[Federal Register Volume 72, Number 163 (Thursday, August 23, 2007)]
[Rules and Regulations]
[Pages 48496-48512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-16589]



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Part V





Department of Commerce





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 National Oceanic and Atmospheric Administration



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50 CFR Part 300



Implementation of Measures Adopted by the Commission for the 
Conservation of Antarctic Marine Living Resources (CCAMLR) To 
Facilitate Conservation and Management of Antarctic Marine Living 
Resources (AMLR); Final Rule

  Federal Register / Vol. 72, No. 163 / Thursday, August 23, 2007 / 
Rules and Regulations  

[[Page 48496]]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 070806446-7446-01; 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: Final rule.

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SUMMARY: NMFS issues a final rule implementing measures adopted by the 
Commission for the Conservation of Antarctic Marine Living Resources 
(CCAMLR) to facilitate conservation and management of AMLR. This final 
rule requires the use of the Centralized satellite-linked vessel 
monitoring system (VMS) by all U.S. vessels harvesting AMLR and makes 
use of VMS by the harvesting vessel a condition of import for all U.S. 
dealers seeking to import shipments of toothfish (Dissostichus) into 
the United States. This final rule also exempts all shipments of fresh 
toothfish from the NMFS preapproval process and allows importers of 
frozen toothfish to submit the U.S. Customs 7501 entry number 
subsequent to their initial application for preapproval. This final 
rule requires the use of Electronic Catch Documents for all U.S. 
dealers seeking to import shipments of toothfish into the United 
States. Paper-based catch documents for toothfish will no longer be 
accepted. This final rule also requires 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). This final rule adds or amends 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)''. This final rule also expands the 
list of requirements and prohibitions regarding scientific observers 
and clarifies the duties and responsibilities of the observers on the 
vessels and of the vessel owners hosting the observers. This final 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. 
obligations in CCAMLR.

DATES: This rule is effective September 24, 2007.

ADDRESSES: Copies of the Regulatory Impact Review/Final Regulatory 
Flexibility Analysis (RIR/FRFA) prepared for this action, the Final 
Programmatic Environmental Impact Statement (FPEIS), and the Record of 
Decision (ROD) may be obtained from the mailing address listed here or 
by calling Robin Tuttle, NMFS-S&T, 1315 East-West Highway, Silver 
Spring, MD 20910 (also see FOR FURTHER INFORMATION CONTACT).
    Send comments regarding the burden-hour estimates or other aspects 
of the collection-of-information requirements contained in this final 
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.

Statutory and Regulatory Background

    NMFS published the proposed rule for this action in the Federal 
Register on July 13, 2006 (71 FR 39642) with a public comment period 
through August 14, 2006. NMFS received comments from three commenters 
and the comments and responses are discussed under the succeeding 
Comments and Responses section of this preamble.
    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. The changes implemented by this final rule 
involve: Centralized VMS; Dealer Permits and Preapproval; Electronic 
Catch Documents; Scientific Observers; Seal Excluder Device; 
Definitions; and Information on Harvesting Vessels. While each of these 
changes is described below, for a more complete discussion please see 
the preamble to the proposed rule published on July 13, 2006 (71 FR 
39642).

Centralized Vessel Monitoring System (C-VMS)

    The final rule requires all U.S. vessels, when on a fishing trip 
involving the harvesting of AMLR, to use a VMS unit that automatically 
transmits the vessel's position at least every 4 hours to a land-based 
fisheries monitoring center designated by NMFS. Previously only 
movement into or out of the Convention Area, not position, was required 
to be reported. In addition, the final rule requires use of a VMS unit 
from the time a vessel leaves any port until its return to any port. 
These measures will help manage fishing within the Convention Area with 
greater certainty and will make 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.
    The final rule also requires 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 Catch 
Documentation Scheme (CDS) Officer from the Secretariat documenting the 
use of C-VMS. U.S. dealers seeking to import toothfish or toothfish 
products originating from small artisanal boats fishing in the 
Exclusive Economics Zones (EEZ) of Peru or Chile will not have to 
possess information documenting the use of C-VMS by such artisanal 
boats. NMFS exempts such dealers because of the small size of

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these artisanal boats and their inability to navigate beyond the EEZ.

Dealer Permits and Preapproval

    The final rule: (1) Allows additional time for dealers to supply 
the U.S. Customs 7501 number; and (2) exempts all shipments of fresh 
toothfish from the requirement for preapproval. Currently, after 
receiving an 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 kilograms (kg), is 
required to submit to NMFS the Dissostichus Catch Documents (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 revising the ``Application for Preapproval of 
Catch Documents'' form specifically to allow dealers additional time to 
forward the 7501 number to NMFS. Under the final rule, dealers may 
supply the 7501 number up to 3 working days prior to a toothfish 
shipment's arrival. NMFS needs at least 3 working days to process and 
issue a preapproval certificate. All other information requested on the 
``Application for Preapproval of Catch Documents'' must be submitted, 
as presently required, 15 days in advance of the shipment's arrival.
    Due to the extremely quick turnaround time required for shipments 
of fresh toothfish, NMFS has accepted the ``Application for Preapproval 
of Catch Documents'' within 24 hours after the import of a shipment of 
fresh toothfish, rather than 15 days in advance of the shipment. This 
exception to preapproval was available for shipments of fresh toothfish 
under 2,000 kg. The final rule extends this exception to shipments of 
fresh toothfish over 2,000 kg. Therefore, no shipment of fresh 
toothfish requires preapproval; however, the final rule requires the 
completion and submission of a Reporting Form for Catch Documents 
Accompanying Fresh, Air-Shipped Shipments of Toothfish within 24 hours 
of import for all shipments of fresh toothfish whether greater or less 
than 2,000 kg. The number of shipments of fresh toothfish greater than 
2,000 kg are small. These shipments are typically harvested by the 
artisanal fishery of Chile and have historically not been the cause for 
enforcement concern. The infractions common to large shipments of 
frozen toothfish do not occur with small shipments of fresh toothfish. 
One common infraction results when legally and illegally harvested 
toothfish are frozen and combined in one shipment and exported with a 
single ``legal'' DCD. Large shipments of frozen toothfish might also 
include fish illegally harvested in a CCAMLR restricted area and 
claimed to have been harvested in an EEZ or on the high seas. As 
artisanal boats harvesting and shipping small amounts of fresh fish are 
not equipped to reach these CCAMLR restricted areas where any 
transshipment would take place, 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 artisanal toothfish fishery. Under the final rule, DCDs for 
shipments of fresh toothfish from Chile will be reviewed without a fee-
for-service charge. Shipments of all frozen toothfish including those 
in quantities of less than 2,000 kg will still require preapproval. 
NMFS regulations at 50 CFR 300.107(c)(6) and 300.114 regarding the re-
export of toothfish are not revised. The revised DCD, revised NMFS 
application for an annual AMLR dealer permit, revised NMFS application 
for preapproval, and the Reporting Form for Catch Documents 
Accompanying Fresh, Air-Shipped Shipments of Toothfish (report) 
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 will, 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 catch documentation system (E-CDS), by 
requiring electronic DCDs, eliminates the incentive by allowing a real-
time check of the amount presented for import against the amount 
authorized for harvesting. All information is validated on presentation 
of the information. The final rule requires U.S. dealers importing 
toothfish into the United States to use the electronic format. Once the 
final rule goes into effect, NMFS will only accept electronic catch 
documents and will no longer accept paper catch documents for toothfish 
shipments. NMFS will not require the use of electronic documents until 
September 24, 2007. In the preamble to the proposed rule (July 13, 
2006; 71 FR 39642), NMFS had announced its intention to delay the 
requirement for electronic documents for 60 days after publication of 
the final rule in order to allow U.S. dealers sufficient time to comply 
with the changes of moving to the electronic format. However, NMFS 
believes that 30 days is adequate time for U.S. dealers to comply. 
Moreover, NMFS believes that it is important to put in place the E-CDS 
requirement as soon as possible. The electronic documentation should 
provide further assurance to the public that the United States has an 
efficient and effective system in place to discourage and prevent 
importation of IUU fish.

