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Proposed Rule

Antarctic Marine Living Resources; CCAMLR Ecosystem Monitoring Permits; Vessel Monitoring System; Catch Documentation Scheme; Fishing Season; Registered Agent; and Disposition of Seized AMLR

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


Proposed rule; request for comments.


This proposed rule would lengthen the duration of the permit required to enter a Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) Ecosystem Monitoring Program (CEMP) site from 1 year to up to 5 years. The proposed rule would define the CCAMLR fishing season and require the use of an automated satellite-linked vessel monitoring system (VMS) for U.S. vessels harvesting Antarctic marine living resources (AMLR) in the area of the Convention on the Conservation of Antarctic Marine Living Resources (Convention). The proposed rule would also require foreign entities to designate and maintain a registered agent within the United States; prohibit the import of Dissostichus species (toothfish) identified as originating from certain high seas areas outside the Convention Area; incorporate into the Code of Federal Regulations the prohibition on the import of toothfish issued a Specially Validated Dissostichus Catch Document (SVDCD); and institute a pre-approval system for U.S. receivers and importers of Dissostichus eleginoides (Patagonian toothfish) and Dissostichus mawsoni (Antarctic toothfish). This proposed rule is intended to implement U.S. obligations as a Member of CCAMLR and to conserve Antarctic and Patagonian toothfish by preventing and discouraging unlawful harvest and trade in these species and streamlining the administration of the Dissostichus catch documentation scheme.


Comments must be received at the appropriate address or fax number (see ADDRESSES) no later than 5 p.m., eastern standard time, on November 18, 2002.


Comments on the proposed rule should be submitted to Dean Swanson, International Fisheries Division, Office of Sustainable Fisheries, NMFS, 1315 East-West Highway, Silver Spring, MD 20910. Comments also may be sent via facsimile (fax) to Dean Swanson at 301-713-2313. Comments will not be accepted if submitted via e-mail or Internet. For copies of the Initial Regulatory Flexibility Analysis and the Environmental Assessment/Regulatory Impact Review (EA/RIR), call 301-713-2276, or write to Dean Swanson. Send comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule to Dean Swanson and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Washington, DC 20503 (Attention: NOAA Desk Officer).

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Dean Swanson at 301-713-2276, fax 301-713-2313.

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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.

CEMP Permits

CCAMLR regulations require that persons proposing to enter a CEMP site or conduct research programs there submit a letter of request (application) for an entry permit. If issued a permit, the holder must abide by all the conditions in the permit, including submission of a report describing the activities conducted and any actions not in compliance with the site's Management Plan. In the event that a CEMP site is also listed as a specially protected site under the Antarctic Conservation Act of 1978 (ACA), current regulations redirect the applicant to the National Science Foundation and require application for a joint CEMP/ACA permit. Persons operating under a joint CEMP/ACA permit must report to each agency individually on areas within the agency's expertise. Under current regulations, these permits are valid for 1 year. This proposed rule would extend the period for valid permits to up to 5 years. Annual reporting requirements would continue in force.

CCAMLR Fishing Season

Consistent with a conservation measure adopted by CCAMLR at its 2001 meeting, this proposed rule would set the fishing season for all Convention Area species opened to harvesting by CCAMLR as December 1 through November 30, unless otherwise specified.

Vessel Monitoring System (VMS)

VMS is a system that allows a Flag State, through the installation of satellite-tracking devices on board its fishing vessels, to receive automatic transmission of certain information. This information generally includes the fishing vessel identification, location, date and time, and is collected by the Flag State to monitor its vessels effectively.

CCAMLR adopted a conservation measure in 1998 requiring Contracting Parties to the Convention to establish no later than March 1, 1999, an automated satellite-linked VMS to monitor, at least every 4 hours, the positions of their fishing vessels licensed to harvest marine living resources in the Convention Area for which catch limits, fishing seasons or area restrictions have been set by CCAMLR. To accommodate the objections of a few Members of CCAMLR, the conservation measure exempts vessels fishing exclusively for krill from the VMS requirement. All other vessels are covered by the measure. The United States supported the application of the measure to krill vessels, but CCAMLR decided to continue to exempt these vessels.

The CCAMLR VMS conservation measure was amended in 2001 to require that each Contracting Party, within 2 working days of receiving VMS information from its vessels, provide to the CCAMLR Secretariat the date and statistical area, subarea or division for each of the following movements of those vessels: (a) entering and leaving the Convention area; and (b) crossing boundaries between CCAMLR statistical areas, subareas and divisions.

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 in and out of the Convention Area and CCAMLR statistical areas, in as close to real time as possible, and noted that positional information on movements would enable Members to deploy CCAMLR inspectors in the Convention Area and to use available inspection potential in the most effective way. CCAMLR also noted that the 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 United States has not previously implemented CCAMLR's VMS measures, in part because the only active U.S. harvesting permits have been for the exempted krill fishery. However, there is other potential fishing effort in the United States including one permitted vessel in the crab fishery. A combination crab/toothfish permit was issued several years ago. In order to ensure that future U.S. permittees comply with CCAMLR's conservation measures, the U.S. is now proposing to require VMS in all non-krill fisheries.

