Federal Register: November 4, 2003 (Volume 68, Number 213)
Rules and Regulations
Page 62374-62385
From the Federal Register Online via GPO Access www.gpoaccess.gov/fr/index.html
DOCID:fr04no03-4
Department of Commerce
National
Oceanic and Atmospheric Administration
50 CFR Part 660
Docket No. 03043016-3258-02; I.D. 040103C
RIN 0648-AQ58
Fisheries off West Coast States and in the Western Pacific;
Pacific Coast Groundfish Fishery; Vessel Monitoring Systems
and Incidental Catch Measures
Agency
National Marine
Fisheries Service (NMFS), National Oceanic and Atmospheric
Administration (NOAA), Commerce.
Action
Final rule.
Summary
NMFS issues a final
rule to require vessels registered to Pacific Coast groundfish
fishery limited entry permits
to carry and use mobile vessel monitoring system (VMS)
transceiver units while fishing in state or Federal waters
off the coasts of Washington, Oregon and California.
This action is necessary to monitor compliance with large-scale
depth-based conservation areas that restrict fishing
across much of the continental shelf.
This final rule also requires the operators of any vessel
registered to a limited entry permit and any open access
or tribal vessel using trawl gear, including exempted gear
used to take pink shrimp, spot and ridgeback prawns, California
halibut and sea cucumber, to declare their intent to fish
within a conservation area specific to their gear type,
in a manner that is consistent with the conservation area
requirements. This action is intended to further the conservation
goals and objectives of the Pacific Coast Groundfish Fishery
Management Plan (FMP) by allowing fishing to continue in
areas and with gears that can harvest healthy stocks while
reducing the incidental catch of low abundance species.
Dates
Effective January
1, 2004.
Addresses
Copies of the
environmental assessment/regulatory impact review/final
regulatory flexibility analysis (EA/RIR/FRFA)
and the finding of no significant impact prepared for
this action may be obtained from the Pacific Fishery
Management Council (Council) by writing to the Council
at:
7700 NE Ambassador Place
Portland, OR 97220
(503) 820-2280
Or may be obtained from:
William L. Robinson
Northwest Region, NMFS
7600 Sand Point Way NE., BIN C15700, Bldg. 1
Seattle, WA 98115-0070
Copies of the small business compliance guide are available
from:
D. Robert Lohn, Administrator
Northwest Region, NOAA Fisheries, Bldg. 1
7600 Sand Point Way NE.
Seattle, WA 98112-0070
Written comments regarding the burden-hour estimates or
other aspects of the collection-of-information requirements
contained in this final rule may be submitted to NMFS at
the address above and by e-mail to David_Rostker@omb.eop.gov,
or faxed to (202) 395-7285.
For further information contact:
Becky Renko or Yvonne deReynier at the Northwest Region,
NMFS, phone (206) 526-6140; fax: (206) 526-6736; and e-mail becky.renko@noaa.gov or yvonne.dereynier@noaa.gov;
or Svein Fougner (Southwest Region, NMFS), phone: 562-980-4000;
fax: (562) 980-4047; and e-mail: svein.fougner@noaa.gov.
Supplementary Information
Electronic Access
This rule is accessible via the Internet at the Office
of the Federal Register's Web site at www.access.gpo.gpv/su-docs/aces/aces140.htm.
Background information and documents are available at
the NMFS Northwest Region Web site at www.nwr.noaa.gov/1sustfsh/gdfsh01.htm and
at the Council's Web site at www.pcouncil.org.
Background
A proposed rule for this action was published on May 22,
2003 (FR 86 27972). NMFS requested public comment on
the proposed rule through July 21, 2003. During the comment
period on the proposed rule, NMFS received 4 letters,
including those received from the Council and from the
public at the Council's June 2003 meeting. These comments
are addressed later in the preamble to this final rule.
See the preamble to the proposed rule for additional
background information on the fishery and on this final
rule.
Under this final rule, any vessel registered to a limited
entry permit for the Pacific Coast groundfish fishery will
be required to have an operating NMFS type-approved VMS
transceiver unit on board while fishing in state or Federal
waters off the states of Washington, Oregon and California.
This regulatory amendment will require that the vessel
owner or operator of a vessel registered to a limited entry
groundfish permit carry and use a NMFS type-approved VMS
transceiver at all times when engaged in any and all fisheries
off the U.S. West Coast. A vessel owner required to continuously
operate a VMS transceiver may choose to send an exemption
report. This report will allow the owner to disconnect
the power to the transceiver unit and discontinue transmissions
during a period when the vessel will be continuously out
of the water for more than 7 consecutive days, or will
allow the owner to reduce or discontinue the VMS transmissions
if the vessel is continuously operating seaward of the
exclusive economic zone (EEZ) off Washington, Oregon, or
California for more than 7 consecutive days.
Before the vessel is used to fish in any trawl Rockfish
Conservation Area (RCA) or the Cowcod Conservation Areas
(CCA) in a manner that is consistent with the requirements
of the conservation areas, a declaration report will be
required from (1) any vessel registered to a limited entry
permit with a trawl endorsement; (2) any vessel using trawl
gear, including exempted gear used to take pink shrimp,
spot, and ridgeback prawns, California halibut and sea
cucumbers; and (3) any tribal vessel using trawl gear.
