SUPPLEMENTARY INFORMATION:

Background

The United States is a contracting party to the Convention on the Conservation of Antarctic Marine Living Resources (Convention) and a member of the governing body established under the Convention—the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR or Commission). During its annual meetings, the Commission formulates and adopts conservation measures (CMs) that apply to fishing for Antarctic marine living resources in the Convention Area, which generally consists of the Southern Ocean. The Antarctic Marine Living Resources Convention Act of 1984 (AMLRCA), codified at 16 U.S.C. 2431, et seq., provides the statutory authority for the United States to carry out its obligations under the Convention. Under section 307(b)(1) of AMLRCA, 16 U.S.C. 2436(b), the Secretary of Commerce has authority to promulgate regulations as necessary and appropriate to implement the Act. Acting under a delegation of that authority, the Assistant Administrator for Fisheries has implemented Commission-adopted conservation measures that are binding on the United States through regulations at 50 CFR part 300, subpart G.

To inhibit trade of illegal catches, CCAMLR adopted Conservation Measure 10-05, which established an electronic Catch Documentation Scheme (CDS) for tracking of Dissostichus species from harvest through the trade cycle, including transshipment, landing, import, export, and re-export, regardless of where the fish were harvested. Under the regulations at 50 CFR part 300, subpart G, the Assistant Administrator ( printed page 29044) has implemented the CCAMLR CDS, among other U.S. requirements, as a part of U.S. monitoring of trade in Antarctic marine living resources. Those regulations require a preapproval certificate for importation of frozen Dissostichus species, 50 CFR 300.105(a), and, for re-export or export of frozen or fresh product, an electronically-generated Dissostichus re-export document (DRED), 300.106(f)(1)(ii) or export document (DED), 300.106(g)(1)(ii). As explained in more detail below, this proposed rule would revise regulations at section 300.105 that apply to issuance of preapproval certificates required for importation of frozen Dissostichus species, add new regulations to section 300.106 that would apply to issuance of DREDs or DEDs, and make corresponding changes to the prohibitions under section 300.114.

In addition, NMFS proposes to clarify that a person must receive the electronically-generated DRED or DED required for re-export or export of Dissostichus species before re-exporting or exporting any shipments.

Lastly, NMFS proposes to update references to the Antarctic Conservation Act (16 U.S.C. 2401, et seq., as amended) and associated regional agreements, and update contact information at NMFS and the Department of State for reporting violations of conservation measures adopted by CCAMLR.

These proposed regulatory revisions are further explained below.

Required Import and Trade Authorizations for Dissostichus Species and Prohibitions

1. Revisions To Prevent Issuance of Documents Authorizing Import, Re-Export, or Export of Illegally-Harvested Dissostichus Species

U.S. regulations provide that: “No shipment of Dissostichus species shall be released for entry into the United States unless accompanied by an accurate, complete, valid and validated CCAMLR CDS document.” 50 CFR 300.106(a)(2). This applies to all shipments, whether or not the subject Dissostichus species were harvested within or outside of the CCAMLR Convention Area and regardless of whether the respective harvesting vessel is flagged to a CCAMLR contracting party or a non-contracting party cooperating with CCAMLR by participating in the CDS. See 50 CFR 300.106(a)(1). Regulations that apply to issuance of preapproval certificates for importation of frozen Dissostichus species at 300.105(h) provide the circumstances when NMFS will not issue a preapproval certificate. These include any shipment of Dissostichus species determined to have been harvested or transshipped in contravention of any CCAMLR Conservation Measure in force at the time of the harvest or transshipment; or harvested or transshipped by a vessel identified by CCAMLR as having engaged in illegal, unreported and unregulated (IUU) fishing. However, the current regulations do not provide that NMFS will deny a preapproval certificate for Dissostichus species illegally harvested or transshipped outside the Convention Area, including within foreign exclusive economic zones or high seas areas under the competence of a regional fisheries management organization, despite the fact that such imports would be prohibited under other existing federal law ( e.g., Section 307(1)(Q) of Magnuson-Stevens Fishery Conservation and Management Act, Lacey Act, 16 U.S.C. 3372(a)). To address this inconsistency, and to avoid a possible scenario where a preapproval certificate is issued for product determined to be subject to enforcement action, NMFS proposes to include additional bases for denial in 50 CFR 300.105(h).

