Federal Register / Vol. 77, No. 132 / Tuesday, July 10, 2012 / Proposed Rules 40553

Secretariat at one of the addressees and benefits of available regulatory DoD, GSA, and NASA will also shown below on or before September alternatives and, if regulation is consider comments from small entities 10, 2012 to be considered in the necessary, to select regulatory concerning the existing regulations in formation of the final rule. approaches that maximize net benefits subparts affected by this proposed rule ADDRESSES: Submit comments in (including potential economic, in accordance with 5 U.S.C. 610. response to FAR case 2012–018 by any environmental, public health and safety Interested parties must submit such of the following methods: effects, distributive impacts, and comments separately and should cite 5 • Regulations.gov: http:// equity). E.O. 13563 emphasizes the U.S.C. 610 (FAR case 2012–018), in www.regulations.gov. Submit comments importance of quantifying both costs correspondence. via the Federal eRulemaking portal by and benefits, of reducing costs, of IV. Paperwork Reduction Act searching for ‘‘FAR Case 2012–018’’. harmonizing rules, and of promoting Select the link ‘‘Submit a Comment’’ flexibility. This is not a significant The proposed rule does not contain that corresponds with ‘‘FAR Case 2012– regulatory action and, therefore, was not any information collection requirements 018.’’ Follow the instructions provided subject to review under Section 6(b) of that require the approval of the Office of Management and Budget under the at the ‘‘Submit a Comment’’ screen. E.O. 12866, Regulatory Planning and Paperwork Reduction Act (44 U.S.C. Please include your name, company Review, dated September 30, 1993. This chapter 35). name (if any), and ‘‘FAR Case 2012– rule is not a major rule under 5 U.S.C. 018’’ on your attached document. 804. List of Subjects in 48 CFR Part 15 • Fax: 202–501–4067. III. Regulatory Flexibility Act Government procurement. • Mail: General Services Administration, Regulatory Secretariat DoD, GSA, and NASA do not expect Dated: July 3, 2012. (MVCB), ATTN: Hada Flowers, 1275 this proposed rule to have a significant Laura Auletta, First Street NE., 7th Floor, Washington, economic impact on a substantial Director, Office of Governmentwide DC 20417. number of small entities within the Acquisition Policy, Office of Acquisition Instructions: Please submit comments meaning of the Regulatory Flexibility Policy, Office of Governmentwide Policy. only and cite FAR Case 2012–018, in all Act, 5 U.S.C. 601, et seq., because this Therefore, DoD, GSA, and NASA correspondence related to this case. All rule merely clarifies the reference at propose amending 48 CFR part 15 as set comments received will be posted FAR 15.404–1(b)(2)(i) for the use of the forth below: without change to http:// price analysis technique at 15.403– www.regulations.gov, including any 1(c)(1)(i) in order to establish a fair and PART 15—CONTRACTING BY personal and/or business confidential reasonable price. However, an initial NEGOTIATION information provided. regulatory flexibility analysis (IRFA) has been prepared consistent with 5 U.S.C. 1. The authority citation for 48 CFR FOR FURTHER INFORMATION CONTACT: Mr. 603, and is summarized as follows: part 15 continues to read as follows: Edward N. Chambers, Procurement Authority: 40 U.S.C. 121(c); 10 U.S.C. This rule amends the FAR at 15.404– Analyst, at 202–501–3221 for chapter 137; and 42 U.S.C. 2473(c). clarification of content. For information 1(b)(2)(i) to clarify the use of the price pertaining to status or publication analysis technique at 15.403–1(c)(1)(i) in 15.404–1 [Amended] order to establish a fair and reasonable price. schedules, contact the Regulatory FAR 15.404–1(b)(2) addresses various price 2. Amend section 15.404–1 by Secretariat at 202–501–4755. Please cite analysis techniques and procedures the removing from paragraph (b)(2)(i) FAR Case 2012–018. Government may use to ensure a fair and ‘‘15.403–1(c)(1)’’ and adding ‘‘15.403– SUPPLEMENTARY INFORMATION: reasonable price. FAR 15.404–1(b)(2)(i) 1(c)(1)(i)’’ in its place. discusses the comparison of proposed prices [FR Doc. 2012–16709 Filed 7–9–12; 8:45 am] I. Background received in response to a solicitation as an BILLING CODE 6820–EP–P FAR 15.404–1(b)(2) addresses various example of such techniques and procedures. In this discussion, FAR 15.404–1(b)(2)(i) price analysis techniques and references 15.403–1(c)(1), which sets forth procedures the Government may use to the requirements of adequate price DEPARTMENT OF COMMERCE ensure a fair and reasonable price. FAR competition. However, only FAR 15.403– 15.404–1(b)(2)(i) discusses the 1(c)(1)(i) actually addresses the situation National Oceanic and Atmospheric comparison of proposed prices received when two or more responsible offerors, Administration in response to a solicitation as an competing independently, submit priced example of such techniques and offers that satisfy the Government’s 50 CFR Part 300 expressed requirement. Therefore, the procedures. In this discussion, FAR reference in 15.404–1(b)(2)(i) is more [Docket No. 110321208–1203–01] 15.404–1(b)(2)(i) references 15.403– appropriately identified as 15.403–1(c)(1)(i). 1(c)(1), which sets forth the The proposed rule imposes no reporting, RIN 0648–BA89 requirements of adequate price recordkeeping, or other information competition. However, only 15.403– collection requirements. The rule does not High Seas Driftnet Fishing Moratorium 1(c)(1)(i) actually addresses the situation duplicate, overlap, or conflict with any other Protection Act; Identification and when two or more responsible offerors, Federal rules, and there are no known Certification Procedures To Address competing independently, submit significant alternatives to the rule. Shark Conservation priced offers that satisfy the The Regulatory Secretariat has AGENCY: National Marine Fisheries Government’s expressed requirement. submitted a copy of the IRFA to the Service (NMFS), National Oceanic and Therefore, the reference in 15.404– Chief Counsel for Advocacy of the Small Atmospheric Administration (NOAA), 1(b)(2)(i) is more appropriately Business Administration. A copy of the Commerce. identified as 15.403–1(c)(1)(i). IRFA may be obtained from the ACTION: Proposed rule; request for Regulatory Secretariat. DoD, GSA, and comments. II. Executive Orders 12866 and 13563 NASA invite comments from small Executive Orders 12866 and 13563 business concerns and other interested SUMMARY: This proposed action sets (E.O.s) direct agencies to assess all costs parties on the expected impact. forth identification and certification

