59136 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

(c) Certain farm vehicle drivers. The 

rules in this part except for § 391.15(e) 

do not apply to a farm vehicle driver 

except a farm vehicle driver who drives 

an articulated (combination) 

commercial motor vehicle, as defined in 

§ 390.5. For limited exemptions for farm 

vehicle drivers of articulated 

commercial motor vehicles, see 

§ 391.67. 

■ 11. Amend § 391.15 by adding a new 

paragraph (e) to read as follows: 

§ 391.15 Disqualification of drivers. 

* * * * * 

(e) Disqualification for violation of 

prohibition of texting while driving a 

commercial motor vehicle— 

(1) General rule. A driver who is 

convicted of violating the prohibition of 

texting in § 392.80(a) of this chapter is 

disqualified for the period of time 

specified in paragraph (e)(2) of this 

section. 

(2) Duration. Disqualification for 

violation of prohibition of texting while 

driving a commercial motor vehicle— 

(i) Second violation. A driver is 

disqualified for 60 days if the driver is 

convicted of two violations of 

§ 392.80(a) of this chapter in separate 

incidents during any 3-year period. 

(ii) Third or subsequent violation. A 

driver is disqualified for 120 days if the 

driver is convicted of three or more 

violations of § 392.80(a) of this chapter 

in separate incidents during any 3-year 

period. 

PART 392—DRIVING OF COMMERCIAL 

MOTOR VEHICLES 

■ 12. The authority citation for part 392 

continues to read as follows: 

Authority: 49 U.S.C. 13902, 31136, 31151, 

31502; and 49 CFR 1.73. 

■ 13. Amend part 392 by adding a new 

subpart H to read as follows: 

Subpart H—Limiting the Use of 

Electronic Devices 

§ 392.80 Prohibition against texting. 

(a) Prohibition. No driver shall engage 

in texting while driving. 

(b) Motor Carriers. No motor carrier 

shall allow or require its drivers to 

engage in texting while driving. 

(c) Definition. For the purpose of this 

section only, driving means operating a 

commercial motor vehicle, with the 

motor running, including while 

temporarily stationary because of traffic, 

a traffic control device, or other 

momentary delays. Driving does not 

include operating a commercial motor 

vehicle with or without the motor 

running when the driver moved the 

vehicle to the side of, or off, a highway, 

as defined in 49 CFR 390.5, and halted 

in a location where the vehicle can 

safely remain stationary. 

(d) Exceptions. (1) School bus 

operations and vehicles designed or 

used to transport 9 to 15 passengers, 

including the driver, not for direct 

compensation. The provisions of 

§ 390.3(f)(1) and (6) are not applicable to 

this section. 

(2) Emergency Use. Texting while 

driving is permissible by drivers of a 

commercial motor vehicle when 

necessary to communicate with law 

enforcement officials or other 

emergency services. 

Issued on: September 17, 2010. 

Anne S. Ferro, 

Administrator. 

[FR Doc. 2010–23861 Filed 9–24–10; 8:45 am] 

BILLING CODE 4910–EX–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 080228336–0435–02] 

RIN 0648–AW09 

Implementation of Regional Fishery 

Management Organizations’ Measures 

Pertaining to Vessels That Engaged in 

Illegal, Unreported, or Unregulated 

Fishing Activities 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS publishes this final 

rule to implement international 

conservation and management measures 

that pertain to vessels that have been 

identified by any one of several regional 

fishery management organizations 

(RFMOs), identified below, as having 

engaged in illegal, unreported, and 

unregulated (IUU) fishing activities and 

added to IUU vessel lists. The United 

States is a member of, and obligated to 

implement measures adopted by, the 

International Commission for the 

Conservation of Atlantic Tunas (ICCAT), 

Commission for the Conservation of 

Antarctic Marine Living Resources 

(CCAMLR), Northwest Atlantic 

Fisheries Organization (NAFO), Western 

and Central Pacific Fisheries 

Commission (WCPFC), Inter-American 

Tropical Tuna Commission (IATTC), 

and the Agreement on the International 

Dolphin Conservation Program (AIDCP). 

This rule provides the NOAA Assistant 

Administrator for Fisheries (Assistant 

Administrator) with authority to restrict 

entry into any port or place of the 

United States of, and access to port 

services by, foreign vessels on the IUU 

vessel lists of the aforementioned 

RFMOs. It also gives the Assistant 

Administrator authority to prohibit such 

vessels from engaging in commercial 

transactions, including, but not limited 

to, landing and transshipping products. 

Furthermore, the rule prohibits persons 

and business entities subject to U.S. 

jurisdiction from providing certain 

services to, or engaging in commercial 

transactions with, such vessels. 

DATES: Effective October 27, 2010. 

ADDRESSES: Copies of supporting 

documents that were prepared for this 

final rule, such as the proposed rule, are 

available via the Federal e-Rulemaking 

portal, at http://www.regulations.gov. 

These documents are also available from 

the Trade and Marine Stewardship 

Division, Office of International Affairs, 

NMFS, 1315 East-West Highway, Silver 

Spring, MD 20910. 

FOR FURTHER INFORMATION CONTACT: Mi 

Ae Kim, Trade and Marine Stewardship 

Division, Office of International Affairs, 

NMFS ((phone) 301–713–9090, (fax) 

301–713–9106, or (e-mail) 

mi.ae.kim@noaa.gov). 

SUPPLEMENTARY INFORMATION: 

Background 

On January 11, 2010, NMFS 

published a proposed rule in the 

Federal Register (75 FR 1324) to address 

vessels that are on the IUU vessel lists 

maintained by RFMOs to which the 

United States is a party. As mentioned 

in the proposed rule, the effective 

management of certain marine resources 

is dependent on compliance with 

conservation and management measures 

of RFMOs. The vessels that are included 

on the IUU vessels lists were identified 

by RFMOs as having engaged in 

activities that undermine the 

effectiveness of conservation and 

management measures. Examples of 

such IUU fishing activity include: 

• Fishing in an RFMO’s management 

(or convention) area without 

authorization; 

• Failing to record or declare their 

catches, or making false reports; 

• Using prohibited fishing gear in 

contravention of conservation measures; 

or 

• Transshipping with, or 

participating in joint operations with, 

re-supplying, or re-fueling vessels 

included in IUU vessel lists. 

The proposed rule was open for 

public comment through February 25, 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59137 

2010. Our evaluation of the comments 

did not lead to substantial changes 

between the proposed rule and this final 

rule. 

