[Federal Register: August 23, 2007 (Volume 72, Number 163)]
[Rules and Regulations]
[Page 48495-48512]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23au07-16]
[[Page 48495]]
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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
[[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 David_Rosker@ob.eop.gov, or fax to (202) 395-7825.
FOR FURTHER INFORMATION CONTACT: Robin Tuttle at 301-713-2282 ext. 199,
fax 301-713-4137, or robin.tuttle@noaa.gov.
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
[[Page 48497]]
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
[[Page 48498]]
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
[[Page 48499]]
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