[Federal Register Volume 78, Number 11 (Wednesday, January 16, 2013)]
[Rules and Regulations]
[Pages 3338-3346]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-00703]
[[Page 3338]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 1103210208-2676-02]
RIN 0648-BA89
High Seas Driftnet Fishing Moratorium Protection Act;
Identification and Certification Procedures To Address Shark
Conservation
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: This final action sets forth identification and certification
procedures to implement provisions of the Shark Conservation Act, which
amended the High Seas Driftnet Fishing Moratorium Protection Act
(Moratorium Protection Act), to address shark conservation in areas
beyond any national jurisdiction. This action also amends the
definition of illegal, unreported, or unregulated (IUU) fishing for
purposes of the Moratorium Protection Act.
DATES: This rule is effective January 16, 2013.
FOR FURTHER INFORMATION CONTACT: Laura Cimo, Trade and Marine
Stewardship Division, Office of International Affairs, NMFS, at (301)
427-8359. More information on the Moratorium Protection Act can be
found on the NMFS Web site at http://www.nmfs.noaa.gov/msa2007/intlprovisions.html.
SUPPLEMENTARY INFORMATION:
Background
On January 12, 2011, the National Marine Fisheries Service (NMFS)
published a rule (76 FR 2011) establishing identification and
certification procedures to address illegal, unreported, or unregulated
(IUU) fishing activities and bycatch of protected living marine
resources (PLMRs) pursuant to the High Seas Driftnet Fishing Moratorium
Protection Act (Moratorium Protection Act) (50 CFR 300.200 et seq.) (16
U.S.C. 1826h-k). This action modifies those identification and
certification procedures to reflect amendments to the Moratorium
Protection Act made by the Shark Conservation Act (Pub. L. 111-348),
enacted on January 4, 2011.
On July 10, 2012, NOAA published a proposed rule establishing
identification and certification procedures to implement the
international provisions of the Shark Conservation Act. This rule also
proposed changes to the definition of IUU fishing for purposes of the
Moratorium Protection Act (see 50 CFR 300.201). The background
information on this action was published in the proposed rule (77 FR
40553, July 10, 2012) and is not repeated here.
Briefly, under these regulations, in addition to identifying
nations based on IUU fishing or bycatch of protected living marine
resources, NMFS will identify a foreign nation in a biennial report to
Congress if fishing vessels of that nation have been engaged during the
preceding calendar year in fishing activities or practices in waters
beyond any national jurisdiction that target or incidentally catch
sharks and the nation has not adopted a regulatory program for the
conservation of sharks. Such conservation measures must be comparable
to those of the United States, taking into account different
conditions.
A brief summary of how NMFS intends to apply Section 609 of the
Moratorium Protection Act and its implementing regulations is repeated
below.
Application of IUU Fishing Identification Criteria
In addition to the regulatory changes identified above, NMFS has
reconsidered the manner in which it applies Section 609 of the
Moratorium Protection Act and its implementing regulations. To date,
NMFS has primarily applied this Act and implementing regulations to
identify a nation when the nation's vessels were engaged in IUU fishing
activity that was directly attributable to specific vessel conduct.
After two cycles of identification, NMFS has determined that these
provisions could be applied more broadly. In order to more
comprehensively address IUU fishing, we must consider not only the
prohibited actions of fishing vessels but also non-compliance in the
form of action or inaction at the national level that leads to IUU
fishing. To further this goal, NMFS will identify a nation based on the
nation's actions or inactions that lead to fishing by vessels
registered under their flag that is not in accordance with regional
fishery management organization (RFMO) conservation and management
measures.
For example, under the approach adopted in this final rule, NMFS
could identify a nation when the nation has failed to implement
measures that are required by a RFMO to which the United States is a
party, and as a result the fishing vessels of that nation operated in a
manner inconsistent with the relevant RFMO conservation and management
measures.
This approach is consistent with the plain language of the
statutory guidelines provided in section 609(e)(3)(A) of the Moratorium
Protection Act for the IUU fishing definition. These statutory
guidelines specifically mention certain RFMO conservation and
management measures, such as catch limits or quotas, that must be
implemented by nations that are parties to the RFMO and cannot
necessarily be attributed to specific fishing vessels. For example,
RFMOs can establish quotas for their member nations. Each nation bears
the responsibility for implementing and adhering to the quota it
received. Individual fishing vessels, therefore, cannot be found in
violation of the RFMO's quota, but action or inaction by the flag
nation could result in fishing activity in violation of the quota. In
addition to specific situations mentioned in the minimum statutory
guidelines for the IUU fishing definition, there are other
circumstances in which fishing activities might violate RFMO measures
because of a nation's failure to govern its own fishing vessels or
carry out its own responsibilities. For example, RFMOs require parties
to implement data reporting requirements. In most cases, the nations,
and not individual vessels, compile and report the requisite
information to comply with RFMO conservation and management measures.
Because many measures are inherently a nation's responsibility,
Congress evidently intended NMFS to be able to identify a nation based
on its failure to fulfill the requirements of the relevant RFMO and the
operations of the nation's fisheries in light of this failure.
Under the approach adopted in this final rule, a nation could be
identified for fishing activities that were illegal, unregulated, or
unreported because of national action or inaction, including,
consistent with the examples discussed above, fishing activities that
resulted in the nation exceeding a harvest quota granted by the
relevant RFMO because the nation failed to implement measures to
prevent such overharvest, and fishing activities that were not reported
because the nation failed to carry out its responsibilities for
reporting to ensure collection of such information.
Responses to public comments received on the proposed rule are
found below.
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Changes From the Proposed Rule
The final rule includes minor clarifications to procedures that
apply when a nation fails to receive a positive certification under the
Act. First, NMFS makes minor revisions to documentation requirements.