In addition declaration reports are required from vessels
registered to limited entry permits with longline and pot
endorsements, before these vessels can be used to fish
in any non-trawl RCA or the CCA. The declaration report
must be submitted before the vessel leaves port on the
trip to fish in an RCA or a CCA. Each declaration report
will be valid until cancelled or revised by the vessel
operator. The declaration report must state the type of
fishing in which the vessel will be engaged. If the type
of fishing changes, a new declaration report must be submitted.
For further information regarding declaration reports,
see the preamble for the proposed rule for this action
(68 FR 227972, May 23, 2003).
VMS is a tool that allows vessel activity to be monitored
in relation to geographically defined management areas.
VMS transceiver units installed aboard vessels automatically
determine the vessel's position using Global Positioning
System (GPS) satellites and transmit that position to a
land based processing center via a communication satellite.
At the processing center, the information is validated
and analyzed before being disseminated for various purposes,
which may include fisheries management, surveillance and
enforcement.
VMS transceiver units are designed to be tamper resistant.
In most cases, the vessel owner is not aware of exactly
when the unit is transmitting and is unable to alter the
signal or the time of transmission. On September 23, 1993
(58 FR 49285) and March 31, 1994 (59 FR 151180), NMFS published
VMS standards for transceiver units and service providers
used for Federal fisheries management.
Time and area closures have long been used in the Pacific
Coast groundfish fishery to restrict fishing activity in
order to keep harvests within sector allocations and at
sustainable levels and to prohibit the catch of certain
species. RCAs are depth-based management areas based on
bottom depth ranges where overfished rockfish species commonly
occur. The RCAs are large, irregularly-shaped geographical
areas that are defined by a series of latitudinal and longitudinal
coordinates which generally follow depth (fathom) contours.
The RCAs differ from previously closed areas because they
extend far offshore, making air and surface craft enforcement
difficult.
The depth-based management strategy associated with the
RCAs is designed to allow fishing for healthy stocks to
continue, while protecting overfished species. However,
it presents new enforcement challenges, and requires new
tools such as VMS to supplement existing enforcement mechanisms.
NMFS and cooperating enforcement agencies (such as the
U.S. Coast Guard and state marine law enforcement agencies)
will continue to use traditional enforcement methods such
as aerial surveillance and marine patrols that have proved
effective in the past. Adding requirements for VMS and
declaration reports will allow the enforcement agencies
to continuously monitor vessels fishing in, and transiting
through, the RCAs.
Because of the critical need to monitor the integrity
of conservation areas that protect overfished stocks, while
allowing for the harvest of healthy stocks, NMFS believes
it is necessary to proceed with this rulemaking with the
requirement for fishery participants to bear the cost of
purchasing, installing, and maintaining VMS transceiver
units, VMS data transmissions, and reporting costs associated
with declaration requirements. If state or Federal funding
becomes available, fishery participants may be reimbursed
for all or a portion of their VMS expenses.
NMFS may publish, and as necessary amend, a list of NMFS
type-approved mobile transceiver units and communication
service providers for the Pacific Coast groundfish fishery
in the Federal Register or notify the public through other
appropriate media or mailings to the permit owner's address
of record. NMFS will also distribute installation and activation
instructions for the affected vessel owners.
The installation of the VMS transceiver is expected to
take less than 4 hours and will be the responsibility of
the vessel owners. Prior to fishing, the vessel owner will
be required to fax an activation report to NMFS to verify
that the unit was installed correctly and has been activated.
Comments and Responses
Comment 1
Because the rule requires vessels with limited entry permits
to have VMS transceiver units on at all times, there
is no need to require declaration reports for vessels
fishing in non-groundfish fisheries in the RCAs.
Response
Unless a vessel meets the specified exemption criteria
and has submitted an exemption report, this rule requires
all vessels registered to limited entry permits to continuously
operate a VMS mobile transceiver regardless of the fishery.
Owners/operators of vessels registered to limited entry
permits must also submit a declaration report before
leaving port on a trip in which (1) a vessel registered
to a limited entry permit with a trawl endorsement is
used to fish in any trawl RCA or the CCA, or (2) before
a vessel registered to a limited entry permit with a
pot or longline endorsement is used to fish in any non-trawl
RCA or the CCA. Declaration reports are required whether
the vessel is fishing for groundfish or non-groundfish
species. Declaration reports are not required for vessels
fishing seaward or shoreward of the conservation area.
Limited groundfish fishing (i.e., mid-water whiting during
the primary season, widow and yellowtail when limits are
provided, etc.) as well as non-groundfish fishing are permitted
within the RCA. Declaration reports are intended to provide
enforcement officers with information to make an initial
determination about a vessel's activity in relation to
the conservation area restrictions. Because a VMS transceiver
unit only transmits the vessel's position, a declaration
report is needed to identify the intended target species
and gear being deployed. Without a declaration report VMS
would be less effective as an enforcement tool because
costly visual observations would be required to determine
if a limited entry vessel was fishing in a manner consistent
with conservation area restrictions.
Comment 2
Three commenters stated that declaration reports alone
would be adequate for monitoring limited entry vessels
that are legally participating in non-groundfish fisheries
within the conservation areas. Therefore, this rule should
be amended to allow vessels to discontinue position transmissions
when they are participating in non-groundfish fisheries.
