Fishery Conservation

Report to Congress on Implementation of Title vi of the Magnuson-stevens Fishery and Conservation Reauthorization Act of 2006 in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): In January 2011, the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration (“NMFS”) submitted its biennial report to Congress pursuant to § 406 of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2007 (“MSRA”), Pub. L. No. 109-479, 120 Stat. 3575, 3633. For background on the MSRA, see this world legal encyclopedia in relation with the year 2007 at 706-709; for discussion of the first biennial report submitted in 2009, see this world legal encyclopedia in relation with the year 2009 at 500-05. The 2011 Report identified Colombia, Ecuador, Italy, Panama, Portugal, and Venezuela as states having engaged in IUU fishing during 2009 or 2010. The MSRA also requires identification of states having vessels engaged in bycatch of protected living marine resources (“PLMRs”), but no states were so identified in the report. The 2011 Report also described the corrective actions, new laws, regulations or enforcement activities of the countries identified in the 2009 report leading to the NMFS's certification that each of those six countries (France, Italy, Libya, Panama, and the People's Republic of China) had either provided evidence of corrective action or credibly disputed the original identifications, as required by the MSRA. Excerpts from the report explaining the identifications follow (with footnotes omitted). The full text of the report is available at (internet link) nmfs.noaa.gov/msa2007/docs/biennia_report_to_congress.pdf.

NMFS identified six countries in the 2009 Report to Congress as having vessels engaged in IUU fishing activity: France, Italy, Libya, Panama, the People's Republic of China, and Tunisia. Each incident of IUU fishing involved an alleged violation of the rules of an international fishery management organization in 2007 or 2008. Under Section 609 of the Moratorium Protection Act, within 90 days of promulgation of a final rule establishing a procedure for certification, and biennially thereafter in the report to Congress, the Secretary must certify to Congress whether an identified nation has taken appropriate corrective action to address the activities for which it has been identified. The NOAA Assistant Administrator for Fisheries has been delegated the authority to make that determination.

After notifying the six countries of their identifications in early 2009, the U.S. Government consulted extensively with those governments, through face-to-face meetings, teleconferences, and correspondence, through the fall of 2010. The six governments provided information that falls into several categories:

The rest of this section sets out in detail the consultations that occurred with each identified country, the information produced by those countries about corrective actions such as penalties imposed and fisheries management laws adopted, and NMFS's positive certification for each country. In short, however, the identification, consultation, and certification process in 2009-2010 worked as Congress intended, to promote compliance with international fisheries measures.

Developments

B. Identifications 1. Statutory Requirements and Restrictions Section 403 of the MSRA, in amending the Moratorium Protection Act, requires that the Secretary identify nationswhose vessels are engaged in IUU fishing or PLMR bycatch. The identification process and decisions, in turn, are based on detailed criteria set forth in the act, as well as statutory definitions.

2. The Identification Process In preparation for development of the list of nations that are recommended for identification, NMFS published a notice soliciting information on IUU fishing and PLMR bycatch activities (75 Fed. Reg. 10213, March 5, 2010).

Fishing in Violation of International Measures. The first prong of the definition of IUU fishing covers activities that violate measures required under an international fishery management agreement to which the United States is a party (16 U.S.C. 1826j(e)(3)(A)).…

Overfishing of Shared Stocks. The second prong of the definition of IUU fishing (16 U.S.C. 1826j(e)(3)(B)) includes overfishing of stocks shared by the United States in areas without applicable international measures or management organizations.…

Destructive Fishing Practices on [Vulnerable Marine Ecosystems (“VMEs”)]. During the reporting period, NMFS found no nations having conducted IUU fishing activities under the third prong of the definition (16 U.S.C. 1826j(e)(3)(C)).…

PLMR Bycatch Activities. Identification of nations for bycatch activities may be based only on current activities of fishing vessels of that nation, or on activities in which those vessels have been engaged during the calendar year preceding submission of the biennial report to Congress. Qualifying activities are further restricted to those that result in the bycatch of PLMRs where the relevant international conservation organization has failed to implement effective measures to end or reduce such bycatch, or the nation is not a party to or a cooperating partner with such organization, and the nation has not adopted a regulatory program governing such fishing practices that is comparable to that of the United States, taking into account different conditions. Bycatch activities that fail to meet these standards cannot form the basis for identification.

3. Countries Identified NMFS is identifying six countries as having vessels engaged in IUU fishing activity during 2009 and 2010: Colombia, Ecuador, Italy, Panama, Portugal, and Venezuela. Each incident of IUU fishing involved an alleged violation of the rules of an international fishery management organization. The remainder of this section describes in detail the bases for identification for each country, along with other pertinent information and any communications with the governments.

Details

Colombia.No Colombian-flagged vessels adhered to the purse seine closure periods that were in place for tuna conservation in 2009, in violation of IATTC Resolution C-09-01. The Government of Colombia noted at the 2009 and 2010 IATTC meetings that it could not implement the IATTC's closure periods because it had already adopted purse seine closures for 2009 on an individual vessel basis prior to the adoption of IATTC Resolution C-09-01. Colombia, however, joined the consensus allowing C-09-01 to become effective. Colombia's 2009 individual closures were of shorter duration and, thus, less restrictive than the requirements set forth in Resolution C-09-01.

In addition, two vessels flagged to Colombia have been fishing in the IATTC Convention Area in 2009 and 2010 without being on the IATTC Regional Vessel Register, in violation of IATTC Resolutions C-00-06 and C-02-03. Resolution C-00-06 requires that any vessel fishing for tuna and tuna-like species in the Eastern Pacific Ocean must be included on the IATTC Regional Vessel Register. Resolution C-02-03 establishes national capacity limitations in the purse seine fishery and requires that any active purse seine vessel be included on the Regional Vessel Register and be within these capacity limits. The Marta Lucia R made four trips and the Dominador I six trips in 2009, without being on the IATTC Regional Vessel Register because the capacity currently allocated to Colombia by the IATTC is not sufficient to accommodate these vessels.

More about the Issue

Ecuador. Several purse seine vessels flagged to Ecuador fished in the IATTC Convention Area in 2009 without authorization, in violation of Resolutions C-00-06 and C-02-03. The Ocean Lady made five fishing trips in 2009 before being added to the IATTC Regional Vessel Register in March 2010. The owner was granted a fishing license on September 7, 2009, but Ecuador did not make a request to IATTC for entry in the vessel register until March 4, 2010. Ecuador noted at the 2010 IATTC meeting that the government has initiated an administrative proceeding against this vessel, which could result in a penalty for fishing without authorization.

The Cap. Tino B. made two fishing trips in 2009 before being included on the IATTC Regional Vessel Register in April 2009. The owner was granted a fishing license on February 12, 2009, but Ecuador did not make a request for entry in the vessel register until April 15, 2009. Ecuador noted at the 2010 IATTC meeting that this vessel is being sanctioned for fishing without authorization. Ecuador stated that it has taken corrective action with regard to the Ocean Lady and the Cap. Tino B., but has not yet supplied documentation to that effect.

The Tuna I made three fishing trips in 2009 without being on the IATTC Regional Vessel Register. According to the Government of Ecuador, the case against this vessel is pending.

Several other vessels made sets during the purse seine closure of the off-shore area in 2009, in violation of IATTC Resolution C-09-01. The Lizy made two sets during that closure. Ecuador noted at the 2010 IATTC meeting that there were proceedings against the Lizy. According to the Government of Ecuador, this vessel has been absolved; however, no details were provided.

The Ocean Lady also failed to adhere to the 2009 closure. Another vessel, the Ingalapagos, made short trips during the 2009 IATTC closure period without an observer or transit waiver, in violation of IATTC Resolution C-09-01. Ecuador noted at the 2010 IATTC meeting and reaffirmed in correspondence that an administrative proceeding against this vessel is pending.

The Tarqui increased its capacity, contrary to IATTC Resolution C-02-03. According to the delegation from Ecuador at the 2010 IATTC meeting and correspondence to NMFS, Ecuador has initiated an enforcement proceeding against this vessel; it is pending.

Report to Congress on Implementation of Title vi of the Magnuson-stevens Fishery and Conservation Reauthorization Act of 2006 in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): Procedures To Certify Nations Identified as Having Fishing Vessels Engaged in IUU Fishing Subsequent to the identification, notification, and consultation processes outlined above, the Secretary will provide either a positive or negative certification to nations that have been identified in the biennial report as having fishing vessels engaged in IUU fishing. 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.…

The Secretary of Commerce will make certification determinations pursuant to provisions of the Moratorium Protection Act in accordance with international law, including the WTO Agreement, regarding adoption of trade measures in a fair, transparent, and non-discriminatory manner. When considering whether appropriate corrective action has been taken to warrant a positive certification, NMFS will take into account the outcome of consultations with the identified nation and comments received from such nation. NMFS will also evaluate 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. NMFS will also consider, as appropriate, whether the affected nation has implemented and is enforcing RFMO conservation and management measures designed to address IUU fishing activities.