In addition, the United States is also proposing to require VMS in the krill fishery. The United States believes that requiring VMS in the krill fishery is necessary to provide the data required to achieve the management objectives of CCAMLR. These include: (1) establishment of small-scale management units as a mechanism to preclude the concentration of catch near land-breeding krill predator colonies; (2) development of models describing the interactions of krill, their predators, key aspects of the environment and the fishery so as to incorporate the best science into management options; (3) validation of catch-per-unit-effort indices as a stock assessment tool; and (4) monitoring the development of the fishery including technological improvements and corresponding changes in fishing tactics. Fishing data on the finest scale possible, like that provided by VMS, is required for these purposes. CCAMLR Members reluctant to require VMS on their fishing vessels may be persuaded by the leadership of the United States and other countries (e.g., Poland, South Africa, Australia) in requiring their vessels to do so as a condition of their fishing permit.

NMFS does not anticipate this additional requirement to be overly burdensome financially or operationally on existing participants. Thus, this proposed rule would require the owner or operator of any vessel permitted by NMFS to fish for or tranship any AMLR to install a NMFS-approved VMS unit on board the vessel and operate the VMS unit whenever the vessel enters CCAMLR waters.

Registered Agent

This proposed rule would require all foreign entities, as a condition of possessing a dealer permit allowing them to import into the United States, to designate and maintain a registered agent in the United States authorized to accept service of process on behalf of that entity. Based on information available to NMFS, several major AMLR importers are foreign entities with no presence in the United States. Requiring a registered agent will facilitate enforcement by ensuring jurisdiction over a foreign importer should an enforcement action become necessary.

Ban on Imports of Toothfish from Certain High Seas Fishing Areas

In accordance with 16 U.S.C. 2431 et seq.,(AMLRCA), NMFS implements the conservation and management decisions of CCAMLR agreed to pursuant to the Start Printed Page 64855Convention. The Convention requires contracting parties to “exert appropriate efforts... to the end that no one engages in any activity contrary to the objective of this Convention,” which is “the conservation of Antarctic Living marine resources.” (AMLR) (Article XXII; Article II.1).

The Convention applies to the AMLR of the area south of 60 S. lat. and to the AMLR between 60 S. lat. and the Antarctic convergence which form part of the Antarctic marine ecosystem. (Article I.1). The Convention establishes CCAMLR, which is charged with compiling data on populations of AMLR and adopting conservation measures to achieve the objectives of the Convention. (Article IX).

Due to the scale of illegal, unregulated, or unreported fishing for Patagonian toothfish and Antarctic toothfish in and beyond the Convention Area, CCAMLR has adopted a number of conservation measures in the last several years. These measures have included flag state licensing of fishing vessels, catch quotas, vessel monitoring systems, port inspections of landings and transshipments, and identification of vessels and fishing gear, and ultimately the adoption of a catch documentation scheme for toothfish in November 1999. (64 FR 71165, December 20, 1999).

The purposes of the catch documentation scheme are to: monitor international trade; identify the origins of imports; determine if imports caught in the Convention Area were caught consistent with CCAMLR conservation measures; and gather catch data for stock assessment. The documentation scheme requires that CCAMLR Contracting Parties provide a uniquely numbered Dissostichus Catch Document (DCD) to each vessel under its jurisdiction that is authorized to harvest toothfish and a Re-export Document to all shipments of toothfish that are subsequently being re-exported from its territory. Upon completion of the document, each DCD, and Re-export Catch Document (RCD) if applicable, accompanies the toothfish as it enters into commerce and/or international trade and documents the chain of custody. In accordance with CCAMLR's decisions at its 18th Regular Meeting, NMFS implemented a catch documentation scheme that first became effective for the 2000/01 toothfish fishing year. (65 FR 30016, May 10, 2000.)

CCAMLR uses the statistical areas created by the Food and Agriculture Organization of the United Nations (FAO) to designate and manage divisions within its Convention Area. The FAO Statistical Areas include Exclusive Economic Zones (EEZs)claimed by States, unregulated high seas areas, and high seas areas regulated pursuant to conventions for regional fishery management.

Based on recent trade data, U.S. experience with questionable DCDs, the increasing seizure of vessels illegally fishing in the Convention area, and the conservation and management decisions of CCAMLR made on the advice of its Scientific Committee, this proposed rule would prohibit the issuance of a permit allowing import of Dissostichus species identified as being harvested from high seas areas designated by the FAO as Areas 51 and 57 until stock assessments confirm the presence of toothfish at significant population levels in those areas. These areas are outside the areas managed by CCAMLR (Convention Areas).

The CCAMLR Scientific Committee (SC) and its Working Group on Fish Stock Assessment (WG-FSA) annually review catches reported as harvested within and outside the Convention Area, including from FAO Areas 41, 47, 51, 57, 81 and 87. These areas are outside the Convention Area and include some Exclusive Economic Zones (EEZ) of national jurisdiction and some high seas areas. The amounts of toothfish most recently reported as high seas catches are vastly more than previously reported.

Surveys of the high seas areas by member countries have never found fishing concentrations and commercial-scale aggregations of Patagonian toothfish at levels that would support recent catch reports. The areas do not have sizeable fishable seabeds or recruitment areas. In addition, oceanographic conditions (sub-Antarctic and tropical hydrological fronts) present a barrier to a northern distribution of coldwater toothfish into the areas.