NMFS is issuing these regulations 

pursuant to its authority to administer 

and enforce the statutes that implement 

the conventions of the following 

RFMOs: ICCAT, CCAMLR, NAFO, 

WCPFC, IATTC, and the AIDCP (the 

AIDCP is not an RFMO per se, but is 

referred to as such for the purposes of 

this action). Statutes that authorize 

rulemaking to implement RFMO 

conservation and management measures 

include the Atlantic Tunas Convention 

Act of 1975, 16 U.S.C. 971 et seq., the 

Antarctic Marine Living Resources 

Convention Act of 1984, 16 U.S.C. 2431 

et seq., the Northwest Atlantic Fisheries 

Convention Act of 1995, 16 U.S.C. 5601 

et seq., the Western and Central Pacific 

Fisheries Convention Implementation 

Act, 16 U.S.C. 6901 et seq., the Tuna 

Conventions Act of 1950, 16 U.S.C. 951 

et seq., and the Marine Mammal 

Protection Act, 16 U.S.C. 1361 et seq. 

These statutes authorize the 

promulgation of regulations as 

necessary to carry out the purposes and 

management measures of each RFMO 

convention. 

These regulations detail the 

authorities of the Assistant 

Administrator to take actions, in 

accordance with the requirements of the 

appropriate RFMO conservation 

measure, against foreign vessels that are 

included on the final IUU vessel lists of 

the above RFMOs. The regulations 

provide the Assistant Administrator 

some discretion, albeit in accordance 

with the relevant RFMO measures, in 

determining the appropriate action to 

take with respect to a listed IUU vessel 

seeking entry into, or use of, a U.S. port. 

These regulations also specify the 

prohibitions applicable to listed IUU 

vessels, as well as those persons or 

entities subject to the jurisdiction of the 

United States who may consider 

business relationships with listed 

vessels. NMFS and the NOAA Office of 

Law Enforcement will cooperate with 

the U.S. Coast Guard, U.S. Customs and 

Border Protection, and other State and 

Federal agencies as appropriate in the 

implementation of the rule. 

Comments and Responses 

NMFS received 29 comments 

electronically and by mail from 

members of the public, a seafood 

company, non-profit organizations, the 

Mid-Atlantic Fishery Management 

Council, and the Marine Mammal 

Commission. Several comments 

expressed strong support for the rule 

and encouraged NMFS to publish the 

final rule as soon as possible. 

Key issues and suggestions in the 

comments are summarized below, each 

followed by our responses. 

Comment 1: Several commenters 

suggested that we impose additional 

penalties on foreign listed IUU vessels. 

Suggestions included, but were not 

limited to, charging fines, detaining the 

captain until fines are paid, and 

impounding or confiscating vessels. 

Response: The suggested penalties are 

outside the scope of this rulemaking. 

This rule implements conservation and 

management measures pertaining to 

IUU vessels for those RFMOs of which 

the United States is a member 

(including ICCAT, CCAMLR, NAFO, 

WCPFC, IATTC, and AIDCP). These 

RFMOs obligate the United States to 

restrict port entry or access by listed 

IUU vessels and limit commercial 

transactions between U.S. persons and 

listed IUU vessels. Violations of these 

regulations will be enforced under the 

authority of the relevant RFMO 

convention implementing statute. 

Comment 2: A commenter 

recommended that NMFS take 

advantage of this opportunity to 

implement measures to combat IUU 

fishing as envisioned by the recently 

concluded Agreement on Port State 

Measures to Prevent, Deter, and 

Eliminate IUU Fishing (PSMA), adopted 

by the Food and Agriculture 

Organization of the United Nations on 

November 22, 2009. The commenter 

also suggested that the United States 

apply the PSMA provisionally, as 

foreseen in Article 32, or incorporate 

some essential measures of the PSMA, 

such as (a) denying port entry or access 

to any vessel listed on any RFMO IUU 

vessel list, regardless of whether the 

United States is a member of the RFMO; 

(b) prohibiting port entry to all IUU 

vessels, in accordance with procedures 

established in Part 2 of the PSMA, 

regardless of whether the vessel is listed 

on an RFMO IUU vessel list; (c) denying 

port services whenever there is denial of 

other forms of port use, such as landing, 

transshipping, packaging, and 

processing of fish; and (d) transmitting 

inspection results and other information 

to relevant States and international 

organizations. 

Response: The measures included in 

the PSMA are beyond the scope of this 

rulemaking, which implements only the 

conservation and management measures 

of RFMOs to which the United States is 

a party. The United States, as a 

signatory to the PSMA, supports the 

agreement and took it into consideration 

when developing this final rule. 

However, any efforts to implement 

PSMA provisions that go beyond the 

requirements of applicable RFMO IUU 

measures would be through separate 

processes. 

Comment 3: A commenter suggested 

that we establish a common rule to be 

applied to all vessels listed in the 

different IUU vessel lists, selecting the 

actions that are most effective in 

combating IUU fishing and mirroring 

Parts 2 and 3 of the PSMA, or at least 

the measures of the PSMA noted under 

Comment 2. 

Response: NMFS considered applying 

a common rule to all vessels listed in 

the different IUU vessel lists, as this 

approach would have simplified 

implementation and enforcement 

procedures. However, NMFS 

determined that the best course of 

action was to promulgate a rule that 

would allow for a case-by-case 

treatment of listed IUU vessels, in 

accordance with the relevant 

conservation and management measure. 

This approach ensures that actions 

taken against IUU vessels pursuant to 

this rule are consistent with the specific 

obligations under the applicable RFMO 

conservation and management measure, 

which differ to some extent from RFMO 

to RFMO. With regard to applying 

measures of the PSMA to all IUU 

vessels, regardless of whether the 

United States is a member of the RFMO 

that listed the vessel, please refer to the 

response to Comment 2. 

Comment 4: A couple of commenters 

suggested that all listed IUU vessels 

should be denied port privileges, with 

limited exceptions for safety, health and 

welfare or in cases of force majeure, 

regardless of which RFMO conservation 

and management measure applies. 

Response: NMFS agrees that the 

denial of port privileges should be 

applied as broadly as possible, but given 

the scope of this rulemaking the actions 

taken must be supported by the relevant 

RFMO measure. 

Comment 5: A commenter noted that 

entry of IUU vessels and IUU seafood 

creates unfair competition with 

legitimate fishing operations and results 

in entry of fish and fish products that 

may not be subject to the scrutiny for 

freshness, quality, labeling, bycatch, and 

other standards. The commenter 

suggested all IUU vessels and seafood 

need to be prohibited from entering the 

United States. 

Response: A listed IUU vessel may or 

may not be denied entry, depending on 

the requirements of the relevant RFMO 

conservation and management measure. 