The Secretary of Commerce will make the first certification determinations no later than 90 days after promulgation of this rule. 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 negatively certified nations and provide them an opportunity to take corrective action with respect to the IUU fishing activities described in the biennial report to Congress.

Procedures To Identify Nations Engaged in PLMR Bycatch As required under the Moratorium Protection Act, NMFS will also identify, and list in the biennial report to Congress, 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 PLMR bycatch, or beyond the U.S.

exclusive economic zone (EEZ) that result in bycatch of a PLMR shared by the United States.

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 bycatch of PLMRs in the biennial report to Congress.

More about Report to Congress on Implementation of Title vi of the Magnuson-stevens Fishery and Conservation Reauthorization Act of 2006

Notification and Consultation With Nations Identified as Having Fishing Vessels Engaged in Bycatch of PLMRs 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 bycatch of PLMRs. Within 60 days after submission of the biennial report to Congress, NMFS, acting through or in consultation with the State Department, will notify such nations of the requirements of the Moratorium Protection Act and initiate consultations regarding the bycatch of PLMRs.

Upon submission of the biennial report to Congress, the Secretary of Commerce, acting through or in consultation with the Secretary of State, will:

1. Initiate consultations with the governments of identified nations for the purposes of entering into bilateral and multilateral agreements and 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, request that the Secretary of State 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.

International Cooperation and Assistance To the greatest extent possible consistent with existing authority and the availability of funds, NMFS shall provide assistance to nations identified as having vessels engaged in PLMR bycatch. NMFS will also provide assistance to international organizations of which those nations are members to assist with qualifying for a positive certification. Assistance activities may include, where appropriate, cooperative research activities on species assessments and improved bycatch mitigation techniques, improved governance structures, or improved enforcement capacity. NMFS will also encourage and facilitate the transfer of appropriate technology to identified nations or the organizations of which they are members to assist identified nations in qualifying for a positive certification and to assist those identified nations or organizations in designing and implementing appropriate fish harvesting methods that minimize bycatch of PLMRs.

Developments

Procedures To Certify Nations Identified as Having Fishing Vessels Engaged in Bycatch of PLMRs 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 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 bycatch of PLMRs described in the biennial report to Congress.

The Secretary of Commerce will make certification determinations pursuant to provisions of the Moratorium Protection Act in accordance with international law, including the WTO Agreement, regarding adoption of trade measures in a fair, transparent, and non-discriminatory manner. 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 that authorized under section 609 of Public Law 101-162, or the affirmative finding process under the International Dolphin Conservation Program Act (111 Stat. 1122). Nothing in this rulemaking will modify such existing certification procedures.

The Secretary of Commerce will publish certification determinations in the biennial report to the Congress. 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 negatively-certified nations and provide them an opportunity to take corrective action with respect to the bycatch of PLMRs described in the biennial report to Congress.

Effect of Certification Determinations If nations identified as having fishing vessels engaged in IUU fishing and/or bycatch of PLMRs 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 bycatch of PLMRs and does not receive a positive certification from the Secretary of Commerce, the nation could face denial of port privileges for its fishing vessels, prohibitions on the import of certain fish and fish products into the United States, and

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 fishing activity for which the initial identification was made; the degree of culpability; any history of prior IUU fishing activities 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.

The Secretary of Commerce will recommend to the President appropriate measures, including trade restrictive measures, to be taken against identified nations that have not received a positive certification, to address the relevant IUU fishing activity and/or fishing activities or practices that result in PLMR bycatch for which such nations were identified in the biennial report. The Secretary will make such recommendations on a case by case basis in accordance with international obligations, including the WTO Agreement. Adoption of trade measures will be done in a fair, transparent, and non- discriminatory manner. If certain fish or fish products of a nation are subject to import prohibitions, to facilitate enforcement, NMFS may require that other fish or fish products from that nation that are not subject to the import prohibitions be accompanied by documentation of admissibility to be developed by NMFS. If NMFS decides to require that such fish or fish products be accompanied by documentation of admissibility, it will develop this documentation through a future rulemaking action and give the public an opportunity to review and provide comment.

Resources

See Also

• Environment
• Transnational Scientific Issues
• Protection Of Environment
• Marine
• Conservation
• Fishing