Current regulations at 50 CFR 300.205(b)(2), 300.206(c), and 300.207(c)
refer to ``documentation of admissibility'' that must be ``executed''
by a duly authorized official of an identified nation when fish or fish
products are imported into the United States. In an effort to use
language that is more clearly understood, this final rule replaces the
word ``executed'' with ``properly completed and signed.'' To be
consistent with the form that will accompany fish and fish products
entering the United States for this rulemaking, this final rule changes
the term ``documentation'' to ``certification,'' and clarifies that the
certification must be signed by the importer of record prior to
submission to NMFS. This final rule also includes a reminder that other
import documentation requirements may apply in addition to this
certification.
Second, the final rule clarifies the roles of the Departments of
Treasury and Homeland Security consistent with Treasury Order 100-16.
Under 50 CFR 300.205(b)(1) and (b)(4), the Secretary of Commerce is
responsible for notifying the public of both the imposition and removal
of trade restrictive measures, with the concurrence of the Secretary of
State and in cooperation with the Secretary of Treasury. Treasury Order
100-16 provides that the Secretaries of Treasury and Homeland Security
share certain responsibilities pertaining to trade restrictive
measures. The final rule clarifies that the Secretary of Commerce will
issue these notices in cooperation with the Secretaries of Treasury,
Homeland Security, and State.
Finally, the rule now includes text from the High Seas Driftnet
Fisheries Enforcement Act (16 U.S.C. 1826a) regarding the denial of
port privileges. In describing the denial of port privileges, current
regulations at 50 CFR 300.204(a) only include text from the High Seas
Driftnet Fisheries Enforcement Act regarding the denial of entry of IUU
fishing vessels into the navigable waters of the United States.
However, the Act also includes a second provision on withholding or
revoking clearance of vessels, which NMFS has included in the final
rule.
Response to Public Comments
NMFS received 17 public comments on the proposed rule. These
comments came from several environmental non-governmental
organizations, fishing industry groups, including fish importers, and
foreign governments and trade organizations. NMFS did not make changes
to the proposed rule in response to comments received, since many of
the suggested changes were not consistent with statutory authority or
were outside the scope of this rulemaking.
General Comments
NMFS received several comments in support of the proposed
regulations. Many commenters suggested that the regulation could help
``level the playing field'' for U.S. fishermen who are competing in a
global market against foreign fishermen that are not required to abide
by regulations as stringent as those in the United States.
Application of Regulations to Foreign Vessels
Comment 1: One commenter asked NMFS to clarify that the regulation
does not apply to U.S. vessels who may have committed minor infractions
of domestic fisheries regulations.
Response: NMFS agrees that the final regulation does not apply to
U.S. vessels. The Moratorium Protection Act directs the Secretary of
Commerce to identify and certify only foreign nations for having
vessels engaged in IUU fishing, bycatch of protected living marine
resources, and shark catch on the high seas. U.S. fishermen are,
however, subject to regulation under other domestic laws, including but
not limited to, the Magnuson-Stevens Fishery Conservation and
Management Act, the Marine Mammal Protection Act, the Endangered
Species Act, and the Lacey Act.
Application of Import Prohibitions
Comment 2: One commenter raised concerns that language in the
proposed rule will lead to inconsistent application of the regulations.
In particular, the commenter recommended deleting language regarding
NMFS taking into account different conditions when making decisions to
identify nations for having vessels engaged in shark catch on the high
seas if they do not have a comparable regulatory program to the United
States. They asserted that NMFS must use standards consistently across
all nations to comply with the World Trade Organization (WTO)
Agreement.
Response: The Moratorium Protection Act, at 16 U.S.C.
1826k(a)(2)(B), requires that NMFS take into account different
conditions when making identification decisions for nations whose
vessels engaged in shark catch beyond any national jurisdiction. While
NMFS cannot delete this requirement, NMFS is mindful of U.S.
obligations under the WTO Agreement when implementing the provisions of
the Moratorium Protection Act, and works with the Office of the U.S.
Trade Representative to ensure that any actions taken under the
Moratorium Protection Act are consistent with these obligations. Agency
actions and recommendations under this final rule will be in accordance
with U.S. obligations under applicable international law, including the
WTO Agreement.
By taking into account different conditions in a nation's fishery,
including conditions that could bear on the feasibility and
effectiveness of certain bycatch mitigation measures, NMFS considers
alternative measures implemented by the nation that are as effective or
more effective than those applicable in U.S. fisheries. This
flexibility helps to ensure that identification and certification
determinations do not result in the imposition of trade-restrictive
measures that are arbitrary or unjustifiably discriminatory because
they hold a nation to a higher standard than measures applied in U.S.
fisheries.
Comment 3: Commenters suggested broadening the scope of potential
trade restrictive measures that could be applied to an identified
nation that fails to receive a positive certification to, at a minimum,
include all fish or fish products from such nation. If verifiable
progress is not made by the nation to control the actions of its
vessels, they suggested NMFS develop a process to expeditiously broaden
the scope of trade restrictions to cover all goods from that nation
that are imported into the United States.
Response: The Moratorium Protection Act limits the scope of import
prohibitions that can initially be applied to an identified nation that
fails to receive a positive certification. For a nation identified for
IUU fishing, import prohibitions would be limited to fish and fish
products managed under an applicable international fishery agreement.
If there is no applicable international fishery agreement, such
prohibitions would only apply to fish and fish products caught by
vessels engaged in IUU fishing. For a nation identified for either
bycatch or shark catch, import prohibitions would be limited to those
that address the relevant fishing activities or practices for which
such nations were identified in the biennial report.
However, if after six months following the imposition of import
prohibitions
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the Secretary of Commerce certifies to the President that the
prohibitions are insufficient to cause a nation to effectively address
such IUU fishing activity, bycatch, or shark catch or that the nation
has taken retaliatory action against the United States, the President
may (under authority of the Pelly Amendment at 22 U.S.C. 1978a) direct
the Secretary of the Treasury to prohibit the bringing or the
importation into the United States of any products from the nation for
any duration as the President determines appropriate and to the extent
that such prohibition is sanctioned by the WTO.