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procedures established by the Shark International Affairs, NMFS, at (301) States, taking into account different Conservation Act to address shark 427–8359. conditions. The amendments also call conservation in areas beyond any SUPPLEMENTARY INFORMATION: upon the Secretary of Commerce to national jurisdiction. The objectives of begin making identifications no later these procedures are to promote the Background than January 4, 2012. conservation and sustainable On January 12, 2011, the National NMFS solicited information from the management of sharks. Agency actions Marine Fisheries Service (NMFS) public on activities of fishing vessels and recommendations under this rule published a final rule establishing from foreign nations engaged in shark will be in accordance with U.S. identification and certification catch beyond any national jurisdiction obligations under applicable procedures to address illegal, on March 24, 2011 (76 FR 16616), and international trade law, including the unreported, or unregulated (IUU) fishing indicated that it anticipated making the World Trade Organization (WTO) activities and bycatch of protected first identifications under this statute by Agreement. This action would also living marine resources (PLMRs) January 4, 2012. However, upon further amend the definition of illegal, pursuant to the High Seas Driftnet reflection and review of the statute, unreported, or unregulated (IUU) fishing Fishing Moratorium Protection Act NMFS proposes to begin the process of for purposes of the High Seas Driftnet (Moratorium Protection Act) (76 FR making identifications by January 4, Fishing Moratorium Protection Act. 2011) (50 CFR 300.200 et seq.) (16 2012, and publish the first U.S.C. 1826h–k). The identification and identifications in the January 2013 DATES: Written comments must be certification procedures must be Biennial Report to Congress, coincident received no later than 5 p.m. Eastern amended to reflect recent statutory with the next identification process time on August 9, 2012. amendments to the Moratorium under the IUU fishing and bycatch NMFS is soliciting feedback on the Protection Act. These amendments were provisions of the Moratorium Protection proposed rule. Information and included in the Shark Conservation Act Act. This approach is consistent with comments concerning this proposed (Pub. L. 111–348), which was enacted the statute and will treat all identified rule may be submitted by any one of on January 4, 2011. nations equally. If identifications were several methods (see ADDRESSES). Sharks present an array of challenges made in January 2012, it would have Information related to the international for fisheries conservation and provided potentially-affected foreign fisheries provisions of the Moratorium management due to their biological nations only one year to become Protection Act can be found on the characteristics and lack of general data familiar with the new shark provisions NMFS Web site at http:// reported on catch of each species. Many before identification decisions were www.nmfs.noaa.gov/msa2007/ shark species are characterized by made and only one year to take the intlprovisions.html. NMFS will consider relatively slow growth, late maturity, necessary actions to receive a positive all comments and information received and low reproductive rates, which can certification. NMFS has already started during the comment period in preparing make them particularly vulnerable to collecting and analyzing information a final rule. overexploitation and slow to recover. As that could help the agency determine ADDRESSES: Written comments on this demand and exploitation rates for some which nations may have vessels action, identified by RIN 0648–BA89, shark species, and particularly for shark engaging in fishing activities or may be submitted by any of the fins, have increased, concern has grown practices on the high seas that target or following methods: regarding the status of many shark incidentally catch sharks. • Electronic Submissions: Submit all stocks and the sustainability of their The Secretary of Commerce will issue electronic public comments via the exploitation in global fisheries. either a positive or negative certification Federal eRulemaking Portal at http:// The United States continues to be a to each nation that is identified in the www.regulations.gov. leader in promoting shark conservation biennial report to Congress. In the • Mail: Laura Cimo, Trade and and management globally. We are unlikely event that the Secretary of committed to working bilaterally and Marine Stewardship Division, Office of Commerce does not make a certification multilaterally to promote shark International Affairs, NMFS, 1315 East- decision, alternative certification conservation and management, and West Highway, Silver Spring, MD procedures may be applied. A positive prevent shark finning so that legal and certification indicates that the nation 20910. sustainable fisheries are not has taken the necessary actions Instructions: All comments received disadvantaged by these activities. In pursuant to the Moratorium Protection are a part of the public record and will particular, the United States wants to Act. If an identified nation does not generally be posted to http:// ensure that its own import market does receive a positive certification, fishing www.regulations.gov without change. not encourage unsustainable activity. vessels of such nation would be, to the All personal identifying information (for Under the amendments in the Shark extent consistent with international law, example, name, address, etc.) Conservation Act, the Secretary of subject to the denial of entry into any voluntarily submitted by the commenter Commerce is required to identify a place in the United States and to the may be publicly accessible. Do not foreign nation if: (a) the nation’s fishing navigable waters of the United States. submit confidential business vessels are engaged or have been Additionally, if an identified nation information or otherwise sensitive or engaged during the preceding calendar does not receive a positive certification, protected information. NMFS will year, in fishing activities or practices in the Secretary of Commerce shall so accept anonymous comments (enter N/ waters beyond any national jurisdiction notify the President of the United States. A in the required fields, if you wish to that target or incidentally catch sharks; This notification may include remain anonymous). Attachments to and (b) the nation has not adopted a recommendations to prohibit the electronic comments will be accepted in regulatory program for the conservation importation of certain fish and fish Microsoft Word, Excel, WordPerfect, or of sharks, including measures to products from the identified nation. The Adobe PDF file formats only. prohibit removal of any of the fins of a Secretary of Commerce will recommend FOR FURTHER INFORMATION CONTACT: shark (including the tail) and discarding to the President appropriate measures, Laura Cimo, Trade and Marine of the carcass of the shark at sea, that including trade restrictive measures, to Stewardship Division, Office of is comparable to that of the United be taken against identified nations that