Response
NMFS believes that requiring continuous operation of the
VMS transceiver units is necessary to maintain the integrity
of the monitoring program, and may produce a deterrent
effect. Requiring the VMS mobile transceiver unit to
be operated continuously will deter fishers from intentionally
turning the units off to avoid detection or inadvertently
forgetting to turn the units on when required. Requiring
the transceiver units to be operated while the vessel
is participating in non-groundfish fisheries will allow
enforcement officers to easily identify vessels that
are fishing in a manner consistent with the conservation
area requirements during routine enforcement activities.
This will allow traditional enforcement tools to be used
more effectively.
Comment 3
One commenter stated that reliance on declaration reports
alone for monitoring open access trawl and non-trawl vessels
will not be adequate to ensure compliance with conservation
area restrictions.
Response
Traditional enforcement methods will continue to be use
to monitor fishing activities. Although not as effective
as VMS, declaration reports will improve the information
that is available for monitoring compliance with the
depth-based restrictions and allow traditional enforcement
tools to be used more efficiently.
During the initial phase of this program, the Council recommended
that vessels registered to limited entry permits be required
to carry and use VMS transceiver units while fishing off
the West Coast. This is intended to be a pilotprogram that
begins with the sector that is allocated the majority of
the groundfish resources. NMFS believes that a VMS based
monitoring program is an effective tool for monitoring
compliance with time area restrictions and is therefore
considering extending the requirement for vessels that
participate in the open access and recreational sectors
of the fishery.
Comment 4
VMS transmissions should only be required when a vessel
is operating outside of the "boundary line'' for state
territorial waters.
Response
NMFS believes that it is necessary to require the VMS transceiver
unit be operated from 0-200 nautical miles offshore (in
state marine and Federal waters). Though the term EEZ
was used in the proposed rule, and is defined at 50 CFR
660.10 as "all waters from the seaward boundary
of each of the coastal states to a line in which each
point is 200 nautical miles (370.40 km) from the baseline
from which the territorial sea of the U.S. is measured'',
the term was used in error. NMFS believes that requiring
continuous operation of the VMS transceiver units is
necessary to maintain the integrity of the monitoring
program as it might have a deterrent effect. The intent
was for the rule to apply to all waters 0-200 nautical
miles offshore. Data presented in the EA/RIR/FRFA supports
this area of coverage.
In some cases the RCAs, which were created to reduce the
impacts on overfished species, cross between state and
Federal waters. A major benefit of VMS is its deterrent
effect. It has been demonstrated that if fishing vessel
operators know that they are being monitored and that a
credible enforcement action will result from illegal activity,
then the likelihood of that illegal activity occurring
is significantly diminished. Requiring the VMS mobile transceiver
unit to be operated continuously will deter fishers from
intentionally turning the units off to avoid detection
or inadvertently forgetting to turn the units on when required.
Comment 5
A fixed gear fisherman expressed concern about regulatory
provisions regarding the transiting of RCAs. The provision
requires limited entry vessels with trawl endorsements
to have all trawl gear stowed and to be under continuous
transit when in a trawl conservation area, unless otherwise
announced in the Federal Register. The commenter indicated
that many fishing fixed gear grounds are in areas deeper
than 100 fathoms and are surrounded by shallow waters,
that asking the vessel to move to deeper waters to drift
while the crew is sleeping is too much, and that there
will be a greater chance of injury due to fatigue. The
commenter also expressed concern about increased fuel consumption
and wear on the engines.
Response
Navigational rules promulgated by 33 U.S.C. Sections 1601-1608,
require vessels to maintain a proper look-out by sight
as well as by hearing and all other available means appropriate
to the circumstances and conditions. This requirement
is intended to allow for a full appraisal of the navigational
situation to avoid the risk of collision. At this time,
the transiting requirement to which the commenter is
referring applies only to vessels registered to a limited
entry permits with a trawl endorsement. However, at its
October 7, 2003, meeting (68 FR 54895, September 19,
2003), the Council's ad hoc VMS Committee considered
expanding this requirement to the fixed gear vessels,
but failed to reach consensus on the issue. The need
for transiting requirements for fixed gear vessels will
be brought before the Council at a future date.
Comment 6
While bringing up the trawl net, many small trawl vessels
are at the mercy of the wind and currents and unable to
change their location. Small vessels could drift into the
trawl RCAs while retrieving their gear and be in violation
of the transiting provision that requires a vessel to have
all trawl gear stowed and to be under continuous transit
when in a trawl conservation area, unless otherwise announced
in the Federal Register.
Response
Position reports from vessels drifting with the currents
can look similar to vessels that are fishing. Given limited
enforcement resources, NMFS Enforcement believes that
the integrity of the restricted areas must be maintained.
Therefore NMFS recommends that each vessel operator provide
an adequate buffer to allow for drift due to weather
and currents.
Comment 7
It is not practical to require vessels to follow the depth
contours while transiting an RCA rather than allowing the
most direct route to be traveled.
Response
This rule does not specify where a vessel is required to
transit an RCA. The transiting provision only requires
a vessel to be under continuous transit and all groundfish
trawl gear stowed in accordance with 660.322(b)(8) or
as authorized or required in the annual groundfish management
measures published in the Federal Register.
Comment 8
VMS transceiver units need to have a non-fishing mode and
the ability to be used in different ways when sleeping
or moving between areas.
Response
NMFS is testing several VMS transceiver models that have
a function that detects lack of vessel movement and stops
sending position reports (greatly reducing power consumption
and transmittal costs) when the vessel is not moving.
When the vessel begins moving again, hourly position
reports resume. NMFS believes that it is necessary to
require that the VMS transceiver units be operable at
all times, so the integrity of the monitoring program
is maintained.
Comment 9
If a vessel were to shut down and drift to allow the crew
to sleep, the vessel could drift into the trawl RCA and
appear to be fishing.
Response
As also noted under comment 5, navigation rules promulgated
by 33 U.S.C. Sections 1601-1608, require vessels to maintain
a proper look-out by sight as well as by hearing and
all other available means appropriate to the circumstances
and conditions. Although this requirement is intended
to allow for a full appraisal of the situation to avoid
the risk of collision, having a crew member on watch
may also be used to prevent drifting into restricted
areas.
Comment 10
To prohibit only limited entry trawl vessels from any activity
other than transiting a RCA, and to not have the same prohibition
for fixed-gear vessels is discriminatory.
Response
NMFS does not agree that prohibiting only limited entry
trawl vessels from any activity other than transiting
an RCA is discriminatory. NMFS believes that it is necessary
to have a provision that prohibits limited entry trawl
vessels (except for those conducting allowed activities)
from any activity other than transiting the RCA. Track
lines from drifting vessels can look similar to track
lines from a vessel that is fishing. Therefore, drifting
vessels would cause unnecessary expenditure of enforcement
resources to check to see if drifting vessels were actually
engaged in illegal fishing in the conservation areas.
However, at its October 7, 2003, meeting (68 FR 54895,
September 19, 2003), the Council's ad hoc VMS Committee
considered expanding this requirement to the fixed gear
vessels, but failed to reach consensus on the issue.
The need for transiting requirements for fixed gear vessels
will be brought before the Council at a future date.
Comment 11
The rule should specifically address RCA transiting requirements
for trawl vessels that are legally allowed to fish for
groundfish within the trawl RCA (i.e., mid-water whiting
during the primary season or non-groundfish fishing). Currently
it does not allow for legal fishing with trawl gear by
vessels registered to limited
entry permits.
Response
Language has been added to the prohibition at Sec. 660.306
(bb) that clarifies that limited entry vessels with trawl
endorsements will be allowed to conduct fishing activities
that are permitted in the trawl RCA as specified in the
groundfish harvest specifications and management measures
published in the Federal
Register.
Comment 12
Two commenters indicated that there are no provisions for
transferring VMS transceiver units from one owner to another
or one boat to another. The commenter suggests the addition
of a simple notification system where a unit owner can
notify NMFS that he or she no longer owns or controls the
unit. The same notification system would be used in the
event of a catastrophic vessel loss where a unit cannot
be recovered.
Response
In response to the comments, NMFS has added a field to
the activation report that can be used to recognize that
a transceiver VMS unit has been previously used on another
vessel. Regulatory language has been added that will
prohibit transceiver units from being registered to more
than one vessel and that requires proof of ownership
of the VMS unit or documentation of service termination
from the communication service provider before the transceiver
unit can be registered to a new vessel.
Comment 13
Two commenters expressed concern that the VMS program will
continue indefinitely, even though the need for VMS may
disappear if the existing area closures are discontinued.
The commenters recommended that a termination clause be
written into the final rule.
Response
NMFS does not agree that there is a need to include a termination
clause at this time. At any point in the future, the
Council may choose to recommend changes and NMFS may
choose to revise or eliminate the groundfish regulations
pertaining to VMS.
Comment 14
One commenter indicated that VMS transceiver units should
also be required for the open access vessels that target
rockfish on the shelf or slope.
Response
During the initial phase of this program, the Council recommended
that vessels registered to limited entry permits be required
to carry and use VMS transceiver units while fishing
off the West Coast. This is intended to be a pilot program
that begins with the sector that is allocated the majority
of the groundfish resources. NMFS believes that a VMS-based
monitoring program is an effective tool for monitoring
compliance with time area restrictions. At its October
7, 2003, meeting (68 FR 54895, September 19, 2003), the
Council's ad hoc VMS Committee considered expanding the
VMS requirements to other sectors of the fishery, including
the open access groundfish fisheries.
Comment 15
The proposed rule requires that a VMS unit be installed
according to procedures established by NMFS. Discussions
with NMFS indicate that these procedures will include installation
by a NMFS-certified installer. The commenter believes that
the installation requirements should be limited to installation
pursuant to manufacturer instructions. Certified installers
are often not available in smaller ports, and this requirement
can be both time consuming and costly.
Response
The rule does not require that a certified person perform
the installation. Most of the systems being considered
for type-approval are do-it-yourself installations. Vessels
that already have VMS transceiver units installed for
other fisheries or personal purposes may continue to
use their current transceiver unit provided it is a model
that has been type-approved for the Pacific Coast groundfish
fishery and the software has been upgraded to meet the
defined requirements.
Given that the VMS hardware and satellite communications
services are provided by third party businesses, as approved
by NMFS, there is a need for NMFS to collect information
regarding the individual vessel's installation in order
to ensure that automated position reports will be received
without error. This would require that an activation report
which contains a certification checklist be completed by
the individual who installed the unit and that it be returned
to NMFS prior to using the VMS transceiver to meet regulatory
requirements. An activation report would be submitted to
NMFS by the VMS installer who would certify the information
about the installation by signing the checklist and returning
it to NMFS. The checklist indicates the procedures to be
followed by the installers and, upon certification and
return to NMFS, provides the Office of Law Enforcement
with information about the hardware installed and the communication
service provider that will be used by the vessel operator.