Thus, NMFS believes that while some of the catch taken outside the Convention Area is legal catch from regulated fisheries in the EEZ sectors of Areas 41 and 87 off South America, the remainder is, in all likelihood, fish illegally harvested from the CCAMLR Convention Areas 58 and 88 by vessels not licensed to fish there and deliberately misreporting catch as taken from the unregulated high seas fisheries outside the Convention Area in Areas 51 and 57.

The implausibility of any significant level of high seas catches of toothfish is illustrated by findings of the WG-FSA and Scientific Committee with respect to high seas catches attributed to FAO Statistical Area 51 (the western Indian Ocean). Specifically, in October 2001, the Chair of the SC advised CCAMLR that the catches reported in Area 51 were not credible. In particular, the Scientific Committee received information that: (1) there were no reports of landings of Patagonian toothfish from Area 51 in recent FAO landing reports; (2) geographical distribution of Patagonian toothfish in Area 51 is not identified in recent publications of the FAO Identification Sheets or in Fishes of the Southern Ocean; and (3) fisheries surveys in the southwest Indian Ocean by Australia, France, South Africa and Ukraine, both trawling and longlining, have never found fishing concentrations and commercial-scale aggregations of Patagonian toothfish in Area 51. Conversely, other subtropical species such as alfonsino (Beryx splendens), orange roughy (Hoplostethus atlanticus), blue-eye (Hyperglyphe antarctica), amourheads (Pentaceros capensis) and grouper (Polyprion oxygeneois) are currently found in this area; (4) oceanographic barriers (sub-Antarctic and subtropical hydrological fronts) stop the northern distribution of Patagonian toothfish north of about 44°S. lat.; and (5) more recent surveys of Patagonian toothfish from open ocean areas closest to Area 51, such as the area north of the Marion Islands, show negligible biomass of the species. Based upon this information, the SC concluded, and CCAMLR agreed, that practically all the toothfish catches attributed to fishing on the high seas in Area 51 likely represented catches taken as a result of IUU fishing inside the Convention Area.

Areas 51 and 57 share a border in the Indian Ocean directly north of Convention Area 58. The WG-FSA has noted the estimated live weight in tons of toothfish reported in the CDS data for 2000 and 2001 calendar years. This includes a considerably lesser amount of catch attributed to Area 57 as compared to Area 51. If a ban on imports of toothfish were limited to Area 51, there is a strong likelihood that illegal catch from Convention Area 58 would be then be misattributed to Area 57.

It is unlikely that there is much potential for fishing for toothfish in Area 57. Bathymetric charts of Area 57 indicate very limited seamount features, fewer even than the small fishable seabed in Area 51 estimated at 30,007 square kilometers. In April 1999 CCAMLR estimated the seafloor area for the southern section of Area 57 (50-55° S. lat. between 80-150° E. long., at depths between 600-1800 meters) as 2,421 square kilometers. This fishable area is considerably less than the Start Printed Page 64856corresponding fishable area estimated for Area 51. This makes Area 57 an even less likely area from which toothfish could be harvested at commercial levels.

NMFS believes that intentional misreporting of the area of harvest is an attractive means of moving illegally harvested fish into major markets. Prior to implementation of the CDS, Durban (South Africa), Walvis Bay (Namibia), Port Louis (Mauritius), Montevideo (Uruguay) and Vigo (Spain) were reportedly serving as ports of convenience for vessels observed illegally fishing in the Convention Area. Member countries and NGOs in port reported landings and over the side sales of toothfish in these ports from the IUU vessels. Some port of convenience landings continue but since major importers now require a DCD identifying catch areas, illegal fishing would now be facilitated by the use of fraudulent DCDs rather than by landings in ports unconcerned about illegal fishing.

NMFS is aware of substantial evidence that such illegal fishing continues to occur. Australia has observed and pursued several unauthorized vessels fishing in the Convention Area. Australian patrol vessels recently pursued and seized two vessels found poaching in Convention Area 88. On February 7 and 8, 2002, the Lena and the Volga were apprehended and found to have onboard 127 tons of illegal toothfish. Both vessels purported to have been fishing in high seas Area 51 on all DCDs previously completed by their captains and during contact by Australia with the vessels before they were sighted by Australia poaching in the Convention Area. Member patrol vessels, legally operating harvesting vessels and NGO observer vessels have sighted nearly 30 pirate ships in, and proximate to, the Convention Area.

Thus, NMFS believes that while some of the catch taken outside the Convention Area is legal catch from regulated fisheries in the EEZs off South America, the remainder is, in all likelihood, fish poached from the CCAMLR Convention Area by vessels not licensed to fish there and deliberately misreporting commercial scale harvests of toothfish from the unregulated fisheries in Areas 51 and 57, high seas areas in the western and eastern Indian Ocean outside of the Convention Area.

Vessels that misreport their areas of harvest are in clear violation of the Catch Documentation scheme. In addition, NMFS believes it likely that such vessels are also in violation of various other CCAMLR conservation measures, such as CM 29/XIX (Minimization of the Incidental Mortality of Seabirds in the Course of Longline Fishing or Longline Fishing Research in the Convention Area) that requires longline vessels fishing in the Convention area to take specific steps to minimize interactions with seabirds. Many of the seabirds that populate the Convention area are endangered species.

In 2001, CCAMLR, in recognition of the severe problem of poaching from the Convention Area adopted a resolution calling for the use of VMS and other measures to verify CDS “catch” data outside the Convention Area.