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have not received a positive Pursuant to the Shark Conservation • Communicate the provisions of the certification, to address the fishing Act, NMFS proposes to amend the Moratorium Protection Act to the activities or practices for which such identification and certification nation; nations were identified in the biennial procedures under the Moratorium • Provide an opportunity for nations report. The Secretary of Commerce will Protection Act. This will provide for the to provide additional information on the make such recommendations on a case identification of a foreign nation if fishing activities of particular vessels; by case basis in accordance with and fishing vessels of that nation are • international obligations, including the engaged, or have been engaged during Determine if the nation has adopted WTO Agreement. Upon this the preceding calendar year, in fishing a regulatory program for the notification, the High Seas Driftnet activities or practices in waters beyond conservation of sharks for their vessels fishing on the high seas, including Fisheries Enforcement Act (16 U.S.C. any national jurisdiction that target or measures to prohibit the removal of any 1826a) authorizes the President to direct incidentally catch sharks, and the of the fins of a shark (including the tail) the Department of Treasury to prohibit nation has not adopted a regulatory and discard the carcass of the shark at the importation of certain fish and fish program for the conservation of sharks, sea, that is comparable in effectiveness products from such nation. including measures to prohibit removal If certain fish and fish products are to that of the United States, taking into of any of the fins of a shark (including account different conditions. prohibited from entering the United the tail) and discard the carcass of the States, within six months after the When making its identification shark at sea, that is comparable in decisions, NMFS will take into account imposition of the prohibition, the effectiveness to that of the United Secretary of Commerce shall determine relevant matters, including, but not States, taking into account different limited to, the history, nature, whether the prohibition is insufficient conditions. When making identification to cause that nation to effectively circumstances, and gravity of the fishing decisions, NMFS will take into account activities that targeted or incidentally address the shark catch described in the whether the nation has adopted a biennial report, or that nation has caught sharks in areas beyond any regulatory program for the conservation national jurisdiction. NMFS will also retaliated against the United States as a and management of sharks in their result of that prohibition. The Secretary take into account any actions taken by domestic waters that could have bearing the nation that are relevant to the of Commerce shall certify to the on shark conservation on the high seas. President each affirmative conservation and sustainable NMFS does not intend to identify management of sharks in areas beyond determination that an import nations, or issue a negative certification prohibition is insufficient to cause a any national jurisdiction, including: for identified nations, on the basis of a • If the nation has adopted a nation to effectively address such shark nation’s failure to establish a regulatory program for the conservation catch or that a nation has taken comparable regulatory program in their of sharks; retaliatory action against the United domestic waters if the regulatory • Participation in cooperative States. This certification is deemed to be deficiency is not relevant to the nation’s research activities designed to mitigate a certification under section 1978(a) of regulation of high seas shark catch. the impacts of fishing activities that Title 22, which provides that the When determining whether a nation result in the incidental catch of sharks; President may direct the Secretary of the could potentially be identified for these • Programs for data collection and Treasury to prohibit the bringing or the activities through the process set forth sharing, including programs to assess importation into the United States of in final regulations that were published the abundance and status of sharks and any products from the offending country on January 12, 2011 (76 FR 2011), observer programs; and for any duration as the President • NMFS will review, evaluate and verify The adoption and use of strategies, determines appropriate and to the relevant information obtained from techniques, and equipment for the extent that such prohibition is credible sources by the agency reduction and mitigation of shark sanctioned by the WTO. demonstrating that foreign-flagged bycatch, if vessels of the nation have The final rule establishing vessels engaged in fishing activities or shark bycatch. identification and certification practices in areas beyond any national If any relevant international procedures pursuant to the Moratorium jurisdiction that targeted or incidentally organization or regional fishery Protection Act (published on January caught sharks during the relevant management organization (RFMO) has 12, 2011) also set forth a definition of timeframe. This information could adopted measures for the conservation IUU fishing for purposes of the include data gathered by the U.S. and sustainable management of sharks, Moratorium Protection Act (50 CFR NMFS will consider whether the nation Government as well as offered by other 300.201). In response to public is a party or cooperating non-party to nations, international organizations comments on the rule, NMFS the organization, and/or whether the (such as regional fisheries management committed to consider amending this nation has implemented such measures. organizations), institutions, bilateral or regulatory definition in a subsequent By January 4, 2012, NMFS began the rulemaking to make any necessary other arrangements, or non- process of making identifications of technical changes and incorporate governmental organizations. nations whose fishing vessels engaged suggestions made by the public. Corroboration of information may be in fishing activities or practices on the Through this action, NMFS also addressed through cooperation with high seas that target or incidentally proposes to amend the definition of IUU governments, international catch sharks and have not adopted a fishing to include fishing activities that organizations, non-governmental regulatory program for the conservation violate shark conservation measures organizations, and through use of other of sharks on the high seas, including required under an international fishery credible information as appropriate. measures to prohibit removal of any of management agreement to which the NMFS, acting through or in consultation the fins of the shark (including the tail) United States is a party. Amendments to with the State Department, may as and discard the carcass of the shark at the Identification and Certification appropriate initiate bilateral discussions sea, that is comparable in effectiveness Procedures to Address Shark with the nation whose vessels engaged to that of the United States, taking into Conservation. in such fishing activities to: account different conditions.

