will evaluate if different conditions exist that could bear on the 
feasibility and efficacy of such measures to end or reduce bycatch of 
the pertinent PLMRs.
    (d) Notification of nations identified as having fishing vessels 
engaged in PLMR bycatch. Upon identifying a nation whose vessels have 
been engaged in bycatch of PLMRs in the biennial report to Congress, 
the Secretary of Commerce will notify the President of such 
identification. Within 60 days after submission of the biennial report 
to Congress, the Secretary of Commerce, acting through or in 
consultation with the Secretary of State, will notify identified 
nations about the requirements under the High Seas Driftnet Fishing 
Moratorium Protection Act and this subpart.
    (e) Consultations and negotiations. Upon submission of the biennial 
report to Congress, the Secretary of Commerce, acting through or in 
consultation with the Secretary of State, will:
    (1) Initiate consultations within 60 days after submission of the 
biennial report to Congress with the governments of identified nations 
for the purposes of encouraging adoption of a regulatory program for 
protected living marine resources that is comparable in effectiveness 
to that of the United States, taking into account different conditions, 
and establishment of a management plan that assists in the collection 
of species-specific data;
    (2) Seek to enter into bilateral and multilateral treaties with 
such nations to protect the PLMRs from bycatch activities described in 
the biennial report; and
    (3) Seek agreements through the appropriate international 
organizations calling for international restrictions on the fishing 
activities or practices described in the biennial report that result in 
bycatch of PLMRs and, as necessary, request the Secretary of State to 
initiate the amendment of any existing international treaty to which 
the United States is a party for the protection and conservation of the 
PLMRs in question to make such agreements consistent with this subpart.
    (f) International cooperation and assistance. To the greatest 
extent possible, consistent with existing authority and the 
availability of funds, the Secretary shall:
    (1) Provide appropriate assistance to nations identified by the 
Secretary under paragraph (a) of this section and international 
organizations of which those nations are members to assist those 
nations in qualifying for a positive

[[Page 40774]]

certification under paragraph (e) of this section;
    (2) Undertake, where appropriate, cooperative research activities 
on species assessments and improved bycatch mitigation techniques, with 
those nations or organizations;
    (3) Encourage and facilitate the transfer of appropriate technology 
to those nations or organizations to assist those nations in qualifying 
for positive certification under paragraph (e) of this section; and
    (4) Provide assistance to those nations or organizations in 
designing and implementing appropriate fish harvesting plans.
    (g) Procedures to certify nations identified as having fishing 
vessels engaged in PLMR bycatch. (1) Each nation that is identified as 
having fishing vessels engaged in PLMR bycatch shall receive either a 
positive or a negative certification from the Secretary of Commerce, 
and this certification will be published in the biennial report to 
Congress. The Secretary of Commerce shall issue a positive 
certification to an identified nation upon making a determination that:
    (i) Such nation has provided evidence documenting its adoption of a 
regulatory program to end or reduce bycatch of such PLMRs that is 
comparable in effectiveness to regulatory measures required under U.S. 
law to address bycatch in the relevant fisheries, taking into account 
different conditions that could bear on the feasibility and efficacy of 
these measures, and which, in the case of an identified nation with 
fishing vessels engaged in pelagic longline fishing, includes the 
mandatory use of circle hooks, careful handling and release equipment, 
training and observer programs; and
    (ii) Such nation has established a management plan that will assist 
in the collection of species-specific data on PLMR bycatch to support 
international stock assessments and conservation efforts for PLMRs.
    (2) Nations will be notified prior to a formal certification 
determination and will be provided with an opportunity to support and/
or refute preliminary certification determinations, and communicate any 
corrective actions taken to address the activities for which such 
nations were identified. The Secretary of Commerce shall consider any 
information received during the course of these consultations when 
making the subsequent certification determinations.
0
13. In Sec.  300.204, revise the heading of paragraph (a) and paragraph 
(a)(1)(i) to read as follows:


Sec.  300.204  Identification and certification of nations whose 
vessels are engaged in shark catch.

