Comment from Andrea Treece

Dear Ms. Cimo, Thank you for the opportunity to offer comments on the proposed rule to implement provisions of the Moratorium Protection Act regarding identification and certification procedures to address illegal, unreported, and unregulated (“IUU”) fishing activities and bycatch of protected living marine resources (“PLMR”), 74 Fed. Reg. 2019 (Jan. 14, 2009). We submit these comments on behalf of the Center for Biological Diversity and Turtle Island Restoration Network. IUU fishing and PLMR bycatch pose significant threats to fish stocks, marine mammals, sea turtles, sea birds, sharks, and marine habitats around the globe. As a major importer of fish and fish products and a leader in the development of bycatch reduction measures, the United States can play a vital role in reducing IUU fishing and PLMR bycatch through trade measures and outreach. We believe the proposed regulations, though a step in the right direction, must be clarified and strengthened to ensure that the U.S. actively gathers and communicates information on foreign fishing practices, and uses that information in a timely and effective manner to combat IUU fishing and PLMR bycatch. With this in mind, we offer the following comments. Definition of IUU Fishing We agree that NMFS should continue to consider expanding the definition of IUU fishing. In addition to, or as part of, including fishing activities that have a significant adverse impact on vulnerable marine ecosystems, NMFS should expand the definition of IUU fishing to include fishing activities that have significant adverse impacts on the marine food web – for instance, excessive catch of forage species such as krill or herring. NMFS should also expand the definition to more explicitly address unreported fishing by including fishing activities that are either unreported or misreported to the relevant national or international fishery management authority. Identification and Certification Procedures One of the greatest challenges to eliminating IUU fishing and PLMR bycatch is the lack of available information, monitoring, and enforcement with respect to these activities. Given that these fishing activities are “illegal, unreported, and unregulated” and happen on the high seas, it is unlikely that the Secretary of Commerce or any other branch of the U.S. government will receive information regarding IUU fishing or PLMR bycatch unless the government actively seeks and requires such information. The preamble to the proposed regulations indicates only that NMFS will evaluate “appropriate information and evidence available to the agency.” 74 Fed. Reg. at 2021. Effective implementation of identification and certification measures, as well as subsequent trade measures, will require a concerted effort to gather such information and evidence. Therefore, the regulations should specify that NMFS shall actively seek this information, including requesting information from relevant international fishery management bodies as well as nations wishing to export fish or fish products to the U.S. One way to address this need would be for NMFS to immediately notify other nations and fishery management bodies of Moratorium Protection Act requirements and, as part of that notification, request information regarding efforts that each nation is undertaking to eliminate IUU fishing activities and PLMR bycatch, as well information each nation may have on the occurrence of IUU fishing and PMLR bycatch by its own vessels or those of other nations. The proposed regulations require that nations be informed of the Act’s requirements after they have been identified as engaging in IUU fishing or PMLR bycatch. However, advance notification of the Act’s requirements could facilitate earlier compliance, information-gathering, and negotiations. In addition, to the maximum extent consistent with the Moratorium Protection Act, NMFS should place the burden of proof that a nation wishing to export fish or fish products to the U.S. has not engaged in IUU fishing or PLMR bycatch on the exporting nation. We agree that NMFS must ensure that the evidence it uses to certify or refuse to certify a nation is credible. NMFS must balance this requirement with the recognition that corroborating evidence for incidences of IUU fishing or PLMR bycatch will often not be available. IUU fishing and PLMR bycatch are widespread precisely because enforcement and investigation resources are lacking. By placing the burden of proof on the exporting nation, the U.S. will provide strong incentives for other nations to undertake the monitoring and enforcement efforts necessary to eliminate IUU fishing and PLMR bycatch, and reduce the need to resort to trade prohibitions. Effect of certification The Moratorium Protection Act specifies that the negative certification of a nation or lack of certification with respect to IUU fishing activity or bycatch of PLMR triggers the mandatory import prohibitions laid out in section 1826a. 16 U.S.C. §§ 1826j(d)(3); 1826k(c)(5). The Act provides that the President “shall” direct that the importation of fish and fish products be prohibited immediately upon being notified that a nation is identified as having engaged in IUU fishing or PLMR bycatch, or if consultations with the government of such a nation have not concluded satisfactorily within 90 days. Id. at § 1826a(b)(3). However, the proposed regulations regarding the effect of certification (proposed 50 C.F.R. § 300.204) state somewhat vaguely that such nations “may be subject” to import prohibitions. We recommend that the regulation be clarified to reflect the mandatory requirements of the Act, as well as the timeline for implementing import prohibitions. Definition of Bycatch The definition of bycatch contained in proposed § 300.201 should be revised to encompass any interaction with a non-target living marine resource that results in the capture, serious injury, or mortality of that resource, regardless whether the resource is discarded or kept for personal or commercial use. The proposed definition’s use of the term “discarded” implies that the capture of a non-target living marine resource, such as a sea turtle, marine mammal, or shark, would not qualify as bycatch so long as the resource was retained on the vessel. This definition would seriously undermine efforts to conserve these species and reduce bycatch. In addition, the current wording of the definition reads as if it includes only serious injury or mortality of a resource due to an encounter with fishing gear that does not result in capture, rather than including any encounter with fishing gear. This language should be changed to ensure a clear, consistent understanding of what constitutes bycatch under the regulations. Thank you for your consideration of these comments. We look forward to working with NMFS to ensure that the provisions of the Moratorium Protection Act, as well longstanding trade provisions of Section 101 of the Marine Mammal Protection Act, are effectively implemented and enforced. Please do not hesitate to contact me with any questions.