Antarctic Marine Living Resources (AMLR); Centralized Vessel Monitoring System; Preapproval of Fresh Toothfish Imports; Customs Entry Number; Electronic Catch Documentation Scheme; Scientific Observers; Definitions; Seal Excluder Device; Information on Harvesting Vessels

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Proposed rule; request for comments.

SUMMARY:

The proposed rule would implement measures adopted by the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) to facilitate conservation and management of AMLR. The proposed rule would require the use of the Centralized satellite-linked vessel monitoring system by all U.S. vessels harvesting AMLR and would be a condition of import for all U.S. dealers seeking to import shipments of toothfish (Dissostichus) into the United States. This proposed rule would also exempt all shipments of fresh toothfish from the NMFS preapproval process and allow importers of frozen toothfish to submit the U.S. Customs 7501 entry number subsequent to their initial application for preapproval. The proposed rule would require the use of Electronic Catch Documents, after a 60-day transition period, for all U.S. dealers seeking to import shipments of toothfish into the United States. Paper-based catch documents for toothfish would no longer be accepted. The proposed rule would also require the use of a seal excluder device on krill vessels using trawl gear in the Area of the Convention for the Conservation of Antarctic Marine Living Resources (Convention Area). The proposed rule would add or amend definitions of “Antarctic marine living resources”, “export”, “import”, “international observer”, “land or landing”, “mobile transceiver unit”, “national observer”, “Office for Law Enforcement (OLE)”, “Port State”, “re-export”, “seal excluder device”, “transship or transshipment”, and “vessel monitoring system (VMS)”. The proposed rule would also expand the list of requirements and prohibitions regarding scientific observers and clarify the duties and responsibilities of the observers on the vessels and of the vessel owners hosting the observers. The proposed rule identifies new information on all vessels licensed by CCAMLR Members to harvest AMLR in the area identified in the Convention on the Conservation of Antarctic Marine Living Resources (Convention). The intent of this rule is to incorporate new conservation measures, to revise procedures to facilitate enforcement, and to fulfill U.S. agreements in CCAMLR.

DATES:

Comments must be received at the appropriate address (see ADDRESSES) no later than 5 p.m., eastern standard time, on August 14, 2006.

ADDRESSES:

Comments on the proposed rule should be addressed to Robin Tuttle, NMFS, 1315 East-West Highway, Silver Spring, MD 20910, by any of the following methods:

• E-mail: 0648-AS75.AMLR@noaa.gov. Include in the subject line the following identifier: “AMLR proposed rule.” E-mail comments, with or without attachments, are limited to 5 megabytes;
• Federal e-Rulemaking Portal: http://www.regulations.gov ;
• Mail to: Robin Tuttle, NMFS - S&T, 1315 East-West Highway, Silver Spring, MD 20910;
• Fax to: Robin Tuttle at 301-713-4137; or
• Hand Delivery to Robin Tuttle, Rm. 12350, 1315 East-West Highway, Silver Spring, MD 20910.

Copies of the Regulatory Impact Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) prepared for this action and the Draft Programmatic Environmental Impact Statement may be obtained from the mailing address above or by calling Robin Tuttle (see FOR FURTHER INFORMATION CONTACT). Send comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule to Robin Tuttle at the address specified above and also to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk Officer) or e-mail to David_Rosker@ob.eop.gov, or fax to (202) 395-7825.

FOR FURTHER INFORMATION CONTACT:

Robin Tuttle at 301-713-2282 ext. 199, fax 301-713-4137, or robin.tuttle@noaa.gov.

SUPPLEMENTARY INFORMATION:

Electronic Access

This Federal Register document is also accessible via the Internet at the Office of the Federal Register's Web site at http://www.access.gpo.gov/su-docs/aces/aces140.html.

Background

Antarctic fisheries are managed under the authority of the Antarctic Marine Living Resources Convention Act of 1984 (Act) codified at 16 U.S.C. 2431 et seq. NMFS implements conservation measures developed by CCAMLR and adopted by the United States, through regulations at 50 CFR part 300, subpart G. Changes to the existing regulations are necessary to incorporate new conservation measures and to revise procedures to facilitate enforcement of new and existing conservation measures.

Centralized VMS

Based upon the results of a trial conducted by some Contracting Parties to CCAMLR during the 2003/2004 fishing season, CCAMLR revised the requirements for its automated satellite-linked vessel monitoring system (VMS), first implemented in 1999, and adopted Conservation Measure 10-04 implementing a Centralized VMS (C-VMS).

Prior to the adoption of C-VMS, CCAMLR required that each Contracting Party ensure that its fishing vessels were equipped with a satellite-linked vessel monitoring device allowing for the continuous reporting of their position in the Convention Area for the duration of the license issued by the Contracting Party. The vessel monitoring device was required to automatically communicate at least every 4 hours to the land-based fisheries monitoring center of the Flag State of the vessel.

With the adoption of C-VMS, CCAMLR now requires that all vessels, fishing in CCAMLR-managed waters use a VMS that automatically transmits the vessel's position at least every 4 hours to a land-based fisheries monitoring center of its Flag State. Previously only movement into or out of the Convention Area, not position, was required to be reported. Each Contracting Party to the Convention must forward the VMS reports and messages received to the CCAMLR Secretariat as soon as possible, but not later than 4 hours after receipt for exploratory longline fisheries or following departure from the Convention Area for all other fisheries. If the Contracting Party so desires, it can ensure that each of its vessels communicates its VMS reports and messages in parallel directly to the Secretariat. The CCAMLR Secretariat shall treat all VMS reports and messages received in a confidential manner in accordance with the confidentiality rules established by the Commission.