Comment 4: Another commenter suggested the regulation make it clear
that, in the case of an identified nation that fails to receive a
positive certification, trade restrictive measures can be applied to
all fisheries that are managed under the applicable regional fishery
management organization (RFMO), regardless of whether catch of such
fish triggered the nation's identification. They specifically requested
the deletion of the following statement: ``Such recommendation would
address the relevant fishing activities or practices for which such
nations were identified in the biennial report,'' since they believe it
could be misinterpreted to further limit the scope of potential
sanctions by referring only to the fishing activities that give rise to
the IUU violations.
Response: NMFS believes the current language does not unduly limit
the scope of import prohibitions that can be put into place. Rather,
the language ensures that any recommendations for import prohibitions
will help address the activities for which the nation was identified.
Under the Moratorium Protection Act, if an identified nation fails to
receive a positive certification, import prohibitions may potentially
be applied to fish and fish products managed under the applicable
international fishery agreement.
Comment 5: One commenter was concerned that the proposed regulation
does not specify which types of fish and fishing products could face
market entry restrictions and raised concerns that the application of
trade restrictive measures could be contrary to the spirit of
international trade.
Response: The Moratorium Protection Act limits the scope of import
prohibitions that can be applied, but does not specify which fisheries
products would be prohibited from importation into the United States.
This final regulation requires that the Secretary of Commerce recommend
the imposition of import prohibitions with respect to fish and fish
products associated with the fishing activity that served as the basis
for the nation's identification. The regulation further provides that
recommended import prohibitions be in accordance with U.S. obligations
under applicable international trade law, including the WTO Agreement.
Traceability of Fisheries Products
Comment 6: A few commenters suggested that NMFS and other
governmental agencies continue to work towards traceability of imported
fisheries products to monitor fisheries products coming into the United
States and help implement the provisions of the Moratorium Protection
Act.
Response: NMFS agrees. However, establishment of a broad
traceability program for all fisheries products is beyond the scope of
this rulemaking. Nonetheless, NMFS has taken steps under the Moratorium
Protection Act and other laws to improve traceability of fisheries
products. With respect to this rulemaking, if import prohibitions are
put in place for an identified nation that has failed to receive a
positive certification under the Moratorium Protection Act, fish and
fish products from the identified nation entering the United States
must be accompanied by a completed certification of admissibility
available from NMFS. The certification of admissibility must be
properly completed and signed by a duly authorized official of the
identified nation. The certification must also be signed by the
importer of record and submitted to NMFS in a format (electronic
facsimile (fax), the Internet, etc.) specified by NMFS for validation.
To assist with the traceability of imported fisheries products,
NMFS has implemented several import monitoring programs under other
authorities. These include the Tuna Tracking and Verification Program
(NOAA Form 370--Fisheries Certificate of Origin) implemented under the
Dolphin Protection Consumer Information Act and Marine Mammal
Protection Act. This program ensures that imported tuna products are
correctly labeled as ``dolphin-safe.'' Similarly, we have implemented a
bluefin tuna catch documentation scheme (now a paper-based system, but
moving in 2013 to an electronic tracking system) pursuant to U.S.
obligations as a Contracting Party to the International Convention for
the Conservation of Atlantic Tunas (ICCAT) and under the authority of
the Atlantic Tunas Convention Act (ATCA). ICCAT also has swordfish and
bigeye tuna statistical document programs that are implemented under
ATCA authority. NMFS has also implemented an Antarctic toothfish import
monitoring program which requires a catch certificate and pre-approval
for imports under the authority of the Antarctic Marine Living
Resources Conservation Act.
Comment 7: One commenter encouraged NMFS to communicate the
requirements of the Moratorium Protection Act proactively and as
quickly as possible to the international community to ensure knowledge
of the regulation and its implications.
Response: NMFS agrees and has widely shared information on the
provisions of the Moratorium Protection Act with foreign governments at
every opportunity, including meetings of RFMOs, the Food and
Agriculture Organization of the United Nations (FAO), and other
international fora, as appropriate. NMFS has also provided information
to many countries during bilateral meetings and through the U.S. State
Department.
Verification of Information
Comment 8: One commenter expressed concern that information could
be used as the basis for a nation's identification even if the
information is not credible and is intended to harm a particular
nation.
Response: NMFS makes every effort to validate allegations that a
nation's vessels are engaged in fishing activities that could form the
basis of identification under the Moratorium Protection Act. Nations
are provided an opportunity to address such information before
identification decisions are made.
Subsidies for Illegal Fishing
Comment 9: One commenter suggested that when identifying nations,
NMFS must identify nations that subsidize illegal fishing.
Response: NMFS does not have authority under the statute to address
fishing subsidies. However, the United States fully participates in
international negotiations to eliminate harmful fishing subsidies,
including the subsidization of vessels identified as having engaged in
IUU fishing.
Shark Provisions
Comment 10: One commenter suggested that when identifying nations,
NMFS take a strong stance in specifying requirements for shark
conservation measures when looking at a nation's comparable regulatory
program.
Response: NMFS agrees that strong shark measures must be adopted
domestically and strives to help ensure compliance with measures that
are adopted internationally. NMFS will be taking a comprehensive look
at each
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nation's domestic regulatory program for sharks when determining
whether that nation's regulatory program is comparable to the United
States, taking into account different conditions.
Comment 11: One commenter suggested that NMFS amend the regulation
so that it applies to shark catch in waters under national
jurisdiction, as well as shark catch on the high seas.
Response: The Moratorium Protection Act, as amended by the Shark
Conservation Act, only authorizes NMFS to identify nations for having
vessels engaged shark catch beyond any national jurisdiction. Expanding
the criteria for shark catch identifications to areas within any
national jurisdiction would be outside the scope of the statute.
However, shark fishing activity that occurs in another nation's waters
could be a basis for identification as IUU fishing if such activity
violates a conservation and management measure required under an
international fishery management agreement to which the United States
is a party.