Scientific Observers

    CCAMLR has identified two types of observers, collectively known as 
scientific observers, who may collect information required in CCAMLR-
managed fisheries. The first type, ``national observers,'' are 
nationals of the Member designating them to operate on board a fishing 
vessel of that Member and conduct themselves in accordance with 
national regulations and standards. The second type, ``international 
observers,'' are observers operating in accordance with bilateral 
arrangements between the receiving Member whose

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vessel is fishing and the designating Member who is providing the 
observer.
    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 current 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, CCAMLR requires a vessel to carry two 
scientific observers, one of which must be an international observer.
    NMFS requires, as a condition of a vessel's 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 with longline gear during daylight hours, 
CCAMLR Conservation Measure 24-02 requires longline testing trials 
prior to entering the Convention Area. Vessels choosing not to conduct 
the testing trials are restricted by CCAMLR Conservation Measure 25-02 
to longline fishing at night. Nighttime fishing is one technique for 
minimizing the incidental mortality of seabirds in the course of 
longline fishing. Another technique to minimize incidental mortality is 
the use of weighted longlines. Conservation Measure 24-02 identifies 
two protocols for monitoring the sink rate of weighted longlines. The 
more rapidly a weighted line sinks the less likely there is to be 
seabird interaction, and possible entanglement, with the lines. NMFS 
regulations do not presently require a vessel to carry scientific 
observers during line weight testing.
    The final rule requires 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, to carry one or more 
scientific observers.
    The final rule specifies 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 final rule.
    The final rule expands 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, including that every vessel 
fishing for krill employ a device for excluding seals by facilitating 
their escape from the trawl net, and that observers be required on 
krill vessels to collect reliable data on seal entrapment and on the 
effectiveness of mitigation devices.
    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 final rule requires seal excluder devices on all U.S. vessels 
trawling for krill in Convention Area fisheries.

Definitions

    The final 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 final rule defines or redefines the terms ``export'', 
``import'', ``land or landing'', ``Port State'', ``re-export'', and 
``transship or transshipment'' as used by NMFS in implementing the CDS. 
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. The final 
rule clarifies 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 areas in 
the high seas where a HSFCA permit is required. The final rule 
preserves the requirement that all imports of toothfish, wherever 
harvested, comply with U.S. import permit conditions and DCD controls.
    For the designation and placement of scientific observers on 
vessels fishing in the CCAMLR Convention Area, the final rule defines 
``national observers'' and ``international observers.'' Both national 
observers and international observers, by definition, are scientific 
observers.
    For the mitigation of seal bycatch, the final rule defines ``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 final rule defines ``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 final rule defines 
``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 defines the ``Office for 
Law Enforcement (OLE)'' as the National Marine Fisheries Service, 
Office for Law Enforcement, Northeast Division.

Information on Harvesting Vessels

    Pursuant to CCAMLR Conservation Measure 10-02, adopted in 2004, 
NMFS is requesting the following information of all applicants for an 
AMLR harvesting

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permit: 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.
    In addition, pursuant to CCAMLR Conservation Measure 10-02, NMFS is 
collecting 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 methods; 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.

Comments and Responses

    The public comment period on the proposed rule (71 FR 39642) closed 
at 5 p.m., eastern standard time, on August 14, 2006. A total of three 
commenters submitted comments (via e-mail and fax) to NMFS on behalf of 
four non-governmental organizations with environmental interests. These 
organizations were the National Environmental Trust, the Antarctic 
Krill Conservation Project, the Center for Biological Diversity, and 
the Turtle Island Restoration Network.
    National Environmental Trust (NET) Comments. The NET commented that 
finalizing the rule will strengthen the role of the U.S. government as 
a leader among CCAMLR Member States in adopting measures to prevent 
illegal, unreported, and unregulated fishing for toothfish and to 
sustainably manage the second generation Antarctic krill fishery. NET 
indicated that their comments were endorsed by Greenpeace USA and the 
Antarctic Krill Conservation Project. Comments by NET on regulatory 
components follow:
    Comment 1: NET supports the requirement that dealers seeking to 
import toothfish into the United States provide documentation 
indicating that the toothfish was caught by a vessel participating in 
C-VMS regardless of where the vessel caught the toothfish. NET also 
supports the requirement that all U.S. vessels fishing for AMLR have C-
VMS and that a VMS unit must be operating from port to port.
    Response: These provisions of the rule are designed to discourage 
IUU fishing and further restrict access to the U.S. market for IUU 
toothfish.
    Comment 2: NET expressed support for the requirement that all U.S. 
importers of toothfish must use the electronic format of the 
Dissostichus Catch Document (DCD) that accompanies toothfish imports 
into the United States.
    Response: NMFS expects that this requirement will effectively guard 
against importation of IUU toothfish with forged paper documentation. 
The E-CDS is much more reliable and secure in that paper document 
fields may be incorrectly completed, or even fraudulently completed 
while the electronic version has logic checks and will not allow the 
completion of a document with errors with regard to fraud.
    Comment 3: NET supports the requirement that all U.S. vessels 
fishing for AMLR, including krill, must carry one or more scientific 
observers on board.
    Response: NMFS is publishing regulations to implement the CCAMLR 
Scheme of International Scientific Observation and believes that all 
U.S. vessels fishing in the Convention Area, including vessels fishing 
for krill, and U.S. vessels conducting longline testing outside the 
Convention Area, should carry one or more scientific observers. NMFS 
agrees with the commenter that detailed data on fishing activities 
provided by scientific observers is critical to managing AMLR and, in 
particular, krill, a vital food source for whales, seals, penguins, 
albatrosses and other sea birds.
    Comment 4: NET supports the requirement that seal excluder devices 
be used on all U.S. vessels trawling for Antarctic krill in the 
Convention Area.
    Response: Beginning in late 2004, NMFS required the sole U.S. krill 
harvester to use a seal excluder device to eliminate or reduce 
Antarctic fur seal bycatch. NMFS would now make this a regulatory 
requirement for all U.S. vessels trawling for Antarctic krill.
    Antarctic Krill Conservation Project (the Project) Comments. The 
Project commented that they welcome the regulatory actions put forward 
by NMFS to implement CCAMLR-agreed conservation measures and, as 
Antarctic krill occupies a central role in the Southern Ocean 
ecosystem, the Project appreciates the proposed regulatory provisions 
to enhance krill protection.
    Comment 5: The Project commented that the regulatory provisions 
dealing with scientific observers and seal excluder devices will 
contribute to a better managed krill fishery.
    Response: These provisions of the rule are designed to contribute 
to a better managed krill fishery.
    Comment 6: The Project requested that the regulatory provisions 
requiring C-VMS be applied to U.S. vessels fishing for krill, and 
encouraged NMFS to urge other countries to take similar action and seek 
an amendment to CCAMLR Conservation Measure 10-04 to remove the 
exemption for krill vessels.
    Response: Through this final rule NMFS would require all U.S. 
vessels harvesting AMLR to use an NMFS approved VMS unit and to 
participate in C-VMS reporting requirements. At recent CCAMLR meetings, 
the United States has proposed an amendment to CCAMLR Conservation 
Measure 10-04 to require krill vessels to use C-VMS but has not yet 
been able to get CCAMLR to adopt such a measure.
    Center for Biological Diversity (CBD) and Turtle Island Restoration 
Network (TIRN) Comments. The CBD and TIRN state that they support the 
proposed changes for the most part, but have raised concerns with 
several proposed changes regarding the National Environmental Policy 
Act (NEPA), the Endangered Species Act (ESA), the Marine Mammal 
Protection Act (MMPA), and the Migratory Bird Treaty Act (MBTA). Their 
comments on the proposed regulations incorporate by reference their 
comments on the 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 (DPEIS), and previous 
letters to NMFS (dated September 18, 2003, December 31, 2003, and March 
22, 2004). Much of the following is a summary of their comments on the 
DPEIS and NMFS responses taken from the FPEIS for the above referenced 
DPEIS. Notice of availability of the FPEIS was published by the 
Environmental Protection Agency