The conservation measure requires the CCAMLR Secretariat to place a list of vessels submitting VMS reports on a password-protected section of the CCAMLR website. The list will be divided into subareas and divisions, without indicating the exact position of vessels. This information can be used by Catch Document Scheme (CDS) officers of Contracting Parties to verify information claimed on a Dissostichus Catch Document (DCD). A Contracting Party may request actual VMS data reports and messages from the Secretariat for use in verifying DCD information in more detail. However, this data can only be released with the permission of the Flag State of the vessel. Only in the case of active surveillance and/or inspection can the Secretariat provide actual VMS data and/or messages to a Contracting Party without the consent of the Flag State of the vessel. The conservation measure also requires the CCAMLR Secretariat to transmit VMS data and reports using secure Internet protocols Secure Socket Layer (SSL), (Data Encryption Standard (DES)) or verified certificates obtained from the Secretariat. These protocols are similar to those in use by the Northwest Atlantic Fisheries Organization (NAFO).

CCAMLR adopted these measures as a means of managing fishing within the Convention Area with greater certainty and making it more difficult, in particular, for illegal, unregulated and unreported (IUU) fishing in the Convention Area to be misreported as catch from outside the Convention Area. CCAMLR agreed that its CCAMLR System of Inspection could be improved by obtaining positional information including movements by vessels into and out of the Convention Area and CCAMLR statistical areas, in as close to real time as possible. CCAMLR also noted that positional information on movements would enable Contracting Parties to deploy CCAMLR inspectors in the Convention Area and to use available inspection potential in the most effective way. Moreover, CCAMLR noted that the C-VMS conservation measure would facilitate the work of the CCAMLR Secretariat on fisheries management by allowing it to monitor start/end dates of fishing by individual vessels and the catch reports submitted by statistical areas and fisheries.

The proposed rule would require the use of a NMFS approved VMS unit reporting through the newly implemented C-VMS by all U.S. vessels harvesting AMLR. The use of a VMS unit would be required from the time a vessel leaves any port until its return to any port.

The proposed rule would also require any U.S. dealer seeking to import toothfish into the United States through the preapproval process to have documentation that indicates that the toothfish was harvested by a vessel using C-VMS regardless of where the vessel caught the toothfish. All imports of toothfish or toothfish products would have to be accompanied by verifiable information available to the CDS Officer from the Secretariat documenting the use of C-VMS. U.S. dealers seeking to import toothfish or toothfish products originating from small artisinal boats fishing in the Exclusive Economics Zones (EEZ) of Peru or Chile would not have to possess information documenting the use of C-VMS by such artisinal boats. NMFS exempts such dealers because of the small size of these artisinal boats and their inability to navigate beyond the EEZ.

Dealer Permits and Preapproval

NMFS implemented the CCAMLR Catch Documentation Scheme (CDS) for toothfish in May 2000. In 2003, NMFS implemented a preapproval system applicable to all shipments of frozen toothfish and to shipments of fresh toothfish over 2,000 kilograms (kg). Preapproval streamlines administration of the toothfish import control program and enhances efforts to prevent the importation of illegally harvested toothfish. Preapproval improves the ability of toothfish importers and dealers to quickly move a fresh and, therefore, perishable toothfish product into the country. With the 15 day advance notification of a toothfish shipment required under the preapproval system, U.S. importers of toothfish have a higher degree of assurance that shipments of toothfish will be approved for entry into the United States before the fish arrives at port. Prior to the adoption by NMFS of the preapproval system, importers of toothfish were at risk of denial or seizure of toothfish shipments because DCDs could not be verified and validated by NMFS until after a shipment had been paid for and shipped. Under the preapproval system, the verification and validation of a toothfish shipment is undertaken by NMFS in advance of its entry into the United States. Thus, preapproval enhances economic certainty for U.S. businesses associated with the toothfish trade by giving U.S. dealers an approval to import toothfish before the shipment of toothfish and sometimes even before dealers make a financial investment in the toothfish shipment. Preapproval also facilitates NMFS enforcement efforts by allowing the NMFS program manager/CDS officer to review the DCD for each toothfish shipment prior to its arrival at port and to coordinate, when necessary, with a NMFS enforcement officer. If a shipment of toothfish is suspected of having been harvested or documented illegally, the fifteen-day preapproval review period makes it possible for NMFS to seize the shipment before it enters trade. Prior to adoption of the preapproval system, preemptive enforcement was difficult if not impossible because a suspect shipment of toothfish had already entered the marketplace before possible infractions could be identified.

