[Federal Register: January 14, 2009 (Volume 74, Number 9)]
[Proposed Rules]
[Page 2019-2032]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ja09-27]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 300
[Docket No. 070514119-81404-02]
RIN 0648-AV51
Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act; Proposed Rule to Implement Identification and
Certification Procedures to Address Illegal, Unreported, and
Unregulated (IUU) Fishing Activities and Bycatch of Protected Living
Marine Resources (PLMRs)
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes to implement identification and certification
procedures to address illegal, unreported, and 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). The objective of these
procedures is to promote the sustainability of transboundary and shared
fishery stocks and to enhance the conservation and recovery of PLMRs.
The proposed rule is intended to implement existing U.S. statutory
authorities to address noncompliance with international fisheries
management and conservation agreements and encourage the use of bycatch
reduction methods in international fisheries that are comparable to
methods used by U.S. fishermen. NMFS is seeking public comment on these
procedures and on the sources and types of information to be considered
in these procedures.
DATES: Written comments must be received no later than 5 p.m. Eastern
time on May 14, 2009.
ADDRESSES: Written comments on this action, identified by RIN 0648-
AV51, may be submitted by any of the following methods:
Electronic Submissions: Submit all electronic public
comments via the Federal eRulemaking Portal http://www.regulations.gov.
Mail: Laura Cimo, Trade and Marine Stewardship Division,
Office of International Affairs, NMFS, 1315 East-West Highway, Silver
Spring, MD 20910.
Instructions: All comments received are a part of the public record
and will generally be posted to http://www.regulations.gov without
change. All personal identifying information (for example, name,
address, etc.) voluntarily submitted by the commenter may be publicly
accessible. Do not submit confidential business information or
otherwise sensitive or protected information. NMFS will accept
anonymous comments (enter ``N/A'' in the required fields, if you wish
to remain anonymous). Attachments to electronic comments will be
accepted in Microsoft Word, Excel, WordPerfect, or Adobe PDF file
formats only.
FOR FURTHER INFORMATION CONTACT: Laura Cimo, Trade and Marine
Stewardship Division, Office of International Affairs, NMFS, at (301)
713-9090.
SUPPLEMENTARY INFORMATION: NMFS is soliciting feedback on the proposed
rule. Information and comments concerning this proposed rule may be
submitted by any one of several methods (see ADDRESSES). NMFS will also
seek feedback from other nations on the proposed rule at bilateral and
multilateral meetings, as appropriate. Information related to the
international fisheries provisions of the Moratorium Protection Act can
be found on the NMFS Web site at http://www.nmfs.noaa.gov/msa2007/.
NMFS will consider all comments and information received during the
comment period in preparing a final rule.
National Environmental Policy Act (NEPA)
NMFS prepared a draft Environmental Assessment (EA) to accompany
this proposed rule. The EA was developed as an integrated document that
includes a Regulatory Impact Review (RIR) and an Initial Regulatory
Flexibility Analysis (RFA). Copies of the draft EA/RIR/RFA analysis are
available at the following address: Office of International Affairs, F/
IA, National Marine Fisheries Service, 1315 East-West Highway, Silver
Spring, MD 20910. Copies are also available via the Internet at the
NMFS website at http://www.nmfs.noaa.gov/msa2007/.
Electronic Access
This proposed rule is accessible via the Internet at the Government
Printing Office website at http://www.access.gpo.gov/su_docs/.
Background
The Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act of 2006 (MSRA),
[[Page 2020]]
which was signed into law in January 2007, amends the Moratorium
Protection Act to require that actions be taken by the United States to
strengthen international fishery management organizations and address
IUU fishing and bycatch of PLMRs. Specifically, the Moratorium
Protection Act requires the Secretary of Commerce to identify in a
biennial report to Congress those foreign nations whose fishing vessels
are engaged in IUU fishing or fishing activities or practices that
result in bycatch of PLMRs. NMFS has determined that this language
applies to vessels entitled to fly the flag of the nation in question.
The Moratorium Protection Act also requires the establishment of
procedures to certify whether nations identified in the biennial report
are taking appropriate corrective actions to address IUU fishing or
bycatch of PLMRs by fishing vessels of those nations. Identified
nations that are not positively certified by the Secretary of Commerce
could be subject to prohibitions on the importation of certain
fisheries products into the United States and other measures, including
limitations on port access, under the High Seas Driftnet Fisheries
Enforcement Act (Enforcement Act)(16 U.S.C. 1826a). This proposed rule
sets forth procedures to implement these requirements of the Moratorium
Protection Act.
Definitions under the Moratorium Protection Act
In this rulemaking, NMFS proposes to include several definitions at
50 CFR 300.201 for purposes of implementing the Moratorium Protection
Act.
NMFS was required to publish a definition of IUU fishing for
purposes of the Moratorium Protection Act. See 16 U.S.C. 1826j. This
definition of IUU fishing was originally published in the Federal
Register on April 12, 2007 (72 FR 18404). In the proposed rule, NMFS
proposes to codify this definition at 50 CFR part 300 under subpart N
for ease of reference. At this time, NMFS is not proposing to revise
the definition of IUU fishing that was originally published. However,
NMFS plans to consider revising this definition at a later date in
order to take into account, as appropriate, outcomes of negotiations in
international fora that are of relevance to IUU fishing, including the
United Nations Food and Agriculture Organization (FAO) Technical
Consultations to develop a global binding agreement on minimum
standards for port State measures to combat IUU fishing.
NMFS is actively soliciting comments from the public on the IUU
definition. Specifically, NMFS is seeking comment on whether to broaden
the definition to include such activities as illegal incursions of a
nation's vessels into the waters of other nations, flagrant reflagging,
beneficial ownership, and lack of registration.
The definition of PLMR is defined in the Moratorium Protection Act
at 16 U.S.C. 1826k. The definition of PLMR will be codified at 50 CFR
300.201 for ease of reference.
Biennial Report to Congress on International Compliance
Pursuant to the requirements of the Moratorium Protection Act (see
16 U.S.C. 1826h), the Secretary of Commerce, in consultation with the
Secretary of State, will provide a report to Congress (by no later than
January 12, 2009, and every two years thereafter) which includes:
The state of knowledge on the status of international
living marine resources shared by the United States or managed under
treaties or agreements to which the United States is a party, including
a list of all such fish stocks classified as overfished, overexploited,
depleted, endangered, or threatened with extinction by any
international or other authority charged with management or
conservation of living marine resources;
A list of nations identified pursuant to the Moratorium
Protection Act whose fishing vessels are engaged, or have been engaged,
in IUU fishing or bycatch of PLMRs, including the specific offending
activities and any enforcement or other responsive actions taken by the
nation;
A description of efforts taken by nations on the list of
identified nations to take appropriate corrective actions to address
IUU fishing activities of their flagged vessels, including by the
implementation and enforcement of effective conservation and management
measures, and an evaluation of the progress of those actions, including
steps taken by the United States to encourage corrective action and
improve international compliance;
Progress at the international level to strengthen the
efforts of Regional Fishery Management Organizations (RFMOs) to end IUU
fishing; and
Steps taken by the Secretary at the international level to
encourage the adoption of international measures comparable to those of
the United States to reduce impacts of fishing practices on PLMRs, if
no international agreement to achieve such goal exists, or if the
relevant international fishery or conservation organization has failed
to implement effective measures to end or reduce the adverse impacts of
fishing practices on such species.
The biennial report will also include information on whether
nations identified in the previous report have taken corrective actions
to address IUU fishing or bycatch of PLMRs by fishing vessels of that
nation. Specifically, the report will include information on whether:
The government of each nation identified in the previous
biennial report as having fishing vessels engaged in IUU fishing has
provided evidence documenting that it has taken appropriate enforcement
or other responsive action to address the IUU or bycatch activities of
its fishing vessels identified in the report;
The relevant RFMO has adopted and the identified member
state has implemented, and is enforcing, effective measures to prevent,
deter and eliminate IUU fishing activity;
The government of each nation identified in the previous
biennial report as having fishing vessels engaged in bycatch of PLMRs
has provided evidence documenting the adoption and enforcement of a
regulatory program to end or reduce bycatch of PLMRs that is comparable
to that of the United States, accounting for different conditions; and
The government of each nation identified in the previous
biennial report as having fishing vessels engaged in bycatch of PLMRs
has established, and is enforcing, a management plan containing
requirements that will assist in gathering species-specific data to
support international stock assessments and conservation enforcement
efforts for PLMRs.
Proposed Rulemaking
Despite actions taken by the United States, other nations, and
international organizations to address IUU fishing and bycatch of
PLMRs, these problems continue to threaten the sustainability of living
marine resources. The regulatory measures proposed here encourage
nations to cooperate with the United States towards ending IUU fishing
and reducing the bycatch of PLMRs. NMFS is proposing these procedures
pursuant to its rulemaking authority under the Moratorium Protection
Act.
