[Federal Register Volume 67, Number 204 (Tuesday, October 22, 2002)]
[Proposed Rules]
[Pages 64853-64861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-26872]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 021016236-2236-01; I.D. 082002A]
RIN 0648-AP74


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: 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.

DATES: 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.

ADDRESSES: 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).

[[Page 64854]]


FOR FURTHER INFORMATION CONTACT: Dean Swanson at 301-713-2276, fax 301-
713-2313.

SUPPLEMENTARY INFORMATION: 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

[[Page 64855]]

Convention. 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[deg]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[deg] S. lat. between 80-150[deg] E. long., at depths between 600-
1800 meters) as 2,421 square kilometers. This fishable area is 
considerably less than the

[[Page 64856]]

corresponding 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

[[Page 64857]]

may 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).

Classification

    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:

[[Page 64858]]

    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

[[Page 64859]]

result 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.

List of Subjects in 50 CFR Part 300

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

    Dated: October 17, 2002.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    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 continues 
to read as follows:

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

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


Sec.  300.101  Definitions.

* * * * *
    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.
* * * * *

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


Sec.  300.103  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.
* * * * *

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


Sec.  300.107  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.

[[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.
* * * * *

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


Sec.  300.111  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.

    6. Section 300.113 is revised to read as follows:


Sec.  300.113  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 
Sec.  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.

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


Sec.  300.115  Prohibitions.

* * * * *
    (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 Sec.  300.113.

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


Sec.  300.118  Fees.

    (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,

[[Page 64861]]

or 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 Sec.  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.
[FR Doc. 02-26872 Filed 10-18-02; 12:48 pm]
BILLING CODE 3510-22-S