For those vessels that are allowed to 

enter a port or place of the United 

States, they will be subject to inspection 

and also prohibited from engaging in 

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commercial activities such as landing 

and transshipment and obtaining port 

services such as refueling and 

resupplying except in cases of force 

majeure or where such services are 

necessary for the health and safety of 

the crew. As explained in the response 

to Comment 2, denial of entry to all IUU 

vessels, including those on lists of 

RFMOs to which the United States is 

not a party, is beyond the scope of this 

rulemaking. A prohibition on importing 

all seafood that is caught during IUU 

fishing is also beyond the scope of this 

rulemaking. 

Comment 6: Two commenters noted 

that because the proposed rule 

addresses only vessels as point of origin 

for IUU fishing, NMFS overlooks landbased IUU fishing. For example, the 

prohibitions on landings and 

transshipment do not prevent or deter 

the importation of salmon that is 

illegally harvested without the use of 

vessels. The commenters acknowledged 

this may be beyond the reach of this 

rulemaking, but would like to see NMFS 

consider such prohibitions in 

subsequent actions. 

Response: The comment has been 

noted. As recognized by the 

commenters, this suggestion is beyond 

the scope of this rulemaking. 

Comment 7: Two commenters noted 

that the North Pacific Anadromous Fish 

Commission (NPAFC) could identify 

vessels engaged in IUU fishing within 

the Convention Area and include those 

vessels on a list. They believe that 

NMFS should also include the NPAFC 

as one of the RFMOs considered under 

this regulation. 

Response: Unlike the RFMOs that are 

the subject of this rulemaking, NPAFC 

does not have a conservation and 

management measure whereby it 

compiles a list of IUU vessels and 

requires members to implement actions 

against those vessels. NPAFC prohibits 

direct fishing for anadromous fish 

(chum, coho, pink, sockeye, chinook, 

and cherry salmon and steelhead trout) 

by NPAFC members within its 

Convention Area. Enforcement of this 

prohibition, and other provisions of the 

Convention, is carried out through 

patrols coordinated among the parties. 

Such patrolling can and has resulted in 

vessels being apprehended. While the 

list of apprehended vessels is available 

on the NPAFC Web site, members are 

not required to take any particular 

actions with respect to denying these 

vessels port entry or access. Therefore, 

applying the provisions of this rule to 

such vessels would go beyond the scope 

of this rulemaking. 

Comment 8: Two commenters 

suggested transport vessels suspected of 

receiving transshipments of fish or fish 

products from another vessel on a 

relevant IUU vessel list be equally 

subject to the proposed regulation. 

Response: Applying the provisions of 

this rule to vessels that are only 

suspected of receiving transshipments 

of fish from an IUU vessel, but that have 

not been included on an IUU vessel list 

of an RFMO to which we are a party 

would go beyond the scope of this 

rulemaking. In addition, denying port 

entry to such vessels would preclude 

the United States from inspection and/ 

or follow-up investigation that could 

lead to confirmation of any suspected 

IUU activity and, where warranted, 

further enforcement action. This 

regulation does make it unlawful for any 

person subject to U.S. jurisdiction to 

engage in commercial transactions 

(including transshipment and 

transportation of product) with an IUU 

vessel. A violation of this regulation 

could lead to prosecution under one or 

more of the statutes that authorize this 

rulemaking, namely, the Atlantic Tunas 

Convention Act of 1975, 16 U.S.C. 971 

et seq., the Antarctic Marine Living 

Resources Convention Act of 1984, 16 

U.S.C. 2431 et seq., the Northwest 

Atlantic Fisheries Convention Act of 

1995, 16 U.S.C. 5601 et seq., the 

Western and Central Pacific Fisheries 

Convention Implementation Act, 16 

U.S.C. 6901 et seq., the Tuna 

Conventions Act of 1950, 16 U.S.C. 951 

et seq., and the Marine Mammal 

Protection Act, 16 U.S.C. 1361 et seq. 

Comment 9: Two commenters stated 

that the rule should apply to vessels on 

IUU vessel lists compiled by sovereign 

nations for violations within their EEZs. 

The commenters suggested the 

definition of ‘‘listed IUU vessel’’ be 

expanded to include such lists. 

Similarly, another commenter would 

like to see the United States support the 

creation of national and regional 

databases and blacklists in IUU fishing 

affected regions (for example, West 

Africa) that are then reflected in a list 

of IUU vessels maintained by NOAA. 

Response: Applying the rule to 

vessels on IUU lists of other nations is 

beyond the scope of this rulemaking. A 

vessel on an individual nation’s IUU list 

could get incorporated into RFMO IUU 

vessel lists in accordance with the 

procedures of the RFMO. The United 

States supports and participates in the 

listing of vessels within the relevant 

RFMOs, and may support the listing of 

any vessel that engages in IUU fishing 

after full consideration of the evidence 

that supports the listing. 

Comment 10: Two commenters noted 

that the U.S. territories in the South 

Pacific could provide substantial 

conduits for product of IUU fishing, 

particularly tuna, to enter the United 

States and world market, as the 

Nicholson Act does not prevent 

offloading of certain fish products in 

those areas. They sought clarification 

that all U.S. territories are subject to the 

provisions of the rule, and that the 

regulations would not concern primarily 

transport vessels included on the IUU 

vessel lists as it is stated in column 3, 

page1325 of the proposed rule. 

Response: This rule applies in all U.S. 

territories, including American Samoa, 

Guam, Northern Mariana Islands, Puerto 

Rico, and the U.S. Virgin Islands, and to 

all vessels that may be included on an 

RFMO’s IUU vessel list, including 

fishing, transport, and support vessels. 

Comment 11: A commenter suggested 

that NMFS provide details on the 

procedure and criteria to be used by the 

Assistant Administrator in determining 

which actions to take against an IUU 

vessel. For example, the commenter 

sought clarification on how the 

Assistant Administrator would receive 

information about an IUU vessel prior to 

its entry and, if an IUU vessel is on two 

lists, explain which set of rules would 

prevail. Another commenter also asked 

for clarification of the specific steps to 

be taken during the interagency 

consultative process to determine 

whether to deny port entry or access to, 

or commercial transactions with, a 

specific vessel, noting that the decisions 

made by the Assistant Administrator 

must be transparent. Similarly, two 

other commenters suggested that the 

regulations clarify interagency 

cooperation to ensure that agencies 

share information effectively. 