Comment 12: One commenter suggested removing text allowing NMFS to
take into account relevant matters, including, but not limited to, the
history, nature, circumstances, and gravity of the fishing activities
that target or incidentally catch sharks beyond any national
jurisdiction, when making identification decisions. The commenter is
concerned that the language provides a loophole that could be used as a
basis for not identifying nations that are harvesting and not
sustainably managing shark species.
Response: The purpose of the language in the proposed rule is to
acknowledge different circumstances that may lead to a nation's
identification. The language provides discretion for practicable
implementation of the law and allows NMFS to consider all relevant
circumstances, such as whether a nation has repeatedly engaged in
fishing activities of concern, when making identification decisions.
Comment 13: Several commenters suggested that NMFS examine the use
of circle hooks by a nation identified for having vessels engaged in
shark catch on the high seas when determining whether to issue a
positive certification.
Response: When issuing a certification decision for a nation
identified for having vessels engaged in shark catch on the high seas,
when appropriate, NMFS will consider, among other things, whether
circle hooks are required for U.S. fishermen in the same or similar
fisheries, and determine whether the nation has measures in place that
are comparable in effectiveness to those required in U.S. fisheries.
NMFS will not mandate use of circle hooks in pelagic longline fisheries
for shark certifications because such measures are not currently
required in U.S. fisheries to mitigate shark bycatch, and may in fact
increase shark mortality in some cases.
Comment 14: A commenter expressed concern that U.S. domestic
regulations have not been proposed that would implement the requirement
that U.S. fishermen must land sharks with their fins naturally
attached. The commenter urged NMFS to move forward and issue
implementing U.S. regulations immediately.
Response: These regulations only implement provisions of the Shark
Conservation Act that amended the Moratorium Protection Act. NMFS will
address the domestic fisheries provisions of the Act in separate
rulemakings.
Comment 15: Several commenters suggested that NMFS encourage other
nations to adopt a National Plan of Action for Sharks.
Response: The United States continues to encourage other nations to
adopt and implement a National Plan of Action for Sharks.
Comment 16: When determining whether a nation has a comparable
regulatory program to the United States, several commenters suggested
that NMFS investigate whether the nation has domestic legislation to
implement international requirements and their National Plan of Action
for Sharks, as well as effective enforcement.
Response: If NMFS obtains information that a nation has vessels
engaged in shark catch on the high seas, we will holistically examine
that nation's regulatory program for sharks to determine if it is
comparable to that of the United States, including domestic legislation
and enforcement of the program. NMFS agrees that these issues are a
critical part of a regulatory program and they will be considered.
Comment 17: One commenter discussed their opposition to state
finning bans that are being considered for possible adoption.
Response: NMFS cannot address state finning bans in this
rulemaking.
Proposed Changes to the IUU Fishing Definition
Comment 18: One commenter suggested that the goal of the proposed
regulation is to address stateless vessels in the world's oceans that
are not abiding by rules applicable to the U.S. fishermen are subject
to. Therefore, they would like the IUU fishing definition amended to
include stateless vessels that are engaged in IUU fishing.
Response: The Moratorium Protection Act authorizes NMFS to identify
nations for having vessels engaged in IUU fishing, bycatch of protected
living marine resources, and shark catch beyond any national
jurisdiction. The fishing activities of stateless vessels cannot be
addressed under the Moratorium Protection Act. IUU fishing activities
by stateless vessels can be addressed pursuant to provisions of a
number of international instruments, including the FAO Port State
Measures Agreement, which will require the denial of access to ports
and/or the withholding of port services to IUU vessels, including
stateless vessels.
Comment 19: Several commenters suggested that the definition of IUU
fishing be identical to the characterization of IUU fishing that was
included in the FAO Port State Measures Agreement. This
characterization of IUU fishing refers to the activities set out in
paragraph three of the 2001 FAO International Plan of Action to
Prevent, Deter and Eliminate Illegal, Unreported and Unregulated
Fishing (see http://www.fao.org/docrep/003/y1224e/y1224e00.htm).
Response: The Moratorium Protection Act sets forth the minimum
elements that must be included in the definition of IUU fishing for
purposes of the Act. The characterization of IUU fishing that was
included in the FAO Port State Measures Agreement serves a different
purpose than the definition of IUU fishing for purposes of the
Moratorium Protection Act. Under the FAO Port State Measures Agreement,
States and other entities commit to adopt measures to strengthen their
ports against IUU fisheries products and to enhance port State measures
through flag State control. Thus, the characterization of activities
that can be considered IUU fishing under the FAO Port State Measures
Agreement is broad enough to address specific fishing activities by
individual vessels. In contrast, the Moratorium Protection Act provides
authority to identify and certify nations for having vessels engaged in
IUU fishing, which is defined based on statutory guidelines. For
example, the fishing activities of stateless vessels, which are
addressed under the Port State Measures Agreement, cannot be addressed
under the Moratorium Protection Act, which establishes a process to
identify and certify nations, rather than nations' vessels, to promote
sustainable fishing activities by their vessels.
In addition, NMFS is not expanding the IUU fishing definition in
this final
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rule to encompass RFMOs to which the United States is not a member
because it could result in a nation's identification for violations of
international measures to which the United States is not bound, and was
not involved in developing.
IUU Fishing Definition as It Addresses Impacts to Vulnerable Marine
Ecosystems
Comment 20: Several commenters expressed concern about the aspect
of the IUU fishing definition that pertains to fishing activities that
adversely impact vulnerable marine ecosystems (VMEs). Specifically,
they requested that NMFS delete the term ``significant'' before
``adverse impact,'' so that the VME aspect of the IUU fishing
definition can be interpreted more broadly.
Response: In the current regulations, NMFS harmonized the
applicable section of the IUU definition to be consistent with
international norms of the United Nations General Assembly and FAO.
NMFS added ``significant'' before ``adverse impact'' in the definition
to reflect the standard of significant adverse impact as established in
United Nations General Assembly Resolutions 61/105, 64/72, and 66/88,
as well as the FAO International Guidelines for the Management of Deep-
sea Fisheries in the High Seas.
Classification
This final rule is published under the authority of the Moratorium
Protection Act, 16 U.S.C. 1826d-1826k, as amended by the Shark
Conservation Act (Pub. L. 111-348).
This rulemaking has been determined to be significant for the
purposes of Executive Order 12866.
Pursuant to 5 U.S.C. 553(d)(3), NOAA finds that there is good cause
to waive the 30-day delay in the effective date of this rule. This rule
is procedural in nature: It only creates procedures for the agency to
follow when determining the identification and certification of nations
whose fishing vessels are engaged in shark catch beyond any national
jurisdiction. Importantly, the rule does not modify, add, or revoke any
existing rights and obligations of the public or any private parties,
because the rule only applies to NOAA. Once this final rule is
implemented, the public is not required to take any action to come into
compliance. Accordingly, NOAA finds that there is good cause, within
the meaning of 5 U.S.C. 553(d)(3), to waive the 30-day delay in
effectiveness of this rule and to make this rule effective immediately.
Pursuant to section 605 of the Regulatory Flexibility Act, at the
proposed rule stage, the Chief Council for Regulation of the Department
of Commerce certified to the Chief Council for Advocacy of the Small
Business Administration that this final rule would not have a
significant economic impact on a substantial number of small entities.
NMFS did not receive any comments on that certification. For any
questions about the certification, please contact NMFS at the contact
provided under FOR FURTHER INFORMATION.
This final rule contains collection-of-information requirements for
Sec. Sec. 300.206(b)(2), 300.207(c), and 300.208(c) subject to review
and approval by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act (PRA). The collection-of-information
requirements have been approved by OMB under control number 0648-0651.
List of Subjects in 50 CFR Part 300
Administrative practice and procedure, Bycatch, Exports, Fish,
Fisheries, Fishing, Imports, IUU Fishing, Marine resources, Reporting
and recordkeeping requirements, Sharks, Treaties, Wildlife.
Dated: January 10, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and
duties of the Deputy Assistant Administrator for Regulatory Programs.
For the reasons set out 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: Moratorium Protection Act, 16 U.S.C. 1826d-1826k.
0
2. Section 300.200 is revised to read as follows:
Sec. 300.200 Purpose and scope.
The purpose of this subpart is to implement the requirements in the
High Seas Driftnet Fishing Moratorium Protection Act (``Moratorium
Protection Act'') to identify and certify nations whose vessels engaged
in illegal, unreported, or unregulated fishing; whose fishing
activities result in bycatch of protected living marine resources; or
whose vessels engaged in fishing activities or practices on the high
seas that target or incidentally catch sharks where the nation has not
adopted a regulatory program for the conservation of sharks, comparable
in effectiveness to that of the United States, taking into account
different conditions. This language applies to vessels entitled to fly
the flag of the nation in question. Where the Secretary of Commerce
determines that an identified nation has not taken the necessary
actions to warrant receipt of a positive certification, the Secretary
of Commerce may recommend to the President that the United States
prohibit the importation of certain fish and fish products from the
identified nation or other measures. The Secretary of Commerce will
recommend to the President appropriate measures, including trade
restrictive measures, to be taken against identified nations that have
not received a positive certification, to address the fishing
activities or practices for which such nations were identified in the
biennial report. The Secretary of Commerce will make such a
recommendation on a case-by-case basis in accordance with international
obligations, including the World Trade Organization (WTO) Agreement.
The Moratorium Protection Act also authorizes cooperation and
assistance to nations to take action to combat illegal, unreported, or
unregulated fishing, reduce bycatch of protected living marine
resources, and achieve shark conservation.
0
3. In Sec. 300.201, the definition of ``Illegal, unreported, or
unregulated (IUU) fishing'' is revised to read as follows:
Sec. 300.201 Definitions.
* * * * *
Illegal, unreported, or unregulated (IUU) fishing means:
(1) In the case of parties to an international fishery management
agreement to which the United States is a party, fishing activities
that violate conservation and management measures required under an
international fishery management agreement to which the United States
is a party, including but not limited to catch limits or quotas,
capacity restrictions, bycatch reduction requirements, shark
conservation measures, and data reporting;
(2) In the case of non-parties to an international fishery
management agreement to which the United States is a party, fishing
activities that would undermine the conservation of the resources
managed under that agreement;
(3) Overfishing of fish stocks shared by the United States, for
which there are no applicable international conservation or management
measures, or in areas with no applicable international fishery
management organization or agreement,
[[Page 3343]]
that has adverse impacts on such stocks; or,
(4) Fishing activity that has a significant adverse impact on
seamounts, hydrothermal vents, cold water corals and other vulnerable
marine ecosystems located beyond any national jurisdiction, for which
there are no applicable conservation or management measures or in areas
with no applicable international fishery management organization or
agreement.
(5) Fishing activities by foreign flagged vessels in U.S. waters
without authorization of the United States.
* * * * *
0
4. In Sec. 300.202, paragraphs (a)(2) and (d)(1) are revised to read
as follows:
Sec. 300.202 Identification and certification of nations engaged in
illegal, unreported, or unregulated fishing activities.
(a) * * *
(2) When determining whether to identify a nation as having fishing
vessels engaged in IUU fishing, NMFS will take into account all
relevant matters, including but not limited to the history, nature,
circumstances, extent, duration, and gravity of the IUU fishing
activity in question, and any measures that the nation has implemented
to address the IUU fishing activity. NMFS will also take into account
whether an international fishery management organization exists with a
mandate to regulate the fishery in which the IUU activity in question
takes place. If such an organization exists, NMFS will consider whether
the relevant international fishery management organization has adopted
measures that are effective at addressing the IUU fishing activity in
question and, if the nation whose fishing vessels are engaged, or have
been engaged, in IUU fishing is a party to, or maintains cooperating
status with, the organization. NMFS will also take into account any
actions taken or on-going proceedings by the United States and/or flag
State to address the IUU fishing activity of concern as well as the
effectiveness of such actions.
* * * * *
(d) * * *
(1) The Secretary of Commerce shall issue a positive certification
to an identified nation upon making a determination that such nation
has taken appropriate corrective action to address the activities for
which such nation has been identified in the biennial report to
Congress. When making such determination, the Secretary shall take into
account the following:
(i) Whether the government of the nation identified pursuant to
paragraph (a) of this section has provided evidence documenting that it
has taken corrective action to address the IUU fishing activity
described in the biennial report;
(ii) Whether the relevant international fishery management
organization has adopted and, if applicable, the identified member
nation has implemented and is enforcing, measures to effectively
address the IUU fishing activity of the identified nation's fishing
vessels described in the biennial report;
(iii) Whether the United States has taken enforcement action to
effectively address the IUU fishing activity of the identified nation
described in the biennial report; and
(iv) Whether the identified nation has cooperated in any action
taken by the United States to address the IUU fishing activity
described in the biennial report.
* * * * *
0
5. In 300.203, paragraphs (a)(1), (a)(2), and (c)(1) are revised;
paragraph (c)(2) is redesignated as paragraph (c)(3), and a new
paragraph (c)(2) is added to read as follows:
Sec. 300.203 Identification and certification of nations engaged in
bycatch of protected living marine resources.
(a) * * *
(1) NMFS will identify and list, in the biennial report to Congress
nations--
(i) whose fishing vessels are engaged, or have been engaged during
the preceding calendar year prior to publication of the biennial report
to Congress, in fishing activities or practices either in waters beyond
any national jurisdiction that result in bycatch of a PLMR, or in
waters beyond the U.S. EEZ that result in bycatch of a PLMR that is
shared by the United States;
(ii) if the nation is a party to or maintains cooperating status
with the relevant international organization with jurisdiction over the
conservation and protection of the relevant PLMRs, or a relevant
international or regional fishery organization, and the organization
has not adopted measures to effectively end or reduce bycatch of such
species; and
(iii) the nation has not implemented measures designed to end or
reduce such bycatch that are comparable in effectiveness to U.S.
regulatory requirements, taking into account different conditions that
could bear on the feasibility and efficacy of comparable measures.
(2) When determining whether to identify nations as having fishing
vessels engaged in PLMR bycatch, NMFS will take into account all
relevant matters including, but not limited to, the history, nature,
circumstances, extent, duration, and gravity of the bycatch activity in
question.
* * * * *
(c) * * *
(1) Initiate consultations within 60 days after submission of the
biennial report to Congress with the governments of identified nations
for the purposes of encouraging adoption of a regulatory program for
protected living marine resources that is comparable in effectiveness
to that of the United States, taking into account different conditions,
and establishment of a management plan that assists in the collection
of species-specific data;
(2) Seek to enter into bilateral and multilateral treaties with
such nations to protect the PLMRs from bycatch activities described in
the biennial report; and
* * * * *
Sec. Sec. 300.204, 300.205, 300.206, and 300.207 [Redesignated as
Sec. Sec. 300.205, 300.206, and 300.207, 300.208]
0
6a. Sections 300.204, 300.205, 300.206, and 300.207 are redesignated as
Sec. Sec. 300.205, 300.206, and 300.207, 300.208, respectively.
0
6b. A new Sec. 300.204 is added to read as follows:
Sec. 300.204 Identification and certification of nations whose
vessels are engaged in shark catch.
(a) Procedures to identify nations if fishing vessels of that
nation are engaged in fishing activities or practices in waters beyond
any national jurisdiction that target or incidentally catch sharks
during the preceding calendar year.--(1) NMFS will identify and list in
the biennial report to Congress nations--
(i) Whose fishing vessels are engaged, or have been engaged during
the calendar year prior to publication of the biennial report to
Congress, in fishing activities or practices in waters beyond any
national jurisdiction that target or incidentally catch sharks; and
(ii) Where that nation has not adopted a regulatory program to
provide for the conservation of sharks, including measures to prohibit
removal of any of the fins of a shark (including the tail) and discard
the carcass of the shark at sea, that is comparable in effectiveness to
that of the United States, taking into account different conditions,
including conditions that could bear on the feasibility and
effectiveness of measures.
(2) When determining whether to identify nations for these
activities, NMFS will take into account all relevant matters including,
but not limited to, the history, nature, circumstances,
[[Page 3344]]
duration, and gravity of the fishing activity of concern.
(b) Notification of nations identified as having fishing vessels
engaged in fishing activities or practices that target or incidentally
catch sharks. Upon identifying in the biennial report to Congress a
nation whose vessels engaged in fishing activities or practices in
waters beyond any national jurisdiction that target or incidentally
catch sharks, the Secretary of Commerce will notify the President of
such identification. Within 60 days after submission of the biennial
report to Congress, the Secretary of Commerce, acting through or in
consultation with the Secretary of State, will notify identified
nations about the requirements under the Moratorium Protection Act and
this subpart N.
(c) Consultations and negotiations. Upon submission of the biennial
report to Congress, the Secretary of Commerce, acting through or in
consultation with the Secretary of State, will:
(1) Initiate consultations within 60 days after submission of the
biennial report to Congress with the governments of identified nations
for the purposes of encouraging adoption of a regulatory program for
the conservation of sharks that is comparable in effectiveness to that
of the United States, taking into account different conditions, and
establishment of a management plan that assists in the collection of
species-specific data;
(2) Seek to enter into bilateral and multilateral treaties or other
arrangements with such nations to protect sharks; and
(3) Seek agreements through the appropriate international
organizations calling for international restrictions on the fishing
activities or practices described in the biennial report and, as
necessary, request the Secretary of State to initiate the amendment of
any existing international treaty to which the United States is a party
for the conservation of sharks to make such agreements consistent with
this subpart.
(d) International Cooperation and Assistance. To the greatest
extent possible, consistent with existing authority and the
availability of funds, the Secretary shall:
(1) Provide appropriate assistance to nations identified by the
Secretary under paragraph (a) of this section and international
organizations of which those nations are members to assist those
nations in qualifying for a positive certification under paragraph (e)
of this section;
(2) Undertake, where appropriate, cooperative research activities
on species assessments and harvesting techniques aimed at mitigating or
eliminating the non-target catch of sharks, with those nations or
organizations;
(3) Encourage and facilitate the transfer of appropriate technology
to those nations or organizations to assist those nations in qualifying
for positive certification under paragraph (e) of this section; and
(4) Provide assistance to those nations or organizations in
designing, implementing, and enforcing appropriate fish harvesting
plans for the conservation and sustainable management of sharks.
(e) Procedures to certify nations identified as having fishing
vessels engaged in fishing activities or practices that target or
incidentally catch sharks. Each nation that is identified as having
fishing vessels engaged in fishing activities or practices in waters
beyond any national jurisdiction that target or incidentally catch
sharks and has not adopted a regulatory program for the conservation of
sharks, including measures to prohibit removal of any of the fins of a
shark (including the tail) and discard the carcass of the shark at sea,
that is comparable to that of the United States, taking into account
different conditions, shall receive either a positive or a negative
certification from the Secretary of Commerce. This certification will
be published in the biennial report to Congress. The Secretary of
Commerce shall issue a positive certification to an identified nation
upon making a determination that:
(1) Such nation has provided evidence documenting its adoption of a
regulatory program for the conservation of sharks that is comparable in
effectiveness to regulatory measures required under U.S. law in the
relevant fisheries, taking into account different conditions, including
conditions that could bear on the feasibility and effectiveness of
measures; and such nation has established a management plan that will
assist in the collection of species-specific data on sharks to support
international stock assessments and conservation efforts for sharks.
(2) Prior to a formal certification determination, nations will be
provided with preliminary certification determinations, and an
opportunity to support and/or refute the preliminary determinations,
and communicate actions taken to adopt a regulatory program that is
comparable in effectiveness to that of the United States, taking into
account different conditions. The Secretary of Commerce shall consider
any relevant information received during consultations when making its
formal certification determination.
0
7. Newly redesignated Sec. 300.205 is revised to read as follows:
Sec. 300.205 Effect of certification.
(a) If a nation identified under Sec. 300.202(a), Sec.
300.203(a), or Sec. 300.204(a) does not receive a positive
certification under this subpart (i.e., the nation receives a negative
certification or no certification is made), the Secretary of Treasury
shall, in accordance with recognized principles of international law:
(1) Withhold or revoke the clearance required by section 91 of the
Appendix to Title 46 for the fishing vessels of such nation; and
(2) Deny entry to the fishing vessels of such nation to any place
in the United States and to the navigable waters of the United States.
(b) Upon notification and any recommendations by the Secretary of
Commerce to the President that an identified nation has failed to
receive a positive certification, the President is authorized to direct
the Secretary of the Treasury to prohibit the importation of certain
fish and fish products from such nation (see Sec. 300.206).
(c) Any action recommended under paragraph (b) of this section
shall be consistent with international obligations, including the WTO
Agreement.
(d) If certain fish and fish products are prohibited from entering
the United States, within six months after the imposition of the
prohibition, the Secretary of Commerce shall determine whether the
prohibition is insufficient to cause that nation to effectively address
the IUU fishing, bycatch, or shark catch described in the biennial
report, or that nation has retaliated against the United States as a
result of that prohibition. The Secretary of Commerce shall certify to
the President each affirmative determination that an import prohibition
is insufficient to cause a nation to effectively address such IUU
fishing activity, bycatch, or shark catch or that a nation has taken
retaliatory action against the United States. This certification is
deemed to be a certification under section 1978(a) of Title 22, which
provides that the President may direct the Secretary of the Treasury to
prohibit the bringing or the importation into the United States of any
products from the offending country for any duration as the President
determines appropriate and to the extent that such prohibition is
sanctioned by the World Trade Organization.
[[Page 3345]]
(e) Duration of certification. Any nation identified in the
biennial report to Congress for having vessels engaged in IUU fishing
that is negatively certified will remain negatively certified until the
Secretary of Commerce determines that the nation has taken appropriate
corrective action to address the IUU fishing activities for which it
was identified in the biennial report. Any nation identified in the
biennial report to Congress for having vessels engaged in PLMR bycatch
or catch of sharks that is negatively certified will remain negatively
certified until the Secretary of Commerce determines that the nation
has taken the necessary actions pursuant to the Moratorium Protection
Act to receive a positive certification.
(f) Consultations. NMFS will, working through or in consultation
with the Department of State, continue consultations with nations that
do not receive a positive certification with respect to the fishing
activities described in the biennial report to Congress. The Secretary
of Commerce shall take the results of such consultations into
consideration when making a subsequent certification determination for
each such nation.
0
8. In newly redesignated Sec. 300.206, revise paragraphs (a)(1)
through (3) and (b)(1), (2) and (4) to read as follows:
Sec. 300.206 Denial of port privileges and import restrictions on
fish or fish products.
(a) * * *
(1) Vessels from a nation identified in the biennial report under
Sec. 300.202(a), Sec. 300.203(a), or Sec. 300.204(a) and not
positively certified by the Secretary of Commerce that enter any place
in the United States or the navigable waters of the United States
remain subject to inspection and may be prohibited from landing,
processing, or transshipping fish and fish products, under applicable
law. Services, including the refueling and re-supplying of such fishing
vessels, may be prohibited, with the exception of services essential to
the safety, health, and welfare of the crew. Fishing vessels will not
be denied port access or services in cases of force majeure or
distress.
(2) For nations identified in the previous biennial report under
Sec. 300.202(a) that are not positively certified in the current
biennial report, the Secretary of Commerce shall so notify and make
recommendations to the President, who is authorized to direct the
Secretary of Treasury to impose import prohibitions with respect to
fish and fish products from those nations. Such a recommendation would
address the relevant fishing activities or practices for which such
nations were identified in the biennial report. Such import
prohibitions, if implemented, would apply to fish and fish products
managed under an applicable international fishery agreement. If there
is no applicable international fishery agreement, such prohibitions, if
implemented, would only apply to fish and fish products caught by
vessels engaged in illegal, unreported, or unregulated fishing. For
nations identified under Sec. 300.203(a) or Sec. 300.204(a) that are
not positively certified, the Secretary of Commerce shall so notify and
make recommendations to the President, who is authorized to direct the
Secretary of Treasury to impose import prohibitions with respect to
fish and fish products from those nations; such prohibitions would only
apply to fish and fish products caught by the vessels engaged in the
relevant activity for which the nation was identified.
(3) Any action recommended under paragraph (a)(2) shall be
consistent with international obligations, including the WTO Agreement.
(b) * * *
(1) Notification. Where the Secretary of Commerce cannot make
positive certifications for identified nations, and the President
determines that certain fish and fish products from such nations are
ineligible for entry into the United States and U.S. territories, the
Secretary of Commerce, in cooperation with the Secretaries of Treasury,
Homeland Security, and State, will file a notice with the Office of the
Federal Register.
(2) Certification of admissibility. If certain fish or fish
products are subject to import prohibitions, NMFS may publish in the
Federal Register the requirement that, in addition to any other import
documentation requirements that otherwise apply, other fish or fish
products from the relevant nation, that are not subject to the
prohibitions, offered for entry under this section must be accompanied
by certification of admissibility, for which a form is available from
NMFS. The certification of admissibility must be properly completed and
signed by a duly authorized official of the identified nation and
validated by a responsible official(s) designated by NMFS. The
certification must be signed by the importer of record and submitted to
NMFS in a format (electronic facsimile (fax), the Internet, etc.)
specified by NMFS.
* * * * *
(4) Removal of negative certifications and import restrictions.
Upon a determination by the Secretary of Commerce that an identified
nation that was not certified positively has satisfactorily met the
conditions in this subpart and that nation has been positively
certified, the provisions of Sec. 300.206 shall no longer apply. The
Secretary of Commerce, in cooperation with the Secretaries of Treasury,
Homeland Security, and State, will notify such nations and will file
with the Office of the Federal Register for publication notification of
the removal of the import restrictions effective on the date of
publication.
0
9. In newly redesignated Sec. 300.207, revise the section heading, and
paragraph (c), and add paragraph (d) to read as follows:
Sec. 300.207 Alternative procedures for nations identified as having
vessels engaged in IUU fishing activities that are not certified in
this subpart.
* * * * *
(c) In addition to any other import documentation requirements that
otherwise apply, fish and fish products offered for entry under this
section must be accompanied by certification of admissibility, for
which a form is available from NMFS. The certification of admissibility
must be properly completed and signed by a duly authorized official of
the identified nation and must be validated by a responsible
official(s) designated by NMFS. The certification must also be signed
by the importer of record and submitted to NMFS in a format (electronic
facsimile (fax), the Internet, etc.) specified by NMFS.
(d) Any action recommended under this section shall be consistent
with international obligations, including the WTO Agreement.
0
10. In newly redesignated Sec. 300.208, revise the section heading,
and paragraph (c), and add paragraph (d) to read as follows:
Sec. 300.208 Alternative procedures for nations identified as having
vessels engaged in bycatch of PLMRs that are not certified in this
subpart.
* * * * *
(c) In addition to any other import documentation requirements that
otherwise apply, fish and fish products offered for entry under this
section must be accompanied by certification of admissibility, for
which a form is available from NMFS. The certification of admissibility
must be properly completed and signed by a duly authorized official of
the identified nation and must be validated by a responsible
official(s) designated by NMFS. The certification must also be signed
by the importer of record and
[[Page 3346]]
submitted to NMFS in a format (electronic facsimile (fax), the
Internet, etc.) specified by NMFS.
(d) Any action recommended under this section shall be consistent
with international obligations, including the WTO Agreement.
0
11. Add Sec. 300.209 to read as follows:
Sec. 300.209 Alternative procedures for nations identified as having
vessels engaged in shark catch that are not certified in this subpart.
(a) These certification procedures may be applied to fish and fish
products from a vessel of a harvesting nation that has been identified
under Sec. 300.204 in the event that the Secretary cannot reach a
certification determination for that nation by the time of the next
biennial report. These procedures shall not apply to fish and fish
products from identified nations that have received either a negative
or a positive certification under this subpart.
(b) Consistent with paragraph (a) of this section, the Secretary of
Commerce may allow entry of fish and fish products on a shipment-by-
shipment, shipper-by-shipper, or other basis if the Secretary
determines that imports were harvested by fishing activities or
practices that do not target or incidentally catch sharks, or were
harvested by practices that--
(1) Are comparable to those of the United States, taking into
account different conditions; and
(2) Include the gathering of species specific shark data that can
be used to support international and regional assessments and
conservation efforts for sharks.
(c) In addition to any other import documentation requirements that
otherwise apply, fish and fish products offered for entry under this
section must be accompanied by certification of admissibility, for
which a form is available from NMFS. The certification of admissibility
must be properly completed and signed by a duly authorized official of
the identified nation and validated by a responsible official(s)
designated by NMFS. The certification must also be signed by the
importer of record and submitted to NMFS in a format (electronic
facsimile (fax), the Internet, etc.) specified by NMFS.
(d) Any action recommended under this section shall be consistent
with international obligations, including the WTO Agreement.
[FR Doc. 2013-00703 Filed 1-11-13; 11:15 am]
BILLING CODE 3510-22-P