The proposed rule would: (1) allow additional time within which dealers must supply the U.S. Customs 7501 number: and (2) exempt all shipments of fresh toothfish from the requirement for preapproval. Currently, after receiving an Antarctic Marine Living Resources (AMLR) dealer permit but at least 15 business days prior to an expected import, the dealer seeking to import frozen toothfish or fresh toothfish in quantities greater than 2,000 kg, is required to submit to NMFS the DCD that will accompany each anticipated toothfish shipment as well as an “Application for Preapproval of Catch Documents” requesting preapproval to allow import of the toothfish shipment. NMFS requires a dealer to include on the application form for a specific toothfish shipment information regarding the shipment's estimated date of arrival, port of arrival, consignee(s) of product, DCD document number, Flag State confirmation number, export reference number, amount to be imported, and the U.S. Customs 7501 number (sometimes referred to as the “Entry” number). This 7501 number is an identifying number assigned to a particular shipment by a U.S. Customs broker. The dealer is required to fax or express mail the documentation described above, along with a check for the required fee, so that NMFS receives it at least 15 business days prior to the anticipated date of import. However, some dealers have difficulty obtaining a U.S. Customs 7501 number 15 days in advance of a shipment's arrival. The difficulty arises because Customs brokers have limitations on how soon they can assign the 7501 number to a pending shipment and most often, have difficulty assigning it 15 days in advance of the shipment's arrival. For this reason, NMFS is proposing to revise the “Application for Preapproval of Catch Documents” form specifically in regards to the requirement for the 7501 number. NMFS is proposing that dealers supply the 7501 number within 3 working days of a toothfish shipment's arrival. All other information on the “Application for Preapproval of Catch Documents” would remain unchanged.

Due to the extremely quick turnaround time required for shipments of fresh toothfish in quantities of less than 2,000 kg, the “Application for Preapproval of Catch Documents” is currently required to be submitted to NMFS within 24 hours of the import of a toothfish shipment, rather than fifteen days in advance of the shipment. The proposed rule would allow for submission of an application for preapproval within 24 hours of import for shipments of fresh toothfish over 2,000 kgs as well. The number of shipments of fresh toothfish over 2000 kg are small. These shipments are typically harvested by the artisinal fishery of Chile and have historically not been the cause for enforcement concern. The infractions common to large shipments of frozen toothfish do not occur with small shipments of fresh toothfish. One common infraction results when legally and illegally harvested toothfish are frozen and combined in one shipment and exported with a single “legal” DCD. Large shipments of frozen toothfish might also include fish illegally harvested in a CCAMLR restricted area and claimed to have been harvested in an EEZ or on the high seas. As artisinal boats harvesting and shipping small amounts of fresh fish are not equipped to reach these CCAMLR restricted areas, they are not suspected of this type of infraction. Pursuant to a bilateral agreement with Chile, NMFS has a real time verification process for shipments of toothfish harvested by Chile's artisinal toothfish fishery. Under the proposed rule, DCDs for shipments of fresh toothfish from Chile would be reviewed without a fee-for-service charge. Shipments of all frozen toothfish including those in quantities of less than 2,000 kg would still require preapproval. NMFS regulations at 50 CFR 300.107(c)(6) and 300. 114 regarding the re-export of toothfish would not be revised. The revised DCD, revised NMFS application for an annual AMLR dealer permit, and the new NMFS application for preapproval referenced under this section are available from NMFS (see ADDRESSES).

Electronic Catch Documents

In October 2004, CCAMLR adopted a resolution noting the successful completion of the electronic toothfish document trial and urging CCAMLR Contracting and Non-Contracting Parties to adopt the electronic format as a matter of priority. The electronic system, by means of internal checks, does not allow a country's CDS officer to incorrectly complete a DCD. Requiring U.S. importers of toothfish to use the electronic format would, thus, eliminate the submission of paper-based catch documents incorrectly completed by Flag States, Exporting States, Importing States and Re-exporting States. Paper documents can be difficult to obtain in a timely manner. As a result, in these cases, an incentive exists to submit a fraudulent paper-based DCD to expedite a shipment. The electronic system, by requiring electronic DCDs, eliminates the incentive. The proposed rule would require U.S. dealers importing toothfish into the United States to use the electronic format. Once the proposed rule goes into effect, NMFS will only accept electronic catch documents and will no longer accept paper catch documents for toothfish shipments. In order to allow U.S. dealers sufficient time to comply with these changes, NMFS would not require the use of electronic documents until 60 days after publication of the final rule.

Scientific Observers

CCAMLR adopted a Scheme of International Scientific Observation in 1992 at its eleventh annual meeting. Observers placed on board fishing vessels pursuant to the scheme observe and report on the operations of fishing activities and their effects on target and associated species of living marine resources. Observers undertake tasks and record their observations pursuant to protocols and using formats approved by the CCAMLR Scientific Committee. These tasks include recording details of vessel operation; taking catch samples; recording biological data by species caught; recording bycatch; recording entanglement and incidental mortality of birds and mammals; recording procedures by which declared catch weight is measured; collecting and reporting factual data on sightings of fishing vessels in the Convention Area, including vessel type identification, position and activity; and collecting information on lost fishing gear and garbage disposal by fishing vessels at sea.

CCAMLR has identified two types of observers, collectively known as scientific observers, who may collect information required in CCAMLR-managed fisheries. They are described in the text of the CCAMLR Scheme of International Scientific Observation and referred to in CCAMLR conservation measures requiring scientific observers. The first type of scientific observers referred to by CCAMLR are “national observers.” “National observers” are nationals of the Member designating them who operate on board a fishing vessel of that Member and conduct themselves in accordance with national regulations and standards. The second type of scientific observers are referred to by CCAMLR as “observers appointed in accordance with the CCAMLR Scheme of International Scientific Observation” or referred to by NMFS as “international observers.” International observers” are observers operating in accordance with bilateral arrangements between the Member whose vessel is fishing (the Receiving Member) and the Member providing the observer (the Designating Member).

The CCAMLR scheme identifies the elements that must be included in a bilateral arrangement. The U.S. Department of State negotiates bilateral arrangements placing U.S. nationals as observers on non-U.S. Member vessels and receiving non-U.S. Member nationals as observers on U.S. vessels.