Although not mandated by the Moratorium Protection Act, NMFS is
proposing to promulgate, through rulemaking, procedures for the
identification of foreign nations whose fishing vessels are engaged in
IUU fishing or bycatch of PLMRs, in order to provide the public an
opportunity to review and comment on these procedures. Since the
identification of nations under the Moratorium
[[Page 2021]]
Protection Act triggers the need for a certification, NMFS is proposing
to promulgate identification procedures and certification procedures in
a single rulemaking. The Agency believes this approach will promote
transparency in the identification and certification processes. As
discussed above, the Moratorium Protection Act requires that NMFS
identify foreign nations whose fishing vessels are engaged in IUU
fishing or bycatch of PLMRs and list these nations in a biennial report
to Congress, the first of which is due in January 2009. Because
identification and certification procedures will not be implemented
prior to publication of the first biennial report to Congress, NMFS
will make its first identifications, as appropriate, under authority
provided in the Moratorium Protection Act.
The Moratorium Protection Act envisions a multilateral process to
implement effective measures to end IUU fishing, and eliminate or
reduce the bycatch of PLMRs by those nations that receive a negative
certification. In the case of bycatch of PLMRs, NMFS will work on a
bilateral and/or multilateral basis to assist nations with the adoption
of regulatory regimes designed to end or reduce bycatch that are
comparable in effectiveness to those measures that are required in the
United States, taking into account relevant environmental and/or
socioeconomic conditions that may bear on their feasibility or
effectiveness.
Identification Procedures
As required under the Moratorium Protection Act, NMFS will
identify, and list in the biennial report to Congress, those nations
whose fishing vessels are engaged, or have been engaged at any point
during the preceding two calendar years, in IUU fishing. NMFS will also
identify nations whose fishing vessels are engaged, or have been
engaged during the preceding calendar year, in fishing activities
either in waters beyond any national jurisdiction that result in
bycatch of a PLMR, or beyond the U.S. exclusive economic zone (EEZ)
that result in bycatch of a PLMR shared by the United States.
Procedures to Identify Nations Engaged in IUU Fishing
When determining whether to identify a nation as having fishing
vessels engaged in IUU fishing, NMFS will exercise due diligence in
evaluating appropriate information and evidence that are available to
the agency. This information could include data gathered by the U.S.
Government as well as data offered by other nations, or international
organizations (such as regional fisheries management organizations),
institutions, or arrangements that could, if true, support a
determination that a nation's vessels have been engaged in IUU fishing.
NMFS will review and verify the pertinent information when determining,
for the purposes of identification, whether a nation's fishing vessels
are engaged, or have been engaged, during the previous two calendar
years in IUU fishing as defined under the Moratorium Protection Act.
Once NMFS has determined that the information is credible and
supports, for the purposes of identification, a finding that a nation's
fishing vessels are engaged in IUU fishing, NMFS, acting through or in
cooperation with the State Department, will initiate bilateral
discussions with the nation to:
Seek corroboration of the alleged IUU activity or credible
information that refutes such allegations;
Communicate the requirements of the Moratorium Protection
Act to the nation; and
Encourage such nation to take corrective action to address
the IUU fishing activity in question.
Corrective actions taken by the nation or information refuting
allegations of IUU fishing activity will be considered by NMFS, along
with all verified information on alleged IUU fishing activity, prior to
making identifications.
In identifying nations whose fishing vessels are engaged, or have
been engaged, in IUU fishing under the Moratorium Protection Act, NMFS
will take into account, and list in the biennial report, whether or not
the nation has implemented, and is enforcing, measures that are deemed
to be comparable in effectiveness to measures implemented by the United
States to address the pertinent IUU fishing activity. NMFS will also
consider if an RFMO exists with a mandate to regulate the fishery in
which the IUU activity in question takes place, whether or not the
nation is party to or maintains cooperating status with the
organization, whether or not the relevant RFMO has adopted measures
that are deemed by NMFS to be effective at addressing such IUU fishing
activity, and whether, if the nation is a party or cooperating non-
party, the nation has implemented, and is enforcing, such measures. If
a nation is not party to the relevant RFMO in which the IUU activity
occurs, NMFS will consider whether the nation has implemented, and is
enforcing, measures deemed to be effective at addressing the IUU
activity, including any measures that have been recommended by such
RFMO.
Effective measures by nations to address IUU fishing could include
measures that reflect the recommendations of international
organizations to prevent, deter and eliminate IUU fishing. Such flag
state measures and actions, as relevant, may include, but are not
limited to, those that fall into the following categories:
Data collection and catch reporting programs, including
observer programs, catch documentation programs, and trade tracking
schemes;
Trade-related measures that seek to reduce or eliminate
trade in fish and fish products derived from IUU fishing;
At-sea or dockside boarding and inspection schemes;
Programs documenting whether fish were caught in a manner
consistent with conservation and management measures;
IUU vessel lists identifying fishing vessels that violate
and/or undermine management measures;
Port state measures to prohibit landings and transshipment
of unauthorized or other IUU catch;
Catch and effort monitoring, including licensing and
permitting schemes, reporting, and vessel monitoring systems (VMS);
Bycatch reduction and mitigation strategies, techniques,
and equipment, if the IUU fishing activity includes a violation of
bycatch reduction requirements of an international fishery management
agreement to which the United States is a party;
In the case of fishing activities having an adverse impact
on vulnerable marine ecosystems (VMEs), programs or measures for the
identification and protection of VMEs in waters beyond any national
jurisdiction (including seamounts, hydrothermal vents, and cold water
corals) from significant adverse impacts due to fishing activities;
Efforts to improve and enhance fisheries enforcement and
compliance, including through the development of effective sanctions
and monitoring, control and surveillance (MCS) capacity;
Participation in voluntary international efforts to combat
IUU fishing (e.g., the International Monitoring, Control, and
Surveillance (MCS) network or other cooperative enforcement and
compliance networks).
In evaluating whether or not a nation has implemented measures that
will effectively address IUU fishing, NMFS will also examine whether
adequate enforcement measures and capacity exist to help promote
compliance.
[[Page 2022]]
Procedures to Identify Nations Engaged in PLMR Bycatch
When determining whether to identify a nation as having fishing
vessels engaged in the bycatch of PLMRs, NMFS will evaluate appropriate
information and evidence. In determining whether a nation's fishing
vessels are engaged, or have been engaged in the previous calendar
year, in fishing activities or practices that result in bycatch of
PLMRs, in accordance with the Moratorium Protection Act, NMFS will
review and verify the pertinent information and evidence. Once NMFS has
determined that the information is credible and supports, for the
purposes of identification, a finding that a nation's fishing vessels
are engaged in bycatch of PLMRs, NMFS, acting through or in cooperation
with the State Department, will initiate bilateral discussions with the
nation to:
Seek corroboration of the alleged PLMR bycatch or credible
information that refutes such allegations;
Communicate the requirements of the Moratorium Protection
Act to the nation; and
Encourage such nation to take corrective action to address
the PLMR bycatch.
In its determination whether to identify nations as having fishing
vessels engaged in bycatch of PLMRs, NMFS will examine whether the
nation has implemented measures that are deemed to be effective to end
or reduce bycatch of the relevant PLMRs as well as any corrective
actions taken by the nation or information refuting the allegations of
PLMR bycatch. NMFS will also examine if an international organization
for the conservation and protection of such PLMR, or an international
or regional fishery organization with jurisdiction over or
responsibility for bycatch of such PLMR exists; and whether the nation
whose fishing vessels are engaged, or have been engaged during the
preceding calendar year, in bycatch of PLMRs is party to or maintains
cooperating status with the relevant international body. NMFS will
consider whether the relevant international body has or has not adopted
measures which have been demonstrated to end or reduce bycatch of
PLMRs, and whether, if the nation is a party or cooperating non-party,
the nation has implemented, and is enforcing, such measures. If an
identified nation is not party to the international body with
jurisdiction over or responsibility for bycatch of the PLMRs in
question, NMFS will consider whether the nation has implemented
measures deemed to be effective at addressing the bycatch of such
PLMRs, including any measures that have been recommended by the
relevant international body. Such measures, where appropriate, may
include, but are not limited to, those that fall into the following
categories:
Programs for data collection and sharing, including
observer programs;
Bycatch reduction and mitigation strategies, techniques,
and equipment, including gear restrictions and gear modifications; and
Improved monitoring, control, and surveillance of fishing
activities.
In its evaluation whether or not a nation has implemented measures
that will effectively address bycatch of PLMRs, NMFS will examine
whether or not adequate enforcement measures and capacity exist to
promote compliance.
When determining whether to identify nations as having fishing
vessels engaged in bycatch of PLMRs, NMFS will also consider whether or
not the nation has adopted, and is enforcing, measures designed to end
or reduce bycatch of the PLMRs in question that are comparable in
effectiveness to measures required in the United States, taking into
account different conditions (oceanographic or other conditions) that
could bear on the feasibility and efficacy of comparable measures. If
other measures could address bycatch of the PLMRs in question that are
comparable in effectiveness, then the implementation of such measures
by a nation may be deemed sufficient for purposes of the Moratorium
Protection Act.