[[Page 48500]]

in the November 24, 2006, issue of the Federal Register (71 FR 67864).
    Comment 7: CBD/TIRN commented that NMFS must suspend any current 
authorizations, and not issue any further permits for U.S. flagged 
vessels to conduct fishing operations in the CCAMLR area, until a final 
programmatic EIS and biological opinion are completed and NMFS issues 
an MMPA incidental take authorization for sperm whales.
    Response: NMFS conducted the appropriate analyses under NEPA and 
the ESA and other applicable laws prior to issuing AMLR harvesting 
permits and HSFCA permits to F/Vs American Warrior, America No. 1, and 
Top Ocean. In addition, NMFS completed an FPEIS with notice published 
on November 24, 2006 (71 FR 67864). The FPEIS contains Section 4.7 
entitled the ``Endangered Species Act'', which summarized conclusions 
of the NMFS programmatic Section 7(a)(2) consultation, examining the 
effects of the management regime on listed species. NMFS also completed 
a programmatic biological opinion on March 28, 2006, which included 
consultation on the issuance of fishing permits by NMFS under the 
Antarctic Marine Living Resources Convention Act of 1984 (AMLRCA). The 
most recent permit that NMFS issued for a U.S. flagged vessel to 
conduct fishing operations in the CCAMLR Convention Area (F/V Top Ocean 
to harvest krill) expired November 30, 2005. F/V Top Ocean conducted 
commercial trawl operations for krill in the early months of 2005 and 
there has been no U.S. fishing in the Convention Area since then.
    In terms of NMFS issuing an MMPA incidental take authorization for 
sperm whales, no sperm whale mortalities by U.S. vessels have occurred 
and no takes of sperm whales by U.S. vessels are anticipated or 
authorized. No U.S. vessels have been longlining for toothfish in the 
Convention waters since 2004.
    Comment 8: CBD/TIRN believes that NMFS did not circulate the DPEIS 
widely enough, did not issue a stand-alone Federal Register notice, and 
did not describe how an interested member of the public could get a 
copy of the document. CBD/TIRN believes that NMFS did not provide the 
public with sufficient notice of the availability of the DPEIS for 
public comment and, therefore, NMFS must recirculate the DPEIS for 
public comment before relying on it for the proposed rule.
    Response: NMFS provided EPA with the DPEIS and requisite 
information for EPA to publish a notice of availability in the Federal 
Register as required by CEQ regulations. Publication of the DPEIS in 
the Federal Register (70 FR 38132), along with distribution to the 
mailing list contained in the DPEIS, meets the Federal action agency 
responsibility for providing public notice and invitation for public 
comment under the CEQ regulations. In addition, NMFS posted notice of 
publication of the DPEIS, along with the DPEIS, on its Web site at 
several locations (http://www.nmfs.noaa.gov/sfa/domes_fish/new_of_note.htm).
    Comment 9: CBD/TIRN believes that the DPEIS fails to analyze the 
likely cumulative impacts of fisheries-related mortality to threatened 
seabirds (primarily albatrosses and petrels) from longline and trawl 
fishing in their ranges. They assert that the role of U.S. longline and 
trawl vessels, combined with other nations' legal and illegal longline 
toothfish vessels, must be looked at cumulatively for their impacts on 
seabirds in order for the FPEIS to comply with NEPA.
    Response: Table 7 of the DPEIS and the FPEIS lists the conservation 
status of seabirds defined by the U.S. government (i.e., Endangered 
Species Act listing status), CCAMLR and the International Union for the 
Conservation of Nature (IUCN). Table 21 of the DPEIS and the FPEIS 
lists the types of seabirds interacting with CCAMLR fisheries and 
highlights the 20 species identified by CCAMLR's Working Group on 
Incidental Mortality Associated with Fishing (WG-IMAF) as most at risk 
from fisheries interactions. NMFS cites peer-reviewed scientific 
publications that document the impact of fisheries on specific 
populations. Unlike ESA listing status and criteria, the IUCN listings 
do not connote any prescribed or specific actions or measures under 
U.S. law. The IUCN criteria do provide a basis for common understanding 
of global species and they have been used in that context in both the 
DPEIS and the FPEIS.
    The environmental consequences section of both the DPEIS and the 
FPEIS analyzes the anticipated impacts of each individual action on 
seabirds. The cumulative impacts section of both the DPEIS and FPEIS 
addresses impacts on seabirds. Potential cumulative impacts on these 
seabird species include: U.S. vessels fishing in CCAMLR regulated 
fisheries, other CCAMLR member vessels fishing in CCAMLR regulated 
fisheries, IUU vessels fishing within the CCAMLR and adjacent areas, 
and regulated fishing activities occurring in adjacent areas under the 
jurisdiction of other Regional Fishery Management Organizations 
(RFMOs). CCAMLR's ad hoc WG-IMAF and CCAMLR's Working Group on Fish 
Stock Assessment (WG-FSA) have discussed potential effects of bycatch 
levels and rates on seabird populations, particularly threatened and 
endangered species (as defined under IUCN). The groups noted the 
current lack of appropriate demographic models and the lack of reliable 
data on mortality rates of the relevant seabird species in longline and 
trawl fisheries outside the Convention Area and in IUU fisheries 
generally. Without this information, it is difficult, if not 
impossible, for NMFS to conduct a complex quantitative analysis of the 
cumulative impacts to seabirds from longline and trawl fisheries 
outside the Convention Area and in IUU fisheries. Even without these 
detailed analyses, CCAMLR has taken the approach (as the United States 
has in the Hawaii and Alaska longline fisheries) to minimize/reduce the 
bycatch of seabirds that occurs by requiring effective mitigation, 
including gear type and usage requirements and time-area closures, 
among other measures. The United States implements these measures and 
they help mitigate the impacts on seabirds.
    The DPEIS and FPEIS note that trade and enforcement control 
measures are anticipated to minimize the import of IUU fish into the 
United States; this should result in the United States contributing 
negligible amounts to the cumulative impact on seabirds from both 
fishing and import activities.
    The impacts of fisheries-related mortality on seabird species were 
fully analyzed using the available data. NMFS notes that in the 
regulated CCAMLR longline fishery, the seabird bycatch levels are 
extremely low, 0.0011 birds/1000 hooks in Subarea 48.3 in 2005, for 
instance. Consequently, the regulated fishery contributes a negligible 
amount to seabird mortality. The only remaining bycatch problems in the 
longline fishery are in the French EEZ and in IUU fishing within the 
Convention Area. The impact of U.S.-permitted vessels in the regulated 
longline fisheries on seabird bycatch is so small that it does not 
contribute to cumulative impacts on seabirds.
    Comment 10: CBD/TIRN believes that the DPEIS fails to adequately 
analyze the impacts on marine mammals, particularly on a form of killer 
whale that specializes in eating toothfish and on Antarctic fur seals 
being caught and killed in the trawl fishery for krill.
    Response: Given recent observations that there likely is a form of 
killer whale in the Southern Ocean that preys primarily on toothfish 
(so-called Type C) (p. 106 and p. 186 of FPEIS), any fishery for 
toothfish has the potential to produce negative impacts on this form.