CCAMLR conservation measures require all fishing vessels operating in the Convention Area (except for vessels fishing for krill) to carry on board, throughout all fishing activities within the fishing period, at least one international observer and, where possible, one additional scientific observer, either a national observer or an international observer. In certain exploratory toothfish fisheries, the vessel must carry at least two observers, one of whom must be an international observer. NMFS regulations, however, only require that each vessel participating in an exploratory fishery carry one scientific observer (see 50 CFR 300.106(c)). In Subareas 88.1, 88.2 and 88.6 and Divisions 58.4.1 and 58.4.2, where exemptions are allowed for setting longlines during daylight hours, two scientific observers are required, one of which must be an international observer.

NMFS has not published regulations implementing the CCAMLR Scheme of International Scientific Observation. NMFS has, by Federal Register notice, published the annual conservation and management measures adopted by CCAMLR, (including requirements in these measures for scientific observers) for Convention Area fisheries. Additionally, on a case-by-case basis, NMFS has required, as a condition of a vessel's Antarctic Marine Living Resources (AMLR) harvesting permit, that the vessel carry scientific observers in the Convention Area throughout all fishing activities within the fishing period. Several observers have been placed pursuant to bilateral arrangements negotiated by the Department of State with Japan, South Africa and Ukraine. Others have been U.S. nationals. NMFS coordinates with the vessel permit holders and the observers in all instances to ensure that observers are fully trained in their duties to record the observations required by CCAMLR.

For a vessel to fish longline gear during daylight hours, CCAMLR Conservation Measure 24-02 requires longline testing trials prior to entering the Convention Area. Vessels choosing not to conduct the testing trials are restricted by CCAMLR Conservation Measure 25-02 to longline fishing at night. Nighttime fishing is one technique for minimizing the incidental mortality of seabirds in the course of longline fishing. Another technique to minimize incidental mortality is the use of weighted longlines. Conservation Measure 24-02 identifies two protocols for monitoring the sink rate of weighted longlines. The more rapidly a weighted line sinks the less likely there is to be seabird interaction, and possible entanglement, with the lines. NMFS regulations do not presently require on board scientific observers during line weight testing.

The proposed rule would require that all U.S. vessels fishing in the Convention Area, including vessels fishing for krill, and all U.S. vessels conducting longline testing outside the Convention Area prior to longline fishing within the Convention Area, carry one or more scientific observers.

The proposed rule would specify the process for placing national observers on U.S. vessels harvesting AMLR; the duties and responsibilities of the observers on the vessels; and the duties and responsibilities of the vessel owners hosting the observers. International observers placed pursuant to a bilateral arrangement negotiated by the U.S. Department of State would also be subject to the provisions of the proposed rule.

The proposed rule would expand the list of prohibitions to make it unlawful to assault, resist, oppose, impede, intimidate, sexually harass, bribe or interfere with an observer.

Seal Excluder Device

CCAMLR's Scientific Committee recommended several seal bycatch mitigation measures to CCAMLR in 2004. These were that: (1) information on all seal excluder devices be combined and circulated to CCAMLR Members and other interested parties; (2) every vessel fishing for krill employ a device for excluding seals by facilitating their escape from the trawl net; (3) observers be required on krill vessels to collect reliable data on seal entrapment and on the effectiveness of mitigation devices; (4) data forms be completed accurately, consistently and comprehensively by all observers; and (5) the United Kingdom should be requested to submit its observer data to the CCAMLR Secretariat.

During the 2004/2005 fishing season, scientific observer reports were available from three vessels voluntarily using seal excluder devices while trawling for krill. One of these vessels was a U.S. vessel. The reports indicated that in Area 48, 95 Antarctic fur seals were observed caught during krill fishing operations, of which 74 were released alive, compared to 156 of which 12 were released alive in the 2003/2004 season.

The proposed rule would require seal excluder devices on all U.S. vessels trawling for krill in Convention Area fisheries.

Definitions

The proposed rule defines terms used in the implementation of the CDS; the designation and placement of scientific observers on vessels fishing in the CCAMLR Convention Area; the mitigation of seal bycatch; and the operation of CCAMLR's automated and centralized satellite-linked VMS.

The proposed rule would define or redefine the terms “export”, ldquo;import”, “land or landing”, “Port State”, “re-export”, and “transship” as used by NMFS in implementing the CDS. “Export” would be defined as any movement of a catch in its harvested or processed form from the territory under the control of the State or free trade zone of landing, or, where that State or free trade zone forms part of a customs union, any other Member State of that customs union. “Import” would be defined as the physical entering or bringing of a catch into any part of the geographical territory under the control of a State, except where the catch is landed or transshipped within the definitions of “land or landing” or “transship.” “Land or landing” means to begin offloading any fish, to arrive in port with the intention of offloading any fish, or to cause any fish to be offloaded; except for purposes of catch documentation in which case it would be defined as the initial transfer of catch in its harvested or processed form from a vessel to dockside or to another vessel in a port or free trade zone where the catch is certified by an authority of the Port State as landed. “Port State” would be defined as the State that has control over a particular port area or free trade zone for the purposes of landing, transshipment, importing, exporting and re-exporting and whose authority serves as the authority for landing or transshipment certification. “Re-export” would be defined as any movement of a catch in its harvested or processed form from the territory under the control of a State, free trade zone, or Member State of a customs union of import unless that State, free trade zone, or any Member State of that customs union of import is the first place of import, in which case the movement is an export within the definition of export.