Comment 16
The proposed rule does not include a provision for a vessel
owner to purchase a backup transceiver unit that can be
used if the primary transceiver fails during an extended
fishing trip. One commenter suggests that a provision be
added that will allow a back-up unit to be brought on-line
during the course of a fishing trip through simple declaration
procedures. This would prevent trips from being interrupted
and would continue to meet the information need identified
by NMFS.
Response
Nothing in this rule prohibits a vessel owner/operator
from submitting an activation report for a back-up VMS
transceiver unit. A separate activation report will need
to be submitted for each VMS transceiver unit. For clarification,
NMFS will ask that the owner/operator specify in the
activation report if the unit is the primary or a back-up
unit.
Comment 17
The action that NMFS intends to take if the VMS transceiver
fails during a fishing trip is unclear. The rule should
specifically state that if the VMS transceiver fails during
a fishing trip, the vessel will be allowed to complete
the current fishing trip provided the vessel operator notifies
NMFS of the malfunction.
Response
As stated at Sec. 660.359(d)(5), it is the vessel operator's
responsibility to notify NMFS when he or she becomes
aware that transmission of automatic position reports
have been interrupted. Upon contact with NMFS, the vessel
operator will be given specific instructions that may
include, but are not limited to, manually communicating
to a location designated by NMFS the vessel's position
or returning to port until the VMS is operable. Because
each incident must be considered on a case-by-case basis,
NMFS believes that the regulations adequately reflect
the range of actions that may be taken. After a fishing
trip during which interruption of automatic position
reports has occurred, the vessel owner or operator must
replace or repair the mobile VMS transceiver unit prior
to the vessel's next fishing trip.
Comment 18
The proposed rule states that a vessel registered to limited
entry permits must have the VMS transceiver on at all times
whether the vessel is fishing or out of the water. The
vessel should only be required to have the VMS unit on
when it is fishing for groundfish outside the boundary
line for state territorial waters. Requiring transmissions
when the vessel is out of the water or when it is not participating
in the groundfish fishery is an unnecessary cost to fishermen.
Response
A vessel owner/operator may choose to send an exemption
report to discontinue transmissions during a period when
the vessel will be continuously out of the water for
more than 7 consecutive days. To reduce the reporting
burden on vessels outside the EEZ, an optional exemption
report was added to the rule to allow vessels to reduce
or discontinue VMS hourly position reports when they
are out of the EEZ for more than 7 consecutive days.
In all other circumstances, NMFS believes that it is
necessary to require continuous transmissions of vessel
positions to allow limited enforcement resources to be
used efficiently and thereby maintain the integrity of
the conservation areas.
Comment 19
Vessels that are registered to "small fleet'' limited
entry permits are placed on trailers and removed from the
water each day. Requiring the vessel to keep the VMS transceiver
unit on at all times would result in position transmissions
from land and unnecessary transmission fees. The commenter
recommends that NMFS establish a geo-fence that would trigger
the VMS transceiver unit to stop and start position transmissions.
Response
NMFS recognizes there may be some unique circumstances
where it is unnecessary for position reports to be sent
while vessels are on land, and is therefore evaluating
geo-fencing and other technologies to address the commenter's
concern. Upon testing and evaluation, these technologies
may provide options for modifying position reporting
requirements in the future.
Comment 20
We note that the EA/RIR/IRFA prepared for the
proposed rule grossly underestimates installation costs,
because they do not include compensation for the travel
time of a certified installer to remote ports.
Response
The use of certified installers is not required. The installation
of the transceiver units was estimated at 4 hours per
vessel, or $120, at $30 per hour for the do-it-yourself
installation. The actual installation time for a VMS
unit is estimated to be less than two hours, but a higher
estimate of 4 hours/vessel is used, based on a worst
case scenario where the power source (such as a 12-volt
DC outlet) is not convenient to a location where the
VMS unit can be installed. Most of the systems being
considered for type-approval are do-it-yourself installations.
Given that the VMS hardware and satellite communications
services are provided by third party businesses, as approved
by NMFS, there is a need for NMFS to collect information
regarding the individual vessel's installation in order
to ensure that automated position reports will be received.
This information collection would not increase the time
burden for installation of VMS, but would require that
an activation report, which includes a certification checklist,
be returned to NMFS prior to using the VMS transceiver
to meet regulatory requirements. The time and cost burden
of preparing and submitting installation information to
NMFS is minor. Submission of a checklist would be required
only for the initial installation or when the hardware
or communications service provider changes. NMFS estimates
a time burden of 5 minutes ($2.50 at $30 per hour) for
completing the checklist and additional $3 for mailing/faxing
to NMFS, for a total of $5.50 per occurrence.
Comment 21
Several commenters indicated that NMFS should pay for the
costs of the VMS transceiver unit, while the vessel owner
should only be responsible for installation and operation
related costs of the VMS transceiver units.
Response
Although the Council recommended that NMFS fully fund a
VMS monitoring program, it is not possible at this time
because neither state nor Federal funding is available
for purchasing, installing, or maintaining VMS transceiver
units, nor is funding available for data transmission.
Because of the critical need to monitor the integrity
of conservation areas that protect overfished stocks,
while allowing for the harvest of healthy stocks, NMFS
believes it is necessary to proceed with this rulemaking.
To move this rulemaking forward at this time, it is necessary
to require fishery participants to bear the cost of purchasing,
installing, and maintaining VMS transceiver units, VMS
data transmissions, and reporting costs associated with
declaration requirements. If state or Federal funding
becomes available, fishery participants may be reimbursed
for all or a portion of their VMS expenses.
Comment 22
The cost for the VMS transceiver units and installation
presented in the preamble and the classification section
under the Initial Regulatory Flexibility Analysis (IRFA)
of the proposed rule are not consistent.
Response
The cost values for the VMS transceiver units and installation
presented in the preamble and those values presented
in the classification section under the IRFA of the proposed
rule are consistent, but represent different groups of
VMS transceiver units. The values presented in the preamble
represent the current price range for all VMS units that
are nationally type-approved for fishery monitoring in
the various NMFS regions, this includes upgraded units
with 2-way communications and other value added features.
In contrast, the values presented in the IRFA are based
on a price range for the units that are likely to be
type-approved for the Pacific Coast groundfish fishery.
Comment 23
The estimated benefits of VMS presented in the classification
section of the proposed rule under the EA/RIR/IRFA analysis
misrepresent the benefits of VMS. Benefits associated with
depth-based management should be removed from the analysis
since there is no revenue gain to the fishermen from the
VMS requirements.
Response
The 2003 depth-based management regime has closed large
areas to fishing, but has allowed more liberal trip limits
for healthy stocks than would have been available without
depth-based closures. To continue to allow this combination
of depth closures and higher limits, it is necessary
to establish a monitoring program to ensure the integrity
of these large depth-based conservation areas. With the
2003 Annual Specifications and Management Measures, the
Council recommended several measures, including implementation
of VMS, to track movement of vessels through and within
depth zones. Without a management strategy based on depth-based
conservation areas, the fishery would most likely be
managed under more seriously constrained limits on healthy
stocks that co-occur with overfished species. Therefore,
NMFS believes that the values accurately reflect the
benefit to the fisheries from VMS.
Comment 24
Because the cost of the VMS unit and its maintenance will
likely be the burden of the vessel owner/operator, the
type-approved units must be cost effective and durable
enough for vessels registered to "small fleet'': 16-21
ft (4.8-6.4 m), limited entry permits.
Response
NMFS is testing VMS transceiver units that are appropriate
for "small fleet'' limited entry vessels with the
intent of type-approving models that are cost effective
and durable enough for vessels registered to "small
fleet'' limited entry permits.
Comment 25
Because the cost of the VMS unit and its maintenance will
likely be the burden of the vessel owner/operator, the
approved units must be cost effective and durable enough
for vessels registered to "small fleet'' limited entry
permits.
Response
NMFS is testing VMS transceiver units with the intent of
type-approving models that are cost effective and durable
enough for vessels registered to "small fleet''
limited entry permits.
Comment 26
To take enforcement action against a vessel, NMFS should
require that an actual observation be made of the violation,
so it will hold up in court.
Response
By law, enforcement proceedings are subject to standards
of proof and rules of evidence that will determine what
evidence is sufficient in particular cases.
Comment 27
The commenter recommends that VMS transceiver units suitable
for use on "small fleet'' (16-21 ft) (4.8-6.4 m in
length) limited entry vessels, i.e., units that are small
and durable, be type-approved for use under this rule.
Response
NMFS is in the process of testing and type-approving VMS
transceiver units that are appropriate for "small
fleet'' limited entry vessels.
Comment 28
One commenter indicated that the final rule should not
become effective before the congressionally-mandated capacity
reduction program becomes effective because these same
vessels would be affected by both actions. Another commenter
stated that the final rule should not become effective
before January 1, 2004. While yet another commenter stated
that it is highly problematic because depth-based management
measures are currently in place and need to be monitored.
This commenter recommended immediate implementation of
VMS.
Response
At its November 2002 meeting, the Council recommended that
NMFS move forward with a proposed rule to implement a
VMS program for the Pacific Coast groundfish fishery
as soon as possible in 2003. NMFS recognizes the importance
of VMS for monitoring depth-based management measures
and intended to implement the program as soon as possible
in 2003 while allowing adequate time for public review
and for the affected public to purchase and install all
of the necessary equipment and services. At its June
2003 meeting, the Council reviewed the proposed rule
and recommended that the effective date for the rulemaking
be January 1, 2004. NMFS agrees with the Council's recommendation
for the following reasons: (1) A substantial proportion
of limited entry trawl vessels (20-40 percent) could
be bought out of the fishery by January 2004, and requiring
these vessels to purchase VMS units before then would
be unnecessary; and (2) additional time is needed for
NMFS to put the necessary VMS infrastructure in place.
This is because defining and verifying coordinates for
depth contour lines, creating a "geo-fence'' for "small
fleet'' limited entry permits, and completing the type-approval
process will require more time than had originally been
estimated.
Comment 29
NMFS should require vessels to have VMS transceiver units
with 2-way communications rather that the proposed requirement
for 1-way communications. Having 2-way communications would
allow NMFS to communicate directly with vessels to determine
if they are engaged in illegal fishing rather than having
to conduct an at-sea observation.
Response
NMFS agrees that the benefits of a VMS monitoring program
that includes 2-way communications are greater than a
program with 1-way communications. This is because 2-way
communications can be used for transmitting reports from
the vessel, receiving operational messages, and for inquiring
about use of distress signal. However, the cost to industry
and the diversity of fishery participants were also considered.
NMFS determined that the Council recommended alternative
which included a 1-way communications system (ship-to-shore)
satisfied the defined need for action, while being less
costly than a 2-way communication system. This rule defines
minimum requirements and will not preclude a vessel owner
from procuring a VMS unit type-approved by NMFS for the
Pacific Coast groundfish fishery that provides additional
services such as 2-way communications and has capabilities
used exclusively by the vessel owner and operator.
Changes From the Proposed Rule
This final rule includes the following changes from the
proposed rule:
1. In Sec. 660.306(z)(6) language has
been added that will prohibit transceiver units from being
registered to more than one vessel at a time.
2. In Sec. 660.306(bb) language has been
added to allow limited entry vessels with trawl endorsements
to conduct fishing activities that are permitted in the
trawl RCA.
3. In Sec. 660.359(d)(2)(ii) language
has been added to require that a proof of ownership of
the VMS transceiver unit or service termination from the
communication service provider be provided in order for
the unit to be registered to a new vessel.
4. In Sec. 660.306(Z)(1) and 660.359(b)
references to EEZ have been changed to clearly state that
the rule applies to state and Federal marine waters 0-200
nautical miles.
Classification
The Administrator, Northwest Region, NMFS, determined
that the FMP regulatory amendment is necessary for the
conservation and management of the Pacific Coast groundfish
fishery and that it is consistent with the Magnuson-Stevens
Act and other applicable laws.
NMFS prepared an IRFA which was summarized in the proposed
rule published on May 22, 2003 (68 FR 27972). NMFS prepared
a FRFA that describes the economic impact of this action
on small entities. The following is the summary of the
FRFA. The need for and objectives of this final rule are
contained in the SUPPLEMENTARY INFORMATION of the preamble
and in the proposed rule.
This final rule does not duplicate, overlap, or conflict
with other Federal rules. A range of five alternative actions
were considered and analyzed. The alternative monitoring
systems included: (1) The status quo, (2) a declaration
system, (3) a basic VMS program with 1-way communications
(the proposed action), (4) an upgraded VMS program with
2-way communications, and (5) the expanded use of fishery
observers. Vessel plotters were recommended as a monitoring
system by the industry. After consideration, it was determined
that vessel plotters, which were designed as a navigational
aid, would not be an adequate enforcement monitoring tool
for depth-based management.
RCAs are large-scale, depth-related closed areas that
are being used to restrict fishing across much of the continental
shelf. The depth-based management strategy associated with
the RCAs is designed to allow fishing for healthy stocks
to continue, while protecting overfished species. However,
it presents new enforcement challenges, and requires new
tools such as VMS to supplement existing enforcement mechanisms.
Depth-based management measures would have remained in
place under each of the alternatives, except that it is
reasonable to believe that they would have been discontinued
in 2004 under the status quo alternative. Declaration reports
(Alternative 2) alone are not as effective as VMS in monitoring
a vessel's location in relation to restricted areas. Observers
(Alternative 5), the most expensive of the alternatives,
provide detailed information, much of which goes beyond
the identified need. VMS is an effective tool for monitoring
vessel location. The two approaches to VMS considered during
the rulemaking process were: A basic VMS system (Alternative
3--the preferred action) and an upgraded VMS system (Alternative
4). The primary difference between the two alternatives
was that the upgraded system uses two-way communications
between the vessel and shore such that full or compressed
data messages can be transmitted and received by the vessel,
while the basic system only transmits positions to a shore
station. It was determined that the basic system was the
minimum system that would maintain the integrity of the
closed areas. However, this action will not preclude vessels
from installing an upgraded VMS system.
The alternative coverage levels for declarations and VMS
monitoring ranged substantially, from all limited entry
vessels actively fishing off the West Coast to all limited
entry, open access, and recreational charter vessels regardless
of where fishing occurs. During the initial phase of this
program, the Council recommended starting with vessels
registered to limited entry permits fishing in state or
Federal waters off the Washington, Oregon, and California
coasts to be required to have VMS transceiver units. This
is intended to be a pilot program that begins with the
sector that is allocated the majority of the groundfish
resources. In addition, alternative approaches for funding
the purchasing, installation, and maintenance of VMS transceiver
units, as well as the responsibilities for transmission
of reports and data were considered and included the following
alternatives: Vessel pays all costs, vessel pays only for
the transceiver, NMFS pays for initial transceiver, and
NMFS pays all costs. Although the Council recommended that
NMFS fully fund a VMS monitoring program, it is not possible
at this time because neither state nor Federal funding
is available for purchasing, installing, or maintaining
VMS transceiver units, nor is
funding available for data transmission. Because of the
critical need to monitor the integrity of conservation
areas that protect overfished stocks, while allowing for
the harvest of healthy stocks, NMFS believes it is necessary
to proceed with this rulemaking.
Approximately 424 vessels that are registered to limited
entry permits that operate in the waters off the states
of Washington, Oregon or California would be required to
carry and operate a NMFS type-approved VMS transceiver
unit. All but 10 of the affected entities qualify as small
businesses. Vessels required to carry VMS transceiver units
will provide installation/activation reports, hourly position
reports, and exemption reports.