Response: NMFS agrees that the 

Assistant Administrator’s actions taken 

pursuant to these regulations should be 

as transparent as possible. Many of the 

specific steps to be taken during the 

process to determine the appropriate 

course of action are already in place. As 

described in the preamble to the 

proposed rule, most foreign-flagged 

vessels are required to submit a notice 

of arrival to the U.S. Coast Guard when 

entering a port or place of the United 

States in accordance with 33 CFR 

160.212(a)(3). The vessels are required 

to report electronically the vessel name, 

voyage, cargo, crewmembers, and other 

information to the U.S. Coast Guard’s 

National Vessel Movement Center 

(NVMC) at least 96 hours before 

entering the port or place of destination. 

When a listed IUU vessel submits a 

notice of arrival, the Coast Guard would 

notify NMFS and the Department of 

State of the impending arrival. Such 

notification would trigger interagency 

consultations, among, at a minimum, 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59139 

the Department of State, U.S. Coast 

Guard, and NMFS to determine the most 

appropriate course of action in light of 

RFMO requirements. The primary factor 

in determining the course of action is 

the relevant conservation and 

management measure. 

The actions required by the RFMO 

conservation and management measures 

are similar to each other, but where the 

measures differ, or where an IUU vessel 

is on more than one IUU vessel list, the 

Assistant Administrator will determine 

the appropriate course of action, in 

consultation with other agencies. 

Maintaining flexibility, on a case-bycase basis, will be particularly 

important in these situations. 

The interagency consultation will 

follow the existing Maritime 

Operational Threat Response (MOTR) 

process, which was established to 

address the full spectrum of maritime 

security and defense threats to, or 

directed against, the United States and 

its interests globally. According to May 

5, 2009, testimony of the U.S. Coast 

Guard before Congress, the MOTR Plan 

includes an integrated network of 

national-level maritime command 

centers. The Plan sets forth lead and 

supporting Federal agency roles and 

responsibilities for MOTR based on 

existing law, desired U.S. Government 

outcome, greatest potential magnitude 

of the threat, the response capabilities 

required, asset availability, and 

authority to act. The MOTR Plan also 

establishes clear operational 

coordination requirements and sets 

forth protocols for interagency 

coordination, consultation, and 

assessment. The MOTR Plan has been 

employed in over 600 maritime cases 

since 2005. These cases include drug 

interdiction, migrant interdiction, 

fisheries violations, violence at sea, 

bomb threats, radiation/nuclear alarm 

resolution, piracy, and complex multidisciplinary events. 

Comment 12: Two commenters 

tentatively agreed that the Assistant 

Administrator should be allowed some 

discretion to take action against IUU 

vessels in accordance with the relevant 

RFMO measure, but sought 

transparency in the decisions made on 

port entry, subject to confidentiality 

concerns for national security or ongoing investigation. They believe a 

publicly available report detailing the 

action taken, including the rationale, 

should be produced. Another 

commenter suggested that NMFS 

provide notice and explanations for 

actions taken pursuant to these 

regulations, whether access is denied or 

not. 

Response: NMFS agrees that the 

Assistant Administrator’s actions taken 

pursuant to these regulations should be 

as transparent as possible. Information 

on the actions taken against listed IUU 

vessels will be made public, subject to 

confidentiality of investigations and 

enforcement actions. Some enforcement 

actions carried out by NOAA and the 

U.S. Coast Guard are already publicized 

through press releases. NMFS will 

develop a mechanism for reporting 

information about the actions taken 

pursuant to this rule. 

Comment 13: A commenter noted that 

the RFMOs adopted their IUU vessel list 

measures several years ago. Current law 

does not bar foreign, IUU vessels from 

port entry for purposes other than 

landing, such as maintenance, 

provisioning, and loading of fish or fish 

products. The commenter urged NMFS 

to adopt the final rule as soon as 

possible. 

Response: NMFS agrees with the 

commenter and has undertaken this 

rulemaking to implement US obligations 

with respect to the conservation and 

management measures relating to RFMO 

IUU vessel lists. 

Comment 14: A commenter 

encouraged NMFS to undertake a 

concerted effort to gather information 

and evidence of IUU fishing activities, 

and suggested that NMFS may be 

performing this activity already while 

implementing the identification and 

certification procedures under the High 

Seas Driftnet Fishing Moratorium 

Protection Act, 16 U.S.C. 1826d et seq. 

(Moratorium Protection Act), as 

amended by the international provisions 

of the Magnuson-Stevens Fishery 

Conservation and Management 

Reauthorization Act of 2006. Increased 

monitoring, information gathering, and 

enforcement will improve the 

implementation of the RFMOs’ IUU 

measures domestically and 

internationally. 

Response: NMFS routinely seeks 

information and evidence of IUU fishing 

to carry out its domestic and 

international enforcement obligations. 

In addition, NMFS has been gathering 

information and evidence of IUU fishing 

activities as a part of its implementation 

of the identification procedures under 

the Moratorium Protection Act. NMFS 

also seeks and gathers information, 

where possible, on changes in vessel 

names and flags. Such vessel 

information is critical in 

implementation of the RFMOs’ IUU 

vessel list measures. 

Comment 15: A commenter suggested 

that NMFS consider not only integrating 

the measures under the various RFMOs, 

but also the identification and 

certification procedures under the 

Moratorium Protection Act. Although 

the latter requires identification of 

nations engaged in IUU fishing 

occurring only in the preceding two 

years, and RFMO vessel lists are not 

necessarily so time constrained, 

eventually there may be overlap 

between the vessel lists and the NMFS 

identification efforts. The proposed rule 

should clarify the potential overlap of 

this rule and NMFS actions under 

domestic law. 

Response: The Moratorium Protection 

Act requires the establishment of 

procedures to certify whether nations 

identified in a biennial report to 

Congress are taking appropriate 

corrective actions to address IUU fishing 

or bycatch of protected living marine 

resources by fishing vessels of that 

nation. NMFS is developing a rule to 

establish these procedures, hereinafter 

referred to as the ‘‘identification and 

certification procedures’’ rule. Under the 

Moratorium Protection Act, NMFS is 

required to identify nations whose 

fishing vessels are engaged, or that have 

been engaged at any point during the 

preceding two calendar years, in IUU 

fishing. NMFS is also required to 

identify nations whose fishing vessels 

are engaged, or that have been engaged 

during the preceding calendar year, in 

fishing activities either in waters 

beyond any national jurisdiction that 

result in the bycatch of a protected 

living marine resource, or beyond the 

U.S. EEZ that result in bycatch of a 

protected living marine resource shared 

by the United States. Once nations have 

been identified, there is a notification 

and consultation process. Subsequent to 

these processes, the United States will 

certify whether the government of an 

identified nation has provided evidence 

that corrective action has been taken 

with respect to the activities identified 

in the report to Congress. The absence 

of sufficient steps by an identified 

nation to address IUU fishing and/or 

bycatch of protected living marine 

resources may lead to prohibitions on 

the importation of certain fisheries 

products into the United States from 

that nation, the denial of port privileges 

for vessels of that nation, and/or other 

measures. On January 14, 2009, NMFS 

published a proposed identification and 

certification procedures rule, and 

solicited public comment through May 

14, 2009 (74 FR 2019). 