    (a) Procedures to identify nations whose fishing vessels target or 
incidentally catch sharks in waters beyond any national jurisdiction. 
(1) * * *
    (i) Whose fishing vessels are engaged, or have been engaged during 
the three years prior to publication of the biennial report to 
Congress, in fishing activities or practices in waters beyond any 
national jurisdiction that target or incidentally catch sharks; and
* * * * *
0
14. In Sec.  300.205:
0
a. Revise the section heading, introductory text of paragraph (a), and 
paragraph (b);
0
b. Add a heading for paragraph (c); and
0
c. Revise paragraphs (d) and (e).
    The revisions and addition read as follows:


Sec.  300.205   Effect of negative certification.

    (a) Response to negative certification. If a nation identified 
under Sec.  300.202(a), Sec.  300.203(a), or Sec.  300.204(a) receives 
a negative certification under this subpart, the Secretary of the 
Treasury shall, in accordance with international law:
* * * * *
    (b) Trade restrictions. Upon notification and any recommendations 
by the Secretary of Commerce to the President that an identified nation 
has received a negative certification, the President is authorized to 
direct the Secretary of the Treasury to prohibit the importation of 
certain fish and fish products from such nation (see Sec.  300.206).
    (c) Consistency of actions. * * *
    (d) Additional sanctions. If certain fish and fish products are 
prohibited from entering the United States, the Secretary of Commerce 
shall, within six months after the imposition of the prohibition, 
determine whether the prohibition is insufficient to cause that nation 
to effectively address the IUU fishing activity, bycatch, or shark 
catch 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, bycatch, or 
shark catch or that a nation has taken retaliatory action against the 
United States. This certification is a certification under 22 U.S.C. 
1978(a), which provides that the President may direct the Secretary of 
the Treasury to prohibit the bringing or the importation into the 
United States of any products from the country so certified for any 
duration as the President determines appropriate and to the extent that 
such prohibition is sanctioned by the World Trade Organization (as 
defined in 19 U.S.C. 3501(8)) or any relevant multilateral trade 
agreements (as defined in 19 U.S.C. 3501(4)).
    (e) Duration of negative certification. Any nation identified in 
the biennial report to Congress for having vessels engaged in IUU 
fishing, PLMR bycatch, or shark catch that is negatively certified will 
remain negatively certified until the Secretary has determined that the 
nation has effectively addressed the fishing or regulatory activities 
for which the nation received a negative certification and issues a 
positive certification.
* * * * *
0
15. In Sec.  300.206, revise the section heading and paragraphs (a)(1) 
and (2) and (b)(1) and (4) to read as follows:


Sec.  300.206   Denial of port privileges and import restrictions on 
fish or fish products from negatively certified nations.

    (a) * * *
    (1) Vessels from a nation identified in the biennial report under 
Sec.  300.202(a), Sec.  300.203(a), or Sec.  300.204(a) and 
subsequently negatively certified by the Secretary that enter any place 
in the United States or the navigable waters of the United States 
remain subject to inspection and may be prohibited from landing, 
processing, or transshipping fish and fish products, under applicable 
law. 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 previous biennial report under 
Sec.  300.202(a) that are negatively certified in the subsequent 
biennial report, the Secretary shall so notify and make recommendations 
to the President, who is authorized to direct the Secretary of the 
Treasury to impose import prohibitions with respect to fish and fish 
products from those nations. Such a recommendation would address the 
relevant fishing activities or practices for which such nations were 
identified in the biennial report. Such import prohibitions, if 
implemented, would apply to fish and fish products managed under an 
applicable international

[[Page 40775]]

fishery agreement. If there is no applicable international fishery 
agreement, such prohibitions, if implemented, would only apply to fish 
and fish products caught by vessels engaged in illegal, unreported, or 
unregulated fishing for which a nation was identified and negatively 
certified. For nations identified under Sec.  300.203(a) or Sec.  
300.204(a) that are negatively certified, the Secretary of Commerce 
shall so notify and make recommendations to the President, who is 
authorized to direct the Secretary of the Treasury to impose import 
prohibitions with respect to fish and fish products from those nations; 
such prohibitions would only apply to fish and fish products caught by 
the vessels engaged in the relevant activity for which the nation was 
identified and negatively certified.
* * * * *
    (b) * * *
    (1) Notification. Where the Secretary of Commerce makes negative 
certifications for identified nations, and the President determines 
that certain fish and fish products from such nations are ineligible 
for entry into the United States and U.S. territories, the Secretary of 
Commerce, in cooperation with the Secretaries of Treasury, Homeland 
Security, and State, will publish a notice to that effect in the 
Federal Register.
* * * * *
    (4) Removal of negative certifications and import restrictions. 
Upon a determination by the Secretary that an identified nation that 
was negatively certified has satisfactorily met the conditions in this 
subpart and that nation has been positively certified, the provisions 
of this section shall no longer apply. The Secretary of Commerce will 
issue a positive certification and will, in cooperation with the 
Secretaries of Treasury, Homeland Security, and State, notify such 
nations and publish in the Federal Register notification of the removal 
of the import restrictions per the regulations in this part effective 
on the date of publication.
0
16. In Sec.  300.207, revise the section heading and paragraphs (a) and 
(b) to read as follows:


Sec.  300.207   Alternative procedures for products not subject to 
trade restrictions.

    (a) Alternative procedures may be applied to fish or fish products 
from a harvesting nation that has been negatively certified under Sec.  
300.202, Sec.  300.203, or Sec.  300.204 but are not caught by the 
vessel(s) engaged in the fishing activity for which the nation was 
negatively certified.
    (b) Consistent with paragraph (a) of this section, the Secretary 
may allow entry of fish or fish products on a shipment-by-shipment, 
shipper-by-shipper, or other basis if the Secretary determines that:
    (1) The vessel concerned has not engaged in IUU fishing;
    (2) The vessel concerned is not identified by an international 
fishery management organization as participating in IUU fishing or 
fishing-related activities in support of such fishing;
    (3) The fish products were harvested by practices that do not 
result in bycatch of a protected marine species, or were harvested by 
practices that--
    (i) 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
    (ii) Include the gathering of species-specific data that can be 
used to support international and regional assessments and conservation 
efforts for protected living marine resources; and
    (4) The fish products were harvested by fishing activities or 
practices that do not target or incidentally catch sharks, or were 
harvested by practices that--
    (i) Are comparable to those of the United States, taking into 
account different conditions; and
    (ii) Include the gathering of species-specific shark data that can 
be used to support international and regional assessments and 
conservation efforts for sharks.
* * * * *


Sec. Sec.  300.208 and 300.209  [Removed]

0
17. Remove Sec. Sec.  300.208 and 300.209.

Subpart P--Vessels Known or Reasonably Believed to Have Engaged in 
Illegal, Unreported, and Unregulated Fishing

0
18. The authority for part 300, subpart P, is added to read as follows:

    Authority:  16 U.S.C. 951 et seq., 16 U.S.C. 971 et seq., 16 
U.S.C. 1413 et seq., 16 U.S.C. 1826i, 16 U.S.C. 2341 et seq., 16 
U.S.C. 5601 et seq., 16 U.S.C. 6901 et seq., 16 U.S.C. 7401 et seq., 
16 U.S.C. 7701 et seq., 16 U.S.C. 7801 et seq.

0
19. Revise subpart P heading to read as set forth above.
0
20. In Sec.  300.300, revise paragraph (a) and add paragraph (c) to 
read as follows:


Sec.  300.300   Purpose and scope.

    (a) This subpart implements internationally-adopted measures 
pertaining to foreign vessels determined to have engaged in illegal, 
unreported, and unregulated (IUU) fishing and placed on IUU fishing 
vessel lists of the:
    (1) International Commission for the Conservation of Atlantic Tunas 
(ICCAT);
    (2) Commission for the Conservation of Antarctic Marine Living 
Resources (CCAMLR);
    (3) Northwest Atlantic Fisheries Organization (NAFO);
    (4) Western and Central Pacific Fisheries Commission (WCPFC);
    (5) Inter-American Tropical Tuna Commission (IATTC);
    (6) Parties to the Agreement on the International Dolphin 
Conservation Program (AIDCP);
    (7) North Pacific Fisheries Commission (NPFC);
    (8) South Pacific Regional Fishery Management Organization 
(SPRFMO); and
    (9) Any other regional fisheries management organization or 
arrangement to which the United States is a contracting party or 
member.
* * * * *
    (c) In addition to the measures specified in paragraph (a) of this 
section, this subpart implements provisions of the Agreement on Port 
State Measures to Prevent, Deter and Eliminate Illegal, Unreported and 
Unregulated Fishing (incorporated by reference, see Sec.  300.9), as it 
pertains to foreign vessel(s) for which there are reasonable grounds to 
believe that the vessel(s) has engaged in IUU fishing activities or 
fishing-related activities in support of such fishing.
0
21. In Sec.  300.301:
0
a. Revise the introductory text;
0
b. Add, in alphabetical order, definitions for ``Fish'', ``Fishing'', 
and ``IUU fishing'';
0
c. Remove the definition of ``Listed IUU Vessel'' and add the 
definition of ``Listed IUU vessel'' in its place; and
0
d. Add, in alphabetical order, the definition of ``Vessel''.
    The revision and additions read as follows:


Sec.  300.301   Definitions.