Section 307(1)(Q) of the Magnuson-Stevens Act prohibits, among other things, imports or exports of any fish “taken, possessed, transported, or sold in violation of any foreign law or regulation or any treaty or in contravention of any binding conservation measure adopted by an international agreement or organization to which the United States is a party.” 16 U.S.C. 1857(1)(Q). Consistent with that provision, this proposed rule would revise 50 CFR 300.105(h) to provide that NMFS will not issue a preapproval certificate for any shipment of frozen Dissostichus species determined to have been taken, possessed, transported or sold in violation of:

• any foreign law or regulation; or
• any treaty within the meaning of section 2 of article II of the U.S. Constitution.

In addition, NMFS proposes that it will not issue a preapproval certificate for any shipment of frozen Dissostichus species determined to have been taken, possessed, transported or sold in contravention of any binding conservation measure adopted by an international agreement or organization to which the United States is a party.

NMFS has also noted a gap in the current regulations that apply to issuance of DREDs and DEDs for re-export or export of Dissostichus species. These regulations at sections 300.106(f)(1)(ii) and (g)(1)(ii) do not explicitly provide that NMFS may deny issuance of a DRED or DED when Dissostichus species are harvested or transshipped in contravention of a CCAMLR conservation measure in force. Under the conservation measure that established the CCAMLR CDS, the export and re-export of Dissostichus species determined to have been harvested in a manner inconsistent with CCAMLR conservation measures is prohibited. Thus, in order to implement that requirement, NMFS is proposing to revise 300.106(f) and (g) to provide that a DRED or a DED will not be issued for Dissostichus species that NMFS has determined were harvested or transshipped in contravention of a CCAMLR Conservation Measure, AMLRCA, or the regulations of this subpart. In addition, NMFS proposes to revise these paragraphs to include, as relevant, the bases for denial of issuance of a DRED or DED that are proposed to be added to section 300.105(h) (preapproval certificates) as discussed above. As with preapproval certificates, these bases for denial of a DRED or a DED are necessary to avoid an inconsistency where NMFS issues a re-export or export document for Dissostichus species that is prohibited from trade and that may be subject to an enforcement action under other existing Federal law ( e.g., Section 307(1)(Q) of Magnuson-Stevens Fishery Conservation and Management Act, Lacey Act, 16 U.S.C. 3372(a)).

NMFS also proposes to make corresponding revisions to the prohibitions under 50 CFR 300.114(o).

2. Removal of the Prohibition on Imports of Toothfish From FAO Statistical Areas 51 and 57

This action would remove the prohibition on the importation of toothfish harvested from FAO Statistical Areas 51 and 57 in 50 CFR 300.105(h)(1) and 300.114(o). NMFS believes removal of this prohibition is appropriate because the management, monitoring and control of toothfish fishing in the Southern and Indian Oceans has improved. In 2003, to prevent the entry of illegally-harvested toothfish into the U.S. market, NMFS implemented an import prohibition of those species identified as originating from FAO Statistical Areas 51 and 57. Information available to NMFS at that time suggested that catches attributed to Areas 51 and 57 in CDS documents had in fact been illegally harvested from the Convention Area by unlicensed vessels. Any catches of toothfish reported as originating from Statistical Areas 51 and ( printed page 29045) 57 were deemed to be misrepresented because fisheries surveys and bathymetric data available at the time suggested those areas had no fishable concentrations of toothfish. In addition, there was insufficient vessel monitoring system (VMS) data from the vessels operating in those areas to verify the harvest location of catches reported as originating from Statistical Areas 51 and 57.

Since 2003, CCAMLR has made a number of improvements and advancements that enable verification of toothfish harvest locations reported in CDS documents. Among these, CCAMLR has strengthened VMS requirements for vessels participating in toothfish fisheries and processes are in place to compare CDS data with relevant catch data. In addition, since 2010, NMFS has, as a condition for issuance of a preapproval certificate for importation of frozen toothfish, required verifiable documentation that a harvesting vessel reported positions to CCAMLR's centralized VMS from port-to-port in real-time regardless of harvest location. 50 CFR 300.105(c).