The rule for identification and 

certification procedures and this rule 

complement each other to address IUU 

fishing. The identification and 

certification procedures rule, developed 

pursuant to the Moratorium Protection 

Act, requires action on a nation-bymstockstill on DSKH9S0YB1PROD with RULES

59140 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

nation basis, while this rule addresses 

individual vessels. The identification 

and certification procedures rule 

encourages changes in a nation’s 

oversight of its IUU vessels, and this 

rule triggers actions with regard to 

individual IUU vessels. Finally, the 

identification and certification 

procedures operate on a biennial basis, 

but IUU vessel lists can change annually 

or more frequently and actions 

regarding IUU vessels may be needed 

with greater frequency. 

It is possible that the IUU activities of 

a vessel that is on an IUU vessel list of 

an RFMO could form the basis of 

identification of a particular nation. 

This would occur if the IUU activities 

occurred within the two years prior to 

the identification of the nation. 

Comment 16: A commenter believes 

that it is vital that NOAA establish, 

maintain, and publish through a 

centrally-located point or Web site a 

master list of vessels that are prohibited 

from entering into the United States and 

other cooperating countries. In this 

manner companies may check the list 

and not contract with these vessel 

owners. 

Response: The Web site for NMFS’ 

Office of International Affairs (http:// 

www.nmfs.noaa.gov/ia) provides links 

to each of the RFMOs’ IUU vessel lists. 

Each RFMO updates their lists as 

necessary. As the United States is just 

one of the members of the relevant 

RFMOs that participate in the adoption 

of the IUU vessel lists, the publication 

of the lists, and any changes thereto, is 

the responsibility of the RFMO. The 

Web page also includes the IUU vessel 

lists of RFMOs to which the United 

States not a party. Although this 

regulation does not apply to vessels on 

these other lists, U.S. companies should 

be aware of them. 

Comment 17: A commenter believes 

the use of ‘‘may’’ instead of ‘‘shall’’ 

removes the mandatory nature of the 

measures and, as a result, does not 

adequately comply with the language of 

the conservation and management 

measures established by the relevant 

RFMOs. 

Response: As a member of the 

relevant RFMOs, the United States has 

an obligation to implement the 

measures adopted by the RFMOs. The 

conservation and management measures 

pertaining to IUU vessel lists differ 

somewhat from RFMO to RFMO. For 

example, the ICCAT measure calls for 

prohibiting vessels on their IUU vessel 

lists from entering port, except in cases 

of force majeure, whereas IATTC and 

WCPFC measures do not call for denial 

of port entry, but obligate their members 

to ensure that listed vessels that 

voluntarily enter ports are not 

authorized to land or transship. Thus, 

the required action will depend on the 

vessel and the conservation and 

management measures that led to its 

inclusion on an IUU vessel list. The use 

of the word ‘‘may’’ will not result in no 

action being taken, but rather provides 

for implementation of the measure 

relevant to the vessel in question. 

Comment 18: A commenter suggested 

changing the expression ‘‘illegal, 

unregulated, and unreported fishing’’ to 

‘‘illegal, unreported, and unregulated.’’ 

Response: NMFS agrees and made the 

change. 

Classification 

NMFS Assistant Administrator has 

determined that this action is consistent 

with the Atlantic Tunas Convention Act 

of 1975 (16 U.S.C. 971 et seq.), Antarctic 

Marine Living Resources Convention 

Act of 1984 (16 U.S.C. 2431 et seq.), 

Northwest Atlantic Fisheries 

Convention Act of 1995 (16 U.S.C. 5601 

et seq.), Western and Central Pacific 

Fisheries Convention Implementation 

Act (16 U.S.C. 6901–6910), Tuna 

Conventions Act of 1950 (16 U.S.C. 

951–962), the Marine Mammal 

Protection Act (11 Stat. 1122; 16 U.S.C. 

1361 et seq.), and other applicable laws. 

This final rule has been determined to 

be not significant for the purposes of 

Executive Order 12866. 

As required under the Regulatory 

Flexibility Act (RFA; 5 U.S.C. 601, 

et seq.), a final regulatory flexibility 

analysis (FRFA) was prepared for this 

final rule implementing international 

conservation and management measures 

of ICCAT, CCAMLR, NAFO, WCPFC, 

IATTC, and AIDCP. The measures relate 

to foreign vessels that have been 

identified by these bodies as having 

engaged in illegal, unreported, and 

unregulated (IUU) fishing activities and 

included on their respective IUU vessel 

lists. 

The purpose of the RFA is to establish 

a principle of regulatory issuance that 

agencies shall endeavor, consistent with 

the objectives of the rule and of 

applicable statutes, to fit regulatory and 

informational requirements to the scale 

of businesses, organizations, and 

governmental jurisdictions subject to 

regulation. To achieve this principle, 

agencies are required to solicit and 

consider flexible regulatory proposals 

and to explain the rationale for their 

actions to assure that such proposals are 

given serious consideration. The RFA 

does not contain any decision criteria; 

instead, the purpose of the RFA is to 

inform the agency, as well as the public, 

of the expected economic impacts of 

regulatory actions (and alternatives) and 

to ensure that the agency considers 

alternatives that minimize the expected 

impacts while meeting the goals and 

objectives of the action and applicable 

statutes. 

The final rule will allow the NMFS 

Assistant Administrator to deny a 

foreign, listed IUU vessel entry into a 

port or place of the United States or 

access to port services, in accordance 

with applicable provisions of RFMO 

conservation and management 

measures. The final rule also allows the 

Assistant Administrator, in accordance 

with applicable provisions of RFMO 

conservation and management 

measures, to prohibit certain 

transactions, such as transshipping 

with, processing fish using, or 

supplying provisions or fuel to such 

IUU vessels. The rule includes several 

prohibitions for persons subject to the 

jurisdiction of the United States that 

complement the above restrictions for 

such vessels. The final rule would make 

it unlawful for any person subject to 

U.S. jurisdiction to engage in 

commercial transactions with a listed 

IUU vessel, including, but not limited 

to: 

• Transshipment with a listed IUU 

vessel; 

• Processing fish harvested or landed 

by a listed IUU vessel or processing fish 

using a listed IUU vessel; 

• Joint fishing operations with a 

listed IUU vessel; 

• Providing supplies, fuel, crew, or 

otherwise supporting a listed IUU 

vessel; or 

• Chartering or entering in a 

chartering arrangement with a listed 

IUU vessel. 