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Identifications will be published in the uncertainty about the impact of circle accurate or complete data and biennial report to Congress, as required hook use on shark bycatch and the information regarding its vessels’ fishing by the Moratorium Protection Act. The United States does not require the use activities as required by an RFMO to next biennial report is due to Congress of circle hooks in its fisheries to mitigate which the United States is a party. By on January 12, 2013. shark bycatch. adding an explicit reference to Nations will be notified of their NMFS will notify nations prior to a reporting, NMFS intends to highlight identification under the Moratorium formal certification determination, and the importance of compliance with Protection Act, and NMFS, acting will provide such nations an RFMO data collection requirements to through or in consultation with the opportunity to support and/or refute support effective fisheries management. State Department, will initiate preliminary certification Fourth, NMFS proposes to amend the consultations to encourage identified determinations, and communicate IUU fishing definition to include fishing nations to take the necessary actions actions taken to adopt a regulatory activities conducted by foreign flagged pursuant to the Moratorium Protection program for the conservation of sharks vessels in waters under U.S. jurisdiction Act. that is comparable in effectiveness to without authorization of the United Although the Secretary of Commerce that of the United States, taking into States. Such activities undermine the is authorized not to issue a certification account different conditions, and ability of the United States to decision to an identified nation under establish a management plan that assists sustainably manage its fisheries. the Moratorium Protection Act, the in the collection of species-specific data. In determining whether to make an Secretary of Commerce will issue either The Secretary of Commerce shall IUU fishing identification, NMFS will a positive or negative certification to consider any relevant information take into account all relevant each identified nation, which will be received during consultations when information, in accordance with published in the subsequent biennial making its formal certification § 300.202(a)(2). In addition, when report to Congress, for all nations that determination. determining whether to identify a are identified. foreign nation for having vessels In determining whether to issue a Changes to the IUU Fishing Definition engaged in fishing activities within the positive or negative certification for NMFS proposes to amend the U.S. exclusive economic zone (EEZ) each identified nation, the Secretary of definition of IUU fishing, consistent without authorization of the United Commerce, in consultation with the with the purposes of the Moratorium States, NMFS will consider any actions Secretary of State, will take into account Protection Act, in order to more taken by the United States, the flag State all relevant facts and circumstances, comprehensively address IUU fishing, and, where relevant, the international including, but not limited to, the record and thus more effectively address this fishery management organization, to of consultations with such nation, serious problem that threatens the address those activities, as well as the results of these consultations, and sustainable management of the world’s effectiveness of such actions. actions taken by the nation and any fisheries. applicable RFMO to address the fishing First, NMFS proposes to amend the Application of IUU Fishing activities of concern described in the IUU fishing definition to clarify its Identification Criteria biennial report. application to fishing activities In addition to the regulatory changes To receive a positive certification, any conducted by fishing vessels of both identified above, NMFS is reconsidering nation that is identified as having party and non-party nations to the manner in which it has applied fishing vessels engaged in fishing international fishery management Section 609 of the Moratorium activities or practices on the high seas agreements to which the United States Protection Act and its implementing that target or incidentally catch sharks is a party. The first paragraph of the regulations. To date, NMFS has will need to provide documentary current IUU fishing definition addresses primarily applied this Act and evidence of the adoption of a regulatory fishing activities that violate implementing regulations to identify a program for the conservation of sharks conservation and management measures nation when the nation’s vessels were that is comparable in effectiveness to of an RFMO to which the United States engaged in illegal, unregulated, or that of the United States, taking into is a party. NMFS proposes to amend this unreported fishing activity that was account different conditions, including paragraph to clarify that it is intended directly attributable to specific vessel conditions that could bear on the to apply to nations that are a party to the conduct. In future identifications, feasibility and effectiveness of these relevant international fishery agreement. NMFS intends to identify nations based measures. In order to receive a positive NMFS also proposes to add a new on fishing activity that was illegal, certification, such nation will also need paragraph clarifying that, in the case of unreported, or unregulated because of to establish a management plan that non-parties to an international fishery either the vessels’ conduct or the assists in the collection of species- management agreement to which the nation’s actions or inactions in specific data. United States is a party, fishing managing its fisheries. When evaluating whether an activities that would undermine the After two cycles of identification, identified nation whose pelagic longline conservation of the resources managed NMFS has determined that these vessels engaged in fishing activities or under that agreement can be IUU provisions could be applied more practices on the high seas that target or fishing. broadly. In order to more incidentally catch sharks has adopted a Second, pursuant to the Shark comprehensively address IUU fishing, regulatory program for the conservation Conservation Act, NMFS proposes to we must consider not only the of sharks that is comparable in amend the IUU fishing definition to prohibited actions of fishing vessels but effectiveness to that of the United explicitly include fishing activities in also non-compliance in the form of States, the proposed rule would not violation of shark conservation action or inaction at the national level require the regulatory program to measures that are required by an RFMO that leads to IUU fishing. To further this include the mandatory use of circle to which the United States is a party. goal, NMFS is proposing to identify a hooks, as specified for nations identified Third, NMFS proposes to clarify that nation based on the nation’s actions or under Section 610 of the Moratorium the IUU fishing definition applies when inactions that lead to fishing by vessels Protection Act, since there is scientific a nation fails to report or fails to provide registered under their flag that is not in