In 2012, the Southern Indian Ocean Fisheries Agreement (SIOFA) entered into force. SIOFA manages bottom-fishing activities in the Southern Indian Ocean, including the high seas portions of Statistical Areas 51 and 57. Vessels operating in SIOFA-managed areas are now harvesting toothfish in commercial quantities under SIOFA-adopted catch limits. In the last few years, toothfish has been caught in Statistical Areas 51 and 57 by vessels of CCAMLR members, who are also members of SIOFA, and tracked as required through the CDS. Thus, the bases for the prohibition on imports from those areas ( i.e., apparent lack of fishable concentrations and insufficient monitoring and reporting) no longer appear to be concerns.

Other Technical and Administrative Changes

1. Online Application for a Preapproval Certificate

The Office of International Affairs, Trade, and Commerce has made the application process for preapproval certificates available online, including the ability to access forms, submit required information, and complete payment through a web portal. This process is in addition to options for applying by mail or email using the portable document format application form. The online application decreased the processing time for preapproval certificates and serves to facilitate entry processing for importers. Language in 50 CFR 300.105 would be updated to delete the requirement to provide information “in writing,” as well as note that applications for a preapproval certificate are available from NMFS instead of NMFS Headquarters and the National Seafood Inspection Laboratory. Accordingly, the National Seafood Inspection Laboratory would be removed from the list of definitions in 50 CFR 300.101. These proposed regulatory text changes do not affect the previously approved public reporting burden for this information collection.

2. Clarification on When a Person Must Receive an Electronically-Generated Dissostichus Re-Export Document (DRED) or Export Document (DED)

Under 50 CFR 300.106(f)(1)(ii) and (g)(1)(ii), a person must receive an electronically-generated DRED or export document DED in order to re-export or export Dissostichus species from the United States. While NMFS believed that it is clear that a person must have a DRED or DED before re-exporting or exporting Dissostichus species, in order to ensure that there is no confusion on when a person must have a DRED or DED to legally export or re-export Dissostichus species, NMFS proposes to revise 50 CFR 300.106(f)(1)(ii) and (g)(1)(ii) to explicitly provide that a person must receive the electronically-generated DRED or DED before shipments of Dissostichus species are re-exported or exported.

3. Updates To Reflect the Antarctic Conservation Act, as Amended

Congress amended the Antarctic Conservation Act of 1978 (ACA) to implement the Protocol on Environmental Protection to the Antarctic Treaty (Protocol) and as part of those amendments the statute was renamed the “Antarctic Conservation Act.” This proposed rule would update 50 CFR 300.101 to reflect that renaming. 50 CFR 300.102(b) would be revised to replace the reference to Agreed Measures for the Conservation of Antarctic Fauna and Flora, which is no longer in effect, with the Protocol. Similarly, the reference to the Agreed Measures would be removed from 50 CFR 300.113(c)(1). Also in 50 CFR 300.113(a)(2), the reference to the Protocol would be removed because there is no protected system under the Protocol that would apply to CCAMLR Ecosystem Monitoring Program (CEMP) sites. A reference related to specially protected areas regulated under the ACA is also updated.

4. Update to Contact Information for Reporting Violations of CCAMLR Conservation Measures

In 50 CFR 300.115, NMFS is proposing amendments that would update contact information for reporting any violations of CCAMLR conservation measures observed in the Convention Area.

Classification

This proposed rule is published under the authority of the Antarctic Marine Living Resources Convention Act of 1984 (16 U.S.C. 2431 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). The NMFS Assistant Administrator has determined that this proposed action is consistent with the provisions of these and other applicable laws, subject to further consideration after any relevant public comment.

Executive Order 12866

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

Regulatory Flexibility Act (RFA)

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities.

The proposed rule relates to trade of toothfish: Antarctic and Patagonian toothfish species ( Dissostichus mawsoni and D. eleginoides, respectively). There are approximately 80 dealers who could fall within the scope of NMFS's AMLRCA regulations. All U.S. dealers are considered small entities under the “Small Business Size Regulations” established by the SBA under 13 CFR 121.201. Although all regulated entities are considered small under the SBA size standard, this rule is expected to have no significant economic impact on these regulated entities.