In the preambular paragraphs of the resolution, the Members recognize the need to continue to take action to ensure the long term sustainability of toothfish stocks in the Convention Area. They express concern that the CDS could be used to disguise illegal, unregulated and unreported catches of toothfish to gain access to markets and note that any misreporting and misuse of the CDS seriously undermines the effectiveness of CCAMLR conservation measures. The resolution also urges States participating in the CDS to ensure that DCDs relating to landings or imports of toothfish are checked by contact with Flag States to verify that DCD information is consistent with data reports derived from an automated satellite-linked VMS.

NMFS routinely contacts Flag States for this information. However, there are problems which undermine NMFS's ability to obtain reliable VMS data. First, NMFS has no authority to require vessels flagged to other countries to carry VMS. Second, CCAMLR measures do not apply to Member or non-Member vessels fishing beyond the Convention Area (e.g., in Areas 51 or 57). Vessels fishing for toothfish outside the Convention Area may or may not carry VMS. Third, should a Flag State require VMS outside the Convention Area, NMFS cannot know how often the State inspects VMS equipment; cannot presently require a particular type of VMS (i.e., tamper proof) as a condition of import; and is aware of confidentiality objections from Flag States about releasing VMS data. Finally, CCAMLR has not adopted a protocol for disputing or questioning VMS data. The lack of a protocol was a complicating factor in a recent seizure by NMFS of 32 tons of toothfish. In that case, physical evidence of poaching was countered with VMS “data” that the Flagging State could not verify to NMFS' satisfaction or to the satisfaction of the State in whose waters the vessel was sighted poaching.

VMS might become a viable alternative to a ban on the import of toothfish from high seas areas 51 and 57 if CCAMLR amended its VMS and CDS measures to improve the reliability and integrity of VMS use inside the Convention Area and in adjoining areas. This would require Member consensus that CCAMLR: (1) direct its Secretariat to monitor the type, installation and operation of VMS and require all Member vessels in the Convention Area to use VMS and report data directly to the Secretariat; and (2) expand the use of VMS verification by allowing non-Contracting cooperating Parties participating in the CDS scheme to submit VMS data directly to the CCAMLR Secretariat. It is not likely that CCAMLR can fully debate and agree to this approach at its next annual meeting or the annual meeting thereafter.

The CCAMLR VMS resolution also urges States participating in the CDS to consider reviewing their domestic laws and regulations, with a view to prohibiting landings/transhipments/imports of toothfish declared on a DCD as having been caught in Area 51 if the Flag State fails to demonstrate that it has verified the DCD using automated satellite-linked VMS derived data reports.

Given its experience with the failure of Flag States to provide reliable, or any, VMS verification, in any timely way, NMFS has reviewed its domestic laws and regulations and proposes in this rule to ban imports of toothfish reported as harvested in Areas 51 and 57.

In order to give effect to the agreement by CCAMLR that its Members do all they can to prevent activity that undermines the objectives of the Convention, and in light of the advice and findings of the CCAMLR Scientific Committee with respect to the very small fishable areas of Areas 51 and 57, the proposed rule would deny issuance of a dealer permit to import any toothfish identified as originating from high seas areas outside of the Convention Area in Areas 51 and 57 until: (1) fishery independent stock assessments indicate commercial aggregations in these areas; and/or (2) until CCAMLR is able to agree to measures which materially improve the reliability and integrity of VMS use inside the Convention Area and in the adjoining areas.

There is a possibility that pirate vessels are also poaching toothfish from Convention Areas 88 and 48 and attributing the catch to the high seas Areas 87, the southeast Pacific Ocean and 41, the southwest Atlantic Ocean, beyond the Exclusive Economic Zones (EEZ) of the countries of Latin America. If the CCAMLR DCD can be amended to differentiate high seas catches from EEZ catches in these areas, pirate fishing Start Printed Page 64857may be more easily identified. If the DCD is modified in this way and/or if the Scientific Committee raises concerns about poaching and misattribution of catch, NMFS may propose extending the ban to other high seas areas.

Specially Validated DCD (SVDCD)

CCAMLR adopted a conservation measure at its regular 2001 meeting intended to permit a Contracting Party which has cause to sell or dispose of seized or confiscated Dissostichus spp. to issue a specially validated DCD (SVDCD). The SVDCD must specify the reasons for the validation. The conservation measure does not require other Contracting Parties to provide a market for SVDCD toothfish.

On September 7, 2001, NMFS issued a rule clarifying its interpretation of the Act as prohibiting the import of toothfish harvested in violation of a CCAMLR conservation measure even if the fish were accompanied by a validated DCD (66 FR 46740, September 7, 2001). CCAMLR's adoption of this new conservation measure authorizing countries to issue a SVDCD has not led NMFS to change that interpretation. The effect of this legal interpretation is to prohibit imports accompanied by an SVDCD. For clarity, this proposed rule would codify such prohibition in the Code of Federal Regulations.

This proposed rule would add a definition of the term SVDCD to NMFS's CCAMLR regulations.

Disposition of Seized AMLR

AMLRs that are unlawfully harvested, transshipped, imported or otherwise possessed are subject to seizure and forfeiture. NMFS is currently engaged in internal discussions regarding a procedure for disposing of AMLRs seized by U.S. law enforcement personnel for violations of the Act and NMFS' CDS regulations and will address this issue in a subsequent rulemaking.