“Tranship or transshipment” would be defined as the transfer of fish or fish products from one vessel to another; except for purposes of catch documentation in which case it would be defined as the transfer at sea of a catch in its harvested or processed form from a vessel to another vessel or means of transport and, where such transfer takes place within the territory under the control of a Port State, for the purposes of effecting its removal from that State. For the avoidance of doubt, temporarily placing a catch on land or on an artificial structure to facilitate such transfer shall not prevent the transfer from being a transshipment where the catch is not within the definition of landing.

NMFS implemented the CCAMLR CDS for toothfish in 2000. The CDS tracks and monitors trade in toothfish through a DCD required on all shipments of toothfish, wherever harvested, as a condition of import into the United States or any other CCAMLR Contracting Party. In giving effect to the CDS, NMFS amended its definition of “Antarctic marine living resources” to include “All species of Dissostichus wherever found,” i.e., whether harvested inside or outside the CCAMLR Convention Area. The change of this definition caused some confusion among members of the public as to whether or not an AMLR harvesting permit was required for vessels which wanted to fish for toothfish both inside and outside the Convention Area.

The proposed rule would clarify that an AMLR Harvesting Permit is required by NMFS only when harvesting toothfish within the Convention Area by deleting “All species of Dissostichus wherever found” from the definition of Antarctic Marine Living Resources. Harvesting toothfish on high seas areas inside and outside the Convention Area would continue to require a permit issued by NMFS pursuant to the High Seas Fishing Compliance Act (HSFCA), 16 U.S.C. 5501 et seq. Areas within the Convention Area subject to national jurisdiction, such as the areas in Convention Subarea 48.3 claimed by the United Kingdom, are not considered high seas areas. The rule would preserve the requirement that all imports of toothfish, wherever harvested, comply with U.S. import permit conditions and DCD controls.

The proposed rule would define “national observers” and “international observers.” National observer would be defined as a U.S. national placed and operating onboard a U.S. flagged vessel as a scientific observer in accordance with 50 CFR 300.113. International observer would be defined as a scientific observer operating in accordance with the CCAMLR Scheme of International Scientific Observation and the terms of a bilateral arrangement concluded between the United States and a Member of CCAMLR for the placement of a U.S. national onboard a vessel flagged by a Member of CCAMLR or for the placement of the national of a Member of CCAMLR onboard a U.S. flagged vessel.

The proposed rule would define “seal excluder device” as a barrier within the body of a trawl net comprised of a metal frame, nylon mesh, or any material that results in an obstruction to seals between the mouth opening and the cod end of the trawl. The body of the trawl net forward of the barrier must include an escape opening through which seals entering the trawl can escape.

The proposed rule would define “vessel monitoring system or VMS” as a system or mobile transceiver unit approved by NMFS for use on vessels that take AMLR, and that allows a Flag State, through the installation of satellite-tracking devices on board its fishing vessels to receive automatic transmission of certain information. The proposed rule would define “mobile transceiver unit” as a vessel monitoring system or VMS device, as set forth at § 300.116, installed on board a vessel that is used for vessel monitoring and transmitting the vessel's position as required by subpart G of 50 CFR part 300. It would define the “Office for Law Enforcement (OLE)” as the National Marine Fisheries Service, Office for Law Enforcement, Northeast Division.

Information on Harvesting Vessels

NMFS would request the following information of all applicants for an AMLR harvesting permit.

CCAMLR adopted a Conservation Measure (10-02) in 2004 requiring additional details on every vessel a Member State licenses to fish in the Convention Area, including the name of the fishing vessel (any previous names, if known); registration number; vessel's International Maritime Organization (IMO) number, if issued; external markings and port registry; the nature of the authorization to fish granted by the Flag State, specifying time periods authorized for fishing; areas of fishing; species targeted; gear used; previous flag, if any; international radio call sign; the name and address of the vessel's owner(s) and any beneficial owner(s), if known; name and address of license owner, if different from vessel owner; type of vessel; where and when built; length; three color photographs of the vessel; and where applicable, details of the implementation of the tamper-proof requirements on the satellite-linked vessel monitoring device.

CCAMLR requested, to the extent practicable, the following additional information for vessels notified for fishing in exploratory fisheries: name and address of operator, if different from vessel owner; name and nationality of master and, where relevant, of fishing master; type of fishing method or method; beam in meters; gross registered tonnage; vessel communication types and numbers; normal crew complement; power of main engine or engines in kilowatts; carrying capacity in tons; number of fish holds and their capacity in cubic meters; and any other information in respect of each licensed vessel considered appropriate (e.g., ice classification) for the purposes of the implementation of the Conservation Measure 21-02.

Classification

The Act

This proposed rule is published under the authority of, and consistent with, the Antarctic Marine Living Resources Convention Act of 1984, codified at 16 U.S.C. 2431 et seq.

National Environmental Policy Act

A “Draft Programmatic Environmental Impact Statement on Codified Regulations at 50 CFR Part 300 Subparts A and G Implementing Conservation and Management Measures Adopted by the Commission for the Conservation of Antarctic Marine Living Resources” was prepared by NMFS and published on July 1, 2005 (70 FR 38132). It analyzes actions proposed in this rule.

Regulatory Flexibility Act

NMFS prepared an Initial Regulatory Flexibility Analysis, as required by section 603 of the Regulatory Flexibility Act, to describe the economic impacts this proposed regulation may have on small entities. Small entities within the scope of this proposed rule include individual U.S. vessels and U.S. dealers (importers and re-exporters). This proposed rule does not duplicate, overlap, or conflict with other Federal regulations.