Notification of Identification Decisions and Consultation
Pursuant to the requirements under the Moratorium Protection Act,
NMFS will publish a list of nations that have been identified as having
fishing vessels engaged in IUU fishing and/or bycatch of PLMRs in the
biennial report to Congress. After submission of the biennial report to
Congress, the Secretary of Commerce, acting through the Secretary of
State, will officially notify nations that have been identified in the
biennial report as having fishing vessels that are engaged in IUU
fishing and/or bycatch of PLMRs. NMFS, acting through or in cooperation
with the State Department, will notify such nations of the requirements
of the Moratorium Protection Act and enter into consultations regarding
the IUU fishing activity and/or bycatch of PLMRs.
Notification of and Consultations with Nations Identified as Having
Fishing Vessels Engaged in IUU Fishing
Upon identifying a nation whose vessels have been engaged in IUU
fishing activities in the biennial report to Congress, the Secretary of
Commerce will notify the President of such identification. Within 60
days after submission of the biennial report to Congress, the Secretary
of Commerce, acting through or in cooperation with the Secretary of
State, will:
(1) notify nations that have been identified in the biennial report
as having fishing vessels that are currently engaged, or were engaged
at any point during the preceding two calendar years, in IUU fishing
activities;
(2) notify identified nations of the requirements under the
Moratorium Protection Act and this subpart; and
(3) notify any relevant international fishery management
organization of actions taken by the United States to identify nations
whose fishing vessels are engaged in IUU fishing and initiate
consultations with such nations.
Within 60 days after submission of the biennial report to Congress,
the Secretary of Commerce, acting through or in cooperation with the
Secretary of State, will initiate consultations with nations that have
been identified in the biennial report as having fishing vessels that
are currently engaged, or were engaged at any point during the
preceding two calendar years, in IUU fishing activities for the purpose
of encouraging such nations to take appropriate corrective action with
respect to the IUU fishing activities described in the biennial report.
Notification for and Consultation with Nations Identified as Having
Fishing Vessels Engaged in Bycatch of PLMRs
Upon submission of the biennial report to Congress, the Secretary
of Commerce, acting through or in cooperation with the Secretary of
State, will:
(1) initiate consultations as soon as possible with the governments
of identified nations for the purposes of entering into bilateral and
multilateral treaties with such nations to protect the PLMRs from
bycatch activities described in the biennial report; and
(2) seek agreements through the appropriate international
organizations calling for international restrictions on the fishing
activities or practices described in the biennial report that result in
bycatch of PLMRs and, as necessary, initiate the amendment of any
existing international treaty to which the United States is a party for
[[Page 2023]]
the protection and conservation of the PLMRs in question to make such
agreements consistent with this subpart.
Certification Procedures
Based on the identification, notification, and consultation
processes outlined above, NMFS will certify nations that have been
identified in the biennial report as having fishing vessels engaged in
IUU fishing and/or bycatch of PLMRs. NMFS will notify nations prior to
a formal certification determination and will provide such nations an
opportunity to support and/or refute preliminary certification
determinations, and communicate any corrective actions taken to address
the IUU fishing activity and/or bycatch of PLMRs described in the
biennial report to Congress.
Identified nations will receive either a positive or negative
certification from the Secretary of Commerce. A positive certification
indicates that a nation has taken appropriate corrective action
pursuant to the Moratorium Protection Act to address the IUU fishing
activity and/or bycatch of PLMRs described in the biennial report, and
a negative certification indicates that a nation has failed to take
appropriate corrective action. When evaluating whether appropriate
corrective action has been taken by a nation to address IUU fishing
and/or bycatch of PLMRs, NMFS will consider relevant criteria,
including but not limited to:
Efforts towards improving data collection, catch
monitoring, and reporting programs;
Record of implementation of or compliance with
international measures to address IUU fishing and/or bycatch of PLMRs;
Participation in technical assistance and capacity
building programs to address IUU fishing and/or reduce bycatch and
enhance enforcement;
Adequacy of surveillance, enforcement, and prosecution to
promote compliance with conservation and management measures and
respond to non-compliance;
A nation's response to IUU fishing activity and/or PLMR
bycatch; and
Participation in voluntary international efforts to combat
IUU fishing (e.g., the International Monitoring, Control, and
Surveillance (MCS) network or other cooperative enforcement and
compliance networks);
Cooperation with other governments in enforcement,
apprehension, and prosecution efforts related to those vessels of the
identified nation that have engaged in IUU fishing and/or PLMR bycatch.
When evaluating whether appropriate corrective action has been
taken by a nation, NMFS will also consider the extent to which nations
have taken action to implement measures intended to address IUU fishing
and/or PLMR bycatch.
The Secretary of Commerce will make the first certification
determinations no later than 90 days after promulgation of a final rule
establishing identification and certification procedures pursuant to
the Moratorium Protection Act. Subsequent certification determinations
will be published in the biennial report. Identified nations will
receive notice of certification determinations.
Once certification determinations are published in the biennial
report, NMFS will, working through or in consultation with the
Department of State, continue consultations with the affected nations
and provide them an opportunity to take corrective action with respect
to the IUU fishing activities or bycatch of PLMRs described in the
biennial report to Congress.
NMFS is proposing to develop separate procedures for the
certification of nations that have been identified as having fishing
vessels engaged in IUU fishing and those nations that have been
identified as having fishing vessels engaged in PLMR bycatch.
Procedures to Certify Nations Identified as Having Fishing Vessels
Engaged in IUU Fishing
To determine whether appropriate corrective action has been taken
by nations to warrant a positive certification, NMFS will consider the
extent to which the IUU fishing activities described in the biennial
report have been effectively addressed and future IUU activity
deterred. When evaluating whether the relevant identified member nation
has implemented effective measures to address the IUU fishing
activities described in the biennial report, NMFS will examine whether
measures have been implemented, and are being effectively enforced,
that are comparable in effectiveness to measures implemented by the
United States. Such flag State measures may include, but are not
limited to, those that fall into the following categories:
Catch and effort monitoring, including licensing and
permitting schemes, reporting, and vessel monitoring systems (VMS);
Programs for data collection and sharing, including
observer programs;
Catch documentation and trade tracking schemes that
identify the origin and document the legality of fish from the point of
harvest through the point of market/import;
Trade-related measures, such as import and export controls
or prohibitions, to reduce or eliminate trade in fish and fish products
derived from IUU fishing;
Programs that document fish were caught in a manner
consistent with, or that does not undermine, conservation and
management measures;
Port state control measures;
At-sea and dockside inspection schemes;
Bycatch reduction and mitigation strategies, techniques,
and equipment, if the IUU fishing activity includes a violation of
bycatch reduction requirements of an international fishery management
agreement to which the United States is a party;
Systems to improve monitoring, control, and surveillance
of fishing activities;
Sufficient sanctions and legal frameworks to support
effective enforcement; and
Measures to protect VMEs from significant adverse impacts
from fishing activities in waters beyond any national jurisdiction.
When considering whether appropriate corrective action has been
taken to warrant a positive certification, NMFS, in consultation with
the Secretary of State, will take into account the outcome of
consultations with the identified nation, comments received from such
nation, and subsequent actions taken by the relevant nation and
applicable RFMO to address the IUU fishing activity described in the
biennial report, including participation in applicable RFMOs and
requests for assistance in building fisheries management and
enforcement capacity.
Procedures to Certify Nations Identified as Having Fishing Vessels
Engaged in Bycatch of PLMRs
When determining whether nations identified as having fishing
vessels engaged in bycatch of PLMRs have taken appropriate corrective
action to warrant a positive certification, the Secretary of Commerce
will consider whether the government of each nation identified in the
biennial report as having fishing vessels engaged in bycatch of PLMRs
has implemented measures to end or reduce bycatch of the relevant PLMRs
that are comparable in effectiveness to those required in the United
States. As relevant, NMFS will consider whether measures have been
implemented and effectively enforced including, but not limited to,
those that fall into the following categories:
[[Page 2024]]
Programs for data collection and sharing, including
observer programs;
Bycatch reduction and mitigation strategies, techniques,
and equipment (including training and assistance for bycatch reduction
technology and equipment); and
Improved monitoring, control, and surveillance of fishing
activities.
The Secretary of Commerce will examine if conditions exist that
could bear on the feasibility and effectiveness of comparable measures.
In some circumstances, comparable measures may not be feasible or
effective at addressing bycatch of the PLMRs in question. Under these
circumstances, NMFS will assist identified nations, to the extent
practicable, with the implementation of alternative measures designed
to end or reduce bycatch. To qualify for a positive certification in
the case of pelagic longline fisheries, the regulatory program of an
identified nation includes mandatory use of circle hooks, careful
handling and release equipment, and training and observer programs.