Dealer Permits and Preapproval

Although NMFS has fully implemented the CCAMLR catch documentation scheme in the United States, it recognizes that improvements can be made both to streamline administration of the program and to enhance efforts to prevent the import of illegally harvested toothfish. Such streamlining will enhance the ability of toothfish importers and dealers to quickly move a perishable product into and out of the country. NMFS therefore proposes the modification of the current regulations to implement a pre-approval system applicable to shipments of frozen toothfish and shipments of fresh toothfish over 2,000 kg. The pre-approval system would be operated on a fee-for-service basis which would allow NMFS to review catch documentation sufficiently in advance of import, thus enhancing economic certainty for U.S. businesses associated with the Dissostichus trade as well as facilitating enforcement efforts. The pre-approval system would effectively shift burdens associated with time costs and advance planning from the affected industry to NMFS. Since a pre-approval program would require NMFS to review documentation and notify the U.S. Customs Service under severe time constraints, NMFS would need to administer this program on a fee-for-service basis to cover costs associated with the personnel who would provide this service.

Under this proposed modification to the current regulations, any person who imports and/or re-exports Dissostichus species would be required to first obtain an AMLR dealer permit with a validity of 1 year, authorizing the import and/or re-export of Antarctic Living Marine Resources. The 1-year validity of the permit would be a change from current regulations which do not specify duration. The revised application form for a dealer permit required under the proposed rule would be simplified. The revised dealer permit application form would require the applicant to provide the following information: company name, company address, species, estimate of tonnage to be imported, signature, title, date, and registered agent, if the applicant is a foreign entity.

After receiving an AMLR dealer permit but at least 15 business days prior to an expected import, the permit holder seeking to import frozen Dissostichus or fresh Dissostichus in quantities greater than 2,000 kilograms, would be required to submit to NMFS the DCD that will accompany each anticipated shipment as well as an application to NMFS requesting pre-approval to allow import of that shipment. A new approval application form would be required under the proposed rule. Information currently required on the application form for a dealer permit regarding a specific toothfish shipment (estimated date of arrival, port of arrival, consignee(s) of product, DCD document number, flag state confirmation number, and amount to be imported) would now be required on the new approval application form. A separate DCD with a unique export reference number would be required for each approval application (i.e., one DCD could not be used to request pre-approval for several shipments) and the quantity of toothfish listed on the DCD would be required to match the quantity listed on the preapproval application within a variance of 10 percent. The dealer would be required to fax or express mail the documentation described above so that NMFS would receive it at least 15 business days prior to the anticipated date of import. NMFS would review the documentation submitted, notify the dealer whether the import would be allowed or denied, notify the U.S. Customs Service to allow or deny import of the shipment of Dissostichus, and bill the client for the review of catch documentation and pre-approval application. The current requirement for submission of import tickets, now required within 24 hours of import of such Dissostichus would be eliminated under this proposed rule. Due to the extremely quick turnaround time required for shipments of fresh Dissostichus in quantities of less than 2,000 kilograms, the application for approval of catch documents of toothfish would be required to be submitted to NMFS within 24 hours of import. Shipments of frozen Dissostichus in quantities of less than 2,000 kilograms must go through the pre-approval process. Review of documentation for such fresh product would not be conducted on a fee-for-service basis. NMFS regulations published at 65 FR 30016, May 10, 2000, regarding the re-export of Dissostichus would not be revised. The revised CCAMLR Dissostichus Catch Document, revised NMFS application for annual AMLR dealer permit, and new NMFS application for approval referenced under this section are available from NMFS (see ADDRESSES).


This proposed rule is published under the authority of the Antarctic Marine Living Resources Convention Act of 1984, codified at 16 U.S.C. 2431 et seq. This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared an initial regulatory flexibility analysis which incorporates the preamble of this proposed rule and the document entitled, “Initial Regulatory Flexibility Analysis for the Proposed Rule to Institute Various Measures Pertaining to United States Obligations regarding Antarctica and Antarctic Living Marine Resources, Including Implementation of Preapproval Procedure for Dissostichus spp. Catch Documentation Scheme.” That analysis describes the effects of the various measures in this proposed rule, as well as alternatives where appropriate, as follows:

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1. The proposal to lengthen the duration of the permit required to enter a CEMP site from 1 year to up to 5 years would apply to parties currently holding, or who obtain in the future, a CEMP permit. To date, the only entity to hold a CEMP permit has been the NMFS Antarctic Research Group, which is not a small entity. The effect of this action would be to ease a restriction by allowing permits to last for a longer period of time. As such, there is no significant economic impact that NMFS must consider minimizing.

2. The proposal to define the CCAMLR fishing season as December 1 - November 30 would apply to U.S. vessels that fish for AMLR. There are currently three U.S. vessels permitted to fish for AMLR (1 for crab and 2 for krill) all of which NMFS believes to be small entities. The establishment of the fishing season is intended to improve administration of CCAMLR's annual conservation measures. It would not affect the amount of quota available for fishermen, nor would it affect when fishing could occur. Therefore, the proposal would not result in any significant economic impacts that NMFS must consider minimizing. It is an administrative change that would not be expected to affect the practices of the fishermen.

