[Federal Register Volume 74, Number 227 (Friday, November 27, 2009)]
[Proposed Rules]
[Pages 62278-62281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-28435]



[[Page 62278]]

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 0907141130-91224-01]
RIN 0648-AX80


Antarctic Marine Living Resources; Use of Centralized-Vessel 
Monitoring System and Importation of Toothfish; Re-export of Toothfish; 
Applications for Krill Fishing; Regulatory Framework for Annual 
Conservation Measures

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

ACTION: Proposed rule; request for comments.

-----------------------------------------------------------------------

SUMMARY:  This regulation proposes to facilitate conservation and 
management of Antarctic Marine Living Resources (AMLR). It would: 
further detail current U.S. requirements to only allow importation and/
or re-exportation of frozen toothfish or toothfish product with 
verifiable documentation that the harvesting vessel participated in the 
Centralized-Vessel Monitoring System (C-VMS) regardless of where the 
fish was harvested; revise the NMFS catch-documentation requirements 
for re-exporting toothfish and add requirements for exporting U.S.-
caught toothfish; require applicants for an AMLR harvesting permit for 
krill to apply to NMFS no later than June 1 preceding the harvesting 
season for krill; and rescind the existing regulatory framework for 
annual management measures. The intent of the rule is to further detail 
requirements for importing and re-exporting toothfish, to facilitate 
enforcement, to fulfill U.S. obligations in the Commission on the 
Conservation of Antarctic Marine Living Resources (CCAMLR), and to 
simplify the process for informing the public of annual conservation 
measures.

DATES: Comments must be submitted in writing on or before December 28, 
2009.

ADDRESSES:  You may submit comments, identified by 0648-AX80 by any one 
of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov;
     Fax: 301-713-1193, Attn: Robert Gorrell; or
     Mail: Alan Risenhoover, Director, Office of Sustainable 
Fisheries, NMFS, Attn: CCAMLR Rulemaking, 1315 East-West Highway, 
Silver Spring, MD 20910.
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information.
    NMFS will accept anonymous comments (enter ``N/A'' in the required 
fields, if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.
    Send comments regarding the burden-hour estimates or other aspects 
of the collection-of-information requirements contained in this 
proposed rule to Robert B. Gorrell 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: Robert Gorrell at 301-713-2341.

SUPPLEMENTARY INFORMATION:

Background

    U.S. participation in Antarctic fisheries is 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 the Commission for the Conservation 
of Antarctic Marine Living Resources (CCAMLR) and adopted by the United 
States, through regulations at 50 CFR part 300, subpart G. Changes to 
the existing regulations are necessary to facilitate compliance, to 
incorporate new conservation measures, to facilitate enforcement of new 
and existing conservation measures, and to simplify the process for 
informing the public of annual conservation measures.

Importing and/or Re-exporting Toothfish.

    CCAMLR requires that all Contracting Parties ensure that their 
vessels fishing for Dissostichus (toothfish) under CCAMLR's purview are 
equipped with satellite-linked vessel monitoring devices to allow for 
continuous reporting to the CCAMLR Secretariat of their position while 
in Convention waters. This requirement is intended to promote the 
objectives of the Convention, including combating illegal, unreported, 
and unregulated fishing of AMLR, and to further improve compliance with 
the relevant conservation measures adopted by CCAMLR. CCAMLR 
conservation measures call for the transmission of Vessel Monitoring 
System (VMS) positional data as soon as possible either to the CCAMLR 
Secretariat directly or to the CCAMLR Secretariat through the relevant 
Flag State, with positions reported no less than every 4 hours for most 
Dissostichus spp. fisheries.
    The NMFS final rule, published in August 2007 (72 FR 48496, August 
23, 2007), requires use of C-VMS for U.S. vessels harvesting AMLR and 
verifiable documentation of real-time centralized VMS (or C-VMS) use 
for dealers seeking preapproval to import toothfish into the United 
States. U.S. vessels seeking to harvest Dissostichus spp. are required 
to report their positions, via C-VMS, from the time the vessel leaves 
port to the time that the vessel returns to port and at all points in 
between (i.e., port-to-port). Likewise, dealers seeking to import 
frozen Dissostichus spp. into the U.S. market must submit information 
so that NMFS can verify that the harvesting vessel was reporting its 
positions, via real-time centralized VMS (or C-VMS), from the time the 
vessel left port to the time that the vessel returned to port and at 
all points in between (i.e., port-to-port). These data are fundamental 
to ensuring the legality of Dissostichus spp. harvested by U.S. 
flagged-vessels as well as fish imported into and/or re-exported from 
the United States. The use of C-VMS port-to-port allows NMFS to verify 
the vessel's position associated with the harvest of toothfish no 
matter where the fish was harvested.
    The proposed rule would not change current practices under existing 
regulations but would add definitions for ``Centralized Vessel 
Monitoring System (C-VMS)'', ``port-to-port'', and ``real-time'' and 
further detail the U.S. requirement that importation, re-exportation, 
and/or exportation of frozen toothfish is allowed only with verifiable 
documentation that the harvesting vessel participated in real-time C-
VMS port-to-port. Shipments of frozen Dissostichus spp. are required to 
have such verifiable documentation except where the Dissostichus spp. 
being shipped was harvested during a fishing trip that began prior to 
September 24, 2007, when NMFS' final rule became effective (72 FR 
48496, August 23, 2007). The preapproval requirement for imports of 
frozen

[[Page 62279]]

toothfish remains unchanged. (See Reporting and recordkeeping 
requirements Sec.  300.107(c)(5) and (6)). Existing Sec.  300.107(a)(4) 
and Sec.  300.117(bb)(9) would be revised to use the new terms C-VMS, 
port-to-port, and real-time.
    Also, the existing definition of ``Vessel Monitoring System (VMS)'' 
would be revised to clarify that the VMS system that uses a mobile 
transceiver unit on board foreign-flagged vessels does not need to be 
approved by NMFS. Similarly, the heading for existing Sec.  300.116 
``Requirements for a vessel monitoring system'' would be revised to 
read ``Requirements for a vessel monitoring system for U.S. vessels''.
    Participation in C-VMS that would result in verifiable 
documentation of use of real-time C-VMS port-to-port entails the 
harvesting vessel having reported its positions at least every 4 hours, 
either directly to the CCAMLR Secretariat or to the CCAMLR Secretariat 
through the relevant Flag State, with no more than a 4-hour delay, from 
the time the vessel leaves port to the time that the vessel returns to 
port and at all points in between (port-to-port). CCAMLR conservation 
measures require the use of C-VMS when inside the Convention Area, 
whereas U.S. regulations for the importation and/or re-exportation of 
toothfish require C-VMS reporting at least every 4 hours both while 
inside and outside the Convention waters. In the absence of verifiable 
documentation of the use of real-time C-VMS port-to-port, imports, 
exports, re-exports, as well as the shipment, transportation, sale or 
offer for sale, purchase, custody, control, or possession of frozen 
Dissostichus species are prohibited. Under the proposed rule 
preapproval would not be issued without verifiable documentation of the 
use of real-time C-VMS port-to-port by the vessel that harvested the 
Dissostichus species except for Dissostichus spp. harvested during 
fishing trips that began prior to September 24, 2007 (see Dealer 
permits and preapproval Sec.  300.114(d)).
    The proposed rule would revise the catch-documentation requirements 
for re-exporting toothfish by clarifying that the application for a 
Dissostichus species re-export document must identify: (1) the 
container number for the shipment if the shipment is to be re-exported 
by vessel; (2) the flight number and airway bill/bill of lading if 
shipment is to be re-exported by air; (3) the truck registration number 
and nationality if the shipment is to be re-exported by ground 
transportation; or (4) the railway transport number if the shipment is 
to be re-exported by rail. The proposed rule would make clear that the 
exporter would receive an electronically generated Dissostichus species 
re-export document.
    The proposed rule would also add a new paragraph Sec.  
300.107(c)(7) identifying reporting and recordkeeping requirements for 
exports of Dissostichus species. These requirements are nearly 
identical to requirements for re-exports and pertain to U.S. caught 
toothfish that dealers want to export.

Krill Fishing

    At its 25th meeting in Hobart, Tasmania, October 23 to November 3, 
2006, CCAMLR adopted a measure requiring that all Contracting Parties 
with vessels intending to fish for krill in the Convention Area notify 
the Secretariat no later than 4 months in advance of the regular annual 
meeting of CCAMLR, immediately prior to the season in which their 
vessels intend to fish. The krill fishing season runs from December 1 
of one year through November 30 of the next year. The proposed rule 
would require applicants for an AMLR harvesting permit for krill to 
submit an application to the Assistant Administrator for NMFS no later 
than June 1 prior to the krill season opening on December 1 of the same 
year (see Harvesting Permits Sec.  300.112). In addition to the 
information already required of an applicant for an AMLR harvesting 
permit, the applicant for a permit to harvest krill would also be 
required by the proposed rule to identify, to the extent possible, the 
products to be derived from the anticipated catch of krill.

Framework for Annual Measures

    The proposed rule would rescind the existing regulatory framework 
for annual management measures to ease the administrative burden and 
cost of publishing conservation measures that are readily available on 
the CCAMLR website at http://www.ccamlr.org. If the United States 
should formally object to any conservation measure adopted by CCAMLR, 
notice of that objection will be published in the Federal Register. 
NMFS will publish in the Federal Register any regulatory measure that 
it believes is necessary to implement its responsibilities under the 
Antarctic Marine Living Resources Convention Act of 1984 and may 
implement conservation measures adopted by CCAMLR either through the 
imposition of permit conditions or through rulemaking, as appropriate.

Classification

The Act

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

Executive Order 12866

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

Regulatory Flexibility Act (RFA)

    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule, if adopted, would not 
have a significant economic impact on a substantial number of small 
entities.
    This proposed rule would further detail current U.S. requirements 
to only allow importation and/or re-exportation of frozen toothfish or 
toothfish product with verifiable documentation that the harvesting 
vessel participated in the C-VMS regardless of where the fish was 
harvested; revise the NMFS catch-documentation requirements for re-
exporting toothfish and add requirements for exporting U.S.-caught 
toothfish; require applicants for an AMLR harvesting permit for krill 
to apply to NMFS no later than June 1 preceding the harvesting season 
for krill; and rescind the existing regulatory framework for annual 
management measures.
    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 NMFS regulations to implement CCAMLR conservation 
measures. All U.S. vessels and U.S. dealers are considered small 
entities under the ``Small Business Size Regulations'' established by 
the SBA under 13 CFR 121.201. However, the only costs associated with 
this proposed rulemaking are for: (1) dealers providing mode-of-
shipment information on applications for toothfish re-export and export 
documents; and (2) for applicants for krill harvesting permits to 
provide information on the products to be derived from krill catch. The 
costs and time associated with these proposed requirements is de 
minimis. The C-VMS aspects of the proposed rule would not change 
current practices and rescinding the framework for annual measures 
would not impose any economic impact on small business entities.

[[Page 62280]]

    As a result, an initial regulatory flexibility analysis is not 
required and none has been prepared.

Paperwork Reduction Act (PRA)

    This proposed rule contains two new collection-of-information 
requirements subject to review and approval by OMB under the PRA: 
providing mode-of-shipment information on applications for toothfish 
re-export documents; and providing information, to the extent possible, 
on the products to be derived from krill catch on applications for 
krill harvesting permits. These new requirements are not expected to 
change the currently approved burden under OMB Control Number 0648-0194 
of 295 hours.
    Public comment is sought regarding: whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. 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 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.

List of Subjects in 50 CFR Part 300

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

    Dated: November 20, 2009.
Samuel D. Rauch III,
Deputy Assistant Administrator For Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 300, subpart G 
is proposed to be amended as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart G--Antarctic Marine Living Resources

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

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

    2. In Sec.  300.101, the definitions of ``Centralized Vessel 
Monitoring System (C-VMS)'', ``Port-to-port'', and ``Real-time'' are 
added, and the definition of ``Vessel Monitoring System (VMS)'' is 
revised, in alphabetical order to read as follows:


Sec.  300.101  Definitions.

* * * * *
    Centralized Vessel Monitoring System (C-VMS) means a system that 
uses satellite-linked vessel monitoring devices to allow for the 
reporting of vessel positional data, either directly to the CCAMLR 
Secretariat or to the CCAMLR Secretariat through the relevant Flag 
State.
* * * * *
    Port-to-port means from the time the vessel leaves port to the time 
that the vessel returns to port and at all points in between.
    Real-time means as soon as possible, but at least every 4 hours 
with no more than a 4-hour delay.
* * * * *
    Vessel Monitoring System (VMS) means a system that uses a mobile 
transceiver unit 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 positional 
and other information, consistent with relevant CCAMLR conservation 
measures.
    3. In Sec.  300.107, paragraphs (a)(4), (c)(5)(i) introductory 
text, (c)(5)(i)(A), (c)(5)(iii), and (c)(6) are revised, and new 
paragraph (c)(7) is added, to read as follows:


Sec.  300.107  Reporting and recordkeeping requirements.

* * * * *
    (a) * * *
    (4) Install a NMFS approved VMS unit on board U.S. vessels 
harvesting AMLR for use in real-time C-VMS port-to-port reporting to a 
NMFS-designated land-based fisheries monitoring center or centers. The 
requirements for the installation and operation of the VMS are set 
forth in Sec.  300.116.
* * * * *
    (c)* * *
    (5)* * *
    (i) In order to import frozen Dissostichus species into the United 
States, any dealer must:
    (A) Submit a preapproval application including the document number 
and export reference number on the DCD corresponding to the intended 
import shipment and, if necessary, additional information for NMFS to 
verify the use of real-time C-VMS port-to-port regardless of where the 
fish were harvested; and receive preapproval from NMFS.
* * * * *
    (iii) Any dealer who imports fresh Dissostichus species must 
complete a report of each shipment and submit the report to NMFS within 
24 hours following importation. Verification of the use of real-time C-
VMS port-to-port is not required for imports of fresh Dissostichus 
species.
* * * * *
    (6) Re-export. (i) In order to re-export Dissostichus species, any 
dealer must:
    (A) Submit to NMFS a completed paper-based NMFS application for a 
Dissostichus re-export document that includes the following 
information:
    (1) The species, product type, and amount from the original DCD(s) 
that is requested for export in the particular export shipment;
    (2) The number of the original DCD(s);
    (3) The name and address of the importer and point of import for 
the original import into the United States, or by submitting a copy of 
the preapproval issued for the original import;
    (4) One of the following:
    (i) The Container Number for the shipment if shipment is to be re-
exported by vessel;
    (ii) The Flight Number and Airway Bill/Bill of Lading if shipment 
is to be re-exported by air;
    (iii) The Truck Registration Number and Nationality if shipment is 
to be re-exported by ground transportation; or
    (iv) The Railway Transport Number if shipment is to be re-exported 
by rail.
    (5) The dealer/exporter's name, address, and AMLR permit number; 
and
    (6) The dealer's signature.
    (B) Obtain validation by a responsible official(s) designated by 
NMFS and receive an electronically generated Dissostichus re-export 
document.
    (ii) For frozen Dissostichus species, re-export documents will be 
generated upon verification of the use of real-time C-VMS port-to-port 
except for Dissostichus species harvested during fishing trips that 
began prior to September 24, 2007.

[[Page 62281]]

    (iii) Dealers must include the original validated Dissostichus re-
export document with the re-export shipment.
    (iv) Any dealer who re-exports Dissostichus species must retain a 
copy of the re-export document at his/her place of business for a 
period of 2 years from the date on the DCD.
    (7) Export. (i) In order to export U.S.-harvested Dissostichus 
species, any dealer must:
    (A) Submit to NMFS a completed paper-based NMFS application for a 
Dissostichus export document that includes the following information:
    (1) The species, product type, and amount from the original DCD(s) 
that is requested for export in the particular export shipment;
    (2) The number of the original DCD(s);
    (3) One of the following:
    (i) The Container Number for the shipment if shipment is to be 
exported by vessel;
    (ii) The Flight Number and Airway Bill/Bill of Lading if shipment 
is to be exported by air;
    (iii) The Truck Registration Number and Nationality if shipment is 
to be exported by ground transportation; or
    (iv) The Railway Transport Number if shipment is to be exported by 
rail.
    (4) The dealer/exporter's name, address, and AMLR permit number;
    (5) For frozen Dissostichus species, verification of the use of 
real-time C-VMS port-to-port except for Dissostichus species harvested 
during fishing trips that began prior to September 24, 2007; and
    (6) The dealer's signature.
    (B) Obtain validation by a responsible official(s) designated by 
NMFS and receive an electronically generated Dissostichus export 
document.
    (ii) Dealers must include the original validated Dissostichus 
export document with the export shipment.
    (iii) Any dealer who exports Dissostichus species must retain a 
copy of the export document at his/her place of business for a period 
of 2 years from the date on the DCD.
Sec.  300.111 [Removed and Reserved]
    4. Section 300.111 is removed and reserved.
    5. In Sec.  300.112 paragraph (c) is revised to read as follows:


Sec.  300.112  Harvesting permits.

* * * * *
    (c) Application. Application forms for harvesting permits are 
available at www.nmfs.noaa.gov.gpea_forms.htm.
    (1) A separate fully completed and accurate application must be 
completed and received by NMFS for each vessel for which a harvesting 
permit is requested.
    (2) Applications for permits to harvest species other than krill 
must be received by NMFS at least 90 days before the date anticipated 
for the beginning of harvesting.
    (3) Applications for a permit to harvest krill must be received by 
NMFS no later than June 1 immediately prior to the season in which the 
harvesting would occur. The applications must, to the extent possible, 
identify the products to be derived from the anticipated krill catch.
* * * * *
    6. In Sec.  300.114 paragraph (d) is revised to read as follows:


Sec.  300.114  Dealer permits and preapproval.

* * * * *
    (d) Issuance. NMFS may issue a dealer permit or preapproval if it 
determines that the activity proposed by the dealer meets the 
requirements of the Act and that the resources were not or will not be 
harvested in violation of any CCAMLR conservation measure or in 
violation of any regulation in this subpart. No preapproval will be 
issued for Dissostichus species without verifiable documentation, to 
include VMS reports with vessel location and messages, of the use of 
real-time C-VMS port-to-port by the vessel that harvested such 
Dissostichus species, except for Dissostichus species harvested during 
fishing trips that began prior to September 24, 2007.
* * * * *
    7. In Sec.  300.116 the heading is revised to read as follows:


Sec.  300.116  Requirements for a vessel monitoring system for U.S. 
vessels.

* * * * *
    8. In Sec.  300.117 paragraph (bb)(9) is revised and paragraphs 
(gg) and (hh) are added to read as follows:


Sec.  300.117  Prohibitions.

* * * * *
    (bb)* * *
    (9) Fail to use real-time C-VMS port-to-port on board U.S. vessels 
harvesting AMLR in the Convention Area.
* * * * *
    (gg) Harvest any AMLR in Convention waters without a harvesting 
permit required by this subpart.
    (hh) Ship, transport, offer for sale, sell, purchase, import, 
export, re-export or have custody, control, or possession of, any 
frozen Dissostichus species without verifiable documentation of the use 
of real-time C-VMS port-to-port by the vessel that harvested such 
Dissostichus species unless the Dissostichus species was harvested 
during a fishing trip that began prior to September 24, 2007.
[FR Doc. E9-28435 Filed 11-25-09; 8:45 am]
BILLING CODE 3510-22-S