The proposed changes would amend the circumstances when NMFS will deny a preapproval certificate for importation of frozen Dissostichus species, to include the following additional circumstances, consistent with section 307(1)(Q) of the Magnuson-Stevens Fishery Conservation and Management Act: determined to have been taken, possessed, transported or sold in violation of:

• any foreign law or regulation; or
• any treaty within the meaning of section 2 of article II of the U.S. Constitution. ( printed page 29046)

In addition, NMFS proposes that it will not issue a preapproval certificate for any shipment of frozen Dissostichus species determined to have been taken, possessed, transported or sold in contravention of any binding conservation measure adopted by an international agreement or organization to which the United States is a party.

These changes are not expected to have any economic impacts on dealers of Antarctic marine living resources (AMLR) product. These additional circumstances in which NMFS will deny a preapproval certificate would not require importers to change anything they currently do to apply for a preapproval certificate. Similarly, the addition of the same criteria for denying a DRED or DED is not expected to have any economic impacts on dealers of AMLR product and would not require exporters to do anything differently when re-exporting or exporting toothfish species. By providing additional circumstances in which NMFS will deny a preapproval certificate, DRED, or DED these proposed amendments will ensure that such documents are not issued for trade that would be prohibited under other existing federal law ( e.g., Section 307(1)(Q) of Magnuson-Stevens Fishery Conservation and Management Act, Lacey Act, 16 U.S.C. 3372(a)). As this proposed change does not affect compliance costs or add any regulatory burden, AMLR dealers would not incur additional economic costs.

The proposed change to remove the import prohibition of Dissostichus species harvested in FAO Statistical Areas 51 and 57 (in the Indian Ocean) would allow AMLR dealers an additional potential source of toothfish for import into the United States. Toothfish imports from these dealers average 14 million kilograms per year and are valued at $225 million per year. Toothfish is considered a luxury product due to its high market price (according to the industry source Urner Barry, the average market price for processed toothfish has ranged from $18 to $20 per pound since 2019, with more recent pricing on the upper end of that scale). The increased sourcing options for dealers of toothfish, in addition to the existing available sources, expands dealer access to product. This additional source of product may increase options for small entities to seek more competitive prices and increase profits from this high end product.

The other proposed changes in this rule: clarifying that an electronically-generated DRED or DED must be received before re-exporting or exporting shipments of Dissostichus species; updating language by removing “in writing” in preapproval certificate application provisions; updating references to the Antarctic Conservation Act (ACA); and revising contact information are administrative in nature and not expected to economically impact dealers engaged in the import, re-export, and export of toothfish. The clarification of the requirement to receive the DRED or DED prior to re-exporting or exporting shipments of toothfish would not impact dealers of toothfish because this requirement already exists and dealers already have to comply with it. NMFS is clarifying the requirement to prevent any possible confusion. The remaining proposed changes listed here would not affect dealers of toothfish.

For the above reasons, this proposed rule is not expected to have a significant economic impact on a substantial number of small entities. As a result, a regulatory flexibility analysis was not prepared.

Paperwork Reduction Act

This proposed rule contains no new or revised collection-of-information requirements subject to the Paperwork Reduction Act. The proposed regulatory text changes do not affect the previously approved public reporting burden for this information collection.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 300 as follows:

1. The authority citation for 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.,16 U.S.C. 1801 et seq.

2. Amend § 300.101 by removing the definition for National Seafood Inspection Laboratory and revising the definition for ACA to read as follows:

3. Revise § 300.102 (b) to read as follows:

4. Amend § 300.105 by revising paragraphs (b), (g)(1) and (2), and (h) to read as follows:

5. In § 300.106, revise paragraph (f)(1)(ii), add paragraph (f)(3), revise paragraph (g)(1)(ii), and add paragraph (g)(3). The revisions and additions read as follows:

6. In § 300.113, revise paragraphs (a)(2), (c)(1), and (l) to read as follows:

7. Amend § 300.114 by revising paragraph (o) to read as follows:

8. In § 300.115, revise paragraph (b) to read as follows: