High Seas Driftnet Fishing Moratorium Protection Act; Identification and Certification Procedures To Address Shark Conservation, 3338-3346 [2013-00703]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[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]



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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 https://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 https://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