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This proposed rule would make conforming amendments to regulations implementing the various statutes amended by the Illegal, Unreported and Unregulated Fishing Enforcement Act of 2015 (Pub. L. 114-81). The Act amends several regional fishery management organization implementing statutes as well as the High Seas Driftnet Fishing Moratorium Protection Act. It also provides authority to implement two new international agreements under the Antigua Convention, which amends the Convention for the establishment of an Inter-American Tropical Tuna Commission, and the United Nations Food and Agriculture Organization Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported and Unregulated Fishing (Port State Measures Agreement), which restricts the entry into U.S. ports by foreign fishing vessels that are known to be or are suspected of engaging in illegal, unreported, and unregulated fishing. This proposed rule would also implement the Port State Measures Agreement. To that end, this proposed rule would require the collection of certain information from foreign fishing vessels requesting permission to use U.S. ports. It also includes procedures to designate and publicize the ports to which foreign fishing vessels may seek entry and procedures for conducting inspections of these foreign vessels accessing U.S. ports. Further, the rule would establish procedures for notification of: the denial of port entry or port services for a foreign vessel, the withdrawal of the denial of port services if applicable, the taking of enforcement action with respect to a foreign vessel, or the results of any inspection of a foreign vessel to the flag nation of the vessel and other competent authorities as appropriate.

Statement of Need:

The United States is a signatory to the Port State Measures Agreement (PSMA). The agreement is aimed at combating illegal, unreported and unregulated (IUU) fishing activities through increased port inspection of foreign fishing vessels and thereby closing seafood markets to the products of illegal fishing. In addition, regulations to identify and certify nations for IUU fishing and other adverse fishing activities under the authority of the High Seas Driftnet Fishing Moratorium Protection Act must be updated to conform to statutory changes.  NMFS will also propose changes to the definition of IUU fishing for the purposes of identifying and certifying nations under that Act.

Summary of the Legal Basis:

This action is required under several statutes: Magnuson-Stevens Fishery Conservation and Management Act (P.L 94-265 as amended by P.L. 109-479); Illegal, Unreported, and Unregulated Fishing Enforcement Act of 2015 (P.L. 114-81); Ensuring Access to Pacific Fisheries Act (P.L. 114-327); High Seas Driftnet Fishing Moratorium Protection Act (P.L. 104-43).  The Secretary of Commerce is authorized to issue regulations to implement the statutory obligations to counter IUU fishing by foreign fishing vessels and to prevent the importation of illegally harvested seafood.

Alternatives:

Alternatives to taking action at the port would include taking action at sea against IUU fishing vessels and in the supply chain against detected IUU fishing products. At-sea monitoring and inspection is part of an overall strategy to combat IUU fishing, but it is extremely expensive, resources are limited, and the U.S. has limited jurisdiction to board foreign-flag vessels at sea. Likewise, tracing and removing illegal products already released into the U.S. seafood market would be difficult and resource intensive. Preventing entry of IUU fishing vessels into ports or investigating fishing vessels at the port is an efficient and effective approach to combat illegal activity and to prevent illegal products from entering the supply chain. There are no alternatives to the conforming amendments to the High Seas Driftnet Fishing Moratorium Protection Act.  Without these changes, the implementing regulations would not be consistent with the revised statute.  However, the statute authorizes the Secretary of Commerce to amend the regulatory definition of IUU fishing for the purposes of identifying and certifying nations. NMFS has considered several activities that constitute illegal fishing and proposes amendments to the definition to counter these forms of IUU fishing.  Alternatives to amending the IUU fishing definition would include the adoption of binding measures at regional fishery organizations to counter the activities of concern.  While NMFS is pursuing this approach, amending the definition provides a more direct means of addressing the problem through the identification of nations and potential trade restrictions.

Anticipated Costs and Benefits:

The anticipated costs will be minimal in that foreign vessels requesting permission to visit U.S. ports are already required to report. Under this rule, fishing vessel masters will have to include more information about the vessel and its cargo when they submit an electronic notice of arrival to the U.S. Coast Guard. Based on the information submitted, NMFS may deny port privileges for vessels known to have engaged in illegal fishing or may meet the vessel in port to conduct an inspection. The minimal additional data elements required of foreign fishing vessels will be submitted through the existing U.S. Coast Guard system for electronic Notices of Arrival and Departure, thus reporting costs are not anticipated to affect shipping patterns, port usage, or international commerce. In addition, vessel inspections will be coordinated and planned based on the notice of arrival submitted prior to entry into port, thus delays for inspection will be minimal and not result in significant costs to legitimate vessels. Benefits of the rule will accrue when IUU vessels are denied entry, and illegal seafood products are precluded from the U.S. supply chain, thereby maintaining higher prices and market share for legitimate producers of fishery products. In addition, benefits will accrue from reduced costs of inspection and monitoring at ports of entry due to the advance notice provided and the ability of NMFS and Coast Guard to take a risk management approach to vessel inspection. Should the United States impose trade restrictions on foreign nations due to the expanded definition of IUU fishing, some costs would be borne by U.S. importers who would have to adjust their supply chains.  However, many U.S. importers and seafood dealers are already adjusting supply chains to respond to consumer demand for lawfully-acquired, sustainable and environmentally responsible seafood.  The benefits of additional steps to counter IUU fishing will accrue to law-abiding harvesters, processors and traders as fish stocks are recovered and they no longer must compete with illegitimate products in the supply chain.

Risks:

If the port entry reporting and inspection provisions of this rule were not implemented, there is an increased risk of IUU fishing vessels entering U.S. ports and/or the products of IUU fishing infiltrating the U.S. supply chain. In addition, the U.S. would be out of compliance with its international obligations under the PSMA. If the revisions to the High Seas Driftnet Fishing Moratorium Protection Act are not implemented through conforming amendments to the regulations and through additions to the definition of IUU fishing, nations might not be identified under the statute, therefore diminishing the likelihood of corrective actions to counter IUU fishing.