[[Page 48501]]

These recent observations come primarily from National Science 
Foundation sponsored research conducted by scientists from the NMFS, 
Southwest Fisheries Science Center, and research is still ongoing. 
Information on distribution of this fish-eating form suggests they 
occur primarily in East Antarctica. Their abundance is not known. 
CCAMLR produces regional quotas for toothfish take which allow 
considerable escapement for toothfish stock availability to satisfy 
``predator demand'', and CCAMLR considers this sufficient for the 
foraging needs of these fish-eating killer whales. There remains the 
possibility of local conflicts, if, for example, a toothfish fishery 
expanded in areas in East Antarctica where this form of killer whale 
occurs. If this becomes a matter of serious concern, it will be 
necessary to conduct directed research on the distribution, abundance 
and other characteristics of these ``Type C'' killer whales. This 
information could then be used by CCAMLR in the same manner that krill 
demand by localized populations of pinnipeds and birds is used, to set 
appropriate local quotas for commercial harvest. In the absence of such 
specific data, CCAMLR's precautionary catch limits for toothfish can be 
taken to leave sufficient food for this form of killer whale.
    As for Antarctic fur seals being killed in krill trawls, this final 
rule would require any U.S. krill harvesting vessel, using trawl gear 
in Convention Area fisheries, to install a seal excluder device. The 
bycatch of Antarctic fur seals by the single U.S. krill harvester and 
by foreign vessels in the Convention Area, the use of seal excluder 
devices, and the increasing population trend in Antarctic fur seals is 
discussed in both the DPEIS and the FPEIS.
    Comment 11: CBD/TIRN commented that the analysis of the global 
toothfish fishery and trade in toothfish should be expanded, and 
reduced catch and the decline of the toothfish population should be the 
focal point of the DPEIS.
    Response: While the DPEIS acknowledges that ``where reliable data 
exist, reduced CPUE and clear population declines have been shown'', 
this primarily applies to the Indian Ocean sector of the Convention 
Area that exhibits high levels of IUU, and not areas where IUU is 
negligible, such as South Georgia. In areas where IUU has been minimal 
and CCAMLR TACs have been adhered to, there is little evidence of 
substantial population declines of toothfish stocks over the last 
decade. The source for this information is the 2005 CCAMLR Report of 
the Scientific Committee (SC-CAMLR-XXIV(2005)). NMFS believes the 
analysis of the toothfish fishery and trade in the FPEIS is sufficient.
    Comment 12: CBD/TIRN commented that a major NEPA deficiency of the 
DPEIS was the failure to analyze the environmental consequences of U.S. 
importation and consumption of toothfish on toothfish stocks and on 
species incidentally caught in the toothfish fishery (e.g., seabirds 
and marine mammals). CBD/TIRN further commented that the DPEIS should 
have included an alternative in which toothfish imports were banned 
entirely until and unless bycatch could be reduced and toothfish stocks 
recovered.
    Response: The DPEIS did consider the current regulatory provisions 
to control harvest and trade (particularly importation into the United 
States) of toothfish and alternatives. NMFS did prepare analytical 
documents for the Catch Documentation Scheme and pre-approval, etc. 
regulations promulgated in 2000 and 2003 to control trade in toothfish 
and prevent importation into the United States of IUU toothfish. 
Although there are some uncertainties associated with the CCAMLR 
methodology for estimating IUU catch, the CCAMLR estimates show that 
IUU fishing has continued to decline by significant amounts over the 
past five years.
    As a result of both the substantial decrease in estimated IUU 
fishing and the efforts by CCAMLR to improve its methodology for 
estimating IUU fishing, NMFS believes that a ban on U.S. imports of 
toothfish is neither warranted nor necessary. In addition, the United 
States strictly regulates the importation of toothfish. As a result of 
announcing its intention to restrict imports of toothfish to shipments 
documented with E-CDS, the following countries are now using E-CDS 
exclusively in importing into the United States: Australia, Japan, 
Korea, New Zealand, Russia, South Africa, Spain, Ukraine, United 
Kingdom (overseas territories) and Uruguay. Chile and France are part 
time users of E-CDS, while Peru and Argentina are not using E-CDS in 
importing toothfish into the United States. This final rule will 
require all toothfish shipments to the United States to be documented 
electronically making it even more unlikely that IUU fish will enter 
the United States.
    In 2003, NMFS, based upon advice of CCAMLR's Scientific Committee 
(SC) and after consultation with the Office of the United States Trade 
Representative, banned all imports of toothfish from Areas 51 and 57. 
These areas, immediately north of the CCAMLR Convention Area in the 
Indian Ocean, were identified on catch documents as the location of 
large amounts of toothfish catch. Based upon the bathymetry of the 
area, fishable habitat and the behavior of toothfish, the SC expressed 
its serious misgivings that Areas 51 and 57 could support toothfish 
populations in the numbers being reported on catch documents. The SC 
concluded that the catches attributed to Areas 51 and 57 outside the 
CCAMLR Convention Area were much more likely to be IUU catches taken 
from within the nearby Convention Area. Following the ban, catch 
documents attributing catch of toothfish to Areas 51 and 57 dropped to 
very small amounts.
    Because the United States believes a ban on all toothfish imports 
is not appropriate or warranted, NMFS did not consider it as a viable 
alternative. Annually, the United States participates in setting the 
area-wide catch limits and other conservation measures designed to 
protect toothfish stocks in CCAMLR's international forum. Fishing by 
all countries and IUU fishing is taken into account as CCAMLR adopts 
annual catch limits and other restrictions on harvest and trade. 
Imports into the United States are controlled to prevent importation of 
IUU toothfish. A ban on toothfish imports into the United States would 
penalize U.S. consumers and other businesses and would not prevent IUU 
fishing as toothfish harvest would find other markets.
    Comment 13: CBD/TIRN commented that the DPEIS fails to address the 
human health impacts from the consumption of toothfish in the United 
States. They cite a 2003 survey conducted by the San Francisco 
Chronicle that concluded that toothfish for sale in U.S. markets 
contained unsafe levels of mercury. The commenter also stated that the 
U.S. Food and Drug Administration (FDA), the Department of Health and 
Human Services (HHS), and the Environmental Protection Agency (EPA) 
have all tested toothfish for mercury and detected numerous samples 
with over twice the lawful limits. CBD/TIRN asserted that any NEPA 
document addressing a regulatory scheme for the importation of seafood 
products containing high levels of mercury must disclose and analyze 
these health effects, the societal costs from such effects, and the 
environmental and health benefits of prohibiting the importation of 
such a tainted product. The commenter concluded that failure to 
disclose and analyze these health effects renders the DPEIS infirm.
    Response: The issue raised by the commenter concerning the health 
effects of imported seafood products is beyond the scope of what NMFS 
analyzed in the

[[Page 48502]]

FPEIS for this action. The FDA and the EPA have expertise and 
responsibility to determine human health impacts from the consumption 
of toothfish and other seafood. They currently have the capability of 
testing any species for mercury content and do not allow seafood 
products exceeding 1 ppm to enter into commerce of the United States. 
Both the FDA and EPA make the decisions about public health 
implications of mercury in fish, and to our knowledge, the U.S. 
government has never banned imports or sale of any particular species 
of fish due to mercury content. Alternatively, the government has 
issued advisories on which fish are not safe to eat or which fish are 
safe to eat only in smaller quantities.
    Comment 14: CBD/TIRN commented that the DPEIS is deficient in its 
review of the current and projected future impacts of climate change on 
the Antarctic ecosystem. CBD/TIRN commented that significant 
information on impacts of climate change on krill availability have 
been published but the DPEIS did not analyze this in either the 
baseline or cumulative effects. The commenter cited a 2004 article by 
Atkinson et al., ``Long-term decline in krill stock and increase in 
salps within the Southern Ocean'' published in Nature: v432: No 7013, 
p. 100; and a 2004 article by Marris, ``Climate change clouds 
commercial licence to krill'' published in Nature: v432: No 7013, p. 4.
    Response: The proposed regulations and the related portions of the 
DPEIS and FPEIS consider changes to regulations governing the 
harvesting of AMLR and trade in AMLR. The proposed requirements impact 
fishermen and dealers and only indirectly impact the Antarctic 
ecosystem. The current and projected future impacts of climate change 
on the Antarctic ecosystem are on a broad scale with global impacts.
    The commenter is concerned about the availability of krill for 
harvest, but the proposed regulations do not advance any change in the 
amount of krill that can be harvested, only that U.S. flagged krill 
trawlers must use a seal excluder device, carry scientific observers, 
and participate in C-VMS. The U.S. AMLR program conducts an annual 
survey of krill in the Antarctic Peninsula region, and each survey 
provides information on abundance, availability, recruitment, 
dispersion, and other important data. This information is presented at 
CCAMLR, and forms much of the scientific basis for the precautionary 
catch limits now in force. The actual catch of krill by all fishing 
nations combined is (and has been) considerably less than the 
precautionary limit. If future U.S. AMLR surveys indicate a collapse of 
krill stocks due to climate change or some other possible mechanism, 
this will be reported to CCAMLR and precautionary catch limits will be 
adjusted accordingly, or the fishery potentially shut down. Although 
there are long term trends in krill abundance that have been detected, 
the overall biomass of krill in the Southern Ocean remains at a level 
that the impact of human harvest has been inconsequential.
    Comment 15: The commenter cited inconsistent discussion in the 
DPEIS at pages 187 and 257 regarding sperm whale interactions with 
toothfish vessels and possible mortalities.
    Response: NMFS corrected text at page 187 of the FPEIS by deleting 
the annotation: ``The observer noted two possible sperm whale 
mortalities.'' Upon rechecking observer reports and the reports of 
CCAMLR WG-IMAF, NMFS has confirmed that there have been no reported 
sperm whale mortalities in the entire history of the CCAMLR toothfish 
fishery (which has 100% observer coverage). However, NMFS notes that 
there are anecdotal reports of sperm whale mortalities in toothfish 
fisheries in waters outside the Convention Area. The observer report 
referred to on page 187 of the DPEIS states that the observer had seen 
encounters between sperm whales and toothfish longlines on numerous 
occasions over the course of 4 years as an observer, but he never 
witnessed any incident that threatened the well being of the whales. In 
his discussions with other observers, they reported similar 
experiences. The observer continued by saying in his report (2004 
Report by CCAMLR observer on board a U.S. longline vessel) 
``considering the total number of longliners fishing for Dissostichus 
species in CCAMLR waters and the extremely low (possibly only two) 
incidents of whale mortality during the past 5 years, the real threat 
to whales is statistically negligible.'' The observer's annotation 
comment was directed at the entire fleet fishing inside Convention 
waters over the preceding 5 years (August 2000 to 2004) rather than his 
observation of the U.S. longline fishing trip he was observing.
    Based on the fact that there have been no sperm whale mortalities 
in the U.S. or entire CCAMLR fisheries, NMFS believes its FPEIS 
corrects the ambiguity caused by the inconsistent language in the DPEIS 
regarding the impact of the toothfish fishery on sperm whales.
    Comment 16: CBD/TIRN commented that little of the information in a 
recent article on marine mammal interactions with longline fisheries in 
the Southern Ocean, documenting interactions, entanglements, and deaths 
of sperm whales and orcas, was discussed in the DPEIS. The commenter 
cited a 2006 article by Kock et al, ``Interactions Between Cetacean and 
Fisheries in the Southern Ocean'' published in Polar Biology: 29:379-
388.
    Response: It is true that there have been documented interactions 
between longline fisheries and orcas and sperm whales in the Southern 
Ocean. However while Kock et al (2006) describe gear interaction with 
orcas and male sperm whales, it is restricted to observations of large 
numbers of fish taken off longlines by cetacean foraging (depredation), 
as well as cases of sperm whale entanglements in the lines, and loss of 
lines. There is nothing in Kock et al (2006) that indicates any 
observations of orcas or sperm whales having died as a result of 
longline fisheries in the Southern Ocean.
    Comment 17: CBD/TIRN asserted that further authorization of any 
longline fishing in CCAMLR waters would violate the ESA and MMPA, and 
that NMFS's issuance of AMLRCA and HSFCA permits to two U.S. flagged 
longline vessels violated Section 7 of the ESA, 16 U.S.C. 1536(a)(2). 
CBD/TIRN commented that it appears NMFS violated Section 9 of the ESA 
as well, 16 U.S.C. 1538, given the information on ``possible sperm 
whale mortalities'' from one of these vessels contained in the DPEIS. 
CBD/TIRN went on to say that while NMFS may be able to correct its 
Section 7(a)(2) violation with a programmatic biological opinion that 
addresses the entirety of the agency action (i.e.> the regulations and 
all authorized fishing activity), they believe that Section 9 precludes 
the agency from issuing any further permits to toothfish longline 
vessels until and unless NMFS receives authorization for such take 
pursuant to both the ESA and MMPA.
    Response: As NMFS explained in its response to Comment 15, there 
have been no sperm whale mortalities reported in the CCAMLR fisheries. 
Moreover, NMFS is unaware of any sperm whale mortality caused by a U.S. 
toothfish vessel. Furthermore, in its March 28, 2006, ``Endangered 
Species Act Section 7 Consultation Biological Opinion on the Proposed 
Regulatory Program Implementing Conservation and Management Measures 
Adopted by the Commission for the Conservation of Antarctic Marine 
Living Resources'', NMFS concluded that the regulatory regime for 
CCAMLR (subject of the FPEIS) is not likely to jeopardize the continued 
existence of endangered

[[Page 48503]]

whales (including sperm whales), and that the proposed action may 
affect but is not likely to adversely affect endangered and threatened 
sea turtles.
    Comment 18: CBD/TIRN pointed out that under Section 101(a)(5)(E) of 
the MMPA, NMFS can in certain circumstances authorize the incidental 
take of ESA-listed marine mammals. CBD/TIRN believes that until and 
unless NMFS issues an authorization under Section 101(a)(5)(E), no take 
of sperm whales may be allowed. The commenter asserts that because 
authorization of toothfish longlining will lead to such take, NMFS 
cannot lawfully authorize such fishing whether it be by permit or 
regulation. As such, CBD/TIRN comments that NMFS should promulgate 
regulations banning all such longlining.
    Response: As indicated in the responses to Comments 15 and 17, 
there is no reported sperm whale mortality associated with U.S. 
toothfish vessels. No takes are anticipated or authorized.
    Comment 19: CBD/TIRN stated that longline fisheries for toothfish 
will kill birds protected under the MBTA. Citing several cases and 
authorities, CBD/TIRN asserted that, until such take is permitted, NMFS 
cannot lawfully allow any fishing that is likely to result in the death 
of such species. CBD/TIRN further asserted that the MBTA applies beyond 
the territorial sea of the United States.
    Response: The MBTA only applies in nearshore waters, seaward to 
three nautical miles (nm) from the shoreline of the United States. 
Since the longline fishery for toothfish operates outside three nm, any 
take of migratory birds incidental to the fishery would not be covered 
by the MBTA.
    Comment 20: CBD/TIRN commented that the Marine Mammal Protection 
Act of 1972 (16 U.S.C. 1361 et seq.), the Endangered Species Act of 
1973 (16 U.S.C. 1531 et seq.), the Migratory Bird Treaty Act (16 U.S.C. 
701 et seq.), and their implementing regulations also apply to the 
harvesting and importation of AMLRs. 50 CFR 300.102(c). CBD/TIRN stated 
that any new conclusion to the contrary will not survive legal 
scrutiny.
    Response: In the response to Comment 19, NMFS has stated its 
opinion that the MBTA only applies in nearshore waters, seaward to 
three nautical miles (NM) from the shoreline of the United States. The 
ESA does apply to the harvesting and importation of AMLRs and NMFS 
conducted a Section 7 consultation for this action. Moreover, NMFS has 
not prepared a Take Reduction Plan for whales in the Southern Ocean 
because there have been no takes of sperm whales in the longline 
fishery in the Convention Area.
    Comment 21: CBD/TIRN raised their concern that under NMFS' current 
practice, NMFS has issued, and will continue to issue permits to 
individuals and entities that have been associated with illegal fishing 
or illegal importation of toothfish. NMFS's knowing facilitation of 
this illegal fishing runs completely counter to the spirit and letter 
of AMLRCA, the HSFCA, and the treaties these statutes were intended to 
implement. In scoping CBD/TIRN requested that the DPEIS should 
specifically analyze whether any changes to NMFS's current regulations 
are necessary to prevent a recurrence of such a scenario. CBD/TIRN 
commented that the DPEIS and the proposed regulations show little sign 
that NMFS is serious about complying with its international obligations 
to reduce IUU fishing. CBD/TIRN believes that the proposed regulations 
likewise do little to prevent a recurrence of such an egregious 
scenario.
    Response: NMFS lawfully issued AMLR harvesting permits to the owner 
of the vessels cited by the commenter. The two CCAMLR observers on 
board these vessels reported no illegal activity while these vessels 
were fishing. NMFS' goal of eliminating IUU fishing was furthered by 
the issuance of the permits in accordance with all applicable laws and 
regulations to the U.S.-flagged vessels. By asserting its control over 
the vessels' permit to fish, NMFS was able to ensure compliance with 
CCAMLR conservation measures by the vessels owner and operators. During 
the period that the vessels were U.S. owned and flagged, NMFS observed 
no illegal activity surrounding the operation of either vessel through 
close monitoring by NOAA-authorized observers, NOAA/NMFS for Law 
Enforcement, and the NOAA vessel monitoring system.
    The final rule combined with additional statutory authorities 
(including proposed amendments to AMLRCA), are sufficient to ensure 
that U.S. flagged vessels and U.S. nationals can be effectively 
prosecuted for illegal fishing operations and trafficking of IUU fish 
product. NOAA/NMFS is seeking to amend AMLRCA at the next opportunity 
to increase the maximum civil penalty allowed under AMLRCA to ensure 
that NOAA/NMFS's penalty options will be sufficient to address all 
violations. NOAA/NMFS will continue to cooperate with foreign 
governments to identify and pursue enforcement actions against foreign 
companies and foreign nationals that are identified as IUU fishers or 
participants in illegal trafficking of IUU fish product.
    Comment 22: CBD/TIRN believes the C-VMS, scientific observer, and 
seal excluder device requirements should apply to all U.S. flagged 
vessels fishing for toothfish even if they are outside of the CCAMLR 
Area (i.e., not fishing for AMLR under the proposed definitional 
change). If need be, NMFS should implement this requirement pursuant to 
its authority under the HSFCA in addition to AMLRCA to ensure 
applicability wherever these vessels fish.
    Response: This final rule requires U.S. vessels harvesting AMLR in 
the Convention Area to operate C-VMS on board from the time of leaving 
port to the time of returning to port, consistent with AMLRCA. The seal 
excluder devices and observer requirements are also required for U.S. 
vessels harvesting AMLR in the Convention Area, consistent with AMLRCA. 
This requirement will not apply to U.S. flagged vessels which do not 
have an AMLR harvesting permit and which are fishing for toothfish 
outside the Convention Area. NMFS is considering the development of 
regulations to amend its HSFCA regulations to, among other things, 
require VMS usage for all U.S. flagged vessels fishing anywhere on the 
high seas.
    Comment 23: CBD/TIRN opposes the exemption of ``small artisanal 
boats'' fishing in the EEZs of Chile or Peru from the C-VMS 
requirement. The commenter believes that these countries do not 
effectively regulate IUU fishing and that allowing such imports opens 
the door for fraud as fish illegally caught elsewhere can be labeled as 
having been caught by such vessels operating in such a manner. 
Additionally, the commenter stated that the regulations do not define 
``small artisanal boats.''
    Response: NMFS has provided its rationale for this exemption in the 
preambles to the proposed regulation and this final regulation. U.S. 
dealers seeking to import toothfish or toothfish products originating 
from small artisanal boats fishing in the EEZ of Peru or Chile will not 
have to possess information documenting the use of C-VMS by such 
artisanal boats. NMFS exempts such dealers because of the small size of 
these artisanal boats and their inability to navigate beyond the EEZ. 
Chile regulates fishing by regions within its EEZ and artisanal boats 
do not operate in the same regions as large freezer vessels. NMFS does 
not believe a definition of ``small artisanal boats'' is necessary and 
wants to maintain flexibility in applying this exemption to vessels 
incapable of navigating beyond the EEZ.

[[Page 48504]]

    As artisanal boats harvesting and shipping small amounts of fresh 
fish are not equipped to reach CCAMLR restricted areas, they are not 
suspected of this type of infraction. Also, pursuant to a bilateral 
agreement with Chile, NMFS has a real time verification process for 
shipments of toothfish harvested by Chile's artisanal toothfish 
fishery. Under the final rule, DCDs for shipments of fresh toothfish 
from Chile will be reviewed without a fee-for-service charge. Shipments 
of all frozen toothfish, including those in quantities of less than 
2,000 kg, will still require preapproval.
    Comment 24: CBD/TIRN commented that the DPEIS did not analyze the 
environmental effects of exemptions discussed above in Comments 22 and 
23 and believes that absent such an analysis, NMFS cannot claim that 
the impacts will not be significant.
    Response: As explained in its response to Comment 22, AMLRCA does 
not provide NMFS with the authority to regulate fishing for toothfish 
outside of the CCAMLR Convention Area. If NMFS were to propose a 
requirement under the HSFCA that all U.S. flagged vessels fishing for 
toothfish wherever found must use VMS, then NMFS would need to amend 
its HSFCA regulations and conduct applicable environmental and socio-
economic analyses. As indicated in its response to Comment 23, imports 
of toothfish harvested by ``small artisanal boats'' in the EEZs of 
Chile and Peru consist primarily of small quantifies of fresh 
toothfish. In addition, pursuant to a bilateral agreement with Chile, 
NMFS has a real time verification process for shipments of toothfish 
harvested by Chile's artisanal toothfish fishery. Therefore, NMFS 
believes there to be at most only a negligible risk of IUU toothfish 
being imported as harvested from either the Chilean or Peruvian 
artisanal fishery.
    Comment 25: CBD/TIRN believes that shortening portions of the 
preapproval requirement from 15 days to 3 days will greatly reduce 
NMFS's opportunity to investigate the shipment of toothfish to verify 
its legality. They also believe that exempting all fresh toothfish 
would open the door for further fraud. CBD/TIRN believes the 
preapproval provisions should be broadened to apply to all shipments of 
toothfish, whether frozen or fresh. The commenter believes the proposed 
changes will weaken NMFS's oversight and increase the likelihood of 
illegally caught toothfish being imported into the United States. Also, 
CBD/TIRN asserts that because the DPEIS does not analyze the 
environmental effects of including these exemptions in the regulations, 
NMFS cannot claim that the impacts will not be significant.
    Response: NMFS's only change requires that dealers supply the U.S. 
Customs 7501 number at least 3 working days prior to a frozen or fresh 
toothfish shipment's arrival instead of at least 15 days as currently 
required. All other information on the ``Application for Preapproval of 
Catch Documents'' would remain unchanged enabling NMFS to verify and 
validate all other information pertaining to each shipment. In most 
cases dealers are not able to obtain a U.S. Customs 7501 number 15 days 
in advance of a shipment's arrival. NMFS disagrees that shortening the 
15-day advance notification period to a 3-day advance notification 
period will greatly reduce NMFS's opportunity to investigate the 
shipment to verify its legality, because all information needed to 
verify and validate a shipment of toothfish for entry will still be 
required 15 days in advance. NMFS uses the 7501 numbers to perform a 
post entry confirmation and to perform compliance analysis for 
enforcement purposes. NMFS also disagrees that exempting shipments of 
fresh toothfish over 2,000 kgs from the preapproval system will open 
the door for fraud and will facilitate smuggling into the United 
States. Exempting fresh shipments above 2,000 kg encompasses only about 
2 percent of all toothfish entering the United States. These shipments 
must be reported within 24 hours of import, just as all fresh shipments 
of 2,000 kg or less have been reported since the inception of the 
preapproval process. These documents are then checked for validity. 
None of the enforcement cases involving illegal imports have involved 
fresh product.
    The proposed rule recognizes that most dealers are unable to comply 
with the current requirement to submit the Customs 7501 number 15 days 
prior to the shipment's arrival. Therefore, NMFS is now requiring the 
submission of this form at least 3 working days prior to the shipment's 
arrival and no environmental impacts are anticipated. In addition, 
because the customs number is not necessary for verifying and 
validating the shipment of toothfish, but rather as a tool in 
retrospective compliance analysis, NMFS does not expect this change to 
result in any increase in shipments of IUU toothfish.
    Because shipments of fresh toothfish in excess of 2,000 kg 
constitute less than two percent of toothfish shipments and because 
these shipments still must be reported within 24 hours and documented, 
NMFS anticipates no increase in imports of IUU toothfish as a result of 
this change.
    Comment 26: CBD/TIRN supports the requirement for electronic catch 
documents.
    Response: As indicated in its response to Comment 2, NMFS believes 
the requirement to use electronic DCDs for toothfish imports will 
effectively guard against importation of IUU toothfish with forged 
paper documentation.
    Comment 27: CBD/TIRN supports the proposed rule's provisions 
governing the use of scientific observers. They also believe that such 
requirements should be applied to all U.S. flagged vessels fishing for 
toothfish even if fishing outside of the CCAMLR area. CBD/TIRN states 
that, if need be, NMFS should implement this requirement pursuant to 
its authority under the HSFCA in addition to AMLRCA to ensure 
consistency in the regulations.
    Response: As indicated in its response to Comment 22, AMLRCA does 
not provide NMFS with the authority to regulate fishing for toothfish 
outside of the CCAMLR Convention Area. Instead, NMFS is considering the 
development of regulations to amend its HSFCA regulations and, if such 
a rulemaking is undertaken, the public will be given an opportunity to 
comment.
    Comment 28: CBD/TIRN supports the proposed rule's provisions 
requiring U.S. flagged vessels trawling for krill in the CCAMLR 
Convention Area to use seal excluder devices. The commenter also 
believes that this requirement should be applied to all U.S. flagged 
vessels fishing for krill even if fishing outside of the CCAMLR area. 
CBD/TIRN states that, if need be, NMFS should implement this 
requirement pursuant to its authority under the HSFCA in addition to 
AMLRCA to ensure consistency in the regulations.
    Response: The final rule requires seal excluder devices on all U.S. 
vessels trawling for krill in CCAMLR Convention Area fisheries; 
however, NMFS does not believe it has the authority under AMLRCA to 
regulate trawling for krill outside of the CCAMLR Convention Area. NMFS 
is considering the development of regulations to amend its HSFCA 
regulations and, if such a rulemaking is undertaken, the public will be 
given an opportunity to comment.
    Comment 29: CBD/TIRN commented that NMFS must take all necessary 
measures to ensure that the krill trawl fishery reaches the Zero 
Mortality Rate Goal (ZMRG) required by the MMPA. They assert that 
because NMFS has not calculated Potential Biological Removal (PBR) for 
the affected stocks, NMFS cannot be certain that the fishery is in

[[Page 48505]]

compliance with the ZMRG requirement. They also comment that the DPEIS 
does not analyze this factor. CBD/TIRN comments that until and unless 
NMFS can ensure compliance with the MMPA, NMFS cannot lawfully issue 
any AMLRCA harvesting permits for the krill fishery.
    Response: For a fishery to reach the Insignificance Threshold, or 
the target level of incidental mortality and serious injury under the 
ZMRG, annual incidental serious injury and mortality of a marine mammal 
stock in a given fishery must be below 10% of PBR (50 CFR 229.2). NMFS 
does not have sufficient information to calculate PBR level for marine 
mammal stocks found outside of the U.S. EEZ. The relative abundance of 
Antarctic fur seals was estimated as 1.5 million in 1990 and is thought 
to have since increased to over 4 million (CCAMLR Final Programmatic 
EIS). In 2003/2004, a total of 158 Antarctic fur seals were observed 
taken by the single U.S. permitted trawl krill fishing vessel in the 
CCAMLR region, 142 of which were mortalities. As a result, a permit 
provision was added requiring the use of a seal excluder device and any 
other gear modifications or fishing practice that reduces or eliminates 
Antarctic fur seal bycatch. In the 2004/2005 fishing season the U.S. 
vessel used the required seal excluder device and as a result 24 
Antarctic fur seals were incidentally taken, 16 of which were 
mortalities (2005 Report of the CCAMLR SC). This vessel did not fish in 
the CCAMLR region in the 2005/2006 fishing season and has not applied 
at this time to fish during the 2006/2007 season. The vessel has 
indicted that should it fish again for krill in the CCAMLR Convention 
Area it will further modify the seal excluder device to address the 
problems identified by the CCAMLR SC. This modification would be a 
requirement of any permit NMFS would issue to the vessel.
    Given the large estimated abundance of Antarctic fur seals, the 
current low rate of incidental serious injury and mortality would 
likely be below 10% of PBR. Therefore, NMFS can confidently assume that 
the fishery is in compliance with the Insignificance Threshold, or 
ZMRG. Further, at the 2006 Antarctic Treaty Consultative Meeting, the 
Antarctic Treaty Parties delisted the Antarctic fur seal from its list 
of Specially Protected Species. The delisting reflected the much 
increased abundance of fur seals. Even with this increased abundance, 
only 95 fur seals were reported caught during fishing operations in 
2005/2006, during which time no U.S. krill trawl vessel was operating.
    Comment 30: CBD/TIRN commented that the proposed change to the 
definition of ``Antarctic Marine Living Resources'' (``AMLRs'') would 
allow toothfish harvested outside of the CCAMLR area to be harvested by 
U.S. vessels without an AMLRCA permit. CBD/TIRN believes that NMFS has 
authority under AMLRCA to require such permits for ``all species of 
Dissostichus wherever found'' and the change in definition would open 
the door for fraud and facilitate IUU fishing by U.S. flagged vessels. 
Additionally, the commenter requested that if NMFS proceeds with this 
regulatory change, that NMFS should simultaneously promulgate 
regulations pursuant to the HSFCA that apply all the same provisions as 
under AMLRCA to all U.S. flagged toothfish vessels to ensure 
consistency in the management and harvest of toothfish and to prevent 
fraud.
    Response: While the proposed and final rule would not require an 
AMLRCA permit to harvest toothfish on the high seas wherever found, any 
U.S. vessel fishing for toothfish outside the CCAMLR Convention Area 
would be required to have a permit issued by NMFS under the HSFCA. NMFS 
disagrees that the regulatory change in the definition of ``AMLRs'' 
would open the door for fraud and facilitate IUU fishing by U.S. 
flagged vessels. The final rule preserves the requirement that all 
imports of toothfish, wherever harvested, comply with U.S. import 
permit conditions and DCD controls.
    Comment 31: CBD/TIRN commented that NMFS's statement that ``areas 
within the Convention Area subject to national jurisdiction, such as 
the areas * * * claimed by the United Kingdom, are not considered high 
seas areas'' needs clarification. The commenter points out that various 
U.S. statutes apply to the ``high seas'' and that for many of these 
statutes the ``high seas'' includes all areas outside of the 
territorial waters of other nations. CBD/TIRN states that NMFS must 
clarify that AMLRCA, the ESA, MMPA, NEPA, and other relevant statutes 
apply to U.S. flagged vessels fishing in these areas even if they are 
claimed by other nations as part of that nation's EEZ. Further, CBD/
TIRN comments that the DPEIS does not analyze the environmental effects 
of making this change in the regulations and without such an analysis, 
NMFS cannot claim that the impacts will not be significant.
    Response: In the proposed rule, NMFS stated that the ``[a]reas 
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.'' 71 FR 39642 (July 13, 2006). By this 
statement, NMFS meant that these areas are not considered high seas for 
purposes of the HSFCA. Therefore, NMFS would not issue any HSFCA 
permits to U.S. vessels wishing to fish in such areas.
    Comment 32: CBD/TIRN has no objection to the proposed regulatory 
provisions requiring information on harvesting vessels.
    Response: NMFS expects this information on harvesting vessels will 
assist in data collection, management decisions, and aid in 
enforcement.

Changes From the Proposed Rule

    The proposed rule had provided for a 60-day period for dealers to 
transition to the use of E-CDS. NMFS has concluded that the 30-day 
delay in effectiveness for the final rule under the Administrative 
Procedure Act provides sufficient time for this transition.
    For purposes of clarification, NMFS made some non-substantive 
changes to the wording of application requirements for dealer permits 
under Sec.  300.114(b).
    Also for clarification purposes, NMFS made a slight change in the 
definition of ``national observer'' in Sec.  300.101. Similarly, NMFS 
revised Sec.  300.113 to ensure that the public understood that this 
section on scientific observers applies to national and international 
observers as defined in Sec.  300.101.

Classification

The Act

    The Assistant Administrator for Fisheries, NMFS, determined that 
this final rule is 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 ``Final 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 November 24, 2006 (71 FR 67864). It discusses the 
impact on the natural and human environment of the actions taken in 
this final rule. The Record of Decision (ROD) for the FPEIS was signed 
by the Assistant Administrator for Fisheries, NMFS, on May 25, 2007, 
and is available to the public (see ADDRESSES).

Regulatory Flexibility Act

    NMFS announced that it had prepared an Initial Regulatory

[[Page 48506]]

Flexibility Analysis (IRFA), as required by section 603 of the 
Regulatory Flexibility Act, to describe the economic impacts the 
proposed regulation may have on small entities. No comments were 
received from the public on the IRFA or the economic impacts of the 
proposed rule. NMFS has now prepared a Final Regulatory Flexibility 
Analysis (FRFA), as required by section 603 of the Regulatory 
Flexibility Act, to describe the economic impacts this final rule may 
have on small entities. Small entities within the scope of this final 
rule include individual U.S. vessels and U.S. dealers (importers and 
re-exporters). NMFS intended the analysis to aid in the consideration 
of regulatory alternatives that could minimize the economic impact on 
affected small entities.

Summary of FRFA

    A description of the reasons for, the objectives of, and the legal 
basis for this final rule is contained in its preamble and in the 
preamble to the proposed rule and is not repeated here.
    A summary of the significant issues raised by public comments 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 final 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.
Reasons for Selecting Alternatives Adopted and Description of 
Recordkeeping, Reporting, or Compliance Requirements
    1. Centralized VMS. CCAMLR adopted Conservation Measure 10-04 to 
implement C-VMS. In implementing Conservation Measure 10-04, NMFS 
considered two alternatives: The final 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 onboard 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)). 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 C-VMS requirement in this 
final rule may include: Automation of the submission of VMS data to the 
CCAMLR Secretariat; timely responses from the CCAMLR Secretariat to 
NMFS's inquiries into fishing activities of a foreign vessel; faster 
investigations into authenticity of catch documentation; more efficient 
response time to NMFS's 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 final rule are anticipated as such costs have 
already been realized to comply with requirements at 50 CFR 
300.107(a)(4) and (a)(3), respectively. For future participants in AMLR 
fisheries, compliance costs would include the cost of the VMS unit, 
freight, installation, maintenance, and the cost per day for a service 
provider to transmit VMS reports. This transmission cost is estimated 
at $54.00 and $108.00, as stated above. Transmission of VMS reports to 
the CCAMLR Secretariat to fulfill the ``centralized'' aspect of this 
preferred alternative will be made by NMFS and does not represent an 
additional cost burden to U.S. vessels.
    The status quo (no-action alternative) is NMFS's non-participation 
in C-VMS. Neither current nor future participants in AMLR fisheries 
will incur additional compliance costs as a direct result of this 
alternative, nor will these participants incur additional compliance 
costs as a direct result of the preferred alternative. As stated above, 
this is due to 50 CFR 300.107(a)(4) and (a)(3), respectively. 
Regardless of whether NMFS participates in C-VMS (the preferred 
alternative) or does not participate in C-VMS (the status quo 
alternative), no net change in economic impacts to U.S. vessels 
currently participating in AMLR fisheries will occur as a direct result 
of the final 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 final rule (preferred 
alternative) tightens and improves the import/re-export control program 
that the United States maintains for AMLR. The final rule allows 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 exempts 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

[[Page 48507]]

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 final rule for an estimated 8 preapproval applications for 78 
dealers is $124,800. Therefore, because the final 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 final rule (the preferred 
alternative) requires that all imports of toothfish be documented using 
the electronic format recommended by CCAMLR. The final rule increases 
the security and reliability of catch documents and facilitates 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 final rule 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 Web site 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. 
NMFS also rejected the no-action alternative because the final rule 
will enhance the agency's ability to verify the validity of toothfish 
imports, assuring importers of legal catch.
    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 final 
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 
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 final rule (preferred alternative) seeks to clarify the 
process of placing observers on board vessels fishing in the Convention 
Area and codify requirements and prohibitions associated with observer 
placement, the no-action alternative was rejected. This final rule 
clarifies 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 final rule requires 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 are 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 final rule (the preferred alternative) amends 
the definition of ``Antarctic marine living resources'' by deleting 
``All species of Dissostichus wherever found'' from the definition. 
This change clarifies 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 final rule also adds or amends the terms, ``export'', 
``import'', ``international observer'', ``landing'', ``mobile 
transceiver unit'', ``national observer'', ``Office of Law Enforcement 
(OLE)'', ``Port State'', ``re-export'', ``seal excluder device'', 
``transshipment'', and

[[Page 48508]]

``vessel monitoring system (VMS)'', as used by NMFS in implementing the 
CCAMLR CDS. The final rule (preferred alternative) defines and 
clarifies 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 final 
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 preamble to the final rule requests 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.

Executive Order 12866

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

Paperwork Reduction Act

    This final 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 of 576 
hours.
    This rule also contains new or revised collection of information 
requirements that were approved by OMB on October 10, 2006. These new 
or revised requirements 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 final 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 
FRFA, where C-VMS is discussed, for U.S.-flagged vessels currently 
participating in AMLR fisheries, compliance costs associated with the 
final rule are anticipated to be minimal because such costs have 
already been realized to comply with requirements at 50 CFR 
300.107(a)(3) and (a)(4).
    The response estimates above include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Public comment is sought regarding: whether 
this 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. Interested persons 
may send comments regarding this burden estimate, or any other aspect 
of this data collection, including suggestions for reducing the burden, 
to both NMFS and OMB (see ADDRESSES).
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person is subject to a penalty for 
failure to comply with, an information collection subject to the PRA 
requirements unless that information collection displays a currently 
valid OMB Control Number.
    This action should not result in any adverse effects on endangered 
species or marine mammals.

List of Subjects in 50 CFR Part 300

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

    Dated: August 16, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

0
For the reasons set out in the preamble, NMFS amends 50 CFR part 300, 
subpart G as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart G--Antarctic Marine Living Resources

0
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.


0
2. In Sec.  300.101, ``Transship'' is removed, in the definition of 
``Antarctic marine living resources or AMLR(s)'' paragraph (2) is 
removed and paragraph (3) is redesignated as paragraph (2) and revised; 
and definitions for ``Export'', ``Import'', ``International observer'', 
``Mobile transceiver unit'', ``National observer'', ``Office for Law 
Enforcement (OLE)'', ``Port State'', ``Re-export'', ``Seal excluder 
device'', and ``Transship or transshipment'' are added in alphabetical 
order; and the definitions of ``Land or landing'' and ``Vessel 
Monitoring System (VMS)'' are revised to read as follows:


Sec.  300.101  Definitions.

* * * * *
    Antarctic marine living resources or AMLR(s) * * *

[[Page 48509]]

    (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 or a foreign 
flagged vessel 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.
* * * * *
    Transship 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, 
transship 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]

0
3. In Sec.  300.106, paragraph (c) is removed and paragraphs (d) and 
(e) are redesignated as paragraphs (c) and (d), respectively.

0
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 resources that 
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 from the 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 document and export 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.
* * * * *

0
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.
* * * * *

[[Page 48510]]

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

0
6. Sections 300.113, 300.114, 300.115, 300.116 and 300.117 are 
redesignated as Sec. Sec.  300.114, 300.115, 300.117, 300.118 and 
300.119, respectively.

0
7. New Sec.  300.113 is added to read as follows:


Sec.  300.113  Scientific observers.

    This section applies to national and international observers as 
defined in Sec.  300.101.
    (a) This section applies to a national observer aboard U.S. vessels 
harvesting in the Convention Area, national observers placed on foreign 
flagged vessels and international observers placed on U.S. vessels 
harvesting in the Convention Area.
    (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 
of an injury or death during the entire deployment, from the point of 
hire location to 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 the 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;
    (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.

[[Page 48511]]

    (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.

0
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 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 Sec.  300.114(a)(1). 
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 Dissostichus 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. With the exception of the U.S. 
Customs 7501 entry number, 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 must supply the U.S. Customs 7501 entry number at least three 
working days prior to 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.
* * * * *

0
9. New Sec.  300.116 is added 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.

[[Page 48512]]

    (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 
OLE, 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.

0
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 an 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.
    (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. E7-16589 Filed 8-22-07; 8:45 am]
BILLING CODE 3510-22-P