3. The proposal to require the use of an automated satellite-linked VMS for all U.S. vessels harvesting AMLR in the area of the Convention on the Conservation of Antarctic Marine Living Resources (Convention) would apply to the three vessels permitted to participate in such fisheries (the 1 crab vessel and the 2 krill vessels), all of which NMFS believes to be small entities. Currently, the vessel permitted for crab does not participate in the fisheries. NMFS estimates the cost of purchasing and installing the VMS units at about $3,250 per unit. The cost of operating the unit while in Convention waters is estimated to be no more than $1,000 per year.

NMFS considered the alternative of excluding vessels fishing exclusively for krill from the requirement. CCAMLR did not explicitly require Parties to implement a VMS program in the krill fishery. However, for reasons articulated in the preamble to the proposed rule, NMFS believes that applying the VMS requirement to the krill fishery will further its compliance with its obligations with respect to Antarctic and AMLR. Therefore, this alternative is not the preferred alternative.

4. The proposal to require foreign entities to designate and maintain a registered agent within the United States would not apply to any “small entities” as defined pursuant to the RFA. This measure would not apply to any small government jurisdictions or small organizations. While it would apply to businesses, some of which may be considered small, the SBA has defined “small business concern” to apply only to businesses operating primarily within the United States (13 CFR 121.105). NMFS is not aware of an alternative approach that would accomplish its objectives with regard to this provision.

5. The proposal to define SVDCD currently has no regulatory requirements attached to it. It is informational only and as such has no effect on any small entities. No alternatives have been identified.

6. The proposal to institute a pre-approval system for U.S. receivers and importers of Patagonian toothfish and Antarctic toothfish would apply to dealers and importers. It is estimated that about 60 dealers/importers are involved in the permitted trade, and about 50 re-exporters. The estimated costs to importers of toothfish are approximately $4,134 per firm per year, and $330,750 industry-wide per year. These costs include the burden-hour costs of submitting an annual permit, per-shipment pre-approval permits, catch documentation, and NMFS's fees. The estimated costs to re-exporters of toothfish are about $11 per firm per year and $550 industry-wide per year. These costs include the burden hours associated with annual permit applications and catch documentation requirements, and NMFS's fees.

U.S. imports of toothfish in 2001 had an estimated value of $97 million. Compliance costs (industry and agency) would likely not exceed $600,000 per year during the next 3 years. Currently, no U.S. fishing entity participates in the harvesting of toothfish. It is not possible to determine the number of firms that would qualify as small entities. The proposed rule would impose annual burden costs of $330,750 and $550 on importing and re-exporting firms, respectively.

NMFS considered two alternatives to the proposed pre-approval system: maintaining the status quo, and implementing a total ban on imports of toothfish. Maintaining the current system may not have a short-term economic or social impact on importers or other dealers of toothfish in trade networks, but could have harmful long-term economic implications if further steps are not taken to discourage and prevent IUU fishing of toothfish.

Sooner or later, overfishing and the associated price increases will, in all likelihood, dampen this trade. Supplies would decline, and price increases would likely result in some substitution by consumers. Toothfish products may also be diverted to alternate markets in East Asia that are willing to pay higher prices for species deemed to be luxury items. As a consequence, toothfish could become increasingly rare in the U.S. marketplace.

Similarly, the “status quo” alternative would have little short-term economic or social impacts on the U.S. consumer, but, in the long-term, would jeopardize the availability of toothfish to consumers at prices they are willing to pay or, in the extreme, at any price.

Alternatively, the total ban proposal would address concerns over the overharvesting of toothfish by denying the U.S. market (estimated at 15-20 percent of the world market) to illegal, unregulated, or unreported (IUU) harvested toothfish. (Note: in this document, non-IUU harvested toothfish means toothfish harvested in the CCAMLR Convention Area in conformity with CCAMLR rules, toothfish harvested in high seas areas outside of the CCAMLR Convention Area, or toothfish harvested in areas of national jurisdiction in conformity with the rules applicable in those national jurisdictions. Although it is not technically correct to speak of the “legality” of harvesting in high seas areas where no regional fishery management organization's rules apply, such fishing is often unreported and unregulated, and thus may pose an obstacle to achieving a sustainable fishery. In the case of such toothfish fisheries, this assumption is almost certainly correct.) However, it would also prohibit importation of toothfish legally harvested within the CCAMLR Convention Area or in EEZs and impose an unreasonable and unfair burden on U.S. importers and consumers. Given the U.S. portion of the global market, there is a very real possibility that the market would simply shift to other locations, thereby contributing nothing toward bringing IUU fishing for toothfish under control. This alternative also could be incompatible with U.S. obligations under international trade law and pending obligations under the CCAMLR Convention. As a result, this alternative is not preferred.

7. The proposal to prohibit imports of toothfish identified as being harvested in FAO areas 51 or 57 would apply to the U.S. dealers and importers described above (approximately 60 of unknown sizes). The economic impacts of this prohibition are difficult to quantify. Because the rule is intended to address fraudulent trade in toothfish, the availability of toothfish on the world market could be reduced. This could Start Printed Page 64859result in the price of toothfish rising. However, to the extent that the permitted entities experience an increase in the cost of purchasing toothfish, they would most likely pass that cost on to consumers. On the other hand, it is likely that illegally harvested toothfish can be harvested and marketed more cheaply than toothfish harvested pursuant to the applicable CCAMLR conservation rules. To the extent that this rule would remove the market for illegally harvested toothfish, the rule might make it easier for dealers in legitimately harvested toothfish to make a profit (in that they would no longer have to compete with unregulated fishermen).

As an alternative to the ban on imports identified as having been harvested in areas 51 or 57, NMFS considered allowing importers to provide independent VMS data to support claims of catches from these two areas. For the reasons explained in the preamble to the proposed rule, current problems with reliability and lack of international protocol, NMFS believes that this alternative may currently be impracticable.

The reporting, recordkeeping, and compliance requirements associated with this proposed rule are described above and in the Paperwork Reduction Act discussion in this preamble. In summary, this proposed rule would modify existing reporting requirements pertaining to the import of toothfish. The new burdens associated with these requirements would apply to the approximate 60 dealers who import and are estimated as described above in section 3(f). In addition, the requirement to install and operate VMS units would apply to the 3 U.S. vessels permitted to participate in the AMLR fisheries for crab/krill. The associated burden is estimated as no more than $1,000 per year per vessel.

NMFS is not aware of any other Federal rules that would duplicate, overlap with, or conflict with the proposed rule.

This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). Requirements for submission of a Dissostichus Catch Document, a Specially Validated Dissostichus Catch Document, a CCAMLR Ecosystem Monitoring Program permit, and a CCAMLR Ecosystem Monitoring Program report have been approved under OMB Control Number 0648-0194, with the respective response times of 3 minutes, 10 minutes, 60 minutes, and 30 minutes.

This rule also contains new or revised collection-of-information requirements that have been submitted to OMB for approval. The requirements and their estimated response times are: 15 minutes for a dealer permit application, 4 hours to install a VMS unit, 0.033 seconds every 4 hours for an automated position report from a VMS, 2 hours for annual maintenance of a VMS unit, and 15 minutes for a pre-approval application.

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, Office of Sustainable Fisheries, 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.

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List of Subjects in 50 CFR Part 300

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Fisheries, Fishing, Fishing vessels, Foreign relations, Reporting and recordkeeping requirements, Statistics, Treaties.

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Dated: October 17, 2002.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

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

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

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2. In § 300.101, new definitions for “Specially Validated Dissostichus Catch Document” and “Vessel Monitoring System” are added in alphabetical order to read as follows:

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* * * * *

Specially Validated Dissostichus Catch Document (SVDCD) means a Dissostichus catch document that has been specially issued by a State to accompany seized or confiscated catch of Dissostichus spp. offered for sale or otherwise disposed of by the State.

* * * * *

Vessel Monitoring System means a system that allows a Flag State, through the installation of satellite-tracking devices on board its fishing vessels to receive automatic transmission of certain information.

* * * * *
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3. In § 300.103, paragraph (h) is revised to read as follows:

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Procedure for according protection to CCAMLR Ecosystem Monitoring Program Sites.
* * * * *

(h) Duration. Permits issued under this section are valid for a period of up to five years. Applicants requesting a permit to reenter a Protected Site must include the most recent report required by the general condition in the previously issued CEMP permit describing the activities conducted under authority of that permit.

* * * * *
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4. In § 300.107, paragraphs (a), (c)(1), and (c)(5) are revised to read as follows:

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Reporting and recordkeeping requirements.

(a) Vessels. The operator of any vessel required to have a harvesting permit under this subpart must:

(1) Accurately maintain on board the vessel all CCAMLR reports and records required by its permit.

(2) Make such reports and records available for inspection upon the request of an authorized officer or CCAMLR inspector.

(3) Within the time specified in the permit, submit a copy of such reports and records to NMFS at an address designated by NMFS.

(4) Install a NMFS-approved VMS unit on board the vessel and operate the VMS unit whenever the vessel enters Convention waters.

* * * * *

(c) * * *

(1) General. (i) The CCAMLR DCD must accompany all shipments of Dissostichus species as required in this subsection.Start Printed Page 64860

(ii) No shipment of Dissostichus species shall be released for entry into the United States unless accompanied by a complete and validated CCAMLR DCD, except as provided in paragraph (c) (7) of this section.

(iii) No shipment of Dissostichus species identified as originating from high seas areas designated by the Food and Agriculture Organization of the United Nations as Statistical Areas 51 and 57 in the eastern and western Indian Ocean outside and north of the Convention Area shall be issued a dealer permit for import.

* * * * *

(5) Import. (i) Any dealer who imports Dissostichus species must:

(A) Obtain the DCD (and Dissostichus re-export document if applicable) with a unique export reference number that accompanies the import shipment,

(B) Ensure that the quantity of toothfish listed on the DCD (or Dissostichus re-export document if product is to be re-exported) matches the quantity listed on the preapproval application within a variance of 10 percent.

(C) Express mail or fax the catch documentation described in (A) and (B) to an address designated by NMFS so that NMFS receives the documentation at least 15 working days prior to import,

(D) Retain a copy for his/her records and provide copies to exporters as needed.

(ii) Dealers must retain at their place of business a copy of the DCD for a period of 2 years from the date on the DCD.

(iii) Exception. For shipments of Dissostichus species which are fresh and less than 2,000 kilograms in quantity, the application for approval of catch documents of toothfish must be submitted to NMFS within 24 hours of import.

