[Federal Register Volume 71, Number 134 (Thursday, July 13, 2006)]
[Proposed Rules]
[Pages 39642-39654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6166]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 060621174-6174-01; I.D. 022106C]
RIN 0648-AS75


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

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

ACTION: Proposed rule; request for comments.

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SUMMARY: The proposed rule would implement measures adopted by the

[[Page 39643]]

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

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

ADDRESSES: Comments on the proposed rule should be addressed to Robin 
Tuttle, NMFS, 1315 East-West Highway, Silver Spring, MD 20910, by any 
of the following methods:
     E-mail: [email protected]. Include in the subject 
line the following identifier: ``AMLR proposed rule.'' E-mail comments, 
with or without attachments, are limited to 5 megabytes;
     Federal e-Rulemaking Portal: http://www.regulations.gov;
     Mail to: Robin Tuttle, NMFS - S&T, 1315 East-West Highway, 
Silver Spring, MD 20910;
     Fax to: Robin Tuttle at 301-713-4137; or
     Hand Delivery to Robin Tuttle, Rm. 12350, 1315 East-West 
Highway, Silver Spring, MD 20910.
    Copies of the Regulatory Impact Review/Initial Regulatory 
Flexibility Analysis (RIR/IRFA) prepared for this action and the Draft 
Programmatic Environmental Impact Statement may be obtained from the 
mailing address above or by calling Robin Tuttle (see FOR FURTHER 
INFORMATION CONTACT). Send comments regarding the burden-hour estimates 
or other aspects of the collection-of-information requirements 
contained in this proposed rule to Robin Tuttle at the address 
specified above and also to the Office of Information and Regulatory 
Affairs, Office of Management and Budget (OMB), Washington, DC 20503 
(Attention: NOAA Desk Officer) or e-mail to [email protected], 
or fax to (202) 395-7825.

FOR FURTHER INFORMATION CONTACT: Robin Tuttle at 301-713-2282 ext. 199, 
fax 301-713-4137, or [email protected].

SUPPLEMENTARY INFORMATION:

Electronic Access

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

Background

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

Centralized VMS

    Based upon the results of a trial conducted by some Contracting 
Parties to CCAMLR during the 2003/2004 fishing season, CCAMLR revised 
the requirements for its automated satellite-linked vessel monitoring 
system (VMS), first implemented in 1999, and adopted Conservation 
Measure 10-04 implementing a Centralized VMS (C-VMS).
    Prior to the adoption of C-VMS, CCAMLR required that each 
Contracting Party ensure that its fishing vessels were equipped with a 
satellite-linked vessel monitoring device allowing for the continuous 
reporting of their position in the Convention Area for the duration of 
the license issued by the Contracting Party. The vessel monitoring 
device was required to automatically communicate at least every 4 hours 
to the land-based fisheries monitoring center of the Flag State of the 
vessel.
    With the adoption of C-VMS, CCAMLR now requires that all vessels, 
fishing in CCAMLR-managed waters use a VMS that automatically transmits 
the vessel's position at least every 4 hours to a land-based fisheries 
monitoring center of its Flag State. Previously only movement into or 
out of the Convention Area, not position, was required to be reported. 
Each Contracting Party to the Convention must forward the VMS reports 
and messages received to the CCAMLR Secretariat as soon as possible, 
but not later than 4 hours after receipt for exploratory longline 
fisheries or following departure from the Convention Area for all other 
fisheries. If the Contracting Party so desires, it can ensure that each 
of its vessels communicates its VMS reports and messages in parallel 
directly to the Secretariat. The CCAMLR Secretariat shall treat all VMS 
reports and messages received in a confidential manner in accordance 
with the confidentiality rules established by the Commission.
    The conservation measure requires the CCAMLR Secretariat to place a 
list of vessels submitting VMS reports on a password-protected section 
of the CCAMLR website. The list will be divided into subareas and 
divisions, without indicating the exact position of vessels. This 
information can be used by Catch Document Scheme (CDS) officers of 
Contracting Parties to verify information claimed on a Dissostichus 
Catch Document (DCD). A Contracting Party may request actual VMS data 
reports and messages from the Secretariat for use in verifying DCD 
information in more detail. However, this data can only be released 
with the permission of the Flag State of the vessel. Only in the case 
of active surveillance and/or inspection can the Secretariat provide 
actual VMS data and/or messages to a Contracting Party without the 
consent of the Flag State of the vessel. The conservation measure

[[Page 39644]]

also requires the CCAMLR Secretariat to transmit VMS data and reports 
using secure Internet protocols Secure Socket Layer (SSL), (Data 
Encryption Standard (DES)) or verified certificates obtained from the 
Secretariat. These protocols are similar to those in use by the 
Northwest Atlantic Fisheries Organization (NAFO).
    CCAMLR adopted these measures as a means of managing fishing within 
the Convention Area with greater certainty and making it more 
difficult, in particular, for illegal, unregulated and unreported (IUU) 
fishing in the Convention Area to be misreported as catch from outside 
the Convention Area. CCAMLR agreed that its CCAMLR System of Inspection 
could be improved by obtaining positional information including 
movements by vessels into and out of the Convention Area and CCAMLR 
statistical areas, in as close to real time as possible. CCAMLR also 
noted that positional information on movements would enable Contracting 
Parties to deploy CCAMLR inspectors in the Convention Area and to use 
available inspection potential in the most effective way. Moreover, 
CCAMLR noted that the C-VMS conservation measure would facilitate the 
work of the CCAMLR Secretariat on fisheries management by allowing it 
to monitor start/end dates of fishing by individual vessels and the 
catch reports submitted by statistical areas and fisheries.
    The proposed rule would require the use of a NMFS approved VMS unit 
reporting through the newly implemented C-VMS by all U.S. vessels 
harvesting AMLR. The use of a VMS unit would be required from the time 
a vessel leaves any port until its return to any port.
    The proposed rule would also require any U.S. dealer seeking to 
import toothfish into the United States through the preapproval process 
to have documentation that indicates that the toothfish was harvested 
by a vessel using C-VMS regardless of where the vessel caught the 
toothfish. All imports of toothfish or toothfish products would have to 
be accompanied by verifiable information available to the CDS Officer 
from the Secretariat documenting the use of C-VMS. U.S. dealers seeking 
to import toothfish or toothfish products originating from small 
artisinal boats fishing in the Exclusive Economics Zones (EEZ) of Peru 
or Chile would not have to possess information documenting the use of 
C-VMS by such artisinal boats. NMFS exempts such dealers because of the 
small size of these artisinal boats and their inability to navigate 
beyond the EEZ.