This FRFA incorporates the Initial 

Regulatory Flexibility Analysis (IRFA) 

published in the Federal Register on 

January 11, 2010 (75 FR 1324). The 

IRFA is not repeated here in its entirety. 

The need for and objectives of the rule 

are explained in the SUMMARY and 

SUPPLEMENTARY INFORMATION sections of 

the proposed rule and this final rule. 

A Summary of the Significant Issues 

Raised by the Public Comments in 

Response to the IRFA, a Summary of the 

Assessment of the Agency of Such 

Issues, and a Statement of Any Changes 

Made in the Proposed Rule as a Result 

of Such Comments 

NMFS did not receive any public 

comments on the IRFA and did not 

receive any comments on the rule 

generally that would warrant a change 

in the FRFA analysis. 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59141 

Description and Estimate of the Number 

of Small Entities to Which the Final 

Rule Will Apply 

The following is the analysis of the 

economic impacts on small entities that 

are anticipated as a result of this final 

rule. The final rule will apply to U.S. 

entities that engage or could engage in 

business transactions with vessels that 

are on the final IUU vessel lists adopted 

or approved by ICCAT, CCAMLR, 

NAFO, WCPFC, IATTC, and AIDCP. In 

particular, the regulations would apply 

to U.S. vessels or other entities that 

could: (1) Engage in transshipment with 

a listed IUU vessel; (2) process fish 

harvested or landed by a listed IUU 

vessel or process fish using a listed IUU 

vessel; (3) participate in joint fishing 

operations with a listed IUU vessel; 

(4) provide supplies, fuel, crew, or 

otherwise support a listed IUU vessel; or 

(5) charter or enter in a chartering 

arrangement with a listed IUU vessel. In 

addition to vessels, businesses located 

in or near ports could also be affected. 

It is not known if, or the extent to 

which, U.S. entities currently conduct 

these activities with listed IUU vessels. 

NMFS has, however, advised the public 

through NMFS’ outreach materials to 

consult IUU vessel lists when making 

commercial arrangements, as there are 

potential negative ramifications of 

conducting business with a listed IUU 

vessel because the United States and 

other countries are obligated to carry out 

RFMO conservation and management 

measures targeting IUU vessels, such as 

port entry restrictions. The warning was 

first issued in May of 2007, and it has 

been updated regularly since 

(see http://www.nmfs.noaa.gov/ia/ 

challenges/iuu.htm). 

When this final rule goes into effect, 

U.S. entities will not be able to legally 

conduct business with vessels that are 

on IUU vessel lists, subject to certain 

exceptions. However, only a few of 

these establishments are expected to 

lose such opportunities as a result of 

this final rule. The potential for 

transactions between these entities and 

IUU vessels is extremely limited, due to 

the few arrival attempts made by listed 

IUU vessels into U.S. ports. 

In the aggregate, approximately 90 

vessels are listed as IUU vessels by 

IATTC, ICCAT, CCAMLR, NAFO, 

WCPFC, and AIDCP. To date, none of 

these vessels are flagged to the United 

States. According to information 

recently compiled by Pew Environment 

Group, about 87 percent of all the 

vessels listed by the six RFMOs to 

which the United States is a party are 

fishing vessels (http:// 

www.portstateperformance.org). 

Foreign, listed IUU vessels rarely arrive 

in U.S. ports because foreign fishing 

vessels are generally prohibited by the 

Nicholson Act (46 U.S.C. 55114) from 

landing fish in most U.S. ports. As a 

result, U.S. entities do not normally 

conduct business with these vessels. 

U.S. Coast Guard and other data show 

that only two listed IUU vessels have 

ever come into U.S. ports. The lack of 

port visits by listed IUU vessels 

indicates an extremely low likelihood of 

transactions between U.S. entities and 

listed IUU vessels. The U.S. Coast Guard 

holds records of notices of arrivals and 

departures from commercial vessels. 

The records include vessels measuring 

300 gross tons or more, except for those 

foreign vessels entering any port or 

place in the Seventh Coast Guard 

District (includes South Carolina, most 

of Georgia and Florida, Puerto Rico, and 

the U.S. Virgin Islands) where all 

vessels, irrespective of their capacity, 

must provide notices. The requirements 

for notices of arrival are at 33 CFR Part 

160, Subpart C. As all of the non-fishing 

vessels that are currently listed on the 

RFMO IUU vessel lists are over 300 

gross tons (Pew Environment Group, 

unpublished data), and most arrivals by 

these vessels would be contained in the 

U.S. Coast Guard database. 

The U.S. Coast Guard database shows 

that two refrigerated transport (reefer) 

vessels arrived in U.S. ports, both before 

being included on an IUU vessel list and 

afterwards. U.S. Coast Guard’s data 

show that in 2005 one of these reefer 

vessels submitted three of the 128,033 

arrival notices (from 11,493 commercial 

vessels) received that year. In 2006, the 

two reefer vessels submitted three of the 

138,829 arrival notices (from 12,039 

commercial vessels) received. In 2007, 

both reefer vessels were placed on IUU 

vessels lists. That year, the two vessels 

submitted four of the 135,499 arrival 

notices (from 12,148 commercial 

vessels). In each of these three years, the 

notices by these two vessels were a 

negligible portion of the total submitted 

to U.S. Coast Guard. No IUU vessels are 

known to have visited a U.S. port in 

2008 or 2009. 

With regard to the possible economic 

impacts of this action on small entities, 

NMFS anticipates that U.S. entities will 

not be significantly affected by this 

action because listed IUU vessels 

comprise a negligible proportion of the 

total number of vessel visits to U.S. 

ports. Therefore, any U.S. entity that 

might be affected by this rule should be 

able to offset any lost business 

opportunities by conducting business 

with non-listed vessels and thus not be 

significantly affected by the prohibitions 

in the final rule. 

Description of the Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements of the Final Rule 

There are no new reporting or 

recordkeeping requirements contained 

in this action. 

Significance of the Economic Impacts 

on Small Entities 

NMFS does not expect a substantial 

number of small entities to be affected 

by the final rule, because the number of 

listed IUU vessels is small and their 

arrival or arrival attempts into the ports 

or places of the United States are so few 

in number. Thus, only a handful of 

potential transactions would be affected 

as a result of this final rulemaking. For 

any entities that could be affected, 

NMFS expects that the final rule would 

not have a significant economic impact 

because the number of legal vessels 

entering the United States far exceeds 

the number of listed IUU vessels 

entering the United States. 