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accordance with RFMO conservation responsibilities for reporting to ensure denial of port privileges of fishing and management measures. For collection of such information. vessels of those nations, and, as directed example, under this approach, NMFS Classification by the President, prohibition on the could identify a nation when the nation importation into the United States of has failed to implement measures that This proposed rule is published under certain fish and fish products caught by are required by an RFMO to which the the authority of the Moratorium the vessels engaged in the relevant Protection Act, 16 U.S.C. 1826d–1826k, United States is a party, and as a result activity for which the nations were as amended by the Shark Conservation the fishing vessels of that nation identified, or other measures. operated in a manner inconsistent with Act (Pub. L. 111–348). the relevant RFMO conservation and This proposed rulemaking has been To receive a positive certification, any management measures. determined to be significant for the nation that is identified as having purposes of Executive Order 12866. This approach is consistent with the fishing vessels engaged in fishing Pursuant to section 605 of the plain language of the statutory activities or practices on the high seas Regulatory Flexibility Act, the Chief that target or incidentally catch sharks guidelines provided in Section Council for Regulation of the 609(e)(3)(A) of the Moratorium will need to provide documentary Department of Commerce certified to evidence of the adoption of a regulatory Protection Act for the IUU fishing the Chief Council for Advocacy of the definition. These statutory guidelines program for the conservation of sharks Small Business Administration that this that is comparable in effectiveness to specifically mention certain RFMO proposed rule, if adopted, would not that of the United States, taking into conservation and management have a significant economic impact on account different conditions, including measures, such as catch limits or quotas, a substantial number of small entities. that must be implemented by nations In this rulemaking, NMFS proposes to conditions that could bear on the that are parties to the RFMO and cannot amend the identification and feasibility and effectiveness of necessarily be attributed to specific certification procedures under the measures. Prior to being issued a fishing vessels. For example, RFMOs Moratorium Protection Act to prevent positive certification, such nation will can establish quotas for their member shark finning and to promote the also need to establish a management nations. Each nation bears the conservation and sustainable harvest of plan that assists in the collection of responsibility for implementing and sharks by fishing vessels of foreign species-specific data in order to receive adhering to the quota it received. nations, as required under the Shark a positive certification. Individual fishing vessels, therefore, Conservation Act (Pub. L. 111–348). Because the proposed regulations are cannot be found in violation of the A description of the action, why it is RFMO’s quota, but action or inaction by purely procedural in nature, and only being considered, and the legal basis for set out how NMFS is to make decisions the flag nation could result in fishing this action are contained at the regarding certifications for nations that activity in violation of the quota. In beginning of this section in the have been identified in the biennial addition to specific situations preamble and in the SUMMARY section of mentioned in the minimum statutory the preamble. Briefly, under the report to Congress, there are no direct guidelines for the IUU fishing proposed regulations, NMFS would economic impacts on small or large definition, there are other circumstances identify a foreign nation in a biennial entities. Therefore, the proposed in which fishing activities might violate report to Congress if fishing vessels of regulations will not have a significant RFMO measures because of a nation’s that nation have been engaged during economic impact on a substantial failure to govern its own fishing vessels the preceding calendar year in fishing number of small entities and do not or carry out its own responsibilities. For activities or practices in waters beyond need to be analyzed under the example, RFMOs require parties to any national jurisdiction that target or Regulatory Flexibility Act. As a result, implement data reporting requirements. incidentally catch sharks and the nation an initial regulatory flexibility analysis In most cases, the nations, and not has not adopted a regulatory program is not required and none has been individual vessels, compile and report for the conservation of sharks, including prepared. the requisite information to comply measures to prohibit removal of any of This proposed rule contains with RFMO conservation and the fins of a shark (including the tail) collection-of-information requirements management measures. Because many and discarding of the carcass of the for §§ 300.206(b)(2), 300.207(c), and measures are inherently a nation’s shark at sea, that is comparable to that 300.208(c) subject to review and responsibility, Congress evidently of the United States, taking into account approval by OMB under the Paperwork intended NMFS to be able to identify a different conditions. The Secretary of nation based on its failure to fulfill the Commerce will issue either a positive or Reduction Act (PRA). The collection-of- requirements of the relevant RFMO and negative certification to each nation that information requirements have been the operations of the nation’s fisheries is identified in the biennial report to provided to OMB. in light of this failure. Congress. A positive certification would List of Subjects in 50 CFR Part 300 Under the proposed approach, a demonstrate that the nation has taken nation could be identified for fishing the necessary corrective action to Administrative practice and activities that were illegal, unregulated, address the fishing activities of concern procedure, Antarctica, Canada, Exports, or unreported because of national action described in the biennial report to Fish, Fisheries, Fishing, Imports, or inaction, including, consistent with Congress. Nations identified for having Indians, Labeling, Marine resources, the examples discussed above, fishing vessels engaged in shark catch on the Reporting and recordkeeping activities that resulted in the nation high seas that do not receive a positive requirements, Russian Federation, exceeding a harvest quota granted by the certification from the Secretary of Transportation, Treaties, Wildlife. relevant RFMO because the nation Commerce may be subject to measures failed to implement measures to prevent imposed by the Secretary of the such overharvest, and fishing activities Treasury under the High Seas Driftnet that were not reported because the Fisheries Enforcement Act (16 U.S.C. nation failed to carry out its 1826a). Such measures include the

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Dated: July 5, 2012. marine resources, and achieve shark will also take into account whether an Alan D. Risenhoover, conservation. international fishery management Director, Office of Sustainable Fisheries, 3. In § 300.201, the definition of organization exists with a mandate to performing the functions and duties of the ‘‘Illegal, unreported, or unregulated regulate the fishery in which the IUU Deputy Assistant Administrator for (IUU) fishing’’ is revised to read as activity in question takes place. If such Regulatory Programs, National Marine follows: an organization exists, NMFS will Fisheries Service. consider whether the relevant For the reasons set out in the § 300.201 Definitions. international fishery management preamble, 50 CFR part 300 is proposed * * * * * organization has adopted measures that to be amended as follows: Illegal, unreported, or unregulated are effective at addressing the IUU (IUU) fishing means: fishing activity in question and, if the PART 300—INTERNATIONAL (1) In the case of parties to an nation whose fishing vessels are FISHERIES REGULATIONS international fishery management engaged, or have been engaged, in IUU 1. The authority citation for part 300 agreement to which the United States is fishing is a party to, or maintains continues to read as follows: a party, fishing activities that violate cooperating status with, the conservation and management measures organization. NMFS will also take into Authority: Moratorium Protection Act, 16 required under an international fishery U.S.C. 1826d–1826k account any actions taken or on-going management agreement to which the proceedings by the United States and/or 2. Section 300.200 is revised to read United States is a party, including but flag State to address the IUU fishing as follows: not limited to catch limits or quotas, activity of concern as well as the capacity restrictions, bycatch reduction § 300.200 Purpose and scope. effectiveness of such actions. requirements, shark conservation * * * * * The purpose of this subpart is to measures, and data reporting; implement the requirements in the High (2) In the case of non-parties to an (d) * * * Seas Driftnet Fishing Moratorium international fishery management (1) The Secretary of Commerce shall Protection Act (‘‘Moratorium Protection agreement to which the United States is issue a positive certification to an Act’’) to identify and certify nations a party, fishing activities that would identified nation upon making a whose vessels engaged in illegal, undermine the conservation of the determination that such nation has unreported, or unregulated fishing; resources managed under that taken appropriate corrective action to whose fishing activities result in agreement; address the activities for which such bycatch of protected living marine (3) Overfishing of fish stocks shared nation has been identified in the resources; or whose vessels engaged in by the United States, for which there are biennial report to Congress. When fishing activities or practices on the no applicable international conservation making such determination, the high seas that target or incidentally or management measures, or in areas Secretary shall take into account the catch sharks where the nation has not with no applicable international fishery following: adopted a regulatory program for the management organization or agreement, (i) Whether the government of the conservation of sharks, comparable in that has adverse impacts on such stocks; nation identified pursuant to paragraph effectiveness to that of the United or, (a) of this section has provided evidence States, taking into account different (4) Fishing activity that has a documenting that it has taken corrective conditions. This language applies to significant adverse impact on action to address the IUU fishing vessels entitled to fly the flag of the seamounts, hydrothermal vents, cold activity described in the biennial report; nation in question. Where the Secretary water corals and other vulnerable (ii) Whether the relevant international of Commerce determines that an marine ecosystems located beyond any fishery management organization has identified nation has not taken the national jurisdiction, for which there are adopted and, if applicable, the necessary actions to warrant receipt of no applicable conservation or identified member nation has a positive certification, the Secretary of management measures or in areas with implemented and is enforcing, measures Commerce may recommend to the no applicable international fishery to effectively address the IUU fishing President that the United States prohibit management organization or agreement. activity of the identified nation’s fishing the importation of certain fish and fish (5) Fishing activities by foreign vessels described in the biennial report; products from the identified nation or flagged vessels in U.S. waters without (iii) Whether the United States has other measures. The Secretary of authorization of the United States. taken enforcement action to effectively Commerce will recommend to the address the IUU fishing activity of the * * * * * President appropriate measures, identified nation described in the 4. In § 300.202, paragraphs (a)(2) and including trade restrictive measures, to biennial report; and (d)(1) are revised to read as follows: be taken against identified nations that (iv) Whether the identified nation has have not received a positive § 300.202 Identification and certification of cooperated in any action taken by the certification, to address the fishing nations engaged in illegal, unreported, or United States to address the IUU fishing activities or practices for which such unregulated fishing activities. activity described in the biennial report. nations were identified in the biennial (a) * * * * * * * * report. The Secretary of Commerce will (2) When determining whether to make such a recommendation on a case- identify a nation as having fishing § 300.203 [Amended] by-case basis in accordance with vessels engaged in IUU fishing, NMFS 5. In Section 300.203, paragraphs international obligations, including the will take into account all relevant (a)(1), (a)(2), and (c)(1) are revised; WTO Agreement. The Moratorium matters, including but not limited to the paragraph (c)(2) is redesignated as Protection Act also authorizes history, nature, circumstances, extent, paragraph (c)(3), and a new paragraph cooperation and assistance to nations to duration, and gravity of the IUU fishing (c)(2) is added to read as follows: take action to combat illegal, activity in question, and any measures (a) * * * unreported, or unregulated fishing, that the nation has implemented to (1) NMFS will identify and list, in the reduce bycatch of protected living address the IUU fishing activity. NMFS biennial report to Congress nations—

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(i) whose fishing vessels are engaged, catch sharks during the preceding arrangements with such nations to or have been engaged during the calendar year.— protect sharks; and preceding calendar year prior to (1) NMFS will identify and list in the (3) Seek agreements through the publication of the biennial report to biennial report to Congress nations— appropriate international organizations Congress, in fishing activities or (i) whose fishing vessels are engaged, calling for international restrictions on practices either in waters beyond any or have been engaged during the the fishing activities or practices national jurisdiction that result in calendar year prior to publication of the described in the biennial report and, as bycatch of a PLMR, or in waters beyond biennial report to Congress, in fishing necessary, request the Secretary of State the U.S. EEZ that result in bycatch of a activities or practices in waters beyond to initiate the amendment of any PLMR that is shared by the United any national jurisdiction that target or existing international treaty to which States; incidentally catch sharks; and the United States is a party for the (ii) if the nation is a party to or (ii) where that nation has not adopted conservation of sharks to make such maintains cooperating status with the a regulatory program to provide for the agreements consistent with this subpart. relevant international organization with conservation of sharks, including (d) International Cooperation and jurisdiction over the conservation and measures to prohibit removal of any of Assistance. To the greatest extent protection of the relevant PLMRs, or a the fins of a shark (including the tail) possible, consistent with existing relevant international or regional fishery and discard the carcass of the shark at authority and the availability of funds, organization, and the organization has sea, that is comparable in effectiveness the Secretary shall: not adopted measures to effectively end to that of the United States, taking into (1) Provide appropriate assistance to or reduce bycatch of such species; and account different conditions, including nations identified by the Secretary (iii) the nation has not implemented conditions that could bear on the under paragraph (a) of this section and measures designed to end or reduce feasibility and effectiveness of international organizations of which such bycatch that are comparable in measures. those nations are members to assist effectiveness to U.S. regulatory (2) When determining whether to those nations in qualifying for a positive requirements, taking into account identify nations for these activities, certification under paragraph (e) of this different conditions that could bear on NMFS will take into account all relevant section; the feasibility and efficacy of matters including, but not limited to, (2) Undertake, where appropriate, comparable measures. the history, nature, circumstances, cooperative research activities on (2) When determining whether to duration, and gravity of the fishing species assessments and harvesting identify nations as having fishing activity of concern. techniques aimed at mitigating or vessels engaged in PLMR bycatch, (b) Notification of nations identified eliminating the non-target catch of NMFS will take into account all relevant as having fishing vessels engaged in sharks, with those nations or matters including, but not limited to, fishing activities or practices that target organizations; the history, nature, circumstances, or incidentally catch sharks. Upon (3) Encourage and facilitate the extent, duration, and gravity of the identifying in the biennial report to transfer of appropriate technology to bycatch activity in question. Congress a nation whose vessels those nations or organizations to assist * * * * * engaged in fishing activities or practices those nations in qualifying for positive (c) * * * in waters beyond any national certification under paragraph (e) of this (1) Initiate consultations within 60 jurisdiction that target or incidentally section; and days after submission of the biennial catch sharks, the Secretary of Commerce (4) Provide assistance to those nations report to Congress with the governments will notify the President of such or organizations in designing, of identified nations for the purposes of identification. Within 60 days after implementing, and enforcing encouraging adoption of a regulatory submission of the biennial report to appropriate fish harvesting plans for the program for protected living marine Congress, the Secretary of Commerce, conservation and sustainable resources that is comparable in acting through or in consultation with management of sharks. effectiveness to that of the United the Secretary of State, will notify (e) Procedures to certify nations States, taking into account different identified nations about the identified as having fishing vessels conditions, and establishment of a requirements under the Moratorium engaged in fishing activities or practices management plan that assists in the Protection Act and this subpart N. that target or incidentally catch collection of species—specific data; (c) Consultations and negotiations. sharks.