* * * * *
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5. In § 300.111, a new paragraph (e) is added to read as follows:

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Framework for annual management measures.
* * * * *

(e) The fishing season for all Convention Area species is December 1 through November 30 of the following year, unless otherwise set in specific CCAMLR conservation measures.

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6. Section 300.113 is revised to read as follows:

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Dealer permits and pre-approval.

(a) General. (1) A dealer must obtain an AMLRs dealer permit valid for one year, and pre-approval from NMFS for each shipment of AMLRs. Only those specific activities stipulated by the permit are authorized for the permit holder.

(2) An AMLR may be imported into the United States if its harvest has been authorized by a U.S.-issued individual permit issued under § 300.112 (a)(1) or its importation has been authorized by a NMFS-issued dealer permit and pre-approval issued under paragraph (a) of this section. AMLRs may not be released for entry into the United States unless accompanied by the harvesting permit or the individual permit and the DCD for that shipment which has been stamped by NMFS certifying that pre-approval has been granted to allow import.

(3) In no event may a marine mammal be imported into the United States unless authorized and accompanied by an import permit issued under the Marine Mammal Protection Act and/or the Endangered Species Act.

(4) A dealer permit or preapproval issued under this section does not authorize the harvest or transshipment of any AMLR by or to a vessel of the United States.

(b) Application. Application forms for AMLR dealer permits and pre-approval are available from NMFS. A complete and accurate application must be received by NMFS for each pre-approval at least 15 working days before the anticipated date of the first receipt, importation, or re-export.

(c) Issuance. NMFS may issue a dealer permit or pre-approval if it determines that the activity proposed by the dealer meets the requirements of the Act and that the resources were not or will not be harvested in violation of any conservation measure in force with respect to the United States or in violation of any regulation in this subpart.

(d) Duration. A permit issued under this section is valid from its date of issuance to its date of expiration unless it is revoked or suspended. A pre-approval is valid until the product is imported.

(e) Transfer. A permit issued under this section is not transferable or assignable.

(f) Changes in information. (1) Pending applications. Applicants for permits and pre-approval under this section must report in writing to NMFS any change in the information submitted in their permit and pre-approval applications. The processing period for the application will be extended as necessary to review and consider the change.

(2) Issued permits and pre-approvals. Any entity issued a permit or pre-approval under this section must report in writing to NMFS any changes in previously submitted information. Any changes that would result in a change in the receipt or importation authorized by the pre-approval, such as harvesting vessel or country of origin, type and quantity of the resource to be received or imported, and Convention statistical subarea from which the resource was harvested, must be proposed in writing to NMFS and may not be undertaken unless authorized by NMFS through issuance of a revised or new pre-approval.

(g) Revision, suspension, or revocation. A permit or pre-approval issued under this section may be revised, suspended, or revoked, based upon a violation of the permit, the Act, or this subpart. Failure to report a change in the information contained in a permit or pre-approval application voids the application, permit, or pre-approval as applicable. Title 15 CFR part 904 governs permit sanctions under this subpart.

(h) Exception. For shipments of Dissostichus species which are fresh and less than 2,000 kilograms in quantity, the application for approval of catch documents of toothfish must be submitted to NMFS within 24 hours of import.

(1) Dealer permits will not be issued for Dissostichus spp. offered for sale or other disposition under a Specially Validated DCD.

(2) Foreign entities shall, as a condition of possessing a dealer permit, designate and maintain a registered agent within the United States that is authorized to accept service of process on behalf of that entity.

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7. In § 300.115, new paragraphs (s) and (t) are added to read as follows:

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* * * * *

(s) Import Dissostichus spp. with a Specially Validated DCD.

(t) Import shipments of fresh Dissostichus spp. in quantities of 2,000 kilograms or more, or frozen Dissostichus spp., without a preapproval issued under § 300.113.

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8. New § 300.118 is added to read as follows:

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(a) Payment fees and charges. Fees and charges for review of documentation in accordance with the applicable provisions of the regulations in this part shall be paid by the interested party making the application for such service. All fees and charges for any review of documentation, performed pursuant to the regulations in this part shall be paid by check, draft, Start Printed Page 64861or money order, payable to the U.S. Treasury. Such check, draft, or money order, shall be remitted to the NMFS National Seafood Inspection Laboratory, within ten (10) days from the date of billing, unless otherwise specified in a contract between the applicant and the Secretary, in which latter event the contract provisions shall apply.

(b) Schedule of fees. (1) Unless otherwise provided in a written agreement between the applicant and the Secretary, the fees to be charged and collected for review of documentation performed under the regulations in this part will be published as a notice in the Federal Register and will be in accordance with § 300.120.

(2) Fees are reviewed annually to ascertain that the hourly fees charged are adequate to recover the costs of the services rendered. The hourly fee is determined by dividing the estimated annual costs by the estimated annual billable hours.

(c) Readjustment and increase in hourly rates of fees. (1) When Federal Pay Act increases occur, the hourly rates for documentation review fees will automatically be increased on the effective date of the pay act by an amount equal to the increase received by the average GS grade level of fishery product inspectors receiving such pay increases.

(2) The hourly rates of fees to be charged for review of documentation will be subject to review and reevaluation for possible readjustment not less than every three years: Provided, that, the hourly rates of fees to be charges for documentation review services will be immediately reevaluated as to need for readjustment with each Federal Pay Act increase.

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[FR Doc. 02-26872 Filed 10-18-02; 12:48 pm]