When determining if nations identified in the biennial report as
having vessels engaged in the bycatch of PLMRs qualify for a positive
certification, NMFS will also consider whether the government of each
identified nation has established a management plan with requirements
that will assist in the collection of data on bycatch of the pertinent
PLMRs in support of international stock assessments and conservation
efforts.
When making certification determinations, the Secretary of Commerce
will, in consultation with the Secretary of State, evaluate the
information discussed above, comments received from such nation, the
consultations with each identified nation, and subsequent actions taken
by the relevant nation to address the bycatch of PLMRs described in the
biennial report, including requests for assistance in the
implementation of measures comparable to those of the United States and
establishment of an appropriate management plan. The Secretary of
Commerce will also take into account whether the nation participates in
existing certification programs, such as those authorized under Section
609 of Public Law 101-162, or the affirmative finding process under the
International Dolphin Conservation Program Act. Nothing in this
rulemaking will modify such existing certification procedures.
Effect of Certification Determinations
If nations identified as having fishing vessels engaged in IUU
fishing and/or PLMR bycatch receive a positive certification from the
Secretary of Commerce pursuant to the Moratorium Protection Act, no
actions will be taken against such nations.
If an identified nation fails to take sufficient action to address
IUU fishing and/or PLMR bycatch and does not receive a positive
certification from the Secretary of Commerce, the nation could face
denial of port privileges, prohibitions on the import of certain fish
and fish products into the United States, as well as other appropriate
measures. In determining the appropriate course of action to recommend
to the President, the Secretary of Commerce and other Federal agencies,
as appropriate, will take into account the nature, circumstances,
extent, duration, and gravity of the IUU fishing activity and/or
bycatch of PLMRs for which the initial identification was made. With
respect to the nation whose fishing vessels are engaged in IUU fishing
and/or bycatch of PLMRs, the Secretary of Commerce will also consider
the degree of culpability, any history of prior IUU fishing activities
and/or bycatch of PLMRs, and other relevant matters. The Secretary of
Commerce, in cooperation with the Secretary of State, may initiate
further consultations with identified nations that fail to receive a
positive certification prior to determining an appropriate course of
action.
When recommending actions to the U.S. President to be taken against
identified nations that have not received a positive certification, the
Secretary of Commerce will recommend appropriate measures, including
trade restrictive measures, to address the relevant IUU fishing
activity and/or PLMR bycatch for which such nations were identified in
the biennial report. Trade restrictive measures will be implemented in
accordance with international law, including the WTO Agreement, in a
fair, transparent, and non-discriminatory manner. To facilitate
enforcement, nations that do not receive a positive certification may
be required to submit documentation of admissibility along with fish or
fish products not subject to the import restrictions that are offered
for entry into the United States.
In implementing the certification procedures under the Moratorium
Protection Act, in order to inform U.S. ports that cargo originating
from a foreign port may not be permitted to enter into the United
States, NMFS intends to collaborate with other Federal agencies and, as
appropriate, take advantage of existing prior notification procedures,
such as those required under section 343(a) of the Trade Act of 2002,
or those proposed for further development under the International Trade
Data System (ITDS) established under the Security and Accountability
for Every (SAFE) Port Act of 2006. These efforts will be undertaken to
help mitigate the effects of a negative certification determination on
U.S. industry.
Information for Identification and Certification Determinations
Reliable and timely information is critical to making accurate and
effective use of identification and certification provisions under the
Moratorium Protection Act. Potential sources of information include
NOAA and other U.S. government agencies; foreign, state, and local
governments; international organizations, including RFMOs;
nongovernmental organizations, including industry organizations; and
citizens and citizen groups.
Other potential sources of information for identification and
certification determinations include fishing vessel records; testimony
and reports from off-loading facilities, port-side government
officials, enforcement agents, military personnel, port inspectors,
transshipment vessel workers and fish importers; government vessel
registries; IUU vessel lists from RFMOs; RFMO catch documents and
statistical document programs; appropriate certification programs; and
governments, international organizations, or nongovernmental
organizations. NMFS will consider all available information when making
a determination whether or not to identify a particular nation.
In determining whether information is appropriate for use in making
identification and certification determinations, NMFS will consider
several criteria, including but not limited to:
Corroboration of testimony and evidence;
Whether multiple sources have been able to provide
information in support of an identification;
The methodology used to collect the information;
Specificity of the information provided; and
Susceptibility of the information to falsification and
alteration; and
Credibility of the individuals or organization providing
the information.
Based on the considerations outlined above, NMFS will validate
information and evidence provided for use in making identification and
certification determinations through methods that include, but are not
limited to, corroboration with governments,
[[Page 2025]]
RFMOs, international organizations, non-governmental organizations, and
other available sources. If information or evidence is deemed by NMFS
to be inaccurate, unfounded, or unreliable, it will not be used in
support of an identification determination or in a certification
determination.
Alternative Procedures
Section 609(d)(2) of the Moratorium Protection Act authorizes the
Secretary of Commerce to establish alternative procedures for the
certification of fish or fish products from a nation identified under
section 609(a) of the Act in the event that the Secretary cannot reach
a certification determination for such identified nation by the time of
the next biennial report. The alternative procedures shall not apply to
fish or fish products from identified nations that have received either
a negative or a positive certification under this Act. Under these
alternative procedures, the Secretary of Commerce may allow entry of
fish or fish products on a shipment-by-shipment, shipper-by-shipper, or
other basis as long as specified conditions are met.
For nations that have been identified as having fishing vessels
engaged in IUU fishing and have not received a certification from the
Secretary of Commerce, certain fish or fish products of that nation may
be eligible for alternative certification procedures. To qualify for
the alternative certification procedures, NMFS must determine that the
relevant vessel has not engaged in IUU fishing, or been identified by
an international fishery management organization as participating in
IUU fishing activities.
Section 610(c)(4) of the Moratorium Protection Act requires the
Secretary of Commerce to establish alternative procedures for the
certification of fish or fish products from a nation identified under
section 610(a) of the Act in the event that the Secretary cannot reach
a certification determination for such identified nation by the time of
the next biennial report. The alternative procedures shall not apply to
fish or fish products from identified nations that have received either
a negative or a positive certification under this Act. Under these
alternative procedures, the Secretary of Commerce may allow entry of
fish or fish products on a shipment-by-shipment, shipper-by-shipper, or
other basis as long as specified conditions are met. To qualify for the
alternative certification procedures, NMFS must determine that imports
were harvested by practices that do not result in bycatch of a
protected living marine resource, or were harvested by practices
comparable to those required in the United States, accounting for
different conditions that affect the feasibility and efficacy of such
practices. NMFS must also determine that the vessel collects species-
specific bycatch data that can be used to support international stock
assessments and efforts to conserve PLMRs. If such imports were
harvested by a vessel engaged in pelagic longline fishing, they can
qualify for the alternative certification procedure only if the vessel
is required to use circle hooks, careful handling and release
equipment, and training and observer programs.
Advance Notice of Proposed Rulemaking and Public Participation
NMFS published an Advance Notice of Proposed Rulemaking (ANPR) on
June 11, 2007 (72 FR 32052) to announce that it was developing
certification procedures to address IUU fishing and bycatch of PLMRs
pursuant to the Moratorium Protection Act. Public comments were
solicited for a period of 45 days. In conjunction with publication of
the ANPR, NMFS held three public input sessions in July 2007 in
locations where it expected substantial public interest in the proposed
certification procedures. These sessions were held in Silver Spring,
Maryland (July 2, 2007); Seattle, Washington (July 5, 2007); and Long
Beach, California (July 5, 2007). In addition, NMFS hosted a meeting of
representatives from foreign embassies (July 9, 2007) to explain the
ANPR and solicit their comments. These meetings provided valuable
opportunities for NMFS to explain the ANPR, respond to questions, and
receive feedback from the public. A summary of the comments received on
the ANPR and how these comments were addressed in the proposed rule can
be found below.
Responses to Comments on the ANPR
In addition to the comments received on the ANPR at various
meetings, NMFS received 14 sets of comments on the ANPR (by electronic
mail, mail, or fax). Comments were submitted by governmental entities,
individuals, and organizations. Comments received were compiled and
posted at http://www.nmfs.noaa.gov/msa2007/. In this proposed rule
notice, NMFS addresses the following issues that directly relate to the
measures in the proposed rulemaking.
Definition of Bycatch
Comment 1: NMFS received several questions regarding the pertinent
definition of ``bycatch'' for purposes of the rulemaking. Notably, the
term bycatch is not defined in the Moratorium Protection Act.
Response: NMFS proposes to use a definition of bycatch for purposes
of the Moratorium Protection Act based upon the definitions of bycatch
in pertinent U.S. law (Magnuson-Stevens Fishery Conservation and
Management Act, and Marine Mammal Protection Act); a 1998 NMFS report
titled, ``Managing Our Nation's Bycatch''; and a 2004 NMFS report
titled, ``Evaluating Bycatch: A National Approach to Standardized
Bycatch Monitoring Programs.''
Definition of IUU Fishing
Comment 2: Several commenters suggested that the IUU definition in
the ANPR was overly broad to include fishing activities that have an
adverse impact on seamounts, hydrothermal vents, and cold water corals
in areas beyond national jurisdiction. A suggestion was made that NMFS
use the guidance on IUU fishing in the United Nation Food and
Agriculture Organization's International Plan of Action to Prevent,
Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-
IUU).
Response: The Moratorium Protection Act requires that the
definition of IUU fishing include several elements, including ``fishing
activity that has an adverse impact on seamounts, hydrothermal vents,
and cold water corals 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'' (see 16 U.S.C. 1826j). Accordingly, the definition provided
in the ANPR and the proposed rule reflects these elements as required
in the Moratorium Protection Act.
Recent efforts by the international community to address
sustainable fisheries support the inclusion of fishing activities that
have an adverse impact on VMEs in the definition of IUU fishing. The
informal consultations on the 2006 United Nations General Assembly
(UNGA) Sustainable Fisheries resolution (A/Res/61/105) reviewed
domestic and international progress on protecting VMEs, such as
seamounts, cold-water corals and hydrothermal vents, from destructive
fishing practices and the impacts of fishing, as called for in UNGA
resolution 59/25 (2004), and proposed further recommendations.
Resolution 61/105 (2006) calls upon RFMOs and regional fishery
management agreements to:
Assess whether individual bottom fishing activities would
have significant adverse impacts on VMEs and, if so,
[[Page 2026]]
manage such fishing to prevent such impacts or not authorize it to
proceed;
Identify where VMEs are and determine if bottom fishing
would cause significant adverse impacts to either the VMEs and long
term sustainability of deep sea fish stocks through, among others,
scientific research, data collection and sharing, and new and
exploratory fisheries;
Close areas to bottom fishing if VMEs are present or are
likely to be, based on the best available scientific information, and
not allow such fishing to proceed unless conservation and management
measures are in place to prevent significant adverse impacts on VMEs;
Cease bottom fishing if a VME is encountered and report
the location so that appropriate measures can be adopted in respect of
the relevant site; and
Make the relevant measures adopted in accordance with
resolution 61/105 public.
The text calls for RFMOs or regional fishery management agreements
to comply with these provisions by December 31, 2008. For States
participating in negotiations to establish new RFMOs or regional
fishery management agreements to regulate bottom fisheries, the text
calls for those States to implement interim measures, consistent with
the above provisions, by December 31, 2007. Further, the text calls for
flag States to adopt and implement the above measures or to cease
authorizing bottom fishing in areas where there is no competent RFMO or
regional fishery management agreement, or where no interim measures
have been adopted in conjunction with negotiations to establish a new
RFMO or regional fishery management agreement. Finally, States agreed
to review actions taken in accordance with the resolution, and, if
necessary, propose further recommendations at the 2009 UNGA fisheries
resolution negotiations. The 2007 UNGA sustainable fisheries resolution
(A/RES/62/177) reaffirmed the call for RFMOs, regional fishery
management agreements, and Flag States to implement these measures.
Definition of PLMRs
Comment 3: One commenter stated that the definition of PLMRs in the
ANPR is overly broad and that the regulations under Section 610(a) of
the Moratorium Protection Act should only be applied to commercial
fisheries to reflect the intent behind the certification procedures.
Response: PLMRs are defined in the Moratorium Protection Act. This
definition is reflected in the proposed rule.
Section 610 of the Moratorium Protection Act seeks to encourage the
United States to work with other nations to implement measures to
eliminate or reduce the bycatch of PLMRs that are comparable in
effectiveness to those in the United States. There is no distinction
made in this statute to support the position that only commercial
fishing vessels should be subject to these provisions. Thus, the
proposed rule does not specify that the requirements of the Moratorium
Protection Act only apply to commercial fishing vessels.
Consistency with Plans of Action to Address IUU Fishing
Comment 4: A commenter pointed to the detailed guidance provided in
the United Nations Food and Agriculture Organization's IPOA-IUU, as
well as the U.S. strategies, techniques, and equipment to combat IUU
fishing, and suggested that these documents serve as a source of
information to NMFS in its implementation of the requirements of the
Moratorium Protection Act.
Response: NMFS concurs that these documents are valuable sources of
information. Through this rulemaking, NMFS seeks to achieve the goals
espoused in these plans.
IUU Vessels Lists
Comment 5: NMFS received a substantial number of questions
regarding how the Agency plans to treat vessels that are listed on RFMO
IUU vessel lists. Specifically, NMFS was asked whether or not vessels
on RFMO IUU vessel lists would be denied entry into U.S. ports under
this rulemaking, and if so, whether legally harvested product aboard
such vessels would be allowed into the United States.
Response: The United States is obliged to take action, consistent
with its international obligations, to implement conservation and
management measures that are agreed upon at RFMOs to which the United
States is a party. Such measures may establish lists of vessels that
have engaged in IUU fishing activities and require member states to
impose sanctions on listed vessels, including the potential denial of
port access and services. The Moratorium Protection Act does not,
however, authorize the United States to deny entry of vessels into U.S.
ports based solely on their inclusion on an RFMO IUU vessel list. The
Moratorium Protection Act authorizes the United States to take action
to address IUU fishing on a nation-by-nation basis, rather than on a
vessel-by-vessel basis. NMFS will be implementing its obligations under
RFMO conservation and management measures that establish IUU vessel
lists in a separate rulemaking.
Information Collection and Validation
Comment 6: NMFS received various suggestions regarding potential
sources of information for the identification and certification of
nations. Some commenters expressed concern about the existence of
balanced and accurate data to be used in identifying nations whose
vessels are engaged in IUU fishing or PLMR bycatch. NMFS was urged to
develop criteria or quality control mechanisms to be used in the
evaluation of collected information. Commenters suggested that the
United States use information that has been peer-reviewed, agreed upon
by a tribunal, and/or corroborated by a U.S. or foreign government
source.
Response: Many of the suggestions for potential information sources
were adopted as part of the proposed rule. NMFS shares the concerns
raised by commenters regarding the submission of false information.
Such information could erroneously suggest a nation's vessels are
engaged in IUU fishing or bycatch of PLMRs. To prevent erroneous
information from being used in identification and certification
decisions, NMFS plans to carefully review and corroborate information
received on activities of a nation's fishing vessels, in cooperation
with other appropriate government officials, foreign and domestic,
before using this information to make identification and certification
decisions under the Moratorium Protection Act.
``Reason to Believe'' Standard
Comment 7: NMFS was asked to examine the ``reason to believe''
standard in identifying whether a nation's vessels are engaged in IUU
fishing or bycatch of PLMRs, which was addressed by the Court of
International Trade (CIT) in litigation related to the identification
of Italy pursuant to the Enforcement Act.
Response: Section 609(a) and Section 610(a) of the Moratorium
Protection Act establish a different standard for the identification of
nations than the ``reason to believe'' standard under the Enforcement
Act. Under the standard set forth in Section 609(a), nations must be
identified if fishing vessels of that nation ``are engaged, or have
been engaged at any point during the preceding 2 years, in illegal,
unreported, or unregulated fishing'' See 16 U.S.C. 1826j. Under the
standard set forth in Section 610(a), nations must be
[[Page 2027]]
identified if fishing vessels of that nation ``are engaged, or have
been engaged during the preceding calendar year in fishing activities
or practices that result in bycatch of a protected living marine
resource '' See 16 U.S.C. 1826k. NMFS believes that this standard is a
higher threshold for identification, relative to the ``reason to
believe'' standard set forth in the High Seas Driftnet Fisheries
Enforcement Act, requiring evidence of IUU fishing activity and/or
bycatch of PLMRs on the part of a nation's vessels for the nation to be
identified.
Requirements for Certification
Comment 8: NMFS received comments that the guidelines for
certification decisions should be clear and consistent over time.
Response: In the proposed rule, NMFS sought to outline criteria for
certification decisions to a greater extent than what was addressed in
the ANPR. These criteria should provide guidance and promote greater
transparency in the decision making process.
Capacity Building
Comment 9: NMFS was encouraged to use incentives, such as capacity
building, to assist nations in addressing IUU fishing and PLMR bycatch.
However, concerns were raised that current capacity building activities
are often fragmented, uncoordinated, and may be ineffective. A
suggestion was made to improve the coordination of assistance for
capacity building across the relevant Federal agencies to help achieve
sustainable fisheries. Recommendations were made to measure capacity at
the start of projects, as well as the incremental change resulting from
the capacity building project, to demonstrate progress and the need for
additional assistance, if necessary.
Response: In fulfillment of the objectives outlined in the
Moratorium Protection Act, NMFS will address IUU fishing and PLMR
bycatch through bilateral and multilateral efforts. Further, NMFS will
seek to emphasize investments in capacity building projects that
address the full range of scientific, legal, and operational
enforcement issues involved in the adoption and enforcement of
effective management regimes. To the extent possible, NMFS will make
such investments in coordination with other Federal agencies and non-
Federal partners to improve their effectiveness and will seek to
provide measures of the success of such projects.
Balance between Incentives and Penalties
Comment 10: Commenters suggested that NMFS take a balanced approach
in its rulemaking towards working with nations to emphasize capacity
building activities and imposing trade restrictions and penalties to
bring nations into compliance.
Response: In its implementation of requirements outlined in the
Moratorium Protection Act, NMFS will emphasize bilateral and
multilateral cooperation with other nations to address IUU fishing and
bycatch of PLMRs.
To the extent that international cooperation and assistance is
effective in addressing these activities, NMFS will work bilaterally
and multilaterally through RFMOs and other relevant international
organizations. When recommending actions to the U.S. President to be
taken against identified nations that have received a negative
certification, the Secretary of Commerce will recommend appropriate
measures, including trade restrictive measures, the relevant IUU
fishing activity and/or PLMR bycatch. Furthermore, trade restrictive
measures will be implemented in accordance with international law,
including the World Trade Organization (WTO) Agreement, and therefore
be implemented in a fair, transparent, and non-discriminatory manner.
Classification
This proposed rule is published under the authority of the
Moratorium Protection Act, 16 U.S.C. 1826d-1826k.
Under NOAA Administrative Order (NAO 216-6), the promulgation of
regulations that are procedural and administrative in nature is subject
to a categorical exclusion from the requirement to prepare an
Environmental Assessment. However, as a component of public involvement
in the development of the proposed certification procedures, NMFS has
determined that an EA for this proposed action is appropriate for two
reasons. First, although the proposed action does not change any
underlying fishery management conventions for IUU fishing and PLMR
bycatch, the EA provides the public with a context for reviewing the
proposed certification action by exploring the impacts associated with
IUU fishing and bycatch. Second, because future certification
determinations would not require individual NEPA analysis, this EA
enhances NOAA's capacity to seek public input on the proposed approach
for such certifications.
This proposed rulemaking has been determined to be significant for
the purposes of Executive Order 12866.
An initial regulatory flexibility analysis (IRFA) was prepared, as
required by section 603 of the RFA. The IRFA describes the economic
impact this proposed rule, if adopted, would have on small entities.
NMFS is specifically seeking comments on whether it may be appropriate
at the final rule stage to certify to the Small Business Administration
that the rule will not have a significant economic impact on a
substantial number of small entities.
A description of the action, why it is being considered, and the
legal basis for this action are contained at the beginning of this
section in the preamble and in the SUMMARY section of the preamble. A
summary of the analysis follows. A copy of this analysis is available
from NMFS (see ADDRESSES). This proposed rule does not apply directly
to any U.S. small business as the rulemaking is aimed at foreign
nations whose vessels engage in fishing activities. The universe of
potentially indirectly affected industries includes the following: U.S.
ports and U.S. seafood harvesters, processors, wholesalers, and
importers. Ports generate economic activity across many sectors
including surface transportation; maritime services; cargo handling;
federal, state, and local governments; port authorities; importers and
consignees; and the banking and insurance sectors. Maritime services
include pilots, handlers (food and other supplies), towing, bunkering
(fuel), marine surveyors, and shipyard and marine construction. Cargo
handling services include longshoremen, stevedoring, terminal
operators, warehouse operators, and container leasing and repair.
No U.S. industry is directly affected by the rulemaking, although
indirect effects may cause short term disruptions in the flow of
seafood imports potentially impacting U.S. businesses. NMFS does not
anticipate that national net benefits and costs would change
significantly in the long term as a result of the implementation of the
proposed alternatives.
The alternatives described in section 2.2. and 2.3 of the
Environmental Assessment provide options for certification procedures
for IUU fishing and bycatch separately. To meet the purpose and need,
NMFS will select of one alternative for IUU fishing and one alternative
for bycatch.
The Alternatives for Certification for nations whose vessels are
engaged, or have been engaged in, IUU fishing
[[Page 2028]]
activities are as follows: Under Alternative I-1, the No Action
Alternative, NMFS would not develop any new procedures to address the
certification of nations identified in the biennial report to Congress
(called for in section 609(a) of the Moratorium Protection Act) as
having vessels that are engaged, or have been engaged during the
preceding two calendar years, in IUU fishing activities. Under
Alternative I-2, the Secretary would provide a positive certification
to a nation identified in the biennial report to Congress (called for
in section 609(a) of the Moratorium Protection Act) as having vessels
that are engaged, or have been engaged during the preceding two
calendar years, in IUU fishing activities, if such nation has taken
corrective action against the offending vessels, or the relevant RFMO
has implemented measures that are effective in ending the IUU fishing
activities by vessels of the identified nation. Under Alternative I-3,
the Secretary would provide a positive certification to a nation
identified the biennial report to Congress (called for in section
609(a) of the Moratorium Protection Act) as having vessels that are
engaged, or have been engaged during the preceding two calendar years,
in IUU fishing activities, if such nation has taken corrective action
against the offending vessels, and the relevant RFMO has implemented
measures that are effective in ending the IUU fishing activities by
vessels of the identified nation.
The Alternatives for Certification for nations whose vessels are
engaged, or have been engaged in, bycatch of PLMRs are as follows:
Under Alternative B-1, the No action alternative, NMFS would not
develop any new procedures to address certification of nations
identified in the biennial report to Congress (called for in section
610(a) of the Moratorium Protection Act) as having vessels that are
engaged, or have been engaged during the preceding calendar year in
bycatch of PLMRs. Under Alternative B-2, to receive a positive
certification from the Secretary of Commerce, nations identified in the
biennial report to Congress (called for in section 610(a) of the
Moratorium Protection Act) as having vessels that are engaged, or have
been engaged during the preceding calendar year in bycatch of PLMRs
must provide documentary evidence of their adoption of a regulatory
program governing the conservation of the PLMR that is comparable in
effectiveness with that of the United States, taking into account
different conditions, and establish a management plan that will assist
in species-specific data collection to support international stock
assessments and conservation enforcement efforts for the PLMR. Under
Alternative B-3, identified nations must provide documentary evidence
of the adoption of a regulatory program, by the identified nation and
the relevant international organization for the conservation and
protection of the PLMRs or the international/regional fishery
organization (and proof of the identified nation's participation with
such organization) governing the conservation of the PLMRs, if such
organization exists, that is comparable with that of the United States,
taking into account different conditions, and establish a management
plan that will assist in species-specific data collection to support
international stock assessments and conservation efforts, including but
not limited to enforcement efforts for PLMRs.
Overall IUU Alternative I-3 may produce more socioeconomic benefits
than IUU Alternative I-2. Likewise for the bycatch alternatives,
Alternative B-3 may produce more benefits than Alternative B-2. Due to
the consultative nature of this rulemaking, it may be possible for the
costs to be ameliorated by new port state controls, substituting
different transportation modes, or substituting different products all
together. As a result, it is difficult to know if costs will also be
higher moving from the less restrictive IUU Alternative I-2 or bycatch
Alternative B-2 to IUU Alternative 1-3 or bycatch Alternative B-3. This
proposed rule would implement Alternatives I-2 and B-2.
This proposed rule contains collection-of-information requirements
for Sec. Sec. 300.205(b)(2), 300.206(c), and 300.207(c) subject to
review and approval by OMB under the Paperwork Reduction Act (PRA).
This package is being developed by NMFS and will be submitted to OMB
for approval.
Public comment is sought regarding: whether this proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; ways to enhance the quality, utility, and
clarity of the information to be collected; and ways to minimize the
burden of the collection of information, including through the use of
automated collection techniques or other forms of information
technology. Send comments on these or any other aspects of the
collection of information to NMFS Office of International Affairs at
the ADDRESSES above, and by e-mail to David_Rostker@omb.eop.gov or fax
to (202) 395-7285.
List of Subjects in 50 CFR Part 300
Bycatch, Fisheries, Fishing, Fishing vessels, Foreign relations,
Illegal, unreported or unregulated fishing, Protected living marine
resources.
Dated: January 9, 2009.
James W. Balsiger,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For the reasons set out in the preamble, NMFS proposes to amend 50
CFR part 300 as follows:
PART 300--INTERNATIONAL FISHERIES REGULATIONS
Subpart N is revised to read as follows:
Subpart N--Identification and Certification of Nations
Sec.
300.200 Purpose and scope.
300.201 Definitions.
300.202 Identification and certification of nations engaged in
illegal, unreported, or unregulated fishing activities.
300.203 Identification and certification of nations engaged in
bycatch of protected living marine resources.
300.204 Effect of certification.
300.205 Denial of port privileges and import restrictions on fish or
fish products.
300.206 Alternative procedures for IUU fishing activities.
300.207 Alternative procedures for bycatch of PLMRs.
Subpart N--Identification and Certification of Nations
Authority: 16 U.S.C. 1826d et seq.
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 are
engaged in illegal, unreported, or unregulated fishing or whose fishing
activities result in bycatch of protected living marine resources. This
language applies to vessels entitled to fly the flag of the nation in
question. Identified nations that do not receive a positive
certification may be subject to trade restrictive measures for certain
fishery products. The Moratorium Protection Act also authorizes
cooperation and assistance to nations that are taking action to combat
illegal, unreported, or unregulated fishing or reduce bycatch of
protected living marine resources.
Sec. 300.201 Definitions.
For the purposes of the Moratorium Protection Act:
[[Page 2029]]
Bycatch means: the discarded catch of any living marine resource
and/or mortality or serious injury of such resource due to an encounter
with fishing gear that does not result in the capture of that resource.
Fishing vessel means: any vessel, boat, ship, or other craft which
is used for, equipped to be used for, or of a type which is normally
used for-
(1) Fishing; or
(2) Any activity relating to fishing, including, but not limited
to, preparation, supply, storage, refrigeration, transportation, or
processing, bunkering or purchasing catch, or aiding or assisting one
or more vessels at sea in the performance of such activity.
Illegal, unreported, or unregulated (IUU) fishing means:
(1) 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, and bycatch reduction
requirements;
(2) 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, that has adverse impacts on such
stocks; or,
(3) 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, including
those in areas with no applicable international fishery management
organization or agreement.
International agreement means: an agreement between two or more
States, agencies of two or more States, or intergovernmental
organizations which is legally binding and governed by international
law.
International fishery management agreement means: any bilateral or
multilateral treaty, convention, or agreement that governs direct
harvest of fish and/or directly governs bycatch of fish, sea turtles,
or marine mammals.
International fishery management organization means: an
international organization established by any bilateral or multilateral
treaty, convention, or agreement for the conservation and management of
fish.
Protected living marine resources (PLMRs) means: non-target fish,
sea turtles, or marine mammals that are protected under United States
law or international agreement, including the Marine Mammal Protection
Act, the Endangered Species Act, the Shark Finning Prohibition Act, and
the Convention on International Trade in Endangered Species of Wild
Flora and Fauna; but they do not include species, except sharks, that
are managed under the Magnuson-Stevens Fishery Conservation and
Management Act, the Atlantic Tunas Convention Act, or by any
international fishery management organization.
Sec. 300.202 Identification and certification of nations engaged in
illegal, unreported, or unregulated fishing activities.
(a) Procedures to identify nations whose fishing vessels are
engaged in IUU fishing. (1) NMFS will identify and list, in a biennial
report to Congress, nations whose fishing vessels are engaged, or have
been engaged at any point during the preceding two calendar years, in
IUU fishing.
(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 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 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, and whether the nation has implemented, and is enforcing,
such measures.
(b) Notification of nations identified as having fishing vessels
engaged in IUU fishing. Upon identifying a nation whose vessels have
been engaged in IUU fishing activities in the biennial report to
Congress, the Secretary of Commerce will notify the President of such
identification. Within 60 days after submission of the biennial report
to Congress, the Secretary of Commerce, acting through or in
cooperation with the Secretary of State, will:
(1) Notify nations that have been identified in the biennial report
as having fishing vessels that are currently engaged, or were engaged
at any point during the preceding two calendar years, in IUU fishing
activities;
(2) Notify identified nations of the requirements under the
Moratorium Protection Act and this subpart; and
(3) Notify any relevant international fishery management
organization of actions taken by the United States to identify nations
whose fishing vessels are engaged in IUU fishing and initiate
consultations with such nations.
(c) Consultation with nations identified as having fishing vessels
engaged in IUU fishing. Within 60 days after submission of the biennial
report to Congress, the Secretary of Commerce, acting through or in
cooperation with the Secretary of State, will initiate consultations
with nations that have been identified in the biennial report as having
fishing vessels that are currently engaged, or were engaged at any
point during the preceding two calendar years, in IUU fishing
activities for the purpose of encouraging such nations to take
appropriate corrective action with respect to the IUU fishing
activities described in the biennial report.
(d) Procedures to certify nations identified as having fishing
vessels engaged in IUU fishing. Each nation that is identified as
having fishing vessels engaged in IUU fishing shall receive either a
positive or a negative certification from the Secretary of Commerce. A
positive certification indicates that a nation has taken appropriate
corrective action to address the IUU fishing activity described in the
biennial report. A negative certification indicates that a nation has
not taken appropriate corrective action.
(1) The Secretary of Commerce shall issue a positive certification
to an identified nation upon making a determination that such nation
has taken appropriate corrective action to address the activities for
which such nation has been identified in the biennial report to
Congress. When making such determination, the Secretary shall take into
account the following:
(i) Whether the government of the nation identified pursuant to
subsection (a) has provided evidence documenting that it has taken
corrective action to effectively address the IUU fishing activity
described in the biennial report; or
(ii) Whether the relevant international fishery management
organization has adopted and, if applicable, the
[[Page 2030]]
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.
(2) The Secretary of Commerce will issue a negative certification
to an identified nation if such nation fails to provide information
sufficient to establish that appropriate corrective action has been
taken to address the IUU fishing activities described in the biennial
report.
(3) Nations will be notified prior to a formal certification
determination and will be provided with an opportunity to support and/
or refute preliminary certification determinations, and communicate any
corrective actions taken to address the activities for which such
nations were identified. The Secretary of Commerce shall consider any
information received during the course of these consultations when
making the subsequent certification determinations.
Sec. 300.203 Identification and certification of nations engaged in
bycatch of protected living marine resources.
(a) Procedures to identify nations whose fishing vessels are
engaged in PLMR bycatch. (1) NMFS will identify and list nations in the
biennial report to Congress 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. exclusive economic zone
(EEZ) that result in bycatch of a PLMR that is shared by the United
States. 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. NMFS will also take into account whether there is an
international organization with jurisdiction over the conservation and
protection of the relevant PLMRs. If such organization exists, NMFS
will consider whether the organization has adopted, and is enforcing,
measures to effectively end or reduce bycatch of such species; and if
the nation whose fishing vessels are engaged, or have been engaged
during the preceding calendar year prior to publication of the biennial
report to Congress, in bycatch of PLMRs is a party to or maintains
cooperating status with the relevant international organization.
(2) When determining whether to identify nations as having fishing
vessels engaged in bycatch of PLMRs, NMFS will also take into account
if the nation has implemented measures designed to end or reduce such
bycatch that are comparable in effectiveness to U.S. regulatory
requirements. In considering whether a nation has implemented measures
that are comparable in effectiveness to those of the United States,
NMFS will evaluate if different conditions exist that could bear on the
feasibility and efficiency of such measures to end or reduce bycatch of
the pertinent PLMRs.
(b) Notification of nations identified as having fishing vessels
engaged in PLMR bycatch. Upon submission of the biennial report to
Congress, the Secretary of Commerce, acting through or in cooperation
with the Secretary of State, will:
(1) Notify nations that have been identified in the biennial report
as having fishing vessels that are currently engaged, or were engaged
during the preceding calendar year, 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 shared by the United States; and
(2) Notify, as soon as possible, identified nations about the
requirements under the Moratorium Protection Act and this subpart.
(c) Consultations and negotiations. Upon submission of the biennial
report to Congress, the Secretary of Commerce, acting through or in
cooperation with the Secretary of State, will:
(1) Initiate consultations as soon as possible with the governments
of identified nations for the purposes of entering into bilateral and
multilateral treaties with such nations to protect the PLMRs from
bycatch activities described in the biennial report; and
(2) Seek agreements through the appropriate international
organizations calling for international restrictions on the fishing
activities or practices described in the biennial report that result in
bycatch of PLMRs and, as necessary, initiate the amendment of any
existing international treaty to which the United States is a party for
the protection and conservation of the PLMRs in question to make such
agreements consistent with this subpart.
(d) Procedures to certify nations identified as having fishing
vessels engaged in PLMR bycatch. Each nation that is identified as
having fishing vessels engaged in PLMR bycatch shall receive either a
positive or a negative certification from the Secretary of Commerce. A
positive certification indicates that a nation has taken appropriate
corrective action to address the PLMR bycatch activity described in the
biennial report. A negative certification indicates that a nation has
not taken appropriate corrective action.
(1) The Secretary of Commerce will also issue a negative
certification for the identified nation in the absence of information
from such nation that sufficient action has been taken to address the
bycatch activities described in the biennial report.
(2) The Secretary of Commerce shall issue a positive certification
to nation identified for having vessels engaged in bycatch of a PLMR
when:
(i) Such nation has provided documentary evidence of
implementation, and enforcement, of a regulatory program to conserve
such PLMRs that is comparable in effectiveness to regulatory measures
required under U.S. law to address bycatch in the relevant fisheries,
accounting for different conditions that could bear on the feasibility
and efficiency of these measures, and includes, in the case of an
identified nation with fishing vessels engaged in pelagic longline
fishing, the mandatory use of circle hooks, careful handling and
release equipment, training and observer programs; and
(ii) Such nation has established a management plan that will assist
in the collection of species-specific data on PLMR bycatch to support
international stock assessments and conservation efforts for PLMRs.
(3) Nations will be notified prior to a formal certification
determination and will be provided with an opportunity to support and/
or refute preliminary certification determinations, and communicate any
corrective actions taken to address the activities for which such
nations were identified. The Secretary of Commerce shall consider any
information received during the course of these consultations when
making the subsequent certification determinations.
Sec. 300.204 Effect of certification.
(a) If an identified nation does not receive a positive
certification under this subpart (i.e., the nation receives a negative
certification or no certification is made), the fishing vessels of such
nation are, to the extent consistent with international law, subject to
the denial of entry into any place in the United States and to the
navigable waters of the United States. At the recommendation of the
Secretary of Commerce, certain fish or fish products from fishing
vessels
[[Page 2031]]
of such nation may be subject to import prohibitions.
(b) If certain fish or fish products from the vessels of such
nation 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 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 or that a nation has taken retaliatory action
against the United States. Upon receipt of any such subsequent
certification, any product from the nation may be prohibited from
import for such duration as the President determines appropriate and to
the extent that such prohibition is consistent with obligations under
international trade agreements, including the World Trade Organization
Agreement.
(c) Positive certification. (1) If a nation identified in the
biennial report to Congress as having fishing vessels engaged in IUU
fishing activity is positively certified by the Secretary of Commerce,
the nation is deemed to have taken appropriate corrective action in
accordance with this subpart to address the IUU fishing activity of its
fishing vessels, or the relevant international fishery management
organization is deemed to have adopted measures to effectively address
the IUU fishing activity of the identified nation's fishing vessels.
(2) If a nation identified in the biennial report to Congress as
having fishing vessels engaged in PLMR bycatch is positively certified
by the Secretary of Commerce, the nation is deemed to have taken
appropriate corrective action in accordance with this subpart to
address the PLMR bycatch of its fishing vessels.
(d) Negative certification or absence of certification. If a nation
identified in the biennial report to Congress as having fishing vessels
engaged in IUU fishing activity is not positively certified by the
Secretary of Commerce, the nation is deemed not to have taken
appropriate corrective action in accordance with this subpart to
address the IUU fishing activity of its fishing vessels, including by
failing to implement or enforce measures adopted by the relevant
international fishery management organization to effectively address
the IUU fishing activity of the identified nation's fishing vessels. If
a nation identified in the biennial report to Congress as having
fishing vessels engaged in the PLMR bycatch is not positively certified
by the Secretary of Commerce, the nation is deemed not to have adopted
and implemented a regulatory program that is comparable in
effectiveness to that of the United States and the nation has not
established a management plan in accordance with this subpart to reduce
the bycatch of PLMRs by the identified nation's fishing vessels.
(e) Duration of certification. Any nation identified in the
biennial report to Congress and 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 activity and/or bycatch of PLMRs of its vessels. Receipt of a
positive certification determination will demonstrate that appropriate
corrective action has been taken by a nation to address the relevant
IUU fishing activity and/or bycatch of PLMRs.
(f) Certification determinations. Certification determinations will
be published in the biennial report to Congress.
(g) Consultations. Once certification determinations are published
in the biennial report, NMFS will, working through or in consultation
with the Department of State, continue consultations with the affected
nations and provide them an opportunity to take corrective action with
respect to the IUU fishing activities or bycatch of PLMRs 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 such nation. A nation that
has not received a positive certification shall be eligible for a
positive certification when such nation has demonstrated that it has
taken appropriate corrective action to address the activities for which
it was identified in the biennial report to Congress.
Sec. 300.205 Denial of port privileges and import restrictions on
fish or fish products.
(a) Scope of Applicability. (1) If a nation identified in the
biennial report under Sec. 300.202(a) or 300.203(a) is not positively
certified by the Secretary of Commerce, and the fishing vessels of the
nation are allowed entry to any place in the United States and to the
navigable waters of the United States under this subpart, those vessels
will be subject to inspection and may be prohibited from landing,
processing, or transshipping fish and fish products. 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 biennial report under Sec.
300.202(a) that are not positively certified, the Secretary of Commerce
shall recommend import prohibitions only with respect to fish or fish
products managed under the applicable international fishery agreement.
If there is no applicable international fishery agreement, the
Secretary of Commerce shall not recommend import prohibitions that
would apply to fish or fish products caught by vessels not engaged in
IUU fishing. For nations identified under Sec. 300.203(a) that are not
positively certified, the Secretary of Commerce shall not recommend
import prohibitions that would apply to fish or fish products caught by
vessels not engaged in IUU fishing.
(b) Imposition of import restrictions--(1) Notification. Where the
Secretary of Commerce cannot make positive certifications for
identified nations, and the U.S. 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, with the
concurrence of the Secretary of State and in cooperation with the
Secretary of Treasury, will file with the Office of the Federal
Register for publication a finding to that effect. Such finding may
include a requirement that fish or fish products from such nations be
accompanied by documentation of admissibility.
(2) Documentation of admissibility. The finding in paragraph(b)(1)
of this section may include a requirement that fish or fish products
not subject to the import restrictions from such nations be accompanied
by documentation of admissibility. Such documentation must be submitted
to NMFS by electronic facsimile (fax), or once available, via the
Internet, to a number or website designated by NMFS. The documentation
of admissibility must be executed by a duly authorized official of the
country named in the finding and the documentation of admissibility
must be validated by a responsible official(s) designated by NMFS.
(3) Effective date of import restrictions. Effective upon the date
of publication of such finding, shipments of fish or fish products
found to be ineligible will be denied entry to the United States. Entry
will not be denied
[[Page 2032]]
for any such shipment that, on the date of publication, was in transit
to the United States on board a vessel operating as a common carrier.
(4) Removal of 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.
300.205 shall no longer apply. The Secretary of Commerce, with the
concurrence of the Secretary of State and in cooperation with the
Secretary of Treasury, 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.
Sec. 300.206 Alternative procedures for IUU fishing activities.
(a) The alternative procedures in this section apply to the
certification of fish or fish products from a nation identified under
Sec. 300.202 in the event that the Secretary cannot reach a
certification determination for such identified nation by the time of
the next biennial report. These alternative procedures shall not apply
to fish or fish products from identified nations that have received
either a negative or a positive certification under this subpart. Under
these alternative procedures, the Secretary of Commerce may allow entry
of fish or fish products on a shipment-by-shipment, shipper-by-shipper,
or other basis as long as the following conditions are met.
(b) To qualify for the alternative certification procedures, NMFS
must determine that:
(1) The vessel has not engaged in IUU fishing in violation of an
international fishery management agreement to which the U.S. is a
party; or
(2) The vessel is not identified by an international fishery
management organization as participating in IUU fishing activities.
(c) Fish or fish products offered for entry under this section must
be accompanied by a completed documentation of admissibility form,
which is available from NMFS. Such documentation must be submitted to
NMFS by electronic facsimile (fax), or once available, via the
Internet, to a number or website designated by NMFS. The documentation
of admissibility must be executed by a duly authorized official of the
country named in the finding and the documentation of admissibility
must be validated by a responsible official(s) designated by NMFS.
Sec. 300.207 Alternative procedures for bycatch of PLMRs.
(a) The alternative procedures in this section apply to the
certification of fish or fish products from a nation identified under
Sec. 300.203 in the event that the Secretary cannot reach a
certification determination for such identified nation by the time of
the next biennial report. These alternative procedures shall not apply
to fish or fish products from identified nations that have received
either a negative or a positive certification under this subpart. Under
these alternative procedures, the Secretary of Commerce may allow entry
of fish or fish products on a shipment-by-shipment, shipper-by-shipper,
or other basis as long as the following conditions are met.
(b) To qualify for the alternative certification procedures, NMFS
must determine that imports were harvested by practices that do not
result in bycatch of a protected marine species, or were harvested by
practices that:
(1) Are comparable to those of the United States, taking into
account different conditions, and which, in the case of pelagic
longline fisheries, the regulatory program of an identified nation
includes mandatory use of circle hooks, careful handling and release
equipment, and training and observer programs; and
(2) Include the gathering of species specific data that can be used
to support international and regional stock assessments and
conservation efforts for protected living marine resources.
(c) Fish or fish products offered for entry under this section must
be accompanied by a completed documentation of admissibility form,
which is available from NMFS. Such documentation must be submitted to
NMFS by electronic facsimile (fax), or once available, via the
Internet, to a number or website designated by NMFS. The documentation
of admissibility must be executed by a duly authorized official of the
country named in the finding and the documentation of admissibility
must be validated by a responsible official(s) designated by NMFS.
[FR Doc. E9-609 Filed 1-9-09; 4:15 pm]
BILLING CODE 3510-22-S