—Each nation that is identified (2) Seek to enter into bilateral and Upon submission of the biennial report as having fishing vessels engaged in multilateral treaties with such nations to to Congress, the Secretary of Commerce, fishing activities or practices in waters protect the PLMRs from bycatch acting through or in consultation with beyond any national jurisdiction that activities described in the biennial the Secretary of State, will: target or incidentally catch sharks and report; and (1) Initiate consultations within 60 has not adopted a regulatory program * * * * * days after submission of the biennial for the conservation of sharks, including 6. Section 300.204 is redesignated as report to Congress with the governments measures to prohibit removal of any of § 300.205 and a new § 300.204 is added of identified nations for the purposes of the fins of a shark (including the tail) to read as follows: encouraging adoption of a regulatory and discard the carcass of the shark at program for the conservation of sharks sea, that is comparable to that of the § 300.204 Identification and certification of that is comparable in effectiveness to United States, taking into account nations whose vessels engaged in shark that of the United States, taking into different conditions, shall receive either catch. account different conditions, and a positive or a negative certification (a) Procedures to identify nations if establishment of a management plan from the Secretary of Commerce. This fishing vessels of that nation are that assists in the collection of species- certification will be published in the engaged in fishing activities or practices specific data; biennial report to Congress. The in waters beyond any national (2) Seek to enter into bilateral and Secretary of Commerce shall issue a jurisdiction that target or incidentally multilateral treaties or other positive certification to an identified

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nation upon making a determination address the IUU fishing, bycatch, or United States or the navigable waters of that: shark catch described in the biennial the United States remain subject to (1) Such nation has provided report, or that nation has retaliated inspection and may be prohibited from evidence documenting its adoption of a against the United States as a result of landing, processing, or transshipping regulatory program for the conservation that prohibition. The Secretary of fish and fish products, under applicable of sharks that is comparable in Commerce shall certify to the President law. Services, including the refueling effectiveness to regulatory measures each affirmative determination that an and re-supplying of such fishing vessels, required under U.S. law in the relevant import prohibition is insufficient to may be prohibited, with the exception fisheries, taking into account different cause a nation to effectively address of services essential to the safety, health, conditions, including conditions that such IUU fishing activity, bycatch, or and welfare of the crew. Fishing vessels could bear on the feasibility and shark catch or that a nation has taken will not be denied port access or effectiveness of measures; and (ii) Such retaliatory action against the United services in cases of force majeure or nation has established a management States. This certification is deemed to be distress. plan that will assist in the collection of a certification under section 1978(a) of (2) For nations identified in the species-specific data on sharks to Title 22, which provides that the previous biennial report under support international stock assessments President may direct the Secretary of the § 300.202(a) that are not positively and conservation efforts for sharks. Treasury to prohibit the bringing or the certified in the current biennial report, (2) Prior to a formal certification importation into the United States of the Secretary of Commerce shall so determination, nations will be provided any products from the offending country notify and make recommendations to with preliminary certification for any duration as the President the President, who is authorized to determinations, and an opportunity to determines appropriate and to the direct the Secretary of the Treasury to support and/or refute the preliminary extent that such prohibition is impose import prohibitions with respect determinations, and communicate sanctioned by the World Trade to fish and fish products from those actions taken to adopt a regulatory Organization. nations. Such a recommendation would program that is comparable in (e) Duration of certification. Any address the relevant fishing activities or effectiveness to that of the United nation identified in the biennial report practices for which such nations were States, taking into account different to Congress for having vessels engaged identified in the biennial report. Such conditions. The Secretary of Commerce in IUU fishing that is negatively import prohibitions, if implemented, shall consider any relevant information certified will remain negatively certified would apply to fish and fish products received during consultations when until the Secretary of Commerce managed under an applicable making its formal certification determines that the nation has taken international fishery agreement. If there determination. appropriate corrective action to address is no applicable international fishery * * * * * the IUU fishing activities for which it agreement, such prohibitions, if 7. Newly redesignated § 300.205 is was identified in the biennial report. implemented, would only apply to fish revised to read as follows: Any nation identified in the biennial and fish products caught by vessels report to Congress for having vessels engaged in illegal, unreported, or § 300.205 Effect of certification. engaged in PLMR bycatch or catch of unregulated fishing. For nations (a) If a nation identified under sharks that is negatively certified will identified under § 300.203(a) or § 300.202(a), § 300.203(a), or remain negatively certified until the § 300.204(a) that are not positively § 300.204(a) does not receive a positive Secretary of Commerce determines that certified, the Secretary of Commerce certification under this subpart (i.e., the the nation has taken the necessary shall so notify and make nation receives a negative certification actions pursuant to the Moratorium recommendations to the President, who or no certification is made), the fishing Protection Act to receive a positive is authorized to direct the Secretary of vessels of such nation are, to the extent certification. the Treasury to impose import consistent with international law, (f) Consultations. NMFS will, working prohibitions with respect to fish and subject to the denial of entry by the through or in consultation with the fish products from those nations; such Secretary of the Treasury into any place Department of State, continue prohibitions would only apply to fish in the United States and to the navigable consultations with nations that do not and fish products caught by the vessels waters of the United States. receive a positive certification with engaged in the relevant activity for (b) Upon notification and any respect to the fishing activities which the nation was identified. recommendations by the Secretary of described in the biennial report to (3) Any action recommended under Commerce to the President that an Congress. The Secretary of Commerce paragraph (a)(2) shall be consistent with identified nation has failed to receive a shall take the results of such international obligations, including the positive certification, the President is consultations into consideration when WTO Agreement. (b) * * * authorized to direct the Secretary of the making a subsequent certification Treasury to prohibit the importation of (4) Removal of negative certifications determination for each such nation. and import restrictions. Upon a certain fish and fish products from such 8. Redesignate § 300.205 as § 300.206, determination by the Secretary of nation (see § 300.206). and in newly redesignated § 300.206, Commerce that an identified nation that (c) Any action recommended under revise paragraphs (a) and (b)(4) to read was not certified positively has paragraph (b) shall be consistent with as follows: international obligations, including the satisfactorily met the conditions in this WTO Agreement. § 300.206 Denial of port privileges and subpart and that nation has been (d) If certain fish and fish products are import restrictions on fish or fish products. positively certified, the provisions of prohibited from entering the United (a) * * * § 300.206 shall no longer apply. The States, within six months after the (1) Vessels from a nation identified in Secretary of Commerce, with the imposition of the prohibition, the the biennial report under § 300.202(a), concurrence of the Secretary of State Secretary of Commerce shall determine § 300.203(a), or § 300.204(a) and not and in cooperation with the Secretary of whether the prohibition is insufficient positively certified by the Secretary of the Treasury, will notify such nations to cause that nation to effectively Commerce that enter any place in the and will file with the Office of the

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Federal Register for publication shipper-by-shipper, or other basis if the permit for Gulf reef fish and a notification of the removal of the import Secretary determines that imports were commercial vessel permit for Gulf reef restrictions effective on the date of harvested by fishing activities or fish) while fishing commercially. The publication. practices that do not target or intent of Amendment 34 is to remove 9. Redesignate § 300.206 as § 300.207, incidentally catch sharks, or were permit requirements that may no longer and in newly redesignated § 300.207, harvested by practices that— be applicable to current commercial revise the section heading, and (1) Are comparable to those of the fishing practices and to improve vessel paragraph (c), and add paragraph (d) to United States, taking into account safety in the Gulf reef fish fishery. read as follows: different conditions; and DATES: Written comments must be (2) Include the gathering of species § 300.207 Alternative procedures for received on or before September 10, specific shark data that can be used to 2012. nations identified as having vessels support international and regional engaged in IUU fishing activities that are ADDRESSES: You may submit comments not certified under § 300.202 assessments and conservation efforts for sharks. on the amendment identified by * * * * * (c) Fish and fish products offered for ‘‘NOAA–NMFS–2011–0025’’ by any of (c) Fish and fish products offered for the following methods: entry under this section must be • entry under this section must be accompanied by a completed Electronic submissions: Submit accompanied by a completed documentation of admissibility electronic comments via the Federal documentation of admissibility available from NMFS. The e-Rulemaking Portal: http:// available from NMFS. The documentation of admissibility must be www.regulations.gov. Follow the documentation of admissibility must be executed by a duly authorized official of instructions for submitting comments. • Mail: Steve Branstetter, Southeast executed by a duly authorized official of the identified nation and validated by a Regional Office, NMFS, 263 13th the identified nation and must be responsible official(s) designated by Avenue South, St. Petersburg, FL 33701. validated by a responsible official(s) NMFS. The documentation must be designated by NMFS. The Instructions: All comments received executed and submitted in a format are a part of the public record and will documentation must be executed and (electronic facsimile (fax), the Internet, submitted in a format (electronic generally be posted to http:// etc.) specified by NMFS. www.regulations.gov without change. facsimile (fax), the Internet, etc.) (d) Any action recommended under All Personal Identifying Information (for specified by NMFS. this section shall be consistent with example, name, address, etc.) (d) Any action recommended under international obligations, including the voluntarily submitted by the commenter this section shall be consistent with WTO Agreement. international obligations, including the may be publicly accessible. Do not WTO Agreement. [FR Doc. 2012–16838 Filed 7–9–12; 8:45 am] submit Confidential Business 10. Redesignate § 300.207 as BILLING CODE 3510–22–P Information or otherwise sensitive or § 300.208, and in newly redesignated protected information. § 300.208, revise the section heading To submit comments through the DEPARTMENT OF COMMERCE and add paragraph (d) to read as Federal e-Rulemaking Portal: http:// www.regulations.gov, enter ‘‘NOAA– follows: National Oceanic and Atmospheric NMFS–2011–0025’’ in the search field Administration § 300.208 Alternative procedures for and click on ‘‘search’’. After you locate nations identified as having vessels the proposed rule, click the ‘‘Submit a 50 CFR Part 622 engaged in bycatch of PLMRs that are not Comment’’ link in that row. This will certified under § 300.203. RIN 0648–BB72 display the comment Web form. You (d) Any action recommended under can enter your submitter information this section shall be consistent with Fisheries of the Caribbean, Gulf of (unless you prefer to remain international obligations, including the Mexico, and South Atlantic; Reef Fish anonymous), and type your comment on WTO Agreement. Fishery of the Gulf of Mexico; the Web form. You can also attach 11. Add new § 300.209 to read as Amendment 34 additional files (up to 10 MB) in follows: AGENCY: National Marine Fisheries Microsoft Word, Excel, WordPerfect, or § 300.209 Alternative procedures for Service (NMFS), National Oceanic and Adobe PDF file formats only. nations identified as having vessels Atmospheric Administration (NOAA), Comments received through means engaged in shark catch that are not certified Commerce. not specified in this rule will not be under § 300.204. considered. ACTION: Notice of availability; request For further assistance with submitting (a) These certification procedures may for comments. be applied to fish and fish products a comment, see the ‘‘Commenting’’ from a vessel of a harvesting nation that SUMMARY: The Gulf of Mexico Fishery section at http://www.regulations.gov/ has been identified under § 300.204 in Management Council (Council) has #!faqs or the Help section at http:// the event that the Secretary cannot submitted Amendment 34 to the Fishery www.regulations.gov. reach a certification determination for Management Plan for the Reef Fish Electronic copies of Amendment 34, that nation by the time of the next Resources of the Gulf of Mexico (FMP) which includes an environmental biennial report. These procedures shall for review, approval, and assessment and a regulatory impact not apply to fish and fish products from implementation by NMFS. Amendment review, may be obtained from the identified nations that have received 34 proposes to modify the income Southeast Regional Office Web site at either a negative or a positive qualification requirements for the http://sero.nmfs.noaa.gov/sf/ certification under this subpart. renewal of Gulf of Mexico (Gulf) GrouperSnapperandReefFish.htm. (b) Consistent with paragraph (a) of commercial reef fish permits and revise FOR FURTHER INFORMATION CONTACT: this section, the Secretary of Commerce the crew size regulations for dual- Steve Branstetter, Southeast Regional may allow entry of fish and fish permitted vessels (i.e. vessels that Office, NMFS, telephone 727–824–5305; products on a shipment-by-shipment, possess both a charter vessel/headboat email: [email protected].

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