Description of Significant Alternatives 

to the Final Rule and Discussion of How 

the Alternatives Attempt To Minimize 

Economic Impacts on Small Entities 

NMFS analyzed one alternative to the 

final rule—a no action alternative where 

NMFS would not promulgate 

regulations to implement RFMO 

conservation and management measures 

pertaining to listed IUU vessels. This 

alternative to the final rule may 

demonstrate the least burden or 

economic impact to small entities. 

Under the no-action alternative, U.S. 

entities could attempt to legally interact 

with IUU vessels. Because other 

countries have implemented the 

restrictions required in the RFMO 

conservation and management 

measures, such as port entry restrictions 

or prohibitions on providing fuel or 

provisions to IUU vessels, listed IUU 

vessels may be unable to complete 

certain transactions. For example, a 

listed vessel may be prohibited from 

entering their intended port, or their trip 

may be hindered because they cannot 

acquire supplies in a timely manner. 

Thus, a listed IUU vessel that transports 

a shipment of fish from the United 

States may not be able to successfully 

deliver to countries that implemented 

the relevant RFMO conservation and 

management measures. In cases where 

an IUU vessel travels to a country that 

is not a member of any of the RFMOs, 

the vessel could likely deliver a fish 

shipment. However, the financial risks 

associated with business transactions 

with listed IUU vessels likely have 

already caused U.S. entities to avoid 

such business transactions with listed 

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59142 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

IUU vessels, consistent with what is 

mandated by the final rule. 

NMFS did not consider alternatives 

other than the no action alternative 

because as a contracting party to the 

RFMOs specified in the rule, the United 

States has an obligation to implement 

conservation measures passed by those 

RFMOs. In some cases, the United 

States has flexibility in crafting 

regulations to implement RFMO 

conservation measures. For example, 

conservation measures that allocate 

quota of harvest from an international 

fishery to the United States can be 

implemented through regulations 

tailored to minimize economic impacts 

on small entities by equitably allocating 

the catch quota to different sectors (e.g., 

commercial and recreational) of the 

fishery. The IUU vessel list conservation 

measures do not lend themselves to that 

type of flexibility. Either the United 

States implements these measures 

through this final rule to restrict access 

to U.S. ports and access to port services 

by vessels on RFMO IUU vessel lists or, 

under the no action alternative, the 

United States would decline to do so. 

Promulgating the regulations in the 

final rule is the preferred alternative 

because it will clearly show how the 

United States is fulfilling its obligations 

to implement the international 

conservation and management measures 

pertaining to listed IUU vessels. 

Moreover, as discussed above, NMFS 

does not expect the regulations in the 

final rule to have significant economic 

impacts on a substantial number of 

small entities. 

List of Subjects in 50 CFR Part 300 

Administrative practice and 

procedure, Antarctica, Canada, Exports, 

Fish, Fisheries, Fishing, Imports, 

Indians, Labeling, Marine resources, 

Reporting and recordkeeping 

requirements, Russian federation, 

Transportation, Treaties, Wildlife. 

Dated: September 22, 2010. 

Samuel D. Rauch III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

■ For the reasons set forth in the 

preamble, 50 CFR part 300 is amended 

as follows: 

PART 300—INTERNATIONAL 

FISHERIES REGULATIONS 

■ 1. The authority citation for part 300 

continues to read as follows: 

Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. 

2431 et seq.; 16 U.S.C. 5601 et seq.; 16 U.S.C. 

6901–6910; 16 U.S.C. 951–962; and 11 Stat. 

1122; 16 U.S.C. 1361 et seq. 

■ 2. Add Subpart P to part 300 to read 

as follows: 

Subpart P—Vessels on IUU Vessel Lists 

Sec. 

300.300 Purpose and scope. 

300.301 Definitions. 

300.302 Port entry by foreign, listed IUU 

vessels. 

300.303 Port access by foreign, listed IUU 

vessels. 

300.304 Prohibitions. 

Subpart P—Vessels on IUU Vessel 

Lists 

§ 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 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), and 

(6) Parties to the Agreement on the 

International Dolphin Conservation 

Program (AIDCP). 

(b) For purposes of this subpart, the 

above organizations are referred to as 

regional fishery management 

organizations (RFMOs). Each of these 

RFMOs adopts or approves an IUU 

vessel list in accordance with their 

respective rules and procedures. The 

lists are publicly available at each 

RFMO’s Web site. The regulations in 

this subpart apply to all persons subject 

to the jurisdiction of the United States, 

wherever they are. 

§ 300.301 Definitions. 

In addition to the terms defined in 

§ 300.2, the terms used in this subpart 

have the following meanings. 

Landing means to begin to offload 

fish, or to offload fish from any vessel. 

Listed IUU Vessel means a vessel that 

is included on a final IUU vessel list 

adopted or approved by an RFMO to 

which the United States is a party. 

Processing means the preparation or 

packaging of fish to render it suitable for 

human consumption, retail sale, 

industrial uses or long-term storage, 

including, but not limited to, cooking, 

canning, smoking, salting, drying, 

filleting, freezing, or rendering into meal 

or oil. 

Transshipping means the offloading, 

unloading, or transferring of fish or fish 

products from one vessel to another. 

§ 300.302 Port entry by foreign, listed IUU 

vessels. 

The Assistant Administrator may, in 

accordance with applicable provisions 

of RFMO conservation and management 

measures, deny a foreign, listed IUU 

vessel entry to any port or place subject 

to the jurisdiction of the United States, 

except in cases of force majeure. 

§ 300.303 Port access by foreign, listed 

IUU vessels. 

If a foreign, listed IUU vessel is 

allowed to enter a port or place subject 

to the jurisdiction of the United States, 

the Assistant Administrator may, in 

accordance with applicable provisions 

of RFMO conservation and management 

measures, take one or more of the 

following actions: 

(a) Inspect the vessel; 

(b) 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, transshipping or 

landing product. 

§ 300.304 Prohibitions. 

(a) It is unlawful for a foreign, listed 

IUU vessel denied entry under § 300.302 

to enter any port or place subject to the 

jurisdiction of the United States. 

(b) It is unlawful for any foreign, 

listed IUU vessel to obtain port services 

or engage in commercial transactions, or 

attempt to obtain such services or 

engage in such transactions, if such 

activities have been denied or 

prohibited under § 300.303(b) and/or 

§ 300.303(c), or if the vessel has been 

denied entry under § 300.302. 