    In addition to the definitions in Sec.  300.2, the terms used in 
this subpart have the following meaning. If also defined under Sec.  
300.2, the terms as defined in this subpart supersede those as defined 
in Sec.  300.2.
    Fish means finfish, mollusks, crustaceans, and all other forms of 
marine animal and plant life other than marine mammals and birds.
    Fishing means:
    (1) The catching, taking, or harvesting of fish;
    (2) The attempted catching, taking, or harvesting of fish;

[[Page 40776]]

    (3) Any other activity which can reasonably be expected to result 
in the catching, taking, or harvesting of fish; or
    (4) Any operations at sea in support of, or in preparation for, any 
activity described in paragraphs (1) through (3) of this definition.
    (5) Fishing does not mean any scientific research activity that is 
conducted by a scientific research vessel.
    IUU fishing means any activity set out in paragraph 3 of the 
International Plan of Action to Prevent, Deter and Eliminate Illegal, 
Unreported and Unregulated Fishing (incorporated by reference, see 
Sec.  300.9).
* * * * *
    Listed IUU vessel means a vessel that is included in a list of 
vessels having engaged in IUU fishing or fishing-related activities in 
support of IUU fishing that has been adopted by a regional fisheries 
management organization (RFMO) of which the United States is a member, 
or a list adopted by an RFMO of which the United States is not a member 
if the Secretary determines that the criteria used by that organization 
to create the IUU fishing vessel list is comparable to criteria for 
identifying IUU fishing vessels and activities that have been adopted 
by RFMOs to which the United States is a member.
* * * * *
    Vessel means any vessel, ship of another type, or boat used for, 
equipped to be used for, or intended to be used for, fishing or 
fishing-related activities, including support vessels and container 
vessels that are carrying fish that have not been previously landed.
0
22. Revise Sec.  300.302 to read as follows:


Sec.  300.302  Port entry by foreign vessels.

    (a) The Secretary of Commerce may decide to deny entry to any port 
or place subject to the jurisdiction of the United States to a foreign 
vessel listed as an IUU vessel by any regional fishery management 
organization recognized by the United States.
    (b) The Secretary may decide to deny entry to any port or place 
subject to the jurisdiction of the United States to a foreign vessel 
that the Secretary has reasonable grounds to believe has:
    (1) Engaged in IUU fishing activities or fishing-related activities 
in support of such fishing; or
    (2) Violated any provisions of the Port State Measures Agreement 
Act of 2015, Public Law 114-81, or amendments thereto.
    (c) When determining whether a foreign vessel is or has been 
previously engaged in IUU fishing or fishing-related activities in 
support of such fishing, the Secretary will take into account, among 
other things, the IUU vessel lists and compliance determinations of any 
regional fishery management organization recognized by the United 
States.
    (d) Notwithstanding the provisions of paragraphs (a) and (b) of 
this section, a foreign vessel may be allowed entry for the purpose of 
inspection or facilitation of enforcement.
    (e) The provisions of paragraphs (a) and (b) of this section to 
deny entry shall not apply in cases of force majeure.
0
23. Revise Sec.  300.303 to read as follows:


Sec.  300.303   Port access by foreign vessels.

    If a foreign, listed IUU vessel, or a foreign vessel for which 
there are reasonable grounds to believe that the vessel has engaged in 
IUU fishing or fishing-related activities in support of such fishing, 
is allowed to enter a port or place subject to the jurisdiction of the 
United States, the Secretary may, in accordance with the Port State 
Measures Agreement Act (Pub. L. 114-81) and applicable provisions of 
conservation and management measures of a regional fishery management 
organization recognized by the United States, take one or more of the 
following actions:
    (a) Inspect the vessel;
    (b) Request that the Secretaries of the Departments in which the 
U.S. Coast Guard and U.S. Customs and Border Protection are operating 
deny the vessel access to port services, including but not limited to 
refueling, resupplying, or disembarking or embarking of crew; or
    (c) Prohibit the vessel from engaging in commercial transactions 
including, but not limited to, entering, importing, exporting, 
transshipping, or landing product.


Sec.  300.304  [Redesignated as Sec.  303.306]

0
24. Redesignate Sec.  300.304 as Sec.  303.306.
0
25. Add a new Sec.  300.304 to read as follows:


Sec.  300.304  Notice of Arrival requirements.

    (a) Ports to which foreign vessels may request entry pursuant to 
the on Port State Measures Agreement (incorporated by reference, see 
Sec.  300.9), include those Customs Ports of Entry listed in 19 CFR 
101.3 as well as those specified under any existing international 
fisheries agreement.
    (b) In addition to complying with the Electronic Notice of Arrival/
Departure (eNOAD) provisions under 33 CFR 160.206(a), the vessel owner, 
agent, master, operator, or person in charge of a vessel requesting 
access to the ports of entry referenced in paragraph (a) of this 
section must supply the information items listed in Annex A of the Port 
State Measures Agreement to the National Vessel Movement Center (NVMC) 
through the eNOAD system.
    (c) Vessel owners and operators should protect any personal or 
otherwise confidential information they gather in preparing notices for 
transmittal to the NVMC to prevent unintended disclosure of that 
information.
0
26. Add Sec.  300.305 to read as follows:


Sec.  300.305   Determinations and notifications.

    For a foreign vessel that is requesting entry to, or that has 
already entered, a port authorized under Sec.  300.304(a), the 
Secretary shall provide the following notifications to the vessel 
master and/or ship's agent and the flag nation of the vessel, and may 
also provide such notifications as may be appropriate to the nation of 
which the vessel's master is a national; relevant coastal nations; 
RFMOs; the Food and Agriculture Organization of the United Nations; and 
other relevant international organizations:
    (a) Notification of the denial or authorization of port entry or 
use of port services or of the withdrawal of the denial of port 
services;
    (b) The taking of enforcement action under this title or other 
applicable law; or
    (c) The results of any inspection conducted pursuant to this 
subpart.
0
27. In newly redesignated Sec.  300.306, revise paragraph (d) and add 
paragraph (e) to read as follows:


Sec.  300.306   Prohibitions.

* * * * *
    (d) The prohibitions listed in paragraph (c) of this section shall 
not apply when the Assistant Administrator has authorized a listed IUU 
vessel to access such port services or engage in such commercial 
transactions, in accordance with applicable provisions of RFMO 
conservation and management measures, including in cases of force 
majeure and where the Assistant Administrator has determined that such 
services are essential to the safety, health, and welfare of the crew.
    (e) It is unlawful for any vessel of the United States, and for the 
owner or operator of any such vessel, to refuse to cooperate with, or 
provide requested information to, a port nation in accordance with the 
Port State Measures Agreement (incorporated by reference, see Sec.  
300.9) or with port inspection or

[[Page 40777]]

port State measures adopted by an RFMO recognized by the United States. 
For the purposes of this paragraph (e), ``vessel of the United States'' 
has the same meaning as in 16 U.S.C. 1802(48).

Subpart R-High Seas Fisheries

0
28. The authority for part 300, subpart R, continues to read as 
follows:

    Authority:  16 U.S.C. 5501 et seq.
0
29. In Sec.  300.333, revise paragraph (d)(4) to read as follows:


Sec.  300.333   Vessel permits.

* * * * *
    (d) * * *
    (4) Except as otherwise provided, permits issued under this subpart 
are valid from the date of issuance until the date of expiration as 
indicated on the permit. For a permit to remain valid to its expiration 
date, the vessel's U.S. Coast Guard documentation or State registration 
must be kept current. A permit issued under this subpart is void if the 
vessel owner or the name of the vessel changes; if any other permit or 
authorization required for the vessel to fish expires, or is revoked or 
suspended; or, in the event the vessel is no longer eligible for U.S. 
documentation, such documentation is revoked or denied, or the vessel 
is removed from such documentation.
* * * * *
0
30. In Sec.  300.334, revise paragraphs (c) and (f) to read as follows:


Sec.  300.334  Fisheries authorized on the high seas.