Summary of IRFA

A description of the reasons for, the objectives of, and the legal basis for this proposed rule is contained in the preamble and not repeated here.

Description of the Number of Entities:

During the past several years, there have been 5 vessels (2 for toothfish, 2 for krill, and 1 for crab) and 80 dealers who could fall within the scope of this proposed regulation. All U.S. vessels and U.S. dealers are considered small entities under the “Small Business Size Regulations” established by the Small Business Administration (SBA) under 13 CFR 121.201. There are no disproportionate impacts between large and small entities since all affected businesses are considered small entities by SBA standards.

Economic Analysis of Proposed Regulatory Action and the Status Quo

1. Centralized VMS. CCAMLR adopted Conservation Measure 10-04 to implement C-VMS. In implementing Conservation Measure 10-04, NMFS considered two alternatives: the proposed rule (preferred alternative) and the status quo (no-action) alternative. The preferred alternative would require NMFS and U.S.-flagged vessels fishing for AMLR to participate in C-VMS as established by the CCAMLR Secretariat.

NMFS currently requires both a VMS unit on-board a U.S. vessel (50 CFR 300.107(a)(4)) and reporting of a U.S. vessel's location every four hours (50 CFR 300.107(a)(3)). Therefore, the preferred alternative does not represent a change in operating procedures for U.S.-flagged vessels currently participating in AMLR fisheries or for U.S. dealers currently importing toothfish shipments into the United States.

Possible benefits resulting from the proposed rule may include: automation of the submission of VMS data to the CCAMLR Secretariat; timely responses from the CCAMLR Secretariat to NMFS's inquires into fishing activities of a foreign vessel; faster investigations into authenticity of catch documentation; more efficient response time to NMFS requests for VMS data from flag nations; and freeing agency resources from having to respond to VMS data requests from Contracting Parties.

The following cost estimates assume a single VMS technology: Inmarsat-C (this one is commonly used but there are other VMS technologies). Possible compliance costs to U.S. fishing vessels associated with the preferred alternative include the initial cost of the VMS unit estimated at $2,250 each (includes purchase price and installation; excludes freight); the annual cost of maintenance estimated at $350.00 per year (based on a 5-year life cycle for the equipment); and the annual cost of VMS transmission for a 6-month season, fishing every day, estimated at between $54.00 and $108.00 (based on a per-day charge of $.30 to $.60 per day, depending on the service provider, for 180 days). However, for U.S.-flagged vessels currently participating in AMLR fisheries, no additional compliance costs associated with the proposed rule are anticipated as such costs have already been realized to comply with requirements at 50 CFR 300.107(a)(4) and (a)(3), respectively. For future participants in AMLR fisheries, compliance costs would include the cost of the VMS unit, freight, installation, maintenance, and the cost per day for a service provider to transmit VMS reports. This transmission cost is estimated at $54.00 and $108.00, as stated above. Transmission of VMS reports to the CCAMLR Secretariat to fulfill the “centralized” aspect of this preferred alternative will be made by NMFS and does not represent an additional cost burden to U.S. vessels.

The status quo (no-action alternative) is NMFS's non-participation in C-VMS. Neither current nor future participants in AMLR fisheries will incur additional compliance costs as a direct result of this alternative, nor will these participants incur additional compliance costs as a direct result of the preferred alternative. As stated above, this is due to 50 CFR 300.107(a)(4) and (a)(3), respectively. Regardless of whether NMFS participates in C-VMS (the preferred alternative) or does not participate in C-VMS (the status quo alternative), no net change in economic impacts to U.S. vessels currently participating in AMLR fisheries will occur as a direct result of the proposed rule. Nonetheless, NMFS rejected the status quo alternative due to the potential benefits associated with C-VMS mentioned above.

2. Dealer Permits and Preapproval. The proposed rule (preferred alternative) would tighten and improve the import/re-export control program that the United States maintains for AMLR. The proposed rule would allow U.S. dealers additional time to obtain the 7501 number. This preferred alternative is expected to benefit U.S. dealers by providing a timeframe for the preapproval process that takes into consideration U.S. Customs administrative procedures.

The status quo (no-action alternative) would maintain the existing NMFS requirement that U.S. dealers must submit the 7501 number 15 working days prior to the arrival of a shipment as part of their preapproval application. Currently, U.S. dealers have difficulty complying with this NMFS requirement because U.S. Customs has stated that the 7501 number cannot be issued until it receives all of the required paperwork from the broker a requirement that is often difficult to meet 15 days prior to the arrival of a shipment of toothfish. Due to the perishable nature of fresh and frozen toothfish, delays associated with the existing preapproval requirements could hinder toothfish shipments from reaching the market in a timely manner, resulting in a lower quality of toothfish product. This delay may further result in lost revenue to U.S. dealers, representing negative economic impacts. Based on the above, NMFS rejected this alternative.