(c) It is unlawful for any person, 

without prior authorization from the 

Assistant Administrator, to engage in 

commercial transactions with listed IUU 

vessels. Such transactions include, but 

are not limited to: 

(1) Transshipment; 

(2) Processing fish harvested or 

landed by a listed IUU vessel or 

processing fish using a listed IUU 

vessel; 

(3) Joint fishing operations; 

(4) Providing supplies, fuel, crew, or 

otherwise supporting a listed IUU 

vessel; or 

(5) Chartering or entering in a 

chartering arrangement with a listed 

IUU vessel. 

(d) The prohibitions listed in 

§ 300.304(c) 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 

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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59143 

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. 

[FR Doc. 2010–24196 Filed 9–24–10; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 600 

[Docket No. 080102007–0337–03] 

RIN 0648–AW18 

Magnuson-Stevens Fishery 

Conservation and Management Act; 

Regional Fishery Management 

Councils; Operations 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS publishes changes to 

the regulations that address the 

operations and administration of the 

Regional Fishery Management Councils 

(Councils). The regulatory changes 

implement the 2006 amendments to the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act) that, among 

other things, establish the Council 

Coordinating Committee (CCC), require 

that the Councils’ science and statistical 

committee (SSC) members disclose their 

financial interests, and provide for 

training of Council members and staff. 

Additionally, this final rule clarifies the 

Council documents that should be 

available to the public; the restrictions 

on lobbying; the procedures for Council 

member nomination, including timing 

for submission of nominations; and also 

requires Councils to provide procedures 

for deeming regulations necessary and 

or appropriate for implementing fishery 

management plans and plan 

amendments. These regulations also set 

forth additional financial disclosure 

requirements for Council members, and 

revise the security assurance procedures 

for nominees to and members of the 

Councils. Finally, this rule makes 

technical and minor corrections to the 

regulations unrelated to the most recent 

Magnuson-Stevens Act amendments. 

DATES: Effective October 27, 2010. 

ADDRESSES: Written comments 

regarding the burden-hour estimates or 

other aspects of the collection-ofinformation requirements contained in 

this rule may be submitted to Alan 

Risenhoover, Director, Office of 

Sustainable Fisheries, National Marine 

Fisheries Service, 1315 East-West 

Highway, SSMC3, Silver Spring, MD 

20910, Fax: 301–713–1175, and by email to 

OIRAlSubmission@omb.eop.gov, or fax 

to (202) 395–7285. 

FOR FURTHER INFORMATION CONTACT: 

William Chappell, at 301–713–2337. 

SUPPLEMENTARY INFORMATION: A 

proposed rule for this action was 

published on March 27, 2009 (74 FR 

13386), with public comment accepted 

though July 6, 2009. Several Regional 

Fishery Management Councils requested 

that the comment period be extended, 

and NMFS responded by extending the 

public comment period to November 2, 

2009 (74 FR 31224, June 30, 2009). 

Subsequently, NMFS published a 

supplementary rule addressing elements 

of this action on December 7, 2009 (74 

FR64042, December 7, 2009), with a 

comment period ending January 6, 2010. 

A detailed description of the statutory 

and regulatory authority and need for 

this rule is contained in the preamble of 

the proposed rules and is not repeated 

here. 

This final rule does not finalize 

regulations on all the elements of the 

proposed rules. For those elements not 

finalized in this action, additional 

public comment will be sought on the 

proposed rules, or a new proposed rule 

may be issued for public comment. 

Specifically, issues regarding stipends 

for Scientific and Statistical Committees 

(SSCs) and Advisory Panels need 

additional public review and comment. 

Issues addressing the functions of SSCs 

have been addressed by a recent 

rulemaking, i.e., the publication of the 

final rule on National Standard 1 

Guidelines, (74 FR 3178, January 16, 

2009), or will be addressed in other 

actions (i.e. pending National Standard 

2 Guidelines (proposed rule published 

at 74 FR 56724, December 11, 2009). 

Comments on the Proposed Rule 

NMFS received thirteen written 

responses from organizations and 

individuals to a call for comments on a 

proposed rule published on March 27, 

2009 (74 FR 13386). Responses included 

five letters from fishery management 

councils, one from an attorney for a 

fishing industry group, three from 

environmental non-governmental 

organizations (ENGOs), a letter from the 

U.S. Small Business Administration 

(SBA), and three on-line submissions 

from individuals. 

In response to the supplemental 

proposed rule (74 FR 64042, December 

7, 2009), NMFS received a second letter 

from one of the fishery management 

councils and two from ENGOs that had 

previously commented. A fishing 

industry association and the Marine 

Mammal Commission (MMC) also 

responded to the request for comments. 

Comment 1: A letter from an ENGO 

supported the idea of defining the terms 

‘‘advisory panel’’ (AP) and ‘‘fishing 

industry advisory committee’’ (FIAC) 

and differentiating the groups from one 

another. Three Councils commented 

that the definitions should not 

distinguish between the types of 

advisory groups for the purposes of 

authorizing stipends for one, the APs, 

but not for the other, the FIACs. They 

noted that the names given advisory 

groups and the functions of those 

groups are not consistent with the 

proposed rule and vary in usage from 

Council to Council. Also, one 

respondent noted that MagnusonStevens Act Sec. 302(g)(4) refers to the 

formation of APs, yet it is not referenced 

in the proposed definition of advisory 

panels and asks if this is an oversight. 

Response: Under the MagnusonStevens Act, the Councils are authorized 

to establish committees and advisory 

panels at Sec. 302(g)(1) (SSCs), (g)(2) 

(APs), and (g)(3) (FIACs) as per separate 

sections of the statute. Sec 301(g)(4) 

authorized the Secretary to establish 

APs for Atlantic highly migratory 

species. Council practice, however, has 

made little distinction between APs and 

FIACs. In addition, what would be 

considered an AP under Sec. 302(g)(2) 

is often called a committee, and the 

terms have been used interchangeably 

and inconsistently from Council to 

Council. The 2007 reauthorization of the 

Magnuson-Stevens Act authorized 

stipends for APs, but not for FIACs. The 

proposed rule suggested definitions to 

aid Councils in distinguishing which 

Council advisory groups’ members 

would be authorized to receive a 

stipend. In order to determine their 

eligibility for stipends and whether they 

are required to meet the meeting notice 

requirements of 50 CFR 600.135, these 

definitions are retained and the 

Councils are now required to declare 

under which section in the MagnusonStevens Act the organization is 

organized. 

Comment 2: A letter from ENGOs 

suggested the term ‘‘fishing industry 

advisory committee’’ be replaced by 

‘‘community advisory panel’’ to ensure 

the definition does not preclude 

membership by individuals who are not 

representatives of the fishing industry. 

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