[Federal Register Volume 75, Number 186 (Monday, September 27, 2010)]
[Rules and Regulations]
[Pages 59136-59143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24196]


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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.

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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) <a href="/cdn-cgi/l/email-protection#462b2f682723682d2f2b062829272768212930"><span class="__cf_email__" data-cfemail="9af7f3b4fbffb4f1f3f7daf4f5fbfbb4fdf5ec">[email protected]</span></a>).

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:
    <bullet> Fishing in an RFMO's management (or convention) area 
without authorization;
    <bullet> Failing to record or declare their catches, or making 
false reports;
    <bullet> Using prohibited fishing gear in contravention of 
conservation measures; or
    <bullet> 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,

[[Page 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

[[Page 59138]]

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 land-based 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,

[[Page 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-
by-case 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 multi-disciplinary 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 on-going 
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-by-

[[Page 59140]]

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:
    <bullet> Transshipment with a listed IUU vessel;
    <bullet> Processing fish harvested or landed by a listed IUU vessel 
or processing fish using a listed IUU vessel;
    <bullet> Joint fishing operations with a listed IUU vessel;
    <bullet> Providing supplies, fuel, crew, or otherwise supporting a 
listed IUU vessel; or
    <bullet> 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.

[[Page 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

[[Page 59142]]

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.

0
For the reasons set forth in the preamble, 50 CFR part 300 is amended 
as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

0
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.

0
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


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 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.


Sec.  300.301  Definitions.

    In addition to the terms defined in Sec.  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.


Sec.  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.


Sec.  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.


Sec.  300.304  Prohibitions.

    (a) It is unlawful for a foreign, listed IUU vessel denied entry 
under Sec.  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 Sec.  300.303(b) and/or Sec.  
300.303(c), or if the vessel has been denied entry under Sec.  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 Sec.  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

[[Page 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


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