The second part of this preferred alternative would exempt all U.S. dealers importing shipments of fresh toothfish weighing more than 2,000 kilograms from preapproval of the DCD requirement. Under current NMFS requirements (the no-action alternative), U.S. dealers who import fresh toothfish shipments of 2,000 kilograms or more must pay the same fee-for-service as U.S. dealers who import frozen toothfish shipments that average 25,000 kilograms. This requirement financially penalizes U.S. dealers importing numerous smaller shipments of fresh product at a $200 fee for each, while U.S. dealers importing frozen product less frequently pay the same $200 fee for their larger shipments. This represents a disproportionate cost to U.S. dealers importing shipments of fresh toothfish weighing 2,000 kilograms or more relative to U.S. dealers importing frozen toothfish. Though only 4 percent of fresh toothfish shipments weigh 2,000 kilograms or more, and only a small number of U.S. dealers (2 or fewer U.S. dealers) are affected by the current preapproval of DCD requirement, the status quo represents a negative economic impact to these U.S. dealers. The current cost of an estimated 8 preapproval applications for 80 dealers is $128,000. Future costs resulting from the proposed rule for an estimated 8 preapproval applications for 78 dealers is $124,800. Therefore, because the proposed rule will likely represent a positive economic impact (decrease in cost) to these 2 or fewer dealers, the status quo was rejected.

3. Electronic Catch Documents. The proposed rule (the preferred alternative) would require that all imports of toothfish be documented using the electronic format recommended by CCAMLR. The proposed rule would increase the security and reliability of catch documents and facilitate the trade of toothfish on behalf of U.S. dealers by decreasing the time needed by NMFS to process approval of shipments. U.S. dealers currently participating in AMLR trade are anticipated to have positive economic benefits associated with this preferred alternative by avoiding costs associated with demurrage charges and delays getting toothfish products into commerce. Additionally, there are no transmission costs to transmit electronic DCDs. The CCAMLR Secretariat maintains a website accessible by CDS participants for the transmission of electronic DCDs via the web. Therefore, there are no anticipated economic costs to U.S. dealers associated with the use of electronic DCDs.

The status quo (no-action alternative) of not participating in electronic DCDs is not anticipated to result in a change in economic impacts for current or future participants in AMLR fisheries. However, NMFS rejected the no-action alternative because electronic DCDs would result in positive economic impacts to U.S. dealers as noted above.

4. Scientific Observers. NMFS regulations currently require one scientific observer on each U.S. vessel participating in fishing activities in the Convention Area (50 CFR 300.106(c), 300.111(d), and/or 300.112(i)). The status quo (no-action alternative) would leave these regulations and processes in place.

For current participants in AMLR fisheries, the preferred alternative is anticipated to represent at most a minimal compliance cost for U.S. vessels since scientific observers are already required by NMFS regulations. These minimal compliance costs may include new requirements such as a work station for use by the scientific observer which can likely be fabricated at minimal cost to the vessel. For future participants in exploratory or assessed fisheries, the proposed rule will represent a compliance cost for each scientific observer ranging from $55,900 per fishing season (or $232.92 per day for 240 days) to $89,220 per fishing season (or $371.75 per day for 240 days). This cost includes estimates for observer salary, insurance, travel costs, overhead, and other miscellaneous expenses associated with scientific observers.

Additionally, this cost range reflects the planned cost for a U.S. scientific observer in the Antarctic krill fishery ($55,900 per fishing season, extrapolated from actual costs from previous fishing seasons) and the average U.S. scientific observer cost for the North Pacific groundfish fishery ($89,220 per fishing season). U.S. scientific observer cost for Alaskan fisheries was used here due to the Alaskan fisheries similarities with Antarctic fisheries in terms of environmental conditions, travel costs for the U.S. scientific observer to travel to and from the vessel, vessel size, and fishing season length. This level of coverage provides a good estimate for the average cost of a U.S. scientific observer in the Antarctic fisheries, and represents a middle range relative to the cost of scientific observers nationwide.

Since the proposed rule (preferred alternative) seeks to clarify the process of placing observers on board vessels fishing in the Convention Area and codify requirements and prohibitions associated with observer placement, the no-action alternative was rejected. This proposed rule would clarify the process by specifying placement of national observers on U.S. vessels harvesting AMLR; the duties and responsibilities of the observers on the vessels; and the duties and responsibilities of the vessel owners hosting the observers.

5. Seal Excluder Device (SED). The proposed rule would require the use of a seal excluder device (SED) on all U.S. vessels trawling for krill in the Convention Area (the preferred alternative). Use of SEDs and other mitigation measures to avoid fur seal deaths have been in use on some vessels for only 1 to 2 years. In a 2005 study by Hooper et al., (CCAMLR Science, vol. 12: 195-205), it was concluded that mitigation measures either eliminated or greatly reduced the incidence of seal entanglements during the 2004-2005 season. Costs were found to be minimal due to the array of mitigation measures available to fishers; choice of mitigation measures depended on their budget and fishing strategy.

Based on this study, the compliance cost associated with incorporating SEDs on U.S. vessels currently participating in the krill fishery is anticipated to be minimal. For future participants in this fishery, additional costs associated with SEDs is anticipated to be small relative to the cost of the fishing gear itself. In addition, because the study found that SEDs did not cause a decrease in catch per unit effort (vessel productivity), the overall harvest is not anticipated to decline for current or future participants in this fishery based on the SEDs. Therefore, negative economic impacts are not anticipated for current or future participants in this fishery.

Positive economic impacts related to the use of SEDs which successfully reduce or eliminate seal capture include: decreasing expenditures on time of operations and on fuel due to fewer seal entanglements which create drag on fishing gear; increasing catch by allowing nets to remain open longer since seal capture will be reduced; and reducing damage to trawl gear and to the catch associated with seal capture.

Not including a regulatory requirement for SEDs was considered but rejected as an alternative because the NMFS believes SEDs are necessary to reduce or eliminate seal capture.

