[Federal Register Volume 65, Number 91 (Wednesday, May 10, 2000)]
[Rules and Regulations]
[Pages 30014-30017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11666]



[[Page 30014]]

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 300

[Docket No. 000218046-0117; I.D. 121599F]
RIN 0648-AN42


Antarctic Marine Living Resources; Harvesting and Dealer Permits, 
and Catch Documentation

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

ACTION: Final rule.

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SUMMARY: NMFS issues this final rule to revise permit requirements for 
U.S. vessels harvesting, or transshipping catch of, Dissostichus 
eleginoides (Patagonian toothfish) and Dissostichus mawsoni (Antarctic 
toothfish) harvested in all waters, including those under the 
jurisdiction of the Commission for the Conservation of Antarctic Marine 
Living Resources (CCAMLR). These regulations govern U.S. harvesters, 
receivers, importers and exporters of toothfish wherever caught, as 
well as other Antarctic marine living resources. NMFS will no longer 
use ``import'' permits as part of its regulatory requirements, instead 
it will use ``dealer'' permits. Persons receiving, importing, or re-
exporting toothfish are required to validate and submit Dissostichus 
Catch Documents (DCD) to NMFS. This rule implements U.S. obligations as 
a Contracting Party of CCAMLR to conserve Antarctic and Patagonian 
toothfish by preventing or otherwise discouraging unlawful harvest and 
trade in these species.

DATES: This final rule is effective May 5, 2000.

ADDRESSES: Copies of the Environmental Assessment and Regulatory Impact 
Review/Regulatory Flexibility Analysis (EA and RIR/RFA) supporting this 
action may be obtained from Dean Swanson, International Fisheries 
Division, Office of Sustainable Fisheries, NMFS, 1315 East-West 
Highway, Silver Spring, MD 20910. Comments involving the reporting 
burden estimates or any other aspects of the collection of information 
requirements contained in this final rule should be sent to both Dean 
Swanson, at the above address, and to the Office of Information and 
Regulatory Affairs, Office of Management and Budget (OMB), Washington, 
DC 20503 (ATTN: NOAA Desk Officer). Comments sent by e-mail or the 
Internet will not be accepted.

FOR FURTHER INFORMATION CONTACT: Dean Swanson or Angela Somma at 301-
713-2276 or FAX 301-713-2313.

SUPPLEMENTARY INFORMATION: The 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 CCAMLR 
conservation measures by regulations at 50 CFR part 300, subpart G. 
Background information about the need for revisions to the Antarctic 
fisheries regulations was provided in the preamble to the proposed rule 
(65 FR 13284, March 13, 2000) and is not repeated here.

Comments and Responses

    NMFS received written comments during the 30-day comment period on 
the proposed rule. When drafting the final EA and RIR/RFA and the final 
regulations, NMFS considered all comments received. Comments were 
received on the proposed rule from an industry trade association, 
several importers of toothfish, several environmental organizations, 
the U.S. Customs Service, and the Department of State. All supported 
the action taken by CCAMLR.
    Comment 1: Several commenters objected to a continuation of the 
import permit requirements as applied to incoming toothfish at the same 
time as the DCD requirements are being implemented.
    Response: NMFS intends to withdraw such import permit requirements 
by formal rulemaking once the DCD requirements have their intended 
effect within the United States and other CCAMLR member states.
    Comment 2: Several commenters suggested that NMFS should review and 
approve the completeness and accuracy of a DCD before a shipment of 
toothfish arrives at U.S. Customs.
    Response: As this alternative was not suggested or considered in 
the proposed rule and the EA, and the United States is legally 
obligated to implement the DCD requirements on May 7, 2000, it was not 
feasible to incorporate this suggestion into the rulemaking given the 
deadline. NMFS intends to discuss this suggestion with an interagency 
group with experience with pre-approval procedures for restricted 
imports to determine whether a pre-approval system can improve 
compliance with the CCAMLR catch documentation scheme. NMFS will 
consider the advice of this group and the results of compliance with 
the DCD scheme in determining whether to propose an amendment to this 
rule. NMFS is committed to implementing U.S. obligations arising from 
CCAMLR in a comprehensive manner that aims at full compliance by U.S. 
nationals and other individuals subject to U.S. jurisdiction.
    Comment 3: One commenter expressed concern about the commercially 
sensitive nature of information required on the DCD.
    Response: The DCD is a CCAMLR-prescribed form, and NMFS is not able 
to change it. NMFS does not believe any Privacy Act provisions are 
violated by the form.
    Comment 4: One commenter said that, as written, the proposed rule 
is unclear whether the rule requires each landing of toothfish at U.S. 
ports by non-U.S. flag vessels to be accompanied by a DCD.
    Response: Non-U.S. vessels are already prohibited by law from 
landing toothfish at U.S. ports (Nicholson Act, 46 U.S.C. 251-252). 
Therefore, NMFS does not believe that this issue needs to be addressed 
in this rulemaking. In addition, under the provisions at 
Sec. 300.107(c)(2), all offloadings of toothfish by U.S. harvesting 
vessels must be accompanied by a DCD, and the provisions at 
Sec. 300.107(c)(3) require a DCD for transshipment of toothfish as 
well. Sec. 300.107 (c)(5) requires a DCD for the importation of 
toothfish regardless of the nationality of the vessel that brought it 
to port.
    Comment 5: One commenter said that the rule will not prevent all 
shipments of toothfish accompanied by incomplete DCDs from entering 
into the customs territory of the United States because it requires 
merely that each shipment of toothfish coming into the United States be 
accompanied by a DCD.
    Response: NMFS disagrees that this rule requires each shipment of 
toothfish coming into the United States only to be accompanied by a 
DCD. Each shipment of toothfish must be accompanied by a complete and 
validated DCD as required under the CCAMLR catch documentation scheme. 
The provision at Sec. 300.107 (c)(1)(ii) says ``No shipment of 
Dissostichus species shall be released for entry into the United States 
unless accompanied by a complete and validated CCAMLR DCD, except as 
provided in paragraph (c)(7) of this subsection.''
    Comment 6: One commenter said that CCAMLR/NMFS should consider 
mandatory use of a vessel monitoring system (VMS) as a precautionary 
measure in conjunction with the DCD by vessels offloading toothfish 
into the United States.
    Response: CCAMLR requires VMS on harvesting vessels of its 
Contracting

[[Page 30015]]

Parties participating in some fisheries, but it does not have the legal 
authority to require the use of VMS on harvesting vessels of non-
contracting parties. CCAMLR did not include VMS requirements within its 
new toothfish catch documentation scheme. NMFS, therefore, did not 
consider the alternative of including a VMS requirement in the present 
rulemaking.

Changes From the Proposed Rule

    The two finfish species that are being added to the definition of 
``Antarctic finfishes,'' Lepidonotothen kempi and Electrona carlsbergi, 
were misspelled in the proposed rule. The spelling has been corrected.
    The definition of ``Dissostichus catch document (DCD)'' has been 
corrected to delete the reference to vessels authorized to transship 
Dissostichus species because DCDs are not issued to transshipment 
vessels.
    The definition of ``transship'' has been clarified to mean the 
transfer of fish or fish products from one vessel to another.
    In Sec. 300.107, paragraph (c) on catch documentation has been 
reformatted to improve readability.
    In Sec. 300.112, paragraph (k) has been clarified to apply to any 
U.S. flagged vessel that receives or attempts to receive Dissostichus 
species from a harvesting vessel at sea rather than any vessel subject 
to the jurisdiction of the United States that engages or attempts to 
engage in this activity.
    In Sec. 300.115, paragraph (b) is revised and paragraphs (q) and 
(r) have been added to enhance enforceability and clarify usage.
    Throughout, reference to ``the customs territory of the United 
States'' has been changed to ``the United States'' to comport with the 
definition of ``import'' under the Act.
    NMFS is not implementing the provisions contained in Sec. 300.116 
of the proposed rule at this time due to unresolved enforcement issues. 
NMFS will rely on existing statutory and regulatory authorities on a 
case-by-case basis when addressing any resources denied entry.

Classification

    The Assistant Administrator for Fisheries (AA), NMFS, determined 
that this final rule is necessary for the conservation and management 
of Antarctic marine living resources and is consistent with the 
Antarctic Marine Living Resources Convention Act of 1984, and other 
applicable laws.
    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration when this rule was proposed that this rule would not 
have a significant economic impact on a substantial number of small 
entities. No comments were received regarding this certification or the 
EA/RIR/RFA and the basis for this certification has not changed. 
Impacts were considered in the EA/RIR/RFA (see ADDRESSES).
    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall a person be subject to a penalty for failure 
to comply with, a collection of information subject to the requirements 
of the Paperwork Reduction Act (PRA), unless that collection of 
information displays a currently valid OMB control number.
    This rule contains a collection-of-information requirement subject 
to the PRA. OMB has approved this collection-of-information requirement 
under OMB control number 0648-0194. The estimated burden for dealer 
permits to import is 30 minutes per occurrence. The estimated burden 
for applying for a dealer permit to re-export Dissostichus species is 
30 minutes per occurrence, and the application for a harvest permit 
authorizing transshipment is estimated to take 12 minutes per 
occurrence. Completion and submission of an import ticket is estimated 
to take no more than 15 minutes per occurrence. The estimated burden 
for completion and submission of DCDs is 3 minutes for each submission 
by importers, 10 minutes for each submission by re-exporters, and 15 
minutes for each submission by harvesting vessels and transshipers. The 
logbook requirement in Sec. 300.107(a) is not subject to the PRA 
because it is a requirement imposed by an international organization 
rather than by NMFS.
    Send comments regarding this burden estimate or any other aspect of 
this collection of information, including suggestions for reducing this 
burden, to NMFS and to OMB (see ADDRESSES).
    Because the implementation of CCAMLR DCD program becomes an 
obligation of the United States and other CCAMLR members on May 7, 
2000, there is good cause to waive the 30-day delay in effectiveness 
for this rule under 5 U.S.C. 553 (d)(3). To fulfill its international 
obligations under CCAMLR, the United States must implement the DCD 
scheme by May 7, 2000. Successful implementation is dependent upon 
CCAMLR members implementing the scheme at the same time because the DCD 
can only be issued by the flag State of the harvesting vessel. Although 
U.S. vessels do not currently harvest toothfish, the United States is a 
significant importer. Because of this, the success of the global DCD 
scheme depends substantially on the United States implementing the 
harvest tracking system as close to May 7, 2000, as possible, to avoid 
confusion, to discourage trade in unlawfully harvested toothfish, and 
to facilitate international trade in lawful shipments of toothfish. The 
final rule provides a 60-day exception for toothfish harvested prior to 
the effective date of the final rule. The rule must be in effect by May 
7, 2000, or as soon as practicable thereafter, and any delay would be 
contrary to the public interest and unnecessary.

List of Subjects in 50 CFR Part 300

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

    Dated: May 5, 2000.
Penelope D. Dalton,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 300, subpart 
G, is amended as follows:

PART 300--INTERNATIONAL FISHERIES REGULATIONS

Subpart G--Antarctic Marine Living Resources

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

    Authority: 16 U.S.C. 2431 et seq.


    2. In Sec. 300.101, the definition of ``Antarctic finfishes'' is 
amended by adding an entry in the table for ``Striped-eyed rockcod'' 
immediately following the existing entry for ``Grey Rockcod'' and two 
others for ``Antarctic toothfish'' and ``Lanternfish'' immediately 
following the existing entry for ``Patagonian toothfish.'' The 
definition of ``Antarctic marine living resources or AMLR(s)'' is 
revised, and the definitions for ``Dealer'', Dissostichus catch 
document (DCD)'', ``Dissostichus species'' and ``Transship'' are added 
in alphabetical order to read as follows:


Sec. 300.101  Definitions.

* * * * *
    Antarctic finfishes include the following:

[[Page 30016]]



 
------------------------------------------------------------------------
              Scientific name                        Common name
------------------------------------------------------------------------
 
                        *   *   *   *   *   *   *
Lepido notothen kempi.....................         Striped-eyed rockcod.
 
                        *   *   *   *   *   *   *
Dissostichus mawsoni......................          Antarctic toothfish.
Electrona carlsbergi......................                  Lanternfish.
 
                        *   *   *   *   *   *   *
------------------------------------------------------------------------

    Antarctic marine living resources or AMLR(s) means:
    (1) The populations of finfish, mollusks, crustaceans, and all 
other species of living organisms, including birds, found south of the 
Antarctic Convergence;
    (2) All species of Dissostichus, wherever found; and
    (3) All parts or products of those populations and species set 
forth in paragraphs (1) and (2) of this definition.
* * * * *
    Dealer means the person who first receives AMLRs from a harvesting 
vessel or transshipment vessel or who imports AMLRs into, or re-exports 
AMLRs from, the United States.
* * * * *
    Dissostichus catch document (DCD) means the uniquely numbered catch 
documentation form approved by the Commission and issued by a flag 
state to its vessels authorized to harvest Dissostichus species.
    Dissostichus species means Patagonian toothfish and/or Antarctic 
toothfish and their parts or products.
* * * * *
    Transship means the transfer of fish or fish products from one 
vessel to another.

    3. Section 300.107 is revised to read as follows:


Sec. 300.107  Reporting and recordkeeping requirements.

    (a) Vessels. The operator of any vessel required to have a permit 
under this subpart must:
    (1) Accurately maintain on board the vessel a fishing logbook and 
all other reports and records required by its permit;
    (2) Make such reports and records available for inspection upon the 
request of an authorized officer or CCAMLR inspector; and
    (3) Within the time specified in the permit, submit a copy of such 
reports and records to NMFS at an address designated by NMFS.
    (b) Dealers. Dealers of AMLRs required to have a permit under this 
subpart must:
    (1) Accurately maintain all reports and records required by their 
permits;
    (2) Make such reports and records available for inspection upon the 
request of an authorized officer or CCAMLR inspector; and
    (3) Within the time specified in the permit, submit a copy of such 
reports and records to NMFS at an address designated by NMFS.
    (c) Catch documentation--(1) General. (i) The CCAMLR DCD must 
accompany all shipments of Dissostichus species as required in this 
subsection.
    (ii) No shipment of Dissostichus species shall be released for 
entry into the United States unless accompanied by a complete and 
validated CCAMLR DCD, except as provided in paragraph (c)(7) of this 
section.
    (2) Harvesting vessels. (i) In addition to any harvesting permit or 
authorization previously issued, a U.S. vessel harvesting or attenpting 
to harvest Dissostichus species must possess a DCD issued by NMFS which 
is non-transferrable. The master of the harvesting vessel must ensure 
that the catch information specified on the DCD is accurately recorded.
    (ii) Prior to offloading of Dissostichus species, the master of the 
harvesting vessel must:
    (A) electronically convey by the most rapid means possible catch 
information to NMFS and record on the DCD a confirmation number 
received from NMFS;
    (B) Obtain on the DCD (or copies thereof) the signature(s) of the 
following persons: if catch is offloaded for transshipment, the master 
of the vessel(s) to which the catch is transferred; or if catch is 
offloaded for landing, the signature of both the responsible 
official(s) designated by NMFS in the harvesting permit, and the 
dealer(s) that receives the catch at the port(s) of landing; and
    (C) Sign the DCD (or copies thereof), electronically convey by the 
most rapid means possible each copy to NMFS, and provide a copy to each 
recipient of the catch.
    (iii) The master of the harvesting vessel must submit the original 
DCD (or all copies thereof with original signatures) to NMFS no later 
than 30 days after the end of the fishing season as authorized for that 
vessel on its harvesting permit.
    (3) Transshipment vessels. (i) The master of a U.S. vessel issued a 
permit to transship Dissostichus species must, upon receipt of 
Dissostichus species, sign each DCD provided by the master of the 
harvesting vessel.
    (ii) Prior to landing Dissostichus species, the master of the 
transshipping vessel must:
    (A) Obtain on each DCD (or copies thereof) the signature(s) of both 
the responsible official(s) designated by NMFS in the permit, and the 
dealer(s) that receives the catch at the port(s) of landing and
    (B) Sign each DCD (or copies thereof), and electronically convey by 
the most rapid means possible each copy to NMFS and to the flag 
state(s) of the harvesting vessel(s) and provide a copy to each dealer 
receiving Dissostichus species.
    (iii) The master of the transshipping vessel must submit all DCDs 
with original signatures to NMFS no later than 30 days after offloading 
and retain copies for a period of 2 years.
    (4) Receivers upon landing. Any dealer who receives Dissostichus 
species from a harvesting vessel or from a transshipment vessel must 
sign the DCD(s) provided by the master of the vessel.
    (5) Import. (i) Any dealer who imports Dissostichus species must:
    (A) Obtain the DCD(s) that accompany the import shipment;
    (B) Mail or fax the DCD(s) to NMFS within 24 hours of the release 
from customs custody, and
    (C) Retain a copy for his/her records and provide copies to 
exporters as needed.
    (ii) Dealers must retain at their place of business a copy of the 
DCD for a period of 2 years from the date on the DCD.
    (6) Re-export. (i) Any dealer who re-exports Dissostichus species 
must complete a Dissostichus re-export document by indicating:
    (A) The amount from the original DCD(s) that is exported in the 
particular export shipment;
    (B) The number of the original DCD(s);
    (C) The name of the importer and point of import; and
    (D) The exporter's name, address and permit number.
    (ii) The dealer must then sign the re-export document and obtain 
validation by a responsible official(s) designated by NMFS.
    (iii) The original validated Dissostichus re-export document and 
copies of the original DCD(s) must accompany the export shipment.
    (iv) The dealer must retain a copy of the re-export document and 
copies of the DCD(s)at his/her place of business for a period of 2 
years from the date on the DCD.

[[Page 30017]]

    (7) Exception. Dissostichus species harvested prior to the 
effective date of this rule may be imported during the first 60 days 
following the effective date of this rule, provided that the date of 
the harvest(s) are corroborated on the dealer permit.

    4. In Sec. 300.112, paragraph (k) is added to read as follows:


Sec. 300.112  Harvesting permits.

* * * * *
    (k) Transshipment vessels. Any U.S. flagged vessel that receives or 
attempts to receive Dissostichus species from a harvesting vessel at 
sea, regardless of whether such transshipment occurs in waters under 
the jurisdiction of CCAMLR, must obtain from NMFS a harvesting permit 
authorizing transshipment. Transshipment vessels must comply with the 
permitting provisions of this section with respect to harvesting 
vessels.

    5. Section 300.113 is revised to read as follows:


Sec. 300.113  Dealer permits.

    (a) General. (1) A dealer must obtain an AMLRs dealer permit from 
NMFS. Only those specific activities stipulated by the permit are 
authorized for the permit holder.
    (2) An AMLR may be imported into the United States if its harvest 
has been authorized by a U.S.-issued individual permit or a harvesting 
permit issued under Sec. 300.112 (a)(1) or its importation has been 
authorized by a NMFS-issued dealer permit issued under paragraph (a) of 
this section. AMLR's may not be released for entry into the United 
States unless accompanied by the harvesting permit, the individual 
permit, a NMFS-issued dealer permit, or a copy thereof.
    (3) In addition to any applicable catch documentation required 
under Sec. 300.107 (c)(1), the dealer is required to complete and 
return to NMFS, no later than 24 hours after the date of the 
importation, an import ticket reporting the importation. In no event 
may a marine mammal be imported into the United States unless 
authorized and accompanied by an import permit issued under the Marine 
Mammal Protection Act and/or the Endangered Species Act.
    (4) A dealer permit issued under this section does not authorize 
the harvest or transshipment of any AMLR by or to a vessel of the 
United States.
    (b) Application. Application forms for AMLR dealer permits are 
available from NMFS. A complete and accurate application must be 
submitted for each permit at least 30 days before the anticipated date 
of the first receipt, importation, or re-export.
    (c) Issuance. NMFS may issue a dealer permit if it determines that 
the activity proposed by the dealer meets the requirements of the Act 
and that the resources were not or will not be harvested in violation 
of any conservation measure in force with respect to the United States 
or in violation of any regulation in this subpart.
    (d) Duration. A permit issued under this section is valid from its 
date of issuance to its date of expiration unless it is revoked or 
suspended.
    (e) Transfer. A permit issued under this section is not 
transferable or assignable.
    (f) Changes in information-(1) Pending applications. Applicants for 
permits under this section must report in writing to NMFS any change in 
the information submitted in their permit applications. The processing 
period for the application will be extended as necessary to review and 
consider the change.
    (2) Issued permits. Any entity issued a permit under this section 
must report in writing to NMFS any changes in previously submitted 
information. Any changes that would not result in a change in the 
receipt or importation authorized by the permit must be reported on the 
import ticket required to be submitted to NMFS no later than 24 hours 
after the date of receipt or importation. Any changes that would result 
in a change in the receipt or importation authorized by the permit, 
i.e., harvesting vessel or country of origin, type and quantity of the 
resource to be received or imported, and Convention statistical subarea 
from which the resource was harvested must be proposed in writing to 
NMFS and may not be undertaken unless authorized by NMFS through 
issuance of a revised or new permit.
    (g) Revision, suspension, or revocation. A permit issued under this 
section may be revised, suspended, or revoked, based upon a violation 
of the permit, the Act, or this subpart. Failure to report a change in 
the information contained in a permit application voids the application 
or permit, as applicable. Title 15 CFR part 904 governs permit 
sanctions under this subpart.

    6. In Sec. 300.115, paragraph (b) is revised and paragraphs (q) and 
(r) are added to read as follows:


Sec. 300.115  Prohibitions.

* * * * *
    (b) Import into or export from the United States any AMLRs taken by 
vessels without a permit to harvest those resources as required by 
Sec. 300.112 (a)(1), or without applicable catch documentation as 
required by Sec. 300.107 (c)(1), or without a dealer permit as required 
by Sec. 300.113 (a)(1), or in violation of the terms and conditions for 
such import or export as specified on the permit.
* * * * *
    (q) Provide incomplete or inaccurate information about the harvest, 
transshipment, landing, import or re-export of applicable species on 
any document required under this subpart.
    (r) Receive AMLRs from a vessel without a dealer or harvesting 
permit issued under this subpart.

    7. In Sec. 300.116, paragraph (d) is added and reserved to read as 
follows:


Sec. 300.116  Facilitation of enforcement and inspection.

* * * * *
    (d) Disposition of resources denied entry. [Reserved]

[FR Doc. 00-11666 Filed 5-5-00; 2:01 pm]
BILLING CODE 3510-22-F