Dealer Permits and Preapproval

    NMFS implemented the CCAMLR Catch Documentation Scheme (CDS) for 
toothfish in May 2000. In 2003, NMFS implemented a preapproval system 
applicable to all shipments of frozen toothfish and to shipments of 
fresh toothfish over 2,000 kilograms (kg). Preapproval streamlines 
administration of the toothfish import control program and enhances 
efforts to prevent the importation of illegally harvested toothfish. 
Preapproval improves the ability of toothfish importers and dealers to 
quickly move a fresh and, therefore, perishable toothfish product into 
the country. With the 15 day advance notification of a toothfish 
shipment required under the preapproval system, U.S. importers of 
toothfish have a higher degree of assurance that shipments of toothfish 
will be approved for entry into the United States before the fish 
arrives at port. Prior to the adoption by NMFS of the preapproval 
system, importers of toothfish were at risk of denial or seizure of 
toothfish shipments because DCDs could not be verified and validated by 
NMFS until after a shipment had been paid for and shipped. Under the 
preapproval system, the verification and validation of a toothfish 
shipment is undertaken by NMFS in advance of its entry into the United 
States. Thus, preapproval enhances economic certainty for U.S. 
businesses associated with the toothfish trade by giving U.S. dealers 
an approval to import toothfish before the shipment of toothfish and 
sometimes even before dealers make a financial investment in the 
toothfish shipment. Preapproval also facilitates NMFS enforcement 
efforts by allowing the NMFS program manager/CDS officer to review the 
DCD for each toothfish shipment prior to its arrival at port and to 
coordinate, when necessary, with a NMFS enforcement officer. If a 
shipment of toothfish is suspected of having been harvested or 
documented illegally, the fifteen-day preapproval review period makes 
it possible for NMFS to seize the shipment before it enters trade. 
Prior to adoption of the preapproval system, preemptive enforcement was 
difficult if not impossible because a suspect shipment of toothfish had 
already entered the marketplace before possible infractions could be 
identified.
    The proposed rule would: (1) allow additional time within which 
dealers must supply the U.S. Customs 7501 number: and (2) exempt all 
shipments of fresh toothfish from the requirement for preapproval. 
Currently, after receiving an Antarctic Marine Living Resources (AMLR) 
dealer permit but at least 15 business days prior to an expected 
import, the dealer seeking to import frozen toothfish or fresh 
toothfish in quantities greater than 2,000 kg, is required to submit to 
NMFS the DCD that will accompany each anticipated toothfish shipment as 
well as an ``Application for Preapproval of Catch Documents'' 
requesting preapproval to allow import of the toothfish shipment. NMFS 
requires a dealer to include on the application form for a specific 
toothfish shipment information regarding the shipment's estimated date 
of arrival, port of arrival, consignee(s) of product, DCD document 
number, Flag State confirmation number, export reference number, amount 
to be imported, and the U.S. Customs 7501 number (sometimes referred to 
as the ``Entry'' number). This 7501 number is an identifying number 
assigned to a particular shipment by a U.S. Customs broker. The dealer 
is required to fax or express mail the documentation described above, 
along with a check for the required fee, so that NMFS receives it at 
least 15 business days prior to the anticipated date of import. 
However, some dealers have difficulty obtaining a U.S. Customs 7501 
number 15 days in advance of a shipment's arrival. The difficulty 
arises because Customs brokers have limitations on how soon they can 
assign the 7501 number to a pending shipment and most often, have 
difficulty assigning it 15 days in advance of the shipment's arrival. 
For this reason, NMFS is proposing to revise the ``Application for 
Preapproval of Catch Documents'' form specifically in regards to the 
requirement for the 7501 number. NMFS is proposing that dealers supply 
the 7501 number within 3 working days of a toothfish shipment's 
arrival. All other information on the ``Application for Preapproval of 
Catch Documents'' would remain unchanged.
    Due to the extremely quick turnaround time required for shipments 
of fresh toothfish in quantities of less than 2,000 kg, the 
``Application for Preapproval of Catch Documents'' is currently 
required to be submitted to NMFS within 24 hours of the import of a 
toothfish shipment, rather than fifteen days in advance of the 
shipment. The proposed rule would allow for submission of an 
application for preapproval within 24 hours of import for shipments of 
fresh toothfish over 2,000 kgs as well. The number of shipments of 
fresh toothfish over 2000 kg are small. These shipments are typically 
harvested by the artisinal fishery of Chile and have historically not 
been the cause for enforcement

[[Page 39645]]

concern. The infractions common to large shipments of frozen toothfish 
do not occur with small shipments of fresh toothfish. One common 
infraction results when legally and illegally harvested toothfish are 
frozen and combined in one shipment and exported with a single 
``legal'' DCD. Large shipments of frozen toothfish might also include 
fish illegally harvested in a CCAMLR restricted area and claimed to 
have been harvested in an EEZ or on the high seas. As artisinal boats 
harvesting and shipping small amounts of fresh fish are not equipped to 
reach these CCAMLR restricted areas, they are not suspected of this 
type of infraction. Pursuant to a bilateral agreement with Chile, NMFS 
has a real time verification process for shipments of toothfish 
harvested by Chile's artisinal toothfish fishery. Under the proposed 
rule, DCDs for shipments of fresh toothfish from Chile would be 
reviewed without a fee-for-service charge. Shipments of all frozen 
toothfish including those in quantities of less than 2,000 kg would 
still require preapproval. NMFS regulations at 50 CFR 300.107(c)(6) and 
300. 114 regarding the re-export of toothfish would not be revised. The 
revised DCD, revised NMFS application for an annual AMLR dealer permit, 
and the new NMFS application for preapproval referenced under this 
section are available from NMFS (see ADDRESSES).

Electronic Catch Documents

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

Scientific Observers

    CCAMLR adopted a Scheme of International Scientific Observation in 
1992 at its eleventh annual meeting. Observers placed on board fishing 
vessels pursuant to the scheme observe and report on the operations of 
fishing activities and their effects on target and associated species 
of living marine resources. Observers undertake tasks and record their 
observations pursuant to protocols and using formats approved by the 
CCAMLR Scientific Committee. These tasks include recording details of 
vessel operation; taking catch samples; recording biological data by 
species caught; recording bycatch; recording entanglement and 
incidental mortality of birds and mammals; recording procedures by 
which declared catch weight is measured; collecting and reporting 
factual data on sightings of fishing vessels in the Convention Area, 
including vessel type identification, position and activity; and 
collecting information on lost fishing gear and garbage disposal by 
fishing vessels at sea.
    CCAMLR has identified two types of observers, collectively known as 
scientific observers, who may collect information required in CCAMLR-
managed fisheries. They are described in the text of the CCAMLR Scheme 
of International Scientific Observation and referred to in CCAMLR 
conservation measures requiring scientific observers. The first type of 
scientific observers referred to by CCAMLR are ``national observers.'' 
``National observers'' are nationals of the Member designating them who 
operate on board a fishing vessel of that Member and conduct themselves 
in accordance with national regulations and standards. The second type 
of scientific observers are referred to by CCAMLR as ``observers 
appointed in accordance with the CCAMLR Scheme of International 
Scientific Observation'' or referred to by NMFS as ``international 
observers.'' International observers'' are observers operating in 
accordance with bilateral arrangements between the Member whose vessel 
is fishing (the Receiving Member) and the Member providing the observer 
(the Designating Member).
    The CCAMLR scheme identifies the elements that must be included in 
a bilateral arrangement. The U.S. Department of State negotiates 
bilateral arrangements placing U.S. nationals as observers on non-U.S. 
Member vessels and receiving non-U.S. Member nationals as observers on 
U.S. vessels.
    CCAMLR conservation measures require all fishing vessels operating 
in the Convention Area (except for vessels fishing for krill) to carry 
on board, throughout all fishing activities within the fishing period, 
at least one international observer and, where possible, one additional 
scientific observer, either a national observer or an international 
observer. In certain exploratory toothfish fisheries, the vessel must 
carry at least two observers, one of whom must be an international 
observer. NMFS regulations, however, only require that each vessel 
participating in an exploratory fishery carry one scientific observer 
(see 50 CFR 300.106(c)). In Subareas 88.1, 88.2 and 88.6 and Divisions 
58.4.1 and 58.4.2, where exemptions are allowed for setting longlines 
during daylight hours, two scientific observers are required, one of 
which must be an international observer.
    NMFS has not published regulations implementing the CCAMLR Scheme 
of International Scientific Observation. NMFS has, by Federal Register 
notice, published the annual conservation and management measures 
adopted by CCAMLR, (including requirements in these measures for 
scientific observers) for Convention Area fisheries. Additionally, on a 
case-by-case basis, NMFS has required, as a condition of a vessel's 
Antarctic Marine Living Resources (AMLR) harvesting permit, that the 
vessel carry scientific observers in the Convention Area throughout all 
fishing activities within the fishing period. Several observers have 
been placed pursuant to bilateral arrangements negotiated by the 
Department of State with Japan, South Africa and Ukraine. Others have 
been U.S. nationals. NMFS coordinates with the vessel permit holders 
and the observers in all instances to ensure that observers are fully 
trained in their duties to record the observations required by CCAMLR.
    For a vessel to fish longline gear during daylight hours, CCAMLR 
Conservation Measure 24-02 requires longline testing trials prior to 
entering the Convention Area. Vessels choosing not to conduct the 
testing trials are restricted by CCAMLR Conservation Measure 25-02 to 
longline fishing at night. Nighttime fishing is one technique for 
minimizing the incidental mortality of seabirds in the course of 
longline fishing. Another technique to minimize incidental mortality is 
the use of weighted longlines. Conservation Measure 24-02 identifies 
two protocols for monitoring the sink rate of weighted

[[Page 39646]]

longlines. The more rapidly a weighted line sinks the less likely there 
is to be seabird interaction, and possible entanglement, with the 
lines. NMFS regulations do not presently require on board scientific 
observers during line weight testing.
    The proposed rule would require that all U.S. vessels fishing in 
the Convention Area, including vessels fishing for krill, and all U.S. 
vessels conducting longline testing outside the Convention Area prior 
to longline fishing within the Convention Area, carry one or more 
scientific observers.
    The proposed rule would specify the process for placing national 
observers on U.S. vessels harvesting AMLR; the duties and 
responsibilities of the observers on the vessels; and the duties and 
responsibilities of the vessel owners hosting the observers. 
International observers placed pursuant to a bilateral arrangement 
negotiated by the U.S. Department of State would also be subject to the 
provisions of the proposed rule.
    The proposed rule would expand the list of prohibitions to make it 
unlawful to assault, resist, oppose, impede, intimidate, sexually 
harass, bribe or interfere with an observer.

Seal Excluder Device

    CCAMLR's Scientific Committee recommended several seal bycatch 
mitigation measures to CCAMLR in 2004. These were that: (1) information 
on all seal excluder devices be combined and circulated to CCAMLR 
Members and other interested parties; (2) every vessel fishing for 
krill employ a device for excluding seals by facilitating their escape 
from the trawl net; (3) observers be required on krill vessels to 
collect reliable data on seal entrapment and on the effectiveness of 
mitigation devices; (4) data forms be completed accurately, 
consistently and comprehensively by all observers; and (5) the United 
Kingdom should be requested to submit its observer data to the CCAMLR 
Secretariat.
    During the 2004/2005 fishing season, scientific observer reports 
were available from three vessels voluntarily using seal excluder 
devices while trawling for krill. One of these vessels was a U.S. 
vessel. The reports indicated that in Area 48, 95 Antarctic fur seals 
were observed caught during krill fishing operations, of which 74 were 
released alive, compared to 156 of which 12 were released alive in the 
2003/2004 season.
    The proposed rule would require seal excluder devices on all U.S. 
vessels trawling for krill in Convention Area fisheries.

Definitions

    The proposed rule defines terms used in the implementation of the 
CDS; the designation and placement of scientific observers on vessels 
fishing in the CCAMLR Convention Area; the mitigation of seal bycatch; 
and the operation of CCAMLR's automated and centralized satellite-
linked VMS.
    The proposed rule would define or redefine the terms ``export'', 
ldquo;import'', ``land or landing'', ``Port State'', ``re-export'', and 
``transship'' as used by NMFS in implementing the CDS. ``Export'' would 
be defined as any movement of a catch in its harvested or processed 
form from the territory under the control of the State or free trade 
zone of landing, or, where that State or free trade zone forms part of 
a customs union, any other Member State of that customs union. 
``Import'' would be defined as the physical entering or bringing of a 
catch into any part of the geographical territory under the control of 
a State, except where the catch is landed or transshipped within the 
definitions of ``land or landing'' or ``transship.'' ``Land or 
landing'' means to begin offloading any fish, to arrive in port with 
the intention of offloading any fish, or to cause any fish to be 
offloaded; except for purposes of catch documentation in which case it 
would be defined as the initial transfer of catch in its harvested or 
processed form from a vessel to dockside or to another vessel in a port 
or free trade zone where the catch is certified by an authority of the 
Port State as landed. ``Port State'' would be defined as the State that 
has control over a particular port area or free trade zone for the 
purposes of landing, transshipment, importing, exporting and re-
exporting and whose authority serves as the authority for landing or 
transshipment certification. ``Re-export'' would be defined as any 
movement of a catch in its harvested or processed form from the 
territory under the control of a State, free trade zone, or Member 
State of a customs union of import unless that State, free trade zone, 
or any Member State of that customs union of import is the first place 
of import, in which case the movement is an export within thedefinition 
of export.
    ``Tranship or transshipment'' would be defined as the transfer of 
fish or fish products from one vessel to another; except for purposes 
of catch documentation in which case it would be defined as the 
transfer at sea of a catch in its harvested or processed form from a 
vessel to another vessel or means of transport and, where such transfer 
takes place within the territory under the control of a Port State, for 
the purposes of effecting its removal from that State. For the 
avoidance of doubt, temporarily placing a catch on land or on an 
artificial structure to facilitate such transfer shall not prevent the 
transfer from being a transshipment where the catch is not within the 
definition of landing.
    NMFS implemented the CCAMLR CDS for toothfish in 2000. The CDS 
tracks and monitors trade in toothfish through a DCD required on all 
shipments of toothfish, wherever harvested, as a condition of import 
into the United States or any other CCAMLR Contracting Party. In giving 
effect to the CDS, NMFS amended its definition of ``Antarctic marine 
living resources'' to include ``All species of Dissostichus wherever 
found,'' i.e., whether harvested inside or outside the CCAMLR 
Convention Area. The change of this definition caused some confusion 
among members of the public as to whether or not an AMLR harvesting 
permit was required for vessels which wanted to fish for toothfish both 
inside and outside the Convention Area.
    The proposed rule would clarify that an AMLR Harvesting Permit is 
required by NMFS only when harvesting toothfish within the Convention 
Area by deleting ``All species of Dissostichus wherever found'' from 
the definition of Antarctic Marine Living Resources. Harvesting 
toothfish on high seas areas inside and outside the Convention Area 
would continue to require a permit issued by NMFS pursuant to the High 
Seas Fishing Compliance Act (HSFCA), 16 U.S.C. 5501 et seq. Areas 
within the Convention Area subject to national jurisdiction, such as 
the areas in Convention Subarea 48.3 claimed by the United Kingdom, are 
not considered high seas areas. The rule would preserve the requirement 
that all imports of toothfish, wherever harvested, comply with U.S. 
import permit conditions and DCD controls.
    The proposed rule would define ``national observers'' and 
``international observers.'' National observer would be defined as a 
U.S. national placed and operating onboard a U.S. flagged vessel as a 
scientific observer in accordance with 50 CFR 300.113. International 
observer would be defined as a scientific observer operating in 
accordance with the CCAMLR Scheme of International Scientific 
Observation and the terms of a bilateral arrangement concluded between 
the United States and a Member of CCAMLR for the placement of a U.S. 
national onboard a vessel flagged by a Member of CCAMLR or for the 
placement of the national of a Member of CCAMLR onboard a U.S. flagged 
vessel.

[[Page 39647]]

    The proposed rule would define ``seal excluder device'' as a 
barrier within the body of a trawl net comprised of a metal frame, 
nylon mesh, or any material that results in an obstruction to seals 
between the mouth opening and the cod end of the trawl. The body of the 
trawl net forward of the barrier must include an escape opening through 
which seals entering the trawl can escape.
    The proposed rule would define ``vessel monitoring system or VMS'' 
as a system or mobile transceiver unit approved by NMFS for use on 
vessels that take AMLR, and that allows a Flag State, through the 
installation of satellite-tracking devices on board its fishing vessels 
to receive automatic transmission of certain information. The proposed 
rule would define ``mobile transceiver unit'' as a vessel monitoring 
system or VMS device, as set forth at Sec.  300.116, installed on board 
a vessel that is used for vessel monitoring and transmitting the 
vessel's position as required by subpart G of 50 CFR part 300. It would 
define the ``Office for Law Enforcement (OLE)'' as the National Marine 
Fisheries Service, Office for Law Enforcement, Northeast Division.

Information on Harvesting Vessels

    NMFS would request the following information of all applicants for 
an AMLR harvesting permit.
    CCAMLR adopted a Conservation Measure (10-02) in 2004 requiring 
additional details on every vessel a Member State licenses to fish in 
the Convention Area, including the name of the fishing vessel (any 
previous names, if known); registration number; vessel's International 
Maritime Organization (IMO) number, if issued; external markings and 
port registry; the nature of the authorization to fish granted by the 
Flag State, specifying time periods authorized for fishing; areas of 
fishing; species targeted; gear used; previous flag, if any; 
international radio call sign; the name and address of the vessel's 
owner(s) and any beneficial owner(s), if known; name and address of 
license owner, if different from vessel owner; type of vessel; where 
and when built; length; three color photographs of the vessel; and 
where applicable, details of the implementation of the tamper-proof 
requirements on the satellite-linked vessel monitoring device.
    CCAMLR requested, to the extent practicable, the following 
additional information for vessels notified for fishing in exploratory 
fisheries: name and address of operator, if different from vessel 
owner; name and nationality of master and, where relevant, of fishing 
master; type of fishing method or method; beam in meters; gross 
registered tonnage; vessel communication types and numbers; normal crew 
complement; power of main engine or engines in kilowatts; carrying 
capacity in tons; number of fish holds and their capacity in cubic 
meters; and any other information in respect of each licensed vessel 
considered appropriate (e.g., ice classification) for the purposes of 
the implementation of the Conservation Measure 21-02.

Classification

The Act

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

National Environmental Policy Act

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

Regulatory Flexibility Act

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

Summary of IRFA

    A description of the reasons for, the objectives of, and the legal 
basis for this proposed rule is contained in the preamble and not 
repeated here.
Description of the Number of Entities:
    During the past several years, there have been 5 vessels (2 for 
toothfish, 2 for krill, and 1 for crab) and 80 dealers who could fall 
within the scope of this proposed regulation. All U.S. vessels and U.S. 
dealers are considered small entities under the ``Small Business Size 
Regulations'' established by the Small Business Administration (SBA) 
under 13 CFR 121.201. There are no disproportionate impacts between 
large and small entities since all affected businesses are considered 
small entities by SBA standards.
Economic Analysis of Proposed Regulatory Action and the Status Quo
    1. Centralized VMS. CCAMLR adopted Conservation Measure 10-04 to 
implement C-VMS. In implementing Conservation Measure 10-04, NMFS 
considered two alternatives: the proposed rule (preferred alternative) 
and the status quo (no-action) alternative. The preferred alternative 
would require NMFS and U.S.-flagged vessels fishing for AMLR to 
participate in C-VMS as established by the CCAMLR Secretariat.
    NMFS currently requires both a VMS unit on-board a U.S. vessel (50 
CFR 300.107(a)(4)) and reporting of a U.S. vessel's location every four 
hours (50 CFR 300.107(a)(3)). Therefore, the preferred alternative does 
not represent a change in operating procedures for U.S.-flagged vessels 
currently participating in AMLR fisheries or for U.S. dealers currently 
importing toothfish shipments into the United States.
    Possible benefits resulting from the proposed rule may include: 
automation of the submission of VMS data to the CCAMLR Secretariat; 
timely responses from the CCAMLR Secretariat to NMFS's inquires into 
fishing activities of a foreign vessel; faster investigations into 
authenticity of catch documentation; more efficient response time to 
NMFS requests for VMS data from flag nations; and freeing agency 
resources from having to respond to VMS data requests from Contracting 
Parties.
    The following cost estimates assume a single VMS technology: 
Inmarsat-C (this one is commonly used but there are other VMS 
technologies). Possible compliance costs to U.S. fishing vessels 
associated with the preferred alternative include the initial cost of 
the VMS unit estimated at $2,250 each (includes purchase price and 
installation; excludes freight); the annual cost of maintenance 
estimated at $350.00 per year (based on a 5-year life cycle for the 
equipment); and the annual cost of VMS transmission for a 6-month 
season, fishing every day, estimated at between $54.00 and $108.00 
(based on a per-day charge of $.30 to $.60 per day, depending on the 
service provider, for 180 days). However, for U.S.-flagged vessels 
currently participating in AMLR fisheries, no additional compliance 
costs associated with the proposed rule are anticipated as such costs 
have already been realized to comply with requirements at 50 CFR 
300.107(a)(4) and (a)(3), respectively. For future participants in AMLR 
fisheries, compliance costs would include the

[[Page 39648]]

cost of the VMS unit, freight, installation, maintenance, and the cost 
per day for a service provider to transmit VMS reports. This 
transmission cost is estimated at $54.00 and $108.00, as stated above. 
Transmission of VMS reports to the CCAMLR Secretariat to fulfill the 
``centralized'' aspect of this preferred alternative will be made by 
NMFS and does not represent an additional cost burden to U.S. vessels.
    The status quo (no-action alternative) is NMFS's non-participation 
in C-VMS. Neither current nor future participants in AMLR fisheries 
will incur additional compliance costs as a direct result of this 
alternative, nor will these participants incur additional compliance 
costs as a direct result of the preferred alternative. As stated above, 
this is due to 50 CFR 300.107(a)(4) and (a)(3), respectively. 
Regardless of whether NMFS participates in C-VMS (the preferred 
alternative) or does not participate in C-VMS (the status quo 
alternative), no net change in economic impacts to U.S. vessels 
currently participating in AMLR fisheries will occur as a direct result 
of the proposed rule. Nonetheless, NMFS rejected the status quo 
alternative due to the potential benefits associated with C-VMS 
mentioned above.
    2. Dealer Permits and Preapproval. The proposed rule (preferred 
alternative) would tighten and improve the import/re-export control 
program that the United States maintains for AMLR. The proposed rule 
would allow U.S. dealers additional time to obtain the 7501 number. 
This preferred alternative is expected to benefit U.S. dealers by 
providing a timeframe for the preapproval process that takes into 
consideration U.S. Customs administrative procedures.
    The status quo (no-action alternative) would maintain the existing 
NMFS requirement that U.S. dealers must submit the 7501 number 15 
working days prior to the arrival of a shipment as part of their 
preapproval application. Currently, U.S. dealers have difficulty 
complying with this NMFS requirement because U.S. Customs has stated 
that the 7501 number cannot be issued until it receives all of the 
required paperwork from the broker a requirement that is often 
difficult to meet 15 days prior to the arrival of a shipment of 
toothfish. Due to the perishable nature of fresh and frozen toothfish, 
delays associated with the existing preapproval requirements could 
hinder toothfish shipments from reaching the market in a timely manner, 
resulting in a lower quality of toothfish product. This delay may 
further result in lost revenue to U.S. dealers, representing negative 
economic impacts. Based on the above, NMFS rejected this alternative.
    The second part of this preferred alternative would exempt all U.S. 
dealers importing shipments of fresh toothfish weighing more than 2,000 
kilograms from preapproval of the DCD requirement. Under current NMFS 
requirements (the no-action alternative), U.S. dealers who import fresh 
toothfish shipments of 2,000 kilograms or more must pay the same fee-
for-service as U.S. dealers who import frozen toothfish shipments that 
average 25,000 kilograms. This requirement financially penalizes U.S. 
dealers importing numerous smaller shipments of fresh product at a $200 
fee for each, while U.S. dealers importing frozen product less 
frequently pay the same $200 fee for their larger shipments. This 
represents a disproportionate cost to U.S. dealers importing shipments 
of fresh toothfish weighing 2,000 kilograms or more relative to U.S. 
dealers importing frozen toothfish. Though only 4 percent of fresh 
toothfish shipments weigh 2,000 kilograms or more, and only a small 
number of U.S. dealers (2 or fewer U.S. dealers) are affected by the 
current preapproval of DCD requirement, the status quo represents a 
negative economic impact to these U.S. dealers. The current cost of an 
estimated 8 preapproval applications for 80 dealers is $128,000. Future 
costs resulting from the proposed rule for an estimated 8 preapproval 
applications for 78 dealers is $124,800. Therefore, because the 
proposed rule will likely represent a positive economic impact 
(decrease in cost) to these 2 or fewer dealers, the status quo was 
rejected.
    3. Electronic Catch Documents. The proposed rule (the preferred 
alternative) would require that all imports of toothfish be documented 
using the electronic format recommended by CCAMLR. The proposed rule 
would increase the security and reliability of catch documents and 
facilitate the trade of toothfish on behalf of U.S. dealers by 
decreasing the time needed by NMFS to process approval of shipments. 
U.S. dealers currently participating in AMLR trade are anticipated to 
have positive economic benefits associated with this preferred 
alternative by avoiding costs associated with demurrage charges and 
delays getting toothfish products into commerce. Additionally, there 
are no transmission costs to transmit electronic DCDs. The CCAMLR 
Secretariat maintains a website accessible by CDS participants for the 
transmission of electronic DCDs via the web. Therefore, there are no 
anticipated economic costs to U.S. dealers associated with the use of 
electronic DCDs.
    The status quo (no-action alternative) of not participating in 
electronic DCDs is not anticipated to result in a change in economic 
impacts for current or future participants in AMLR fisheries. However, 
NMFS rejected the no-action alternative because electronic DCDs would 
result in positive economic impacts to U.S. dealers as noted above.
    4. Scientific Observers. NMFS regulations currently require one 
scientific observer on each U.S. vessel participating in fishing 
activities in the Convention Area (50 CFR 300.106(c), 300.111(d), and/
or 300.112(i)). The status quo (no-action alternative) would leave 
these regulations and processes in place.
    For current participants in AMLR fisheries, the preferred 
alternative is anticipated to represent at most a minimal compliance 
cost for U.S. vessels since scientific observers are already required 
by NMFS regulations. These minimal compliance costs may include new 
requirements such as a work station for use by the scientific observer 
which can likely be fabricated at minimal cost to the vessel. For 
future participants in exploratory or assessed fisheries, the proposed 
rule will represent a compliance cost for each scientific observer 
ranging from $55,900 per fishing season (or $232.92 per day for 240 
days) to $89,220 per fishing season (or $371.75 per day for 240 days). 
This cost includes estimates for observer salary, insurance, travel 
costs, overhead, and other miscellaneous expenses associated with 
scientific observers.
    Additionally, this cost range reflects the planned cost for a U.S. 
scientific observer in the Antarctic krill fishery ($55,900 per fishing 
season, extrapolated from actual costs from previous fishing seasons) 
and the average U.S. scientific observer cost for the North Pacific 
groundfish fishery ($89,220 per fishing season). U.S. scientific 
observer cost for Alaskan fisheries was used here due to the Alaskan 
fisheries similarities with Antarctic fisheries in terms of 
environmental conditions, travel costs for the U.S. scientific observer 
to travel to and from the vessel, vessel size, and fishing season 
length. This level of coverage provides a good estimate for the average 
cost of a U.S. scientific observer in the Antarctic fisheries, and 
represents a middle range relative to the cost of scientific observers 
nationwide.
    Since the proposed rule (preferred alternative) seeks to clarify 
the process of placing observers on board vessels fishing in the 
Convention Area and codify requirements and prohibitions associated 
with observer placement, the

[[Page 39649]]

no-action alternative was rejected. This proposed rule would clarify 
the process by specifying placement of national observers on U.S. 
vessels harvesting AMLR; the duties and responsibilities of the 
observers on the vessels; and the duties and responsibilities of the 
vessel owners hosting the observers.
    5. Seal Excluder Device (SED). The proposed rule would require the 
use of a seal excluder device (SED) on all U.S. vessels trawling for 
krill in the Convention Area (the preferred alternative). Use of SEDs 
and other mitigation measures to avoid fur seal deaths have been in use 
on some vessels for only 1 to 2 years. In a 2005 study by Hooper et 
al., (CCAMLR Science, vol. 12: 195-205), it was concluded that 
mitigation measures either eliminated or greatly reduced the incidence 
of seal entanglements during the 2004-2005 season. Costs were found to 
be minimal due to the array of mitigation measures available to 
fishers; choice of mitigation measures depended on their budget and 
fishing strategy.
    Based on this study, the compliance cost associated with 
incorporating SEDs on U.S. vessels currently participating in the krill 
fishery is anticipated to be minimal. For future participants in this 
fishery, additional costs associated with SEDs is anticipated to be 
small relative to the cost of the fishing gear itself. In addition, 
because the study found that SEDs did not cause a decrease in catch per 
unit effort (vessel productivity), the overall harvest is not 
anticipated to decline for current or future participants in this 
fishery based on the SEDs. Therefore, negative economic impacts are not 
anticipated for current or future participants in this fishery.
    Positive economic impacts related to the use of SEDs which 
successfully reduce or eliminate seal capture include: decreasing 
expenditures on time of operations and on fuel due to fewer seal 
entanglements which create drag on fishing gear; increasing catch by 
allowing nets to remain open longer since seal capture will be reduced; 
and reducing damage to trawl gear and to the catch associated with seal 
capture.
    Not including a regulatory requirement for SEDs was considered but 
rejected as an alternative because the NMFS believes SEDs are necessary 
to reduce or eliminate seal capture.
    6. Definitions. The proposed rule (the preferred alternative) would 
amend the definition of ``Antarctic marine living resources'' by 
deleting ``All species of Dissostichus wherever found'' from the 
definition. This change would clarify this term and is not anticipated 
to have a negative economic impact on current fisheries operations 
inside or outside the Convention Area. Instead, it may represent a 
positive economic impact by eliminating permit-related costs to vessels 
who may have purchased an AMLR permit to harvest toothfish outside of 
the Convention Area when in fact the AMLR permit was unnecessary. 
Therefore, the status quo alternative, keeping the definition in its 
current form and thereby requiring AMLR permits to harvest toothfish 
outside Convention Area, was rejected.
    The proposed rule would also add or amend the terms, ``export'', 
``import'', ``international observer'', ``landing'', ``mobile 
transceiver unit'', ``national observer'', ``Office of Law Enforcement 
(OLE)'', ``Port State'', ``re-export'', ``seal excluder device'', 
``transhipment'', and ``vessel monitoring system (VMS)'', as used by 
NMFS in implementing the CCAMLR CDS. The proposed rule (preferred 
alternative) would define and clarify the use of these terms since they 
are not currently defined by NMFS regulations with regard to the CDS. 
The status quo was rejected because clarifying these terms will provide 
better guidance to fishery participants and dealers. The revised or new 
definitions are needed to conform U.S. regulations with CCAMLR 
conservation measures. The proposed rule is not anticipated to have an 
economic impact on legitimate fisheries operations in the Convention 
Area.
    7. Information on Harvesting Vessels. CCAMLR adopted a Conservation 
Measure (10-02)in 2004 requiring additional details on every vessel a 
Member State licenses to fish in the Convention Area. Requested 
information includes the name of the fishing vessel; registration 
number; vessel's IMO number, if issued; external markings and port 
registry; three color photographs of the vessel; and other information 
related to the vessel, fishing operations, and equipment.
    The proposed rule would request this information of all applicants 
for an AMLR harvesting permit and may represent a minimal cost to 
current and future participants in terms of the time needed to fulfill 
the information request and costs associated with obtaining three color 
photographs of the vessel. NMFS makes this determination based on an 
estimate, in hours, of the burden to vessels for the collection of 
information which is estimated to be two hours: one hour for a harvest 
permit application and one hour for an annual report. In addition, 
though the cost of obtaining three color photographs of the vessel was 
not itemized, the cost is anticipated to be minimal.
    These information requirements are specified in a Conservation 
Measure agreed to by the United States in CCAMLR. Therefore, other 
alternatives were not considered.
    There are no Federal rules that duplicate, overlap, or conflict 
with this proposed rule.

Executive Order 12866

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

Paperwork Reduction Act

    This proposed rule contains collection-of-information requirements 
subject to review and approval by OMB under the Paperwork Reduction Act 
(PRA). Requirements for 94 respondents have previously been approved 
under OMB Control Number 0648-0194, with a total response time 576 
hours.
    This rule also contains new or revised collection of information 
requirements that have been submitted to OMB for approval and which 
reduce the number of respondents and total burden hours in the overall 
PRA collection (for current and proposed regulations) to 86 respondents 
(5 vessels/vessel representatives, 80 dealers, and one CCAMLR Ecosystem 
Monitoring Program applicant) and 295 burden hours. The reduced number 
of respondents and burden hours is due to an overestimation in the 
previous collection of information of the number of dealers importing 
toothfish and the number of pre-approval applications they would be 
submitting.
    The new information collection requirements of this proposed rule 
are for C-VMS. The estimate in information collection burden hours for 
an estimated harvesting fleet size of 5 vessels is 14 hours per year 
with an associated labor cost of $350.00 (at $25/hour). There is also 
an estimated total annual cost burden of $4,270.00 for the fleet (5 
vessels) for VMS purchase, installation, maintenance, and transmission 
costs resulting from the C-VMS collection. This $4,270.00 cost was 
estimated as follows: (a) vessel VMS equipment purchase and 
installation = $2,250.00, annualized based on estimated 5-year useful 
life = $450 x 5 vessels = $2,250.00 annualized cost for the fleet; (b) 
annual vessel VMS maintenance per vessel = $350 x 5 vessels = $1,750.00 
annualized maintenance, for the fleet; and (c) annual vessel 
transmission costs: $54.00 x 5 vessels = $270.00 for the fleet. As 
indicated earlier in this Classification section under Summary of the 
IRFA where C-VMS is discussed, for U.S.-flagged vessels currently 
participating in AMLR fisheries, compliance costs associated with the 
proposed rule are anticipated to be

[[Page 39650]]

minimal because such costs have already been realized to comply with 
requirements at 50 CFR 300.107(a)(3) and (a)(4).
    The response estimates above include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Public comment is sought regarding: whether 
this proposed collection of information is necessary for the proper 
performance of the functions of the agency, including whether the 
information shall have practical utility; the accuracy of the burden 
estimate; ways to enhance the quality, utility, and clarity of the 
information to be collected; and ways to minimize the burden of the 
collection of information, including through the use of automated 
collection techniques or other forms of information technology. Send 
comments on these or any other aspects of the collection of information 
to NMFS and OMB (see ADDRESSES).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a penalty 
for failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB Control Number.

List of Subjects in 50 CFR Part 300

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

    Dated: July 7, 2006.
William T. Hogarth,
Assistant Administrator for Fisheries, 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, is 
revised to read as follows:

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

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


Sec.  300.101  Definitions.

* * * * *
    Antarctic marine living resources (AMLRs) * * *
    (2) All parts or products of those populations and species set 
forth in paragraph (1) of this definition.
* * * * *
    Export as used in Sec.  300.107(c) means any movement of a catch in 
its harvested or processed form from a territory under the control of 
the State or free trade zone of landing, or, where that State or free 
trade zone forms part of a customs union, any other Member State of 
that customs union.
* * * * *
    Import as used in Sec. Sec.  300.107(c) and 300.114 means the 
physical entering or bringing of a catch into any part of the 
geographical territory under the control of a State, except where the 
catch is landed or transshipped within the definitions of landing or 
transshipment.
* * * * *
    International observer means a scientific observer operating in 
accordance with the CCAMLR Scheme of International Scientific 
Observation and the terms of a bilateral arrangement concluded between 
the United States and a Member of CCAMLR for the placement of a U.S. 
national onboard a vessel flagged by a Member of CCAMLR or for the 
placement of the national of a Member of CCAMLR onboard a U.S. flagged 
vessel.
* * * * *
    Land or Landing means to begin offloading any fish, to arrive in 
port with the intention of offloading any fish, or to cause any fish to 
be offloaded; Except for purposes of catch documentation as provided 
for in Sec.  300.107(c), land or landing means the initial transfer of 
catch in its harvested or processed form from a vessel to dockside or 
to another vessel in a port or free trade zone where the catch is 
certified by an authority of the Port State as landed.
    Mobile transceiver unit means a vessel monitoring system or VMS 
device, as set forth at Sec.  300.116, installed on board a vessel that 
is used for vessel monitoring and transmitting the vessel's position as 
required by this subpart.
    National observer means a U.S. national placed and operating 
onboard a U.S. flagged vessel as a scientific observer in accordance 
with Sec.  300.113.
    Office for Law Enforcement (OLE) refers to the National Marine 
Fisheries Service, Office for Law Enforcement, Northeast Division.
    Port State means the State that has control over a particular port 
area or free trade zone for the purposes of landing, transshipment, 
importing, exporting and re-exporting and whose authority serves as the 
authority for landing or transshipment certification.
* * * * *
    Re-export as used in Sec. Sec.  300.107(c) and 300.114 means any 
movement of a catch in its harvested or processed form from a territory 
under the control of a State, free trade zone, or Member State of a 
customs union of import unless that State, free trade zone, or any 
Member State of that customs union of import is the first place of 
import, in which case the movement is an export within the definition 
of export.
* * * * *
    Seal excluder device means a barrier within the body of a trawl 
comprised of a metal frame, nylon mesh, or any material that results in 
an obstruction to seals between the mouth opening and the cod end of 
the trawl. The body of the trawl net forward of the barrier must 
include an escape opening through which seals entering the trawl can 
escape.
* * * * *
    Tranship or transshipment means the transfer of fish or fish 
products from one vessel to another; Except for purposes of catch 
documentation as provided for in Sec. Sec.  300.107(c) and 300.114, 
tranship or transshipment means the transfer at sea of a catch in its 
harvested or processed form from a vessel to another vessel or means of 
transport and, where such transfer takes place within the territory 
under the control of a Port State, for the purposes of effecting its 
removal from that State. Temporarily placing a catch on land or on an 
artificial structure to facilitate such transfer does not prevent the 
transfer from being a transshipment where the catch is not landed with 
the definition of landing.
    Vessel Monitoring System (VMS) means a system or mobile transceiver 
unit approved by NMFS for use on vessels that take AMLR, and that 
allows a Flag State, through the installation of satellite-tracking 
devices on board its fishing vessels to receive automatic transmission 
of certain information.


Sec.  300.106  [Amended]

    3. In Sec.  300.106, paragraph (c) is removed and paragraphs (d) 
and (e) are redesignated as paragraphs (c) and (d), respectively.

[[Page 39651]]

    4. In Sec.  300.107, paragraphs (a)(4), (c)(2)(i), (c)(5)(i)(A), 
(c)(5)(i)(C), and (c)(5)(iii) are revised to read as follows:


Sec.  300.107  Reporting and recordkeeping requirements.

    (a)***
    (4) Install a NMFS approved VMS unit for use in the CCAMLR 
Centralized satellite-linked vessel monitoring system (C-VMS) on board 
U.S. vessels harvesting Antarctic marine living resourcesthat 
automatically transmits the vessel's position at least every 4 hours to 
a NMFS-designated land-based fisheries monitoring center or centers. 
The unit must be operated fromthe time the vessel leaves any port until 
its return to any port. The requirements for the installation and 
operation of the VMS are set forth at Sec.  300.116.
* * * * *
    (c)* * *
    (2)* * *
    (i) In addition to any AMLR harvesting permit or a High Seas 
Fishing Compliance Act permit issued pursuant to Sec.  300.12, a U.S. 
vessel harvesting or attempting to harvest Dissostichus species, 
wherever found, must possess a DCD issued by NMFS which is non-
transferable. The master of the harvesting vessel must ensure that 
catch information specified on the DCD is accurately recorded.
* * * * *
    (5)***
    (i)* * *
    (A) Any dealer who imports toothfish must first obtain the document 
number and export reference number on the DCD corresponding to the 
import shipment and must produce verifiable information documenting use 
of C-VMS to allow entry into the United States.
* * * * *
    (C) The reference numbers described in paragraph (c)(5)(i)(A) of 
this section must be entered by the dealer on the preapproval 
application for the shipment and sent to the address designated by NMFS 
so that NMFS receives the documentation at least 15 working days prior 
to import.
* * * * *
    (iii) Exception. Preapproval is not required for shipments of fresh 
Dissostichus species. A report of a shipment of fresh Dissostichus 
species must be completed and submitted to NMFS within 24 hours 
following import.
* * * * *
    5. In Sec.  300.112, paragraph (b)(4) is added to read as follows:


Sec.  300.112  Harvesting permits.

* * * * *
    (b)* * *
    (4) The owners and operators of each krill harvesting vessel using 
trawl gear in Convention Area fisheries must install a seal excluder 
device.
* * * * *


Sec. Sec.  300.117, 300.116, 300.115, 300.114, 300.113  [Redesignated 
as Sec. Sec.  300.119, 300.118, 300.117, 300.115, 300.114]

    6. Sections 300.17, 300.116, 300.115, 300.114 and 300.113 are 
redesignated as Sec. Sec.  300.119, 300.118, 300.117, 300.115, 300.114, 
respectively.
    7. Add new Sec.  300.113 to read as follows:


Sec.  300.113  Scientific observers.

    (a) This section applies to U.S. observers aboard U.S. vessels 
harvesting in the Convention Area, U.S. observers placed on foreign 
flagged vessels and foreign observers placed on U.S. vessels.
    (b) All U.S. vessels fishing in the Convention Area must carry one 
or more scientific observers as required by CCAMLR conservation and 
management measures or as specified in a NMFS-issued AMLR Harvesting 
Permit.
    (c) All U.S. vessels conducting longline sink rate testing outside 
the Convention area and pursuant to CCAMLR protocols must carry one or 
more scientific observers as specified in a NMFS-issued AMLR Harvesting 
Permit.
    (d) Procurement of observers by vessel. Owners of vessels required 
to carry scientific observers under this section must arrange for 
observer services in coordination with the NMFS Southwest Fisheries 
Science Center Antarctic Ecosystem Research Division. The vessel owner 
is required to pay for observer services through an observer service 
provider who has provided observer services to the Federal government 
within the past year. In situations where no qualified observer is 
available through a qualified observer provider, the Secretary may 
authorize a vessel owner to arrange for an observer by alternative 
methods. An observer may not be paid directly by the vessel owner.
    (e) Insurance. The observer service provider or vessel owner must 
provide insurance for observers that provides compensation in the event 
an of injury or death during the entire deployment from the point of 
hire location and return equivalent to the standards of the North 
Pacific Groundfish Observer Program set forth in Sec.  679.80 of this 
title.
    (f) Educational requirements. National observer candidates must:
    (1) Have a Bachelor's degree or higher from an accredited college 
or university with a major in one of the natural sciences; or
    (2) Have successfully completed a minimum of 30 semester hours or 
equivalent in applicable biological sciences with extensive use of 
dichotomous keys in at least one course.
    (g) Health requirements. National observers must have a signed and 
dated statement from a licensed physician that he or she has physically 
examined the observer. The statement must confirm that, based upon the 
physical examination, the observer does not have any health problems or 
conditions that would jeopardize that individual's safety or the safety 
of others while deployed, or prevent the observer from performing his 
or her duties satisfactorily. The statement must declare that prior to 
the examination; the physician was made aware of the duties of an 
observer and the dangerous, remote and rigorous nature of the work. The 
physician's statement must be submitted to the NMFS Southwest Fisheries 
Science Center Antarctic Ecosystem Research Division program office 
prior to approval of an observer. The physical exam must have occurred 
during the 12 months prior to the observer's deployment. The 
physician's statement will expire 12 months after the physical exam 
occurred. A new physical exam must be performed, and accompanying 
statement submitted, prior to any deployment occurring after the 
expiration of the statement
    (h) Vessel responsibilities. An operator of a vessel required to 
carry one or more scientific observers must:
    (1) Accommodations and food. Provide, at no cost to observers or 
the United States, accommodations and food on the vessel for the 
observer or observers that are equivalent to those provided for 
officers of the vessel; and
    (2) Safe conditions. (i) Maintain safe conditions on the vessel for 
the protection of observers including adherence to all U.S. Coast Guard 
and other applicable rules, regulations, or statutes pertaining to safe 
operation of the vessel.
    (ii) Have on board:
    (A) A valid Commercial Fishing Vessel Safety Decal issued within 
the past 2 years that certifies compliance with regulations found in 33 
CFR chapter I and 46 CFR chapter I. NMFS will grant a waiver from the 
Voluntary Safety decal provision if the vessel is in compliance with 
the standards of the observer vessel safety check list developed by the 
Northeast Fisheries Science Center http://www.nefsc.noaa.gov/femad/fsb/ 
or equivalent certification issued by the Flagging State;

[[Page 39652]]

    (B) A certificate of compliance issued pursuant to 46 CFR 28.710; 
or
    (C) A valid certificate of inspection pursuant to 46 U.S.C. 3311.
    (3) Health and safety regulations. Comply with the Observer health 
and safety regulations at part 600 of this title. NMFS will grant a 
waiver from the Voluntary Safety decal provision if the vessel is in 
compliance with the standards of the observer vessel safety check list.
    (4) Transmission of data. Facilitate transmission of observer data 
by allowing observers, on request, to use the vessel's communications 
equipment and personnel for the confidential entry, transmission, and 
receipt of work-related messages.
    (5) Vessel position. Allow observers access to, and the use of, the 
vessel's navigation equipment and personnel, on request, to determine 
the vessel's position, course and speed.
    (6) Access. Allow observers free and unobstructed access to the 
vessel's bridge, trawl or working decks, holding bins, processing 
areas, freezer spaces, weight scales, cargo holds, and any other space 
that may be used to hold, process, weigh, or store fish or fish 
products at any time.
    (7) Prior notification. Notify observers at least 15 minutes before 
fish are brought on board, or fish and fish products are transferred 
from the vessel, to allow sampling the catch or observing the transfer, 
unless the observers specifically request not to be notified.
    (8) Records. Allow observers to inspect and copy the vessel's 
CCAMLR DCD, product transfer forms, any other logbook or document 
required by regulations, printouts or tallies of scale weights, scale 
calibration records, bin sensor readouts, and production records.
    (9) Assistance. Provide all other reasonable assistance to enable 
observers to carry out their duties, including, but not limited to:
    (i) Measuring decks, codends, and holding bins;
    (ii)Providing the observers with a safe work area adjacent to the 
sample collection site;
    (iii) Collecting bycatch when requested by the observers.
    (iv) Collecting and carrying baskets of fish when requested by 
observers; and
    (v) Allowing observers to determine the sex of fish when this 
procedure will not decrease the value of a significant portion of the 
catch.
    (10) Transfer at sea. (i) Ensure that transfers of observers at sea 
via small boat or raft are carried out during daylight hours, under 
safe conditions, and with the agreement of observers involved.
    (ii) Notify observers at least 3 hours before observers are 
transferred, such that the observers can collect personal belongings, 
equipment, and scientific samples.
    (iii) Provide a safe pilot ladder and conduct the transfer to 
ensure the safety of observers during transfers.
    (iv) Provide an experienced crew member to assist observers in the 
small boat or raft in which any transfer is made.
    (i) Standards of Observer Conduct. (1) Observers: (i) Must not have 
a direct financial interest in the fishery being observed, including 
but not limited to:
    (A) Any ownership, mortgage holder, or other secured interest in a 
vessel, shoreside or floating stationary processor facility involved in 
the catching, taking, harvesting or processing of fish;
    (B) Any business involved with selling supplies or services to any 
vessel, shoreside or floating stationary processing facility; or
    (C) Any business involved with purchasing raw or processed products 
from any vessel, shoreside or floating stationary processing 
facilities.
    (ii) Must not solicit or accept, directly or indirectly, any 
gratuity, gift, favor, entertainment, loan, or anything of monetary 
value from anyone who either conducts activities that are regulated by 
NMFS or has interests that may be substantially affected by the 
performance or nonperformance of the observers' official duties.
    (iii) May not serve as observers on any vessel or at any shoreside 
or floating stationary processing facility owned or operated by a 
person who previously employed the observers.
    (iv) May not solicit or accept employment as a crew member or an 
employee of a vessel, shoreside processor, or stationary floating 
processor while employed by an observer provider.
    (2) Provisions for remuneration of observers under this section do 
not constitute a conflict of interest.
    (j) Standards of Observer Behavior. Observers must avoid any 
behavior that could adversely affect the confidence of the public in 
the integrity of the Observer Program or of the government, including 
but not limited to the following:
    (1) Observers must perform their assigned duties as described in 
the CCAMLR Scientific Observers Manual and must complete the CCAMLR 
Scientific Observer Logbooks and submit them to the CCAMLR Data Manager 
at the intervals specified by the Data Manager.
    (2) Observers must accurately record their sampling data, write 
complete reports, and report accurately any observations of suspected 
violations of regulations relevant to conservation of marine resources 
or their environment.
    (3) Observers must not disclose collected data and observations 
made on board the vessel or in the processing facility to any person 
except the owner or operator of the observed vessel or processing 
facility, or NMFS.
    (4) Observers must refrain from engaging in any illegal actions or 
any other activities that would reflect negatively on their image as 
professional scientists, on other observers, or on the Observer Program 
as a whole. This includes, but is not limited to:
    (i) Engaging in the use, possession, or distribution of illegal 
drugs; or
    (ii) Engaging in physical sexual contact with personnel of the 
vessel or processing facility to which the observer is assigned, or 
with any vessel or processing plant personnel who may be substantially 
affected by the performance or non-performance of the observer's 
official duties.
    (k) Sampling Station. (1) Minimum work space aboard at sea 
processing vessels. The observer must have a working area of 4.5 square 
meters, including the observer's sampling table, for sampling and 
storage of fish to be sampled. The observer must be able to stand 
upright and have a work area at least 0.9 m deep in the area in front 
of the table and scale.
    (2) Table aboard at-sea processing vessels. The observer sampling 
station must include a table at least 0.6 m deep, 1.2 m wide and 0.9 m 
high and no more than 1.1 m high. The entire surface area of the table 
must be available for use by the observer. Any area for the observer 
sampling scale is in addition to the minimum space requirements for the 
table. The observer's sampling table must be secured to the floor or 
wall.
    (3) Other requirement for at-sea processing vessels. The sampling 
station must be in a well-drained area that includes floor grating (or 
other material that prevents slipping), lighting adequate for day or 
night sampling, and a hose that supplies fresh or sea water to the 
observer.
    8. In newly redesignated Sec.  300.114, paragraphs (a)(1), (a)(2), 
(b), and (i) are revised to read as follows:


Sec.  300.114  Dealer permits and preapproval.

    (a) * * *
    (1) A dealer intending to import or re-export AMLR must obtain an 
AMLR

[[Page 39653]]

dealer permit valid for one year. Preapproval from NMFS is required for 
each shipment of frozen Dissostichus species. The permit holder may 
only conduct those specific activities stipulated by the permit.
    (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 preapproval issued under this 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 or dealer permit and, in the case of frozen Dissosichus species, 
the preapproval certification granted by NMFS to allow import. NMFS 
will only accept electronic catch documents for toothfish imports.
* * * * *
    (b) Application. Application forms for AMLR dealer permits and 
preapproval are available from NMFS. A complete and accurate 
application must be received by NMFS for each preapproval at least 15 
working days before the anticipated date of the first receipt, 
importation, or re-export. Dealers may supply the U.S. Customs 7501 
entry number within three working days of a Dissostichus species 
shipment's arrival.
* * * * *
    (i) Exception. Preapproval is not required for shipments of fresh 
Dissostichus species. A report of a shipment of fresh Dissostichus 
species must be completed and submitted to NMFS within 24 hours 
following import.
* * * * *
    9. Add Sec.  300.116 to read as follows:


Sec.  300.116  Requirements for a vessel monitoring system.

    (a) Requirement for use. Within 30 days after NMFS publishes in the 
Federal Register a list of approved transmitting units and associated 
communications service providers for the AMLR fishery, an owner or 
operator of a vessel that has been issued a harvesting permit for AMLR 
must ensure that such vessel has a NMFS-approved, operating VMS on 
board when on any fishing trip involving the harvesting of AMLR. An 
operating VMS includes an operating mobile transmitting unit on the 
vessel and a functioning communication link between the unit and NMFS 
as provided by a NMFS-approved communication service provider.
    (b) Installing and activating the VMS. Only a VMS that has been 
approved by NMFS for use in the AMLR fishery may be used. When 
installing and activating the NMFS-approved VMS, or when reinstalling 
and reactivating such VMS, the vessel owner or operator must -
    (1) Follow procedures indicated on an installation and activation 
checklist, which is available from OLE; and
    (2) Submit to OLE a statement certifying compliance with the 
checklist, as prescribed on the checklist.
    (c) Interference with the VMS. No person may interfere with, tamper 
with, alter, damage, disable, or impede the operation of the VMS, or 
attempt any of the same.
    (d) Interruption of operation of the VMS. When a vessel's VMS is 
not operating properly, the owner or operator must immediately contact 
NMFS, Office of Enforcement, (OLE OFFICE), and follow instructions from 
that office. If notified by NMFS that a vessel's VMS is not operating 
properly, the owner and operator must follow instructions from that 
office. In either event, such instructions may include, but are not 
limited to, manually communicating to a location designated by NMFS the 
vessel's positions or returning to port until the VMS is operable.
    (e) Access to position data. As a condition of authorized fishing 
for or possession of AMLR, a vessel owner or operator subject to the 
requirements for a VMS in this section must allow NMFS, the USCG, and 
their authorized officers and designees access to the vessel's position 
data obtained from the VMS.
    (f) Installation and operation of the VMS. NMFS has authority over 
the installation and operation of the VMS unit. NMFS may authorize the 
connection or order the disconnection of additional equipment, 
including a computer, to any VMS unit when deemed appropriate by NMFS.
    10. In newly designated Sec.  300.117, paragraph (t) is revised and 
new paragraphs (u) through (ff) are added to read as follows:


Sec.  300.117  Prohibitions.

* * * * *
    (t) Import shipments of frozen Dissostichus spp. without a 
preapproval issued under Sec.  300.114.
    (u) Assault, resist, oppose, impede, intimidate, harass, bribe, or 
interfere with an observer.
    (v) Interfere with or bias the sampling procedure employed by an 
observer, including physical, mechanical, or other sorting or 
discarding of catch before sampling.
    (w) Tamper with, destroy, or discard an observer's collected 
samples, equipment, records, photographic film, papers, or personal 
effects without the express consent of the observer.
    (x) Prohibit or bar by command, impediment, threat, coercion, or by 
refusal of reasonable assistance, an observer from collecting samples, 
conducting product recovery rate determinations, making observations, 
or otherwise performing the observer's duties.
    (y) Harass an observer by conduct that has sexual connotations, has 
the purpose or effect of interfering with the observer's work 
performance, or otherwise creates an intimidating, hostile, or 
offensive environment. In determining whether conduct constitutes 
harassment, the totality of the circumstances, including the nature of 
the conduct and the context in which it occurred, will be considered. 
The determination of the legality of a particular action will be made 
from the facts on a case-by-case basis.
    (z) Fish for or process fish without observer coverage required 
under Sec.  300.113.
    (aa) Require, pressure, coerce, or threaten an observer to perform 
duties normally performed by crew members, including, but not limited 
to, cooking, washing dishes, standing watch, vessel maintenance, 
assisting with the setting or retrieval of gear, or any duties 
associated with the processing of fish, from sorting the catch to the 
storage of the finished product.
    (bb) Vessel monitoring systems.
    (1) Use any vessel registered to an AMLR harvesting permit to 
conduct fishing operations unless that vessel carries a OLE type-
approved mobile transceiver unit and complies with the requirements 
described in this subpart.
    (2) Fail to install, activate, repair or replace a mobile 
transceiver unit prior to leaving port as specified in this subpart.
    (3) Fail to operate and maintain a mobile transceiver unit on board 
the vessel at all times as specified in this subpart.
    (4) Tamper with, damage, destroy, alter, or in any way distort, 
render useless, inoperative, ineffective, or inaccurate the VMS, mobile 
transceiver unit, or VMS signal required to be installed on or 
transmitted by a vessel as specified in this Subpart.
    (5) Fail to contact OLE or follow OLE instructions when automatic 
position reporting has been interrupted as specified in this subpart.
    (6) Register a VMS transceiver unit registered to more than one 
vessel at the same time.

[[Page 39654]]

    (7) Connect or leave connected additional equipment to a VMS unit 
without the prior approval of the OLE.
    (8) Make a false statement, oral or written, to an authorized 
officer regarding the installation, use, operation, or maintenance of a 
VMS unit or communication service provider.
    (9) Fail to operate a Centralized satellite-linked vessel 
monitoring system (C-VMS) on board U.S. vessels harvesting AMLR in the 
Convention Area from the time of leaving port to returning to port.
    (cc) Fail to use the mitigation measures required in the course of 
longline fishing or longline fishing research in the Convention Area to 
minimize the incidental mortality of seabirds.
    (dd) Fail to use the mitigation measures required in the Convention 
Area to minimize the incidental mortality of seabirds and marine 
mammals in the course of trawl fishing.
    (ee) Set longlines in Subareas 48.6, 88.1 and 88.2 Divisions 
58.4.1, 58.4.2, 58.4.3a, 58.4.3b and 58.5.2 during daylight hours 
without following the CCAMLR protocol designed to mitigate seabird 
interactions.
    (ff) Trawl for krill in Convention Area fisheries without a seal 
excluder device.
[FR Doc. 06-6166 Filed 7-12-06; 8:45 am]
BILLING CODE 3510-22-S