6. Definitions. The proposed rule (the preferred alternative) would amend the definition of “Antarctic marine living resources” by deleting “All species of Dissostichus wherever found” from the definition. This change would clarify this term and is not anticipated to have a negative economic impact on current fisheries operations inside or outside the Convention Area. Instead, it may represent a positive economic impact by eliminating permit-related costs to vessels who may have purchased an AMLR permit to harvest toothfish outside of the Convention Area when in fact the AMLR permit was unnecessary. Therefore, the status quo alternative, keeping the definition in its current form and thereby requiring AMLR permits to harvest toothfish outside Convention Area, was rejected.

The proposed rule would also add or amend the terms, “export”, “import”, “international observer”, “landing”, “mobile transceiver unit”, “national observer”, “Office of Law Enforcement (OLE)”, “Port State”, “re-export”, “seal excluder device”, “transhipment”, and “vessel monitoring system (VMS)”, as used by NMFS in implementing the CCAMLR CDS. The proposed rule (preferred alternative) would define and clarify the use of these terms since they are not currently defined by NMFS regulations with regard to the CDS. The status quo was rejected because clarifying these terms will provide better guidance to fishery participants and dealers. The revised or new definitions are needed to conform U.S. regulations with CCAMLR conservation measures. The proposed rule is not anticipated to have an economic impact on legitimate fisheries operations in the Convention Area.

7. Information on Harvesting Vessels. CCAMLR adopted a Conservation Measure (10-02)in 2004 requiring additional details on every vessel a Member State licenses to fish in the Convention Area. Requested information includes the name of the fishing vessel; registration number; vessel's IMO number, if issued; external markings and port registry; three color photographs of the vessel; and other information related to the vessel, fishing operations, and equipment.

The proposed rule would request this information of all applicants for an AMLR harvesting permit and may represent a minimal cost to current and future participants in terms of the time needed to fulfill the information request and costs associated with obtaining three color photographs of the vessel. NMFS makes this determination based on an estimate, in hours, of the burden to vessels for the collection of information which is estimated to be two hours: one hour for a harvest permit application and one hour for an annual report. In addition, though the cost of obtaining three color photographs of the vessel was not itemized, the cost is anticipated to be minimal.

These information requirements are specified in a Conservation Measure agreed to by the United States in CCAMLR. Therefore, other alternatives were not considered.

There are no Federal rules that duplicate, overlap, or conflict with this proposed rule.

Executive Order 12866

The proposed rule has been determined to be not significant for purposes of Executive Order 12866.

Paperwork Reduction Act

This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). Requirements for 94 respondents have previously been approved under OMB Control Number 0648-0194, with a total response time 576 hours.

This rule also contains new or revised collection of information requirements that have been submitted to OMB for approval and which reduce the number of respondents and total burden hours in the overall PRA collection (for current and proposed regulations) to 86 respondents (5 vessels/vessel representatives, 80 dealers, and one CCAMLR Ecosystem Monitoring Program applicant) and 295 burden hours. The reduced number of respondents and burden hours is due to an overestimation in the previous collection of information of the number of dealers importing toothfish and the number of pre-approval applications they would be submitting.

The new information collection requirements of this proposed rule are for C-VMS. The estimate in information collection burden hours for an estimated harvesting fleet size of 5 vessels is 14 hours per year with an associated labor cost of $350.00 (at $25/hour). There is also an estimated total annual cost burden of $4,270.00 for the fleet (5 vessels) for VMS purchase, installation, maintenance, and transmission costs resulting from the C-VMS collection. This $4,270.00 cost was estimated as follows: (a) vessel VMS equipment purchase and installation = $2,250.00, annualized based on estimated 5-year useful life = $450 x 5 vessels = $2,250.00 annualized cost for the fleet; (b) annual vessel VMS maintenance per vessel = $350 x 5 vessels = $1,750.00 annualized maintenance, for the fleet; and (c) annual vessel transmission costs: $54.00 x 5 vessels = $270.00 for the fleet. As indicated earlier in this Classification section under Summary of the IRFA where C-VMS is discussed, for U.S.-flagged vessels currently participating in AMLR fisheries, compliance costs associated with the proposed rule are anticipated to be minimal because such costs have already been realized to comply with requirements at 50 CFR 300.107(a)(3) and (a)(4).

The response estimates above include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS and OMB (see ADDRESSES).

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 300

• Fisheries
• Fishing
• Fishing vessels
• Foreign relations
• Reporting and recordkeeping requirements
• Statistics
• Treaties

For the reasons set out in the preamble, 50 CFR part 300, subpart G is proposed to be amended as follows:

PART 300—INTERNATIONAL FISHERIES REGULATIONS

Subpart G—Antarctic Marine Living Resources

1. The authority citation for 50 CFR part 300, subpart G, is revised to read as follows:

Authority: 16 U.S.C. 2431 et seq., 31 U.S.C. 9701 et seq.

2. In § 300.101, in the definition of “Antarctic marine living resources (AMLRs)” paragraph (2) is removed and paragraph (3) is revised and redesignated as paragraph (2); and definitions for “Export”, “Import”, “International observer”, “Mobile transceiver unit”, “National observers”, “Office for Law Enforcement (OLE)”, “Port State”, “Re-export”, and “Seal excluder device” are added in alphabetical order; and the definitions of “Land or landing”, “Tranship”, “Transshipment”, and “Vessel Monitoring System or VMS” are revised to read as follows:

7. Add new § 300.113 to read as follows: