NMFS Issues Rule to Ban Fish/Products "Negatively Certified" for IUU, Bycatch, Etc.

The final rule is effective January 12, 2011, except for certain sections which contain information collection requirements for which a document will be published announcing the effective dates after the Office of Management and Budget provides its approval.

Highlights of NMFS Responses to Comments

The following are highlights of NMFS responses to the 42 comments it received on its January 2009 proposed rule:

Final Rule May Restrict U.S. Supplier’s Access to Certain Fish/Products

According to NMFS, the regulations will not directly increase costs to U.S. suppliers. However if a foreign nation’s ability to import certain fish or fish products into the U.S. is limited upon receipt of a negative certification and application of trade restrictive measures, this may impact the ability of U.S. suppliers to access fish or fish products from that nation. Alternative sources of fish and fish products could mitigate the impacts of restrictions on U.S. suppliers’ access to fish and fish products.

NMFS May Use Alternative Certification Procedures in Certain Cases

NMFS intends to issue a positive or negative certification decision for each nation that is identified as having vessels engaged in either IUU fishing or PLMR bycatch. However, the agency recognizes the value of establishing alternative certification procedures on a shipper-by-shipper basis for those identified nations that have not received a certification decision from the Secretary of Commerce, and will use alternative procedures in the case that a certification decision cannot be reached.

NMFS Will Consider Extent & Gravity of Bycatch When Identifying Nations

NMFS is required to take into account all relevant matters when determining whether to identify nations whose vessels engaged in PLMR bycatch including, but not limited to, the history, nature, circumstances, extent, duration, and gravity of the bycatch activity in question.

Definition of Bycatch Revised to Include Incidental Catch and to Remove Terms

In response to public comments, the final rule revises the definition of bycatch² to include any interaction with a non-target living marine resource that results in the capture, serious injury or mortality of that resource, regardless of whether the resource is discarded or kept for personal or commercial use. The bycatch definition was also revised to remove the terms “mortality and/or serious injury” based on concerns they would establish unintentional standards that could not be applied consistently to all protected living marine resources.

Highlights of Final Rule

The following are highlights of the final rule:

Identification. NMFS will identify and list, in a biennial report to Congress, nations whose fishing vessels are engaged in IUU fishing or have been engaged in it at any point during the preceding two years, or in fishing activities or practices that result in PLMR bycatch.

Notification. Within 60 days after submission of the biennial report to Congress, a notification and consultation process with those nations will be initiated.

Preliminary certification & consultation. Prior to a formal certification determination, nations will be provided with preliminary certification determinations and an opportunity to support and/or refute the preliminary determinations and communicate 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. NMFS states in the preamble that each identified nation will have approximately two years to take sufficient corrective action before a certification decision is made.

Certification. NMFS will then consider whether the government of an identified nation has provided evidence documenting that it has taken appropriate corrective action to address the activities described in the report or whether the relevant international fishery management organization has adopted and the identified nation has implemented and is enforcing measures to effectively address the IUU fishing activities by vessels of that nation. Nations will receive a “positive” or a “negative” certification.

Duration of certification. Any nation identified in the biennial report 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 for which it was identified in the biennial report. 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.

Without Positive Certification, Nation’s Fishing Vessels Could be Denied Entry & Services

If an identified nation does not receive a positive certification (i.e. receives a “negative certification”), the fishing vessels of such nation are, to the extent consistent with international law, subject to denial of entry into any place in the U.S. and to the navigable waters of the U.S. If allowed entry, 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.

Identified Nations’ Fish/Product Imports Could Be Prohibited

At the recommendation of the Secretary of Commerce, certain fish or fish products from a "negatively certified" nation may be subject to import prohibitions. If prohibited from entering the U.S, the Secretary of Commerce shall determine, within six months after the imposition of the prohibition, whether the prohibition is insufficient to cause that nation to effectively address the IUU fishing described in the biennial report.

Non-Prohibited Fish/Products May Require Admissibility Documentation

In addition, if certain fish or fish products are subject to import prohibitions, NMFS may require that other fish or fish products from the relevant nation that are not subject to the prohibitions be accompanied by documentation of admissibility. The documentation of admissibility must be executed by a duly authorized official of the identified nation and validated by a responsible official(s) designated by NMFS.

If Fish/Product Prohibitions Insufficient, Other Products Can be Prohibited

The Secretary of Commerce will certify to the President each affirmative determination that an import prohibition is insufficient to cause a nation to effectively address its IUU fishing activity, and the President may direct the Treasury Secretary to prohibit the importation of any products from the offending country into the U.S. for any duration as the President determines appropriate.

¹IUU fishing means: (1) Fishing activities that violate conservation and management measures required under an international fishery management agreement to which the U.S. 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 U.S., 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.

²Bycatch means the incidental or discarded catch of protected living marine resources or entanglement of such resources with fishing gear.

(NMFS published an advance notice of proposed rulemaking in June 2007 on certification procedures to address IUU fishing and bycatch of PLMRs pursuant to the Moratorium Protection Act. Based on comments received, a proposed rule was published in January 2009. See ITT’s Online Archives or 07/05/07 and 03/04/09 news, 07070525 and 09030405, for BP summaries.)