* * * * *
    (c) Change in authorized fisheries. If a high seas fishing permit 
holder elects to change the authorized fisheries specified on the 
permit, he or she shall notify the Regional Administrator or Office 
Director who issued the permit of the change(s) and shall obtain the 
underlying permits for the authorized fisheries prior to engaging in 
the fishery on the high seas. Per the process under Sec.  300.333(d), 
the Regional Administrator or Office Director will then issue a revised 
high seas fishing permit which will expire on the date as indicated on 
the original permit.
* * * * *
    (f) Deletion of a fishery from the authorized fisheries list. NMFS 
will delete (i.e., de-authorize) a fishery under paragraph (d) or (e) 
of this section through publication of a final rule. NMFS will also 
provide notice to affected permit holders by email and by Registered 
Mail at the addresses provided to NMFS in the high seas permit 
application. When a fishery is deleted from the list, any activities on 
the high seas related to that fishery are prohibited as of the 
effective date of the final rule. In addition, the high seas permit 
will be voided unless the permit holder notifies NMFS that he or she 
elects to change to another authorized high seas fishery or continue in 
any other authorized fisheries noted on the permit. Once the applicant 
so notifies NMFS and, if necessary, secures any underlying permits 
necessary for participation in another authorized high seas fishery, 
the Regional Administrator or Office Director will then issue a revised 
high seas fishing permit per the process under Sec.  300.333(d). The 
revised permit will expire on the date as indicated on the original 
permit.
0
31. Revise Sec.  300.339 to read as follows:


Sec.  300.339   Transshipment on the high seas.

    In addition to any other applicable restrictions on transshipment, 
including those under this part and part 635 of this title, the 
following requirements apply to transshipments, when authorized, taking 
place on the high seas:
    (a) The owner or operator of a U.S. vessel receiving or offloading 
fish on the high seas shall provide a notice by fax or email to the 
Regional Administrator or the Office Director at least 36 hours prior 
to any intended transshipment on the high seas with the following 
information: the vessels offloading and receiving the transshipment 
(names, official numbers, and vessel types); the location (latitude and 
longitude to the nearest tenth of a degree) of transshipment; date and 
time that transshipment is expected to occur; and species, processed 
state, and quantities (in metric tons) expected to be transshipped. If 
another requirement for prior notice applies, the more restrictive 
requirement (i.e., a requirement for greater advance notice and/or more 
specific information regarding vessels, location, etc.) must be 
followed.
    (b) U.S. high seas fishing vessels shall report transshipments on 
the high seas to the Regional Administrator or Office Director within 
15 calendar days after the vessel first enters into port, using the 
form obtained from the Regional Administrator or Office Director. If 
there are applicable transshipment reporting requirements in other 
parts of this title, the more restrictive requirement (e.g., a 
reporting requirement due in fewer than 15 calendar days) must be 
followed.
0
32. Revise Sec.  300.341 to read as follows:


Sec.  300.341   Reporting.

    (a) The operator of any vessel permitted under this subpart must 
accurately maintain on board the vessel a complete record of fishing 
activities, such as catch, effort, and other data and report high seas 
catch and effort information to NMFS in a manner consistent with the 
reporting requirements of the authorized fishery(ies) noted on the high 
seas permit. Reports must include:
    (1) Identification information for vessel and operator;
    (2) Operator signature;
    (3) Crew size;
    (4) Whether an observer is aboard;
    (5) Target species;
    (6) Gear used;
    (7) Dates, times, locations, and conditions under which fishing was 
conducted;
    (8) Species and amounts of fish retained and discarded; and
    (9) Details of any interactions with sea turtles, marine mammals, 
or birds.
    (b) The vessel owner and operator are responsible for obtaining and 
completing the reporting forms from the Regional Administrator or 
Office Director who issued the permit holder's high seas fishing 
permit. The completed forms must be submitted to the same Regional 
Administrator or Office Director or, if directed by NMFS, to a Science 
Center.
    (c) Reports must be submitted within the deadline provided for in 
the regulations governing the authorized fishery, or within 15 days 
following the end of a fishing trip, whichever is sooner. Contact 
information for the Regional Administrators and Science Center 
Directors can be found on the NMFS website.

[FR Doc. 2022-14034 Filed 7-7-22; 8:45 am]
BILLING CODE 3510-22-P


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