The burden on fishery participants was considered and
only the minimum data needed to monitor compliance with
regulations are being required. In addition to VMS requirements,
declaration report requirements would apply to vessels
registered to limited entry permits with trawl endorsements
(262 vessels); other vessels using trawl gear, including
exempted gear used to take pink shrimp, spot and ridgeback
prawns, California halibut and sea cucumber (299 vessels);
and tribal vessels using trawl gear, before these vessel
are used to fish in any trawl RCA or the CCA. In addition,
declaration reports would be required from vessels registered
to limited entry permits with longline and pot endorsements
(167), before the vessel could be used to fish in any non-trawl
RCA or the CCA.
The Council's VMS Committee initially considered declaration
reports as "per trip'' reports. Following consultation
with fishery participants, it was determined that the needs
of NMFS and the U.S. Coast Guard could be met with less
frequently made declaration reports. Therefore, it was
determined that a declaration report identifying the type
of gear being used by a vessel would remain valid until
cancelled or revised by the vessel operator. This results
in a significant reduction in the number of reports.
Following consultation with fishery participants, it was
determined that some vessels may prefer to reduce the costs
of reporting when leaving the waters off the coasts of
Washington, Oregon, and California. A substantial number
of permitted vessels also fish in waters off Alaska and
in areas seaward of the EEZ. In addition, vessels are commonly
pulled out of the water for extended periods. To reduce
the reporting burden on vessels seaward of the EEZ or out
of the water, an optional exemption report was proposed
to allow vessels to reduce or discontinue VMS hourly position
reports when they are out of the EEZ for more than 7 consecutive
days.
Public comment on the proposed rule identified that there
are no provisions for transferring of VMS units from one
owner to another or one boat to another. In response, NMFS
added regulatory language that will prohibit transceiver
units from being registered to more than one vessel at
a time, while identifying how transceiver units can be
transferred and registered to a new vessel.
The preferred alternative (alternative 3), which would
require limited entry vessels to purchase and operate a
VMS in waters off of Washington, Oregon, and California,
is expected to result in increased profits to individual
vessels because the depth-based strategy can continue to
be used to manage the fishery. To determine profitability,
the Council compared the costs of purchasing and operating
a VMS unit to the increase in revenue that would be obtained
from expanded fishing opportunities under the depth-based
management program. Since revenue data for individual vessels
were not readily available, the Council used average annual
revenue per vessel as a proxy. In the absence of vessel
operating cost data, the Council considered only the cost
of purchasing and maintaining a VMS unit and assumed other
costs to be constant. The VMS units that are expected to
be type-approved for this fishery range in costs and service
features. This allows the vessel owner the flexibility
in choosing the model that best fits the needs of his or
her vessel.
NMFS will pay for all costs associated with polling (when
the processing center queries the transceiver, outside
of regular transmission, for a position report). The costs
of installation are minimal because the transceivers can
be installed by the vessel operator. Vessels that already
have VMS transceiver units installed for other fisheries
or personal purposes could use their current unit, providing
it is a model that has been type-approved for the Pacific
Coast groundfish fishery and the software has been upgraded
to meet the defined requirements. The estimated costs of
purchasing and installing the VMS transceiver unit would
be between $800 and $3800 per individual vessel, and between
$548 and $1698 per year to operate and maintain the unit.
Revenues from expanded fishing opportunities were estimated
to increase $26,000 per year for limited entry trawl vessels
and $14,000 per year for limited entry longline and pot
vessels, far exceeding the estimated start-up and maintenance
costs of the VMS. While ex-vessel revenues appear higher
on average for vessels likely to be required to use VMS
under the depth-based management regime, it should be noted
that fishing costs may also be higher, offsetting some
of the apparent gain. Unfortunately, vessel cost data necessary
to estimate this effect are currently not available. It
is also important to keep in mind that using average revenues
masks the variability of ex-vessel revenues in each vessel
class. While on average, additional revenues appear greater
than VMS-related costs, for some individual vessels in
each class this will not be the case. Alternative 4, which
would implement a two-way VMS, would produce higher costs
per vessel (year 1 at $3,878-$7,607; subsequent years at
$1,063-$2,342) and would yield less profit, than the proposed
VMS alternative. Alternative 5, which would implement observer
coverage, would be very costly at $300 per day, or $36,000
per year assuming 10 fishing days per month, and would
most likely produce economic losses for the majority of
limited entry vessels. Alternative 2, which would allow
expanded fishing by use of declaration only, would be more
profitable to limited entry vessels than the proposed VMS
measure, since they would earn the same revenue at a minimal
cost.
Mandatory VMS will allow for better enforcement of fishing
regulations and provide a more accurate database of fishing
activity to better meet the conservation goals of the Pacific
Groundfish FMP. The proposed measure to require all trawl
vessels to declare their intentions to fish is expected
to have only a minimal impact on individual trawlers since
the cost of a declaration is minimal.
Most vessels affected by this action have gross annual
receipts of under $3.5 million and are defined as small
entities under section 601 of the Regulatory Flexibility
Act; however, there are approximately 10 vessels defined
as large entities operating in the limited trawl fishery.
There could be some disproportionate economic impacts on
small entities versus large entities for the group of limited
entry vessels that are less than 40 ft (12.192 m) in length
and have relatively low gross annual receipts. These include
90 limited entry vessels, comprised of 5 trawl vessels
and 85 longline and pot vessels. Depending upon the cost
of the VMS, some of these smaller vessels would be forced
to pay a relatively larger share of their annual expenditures
for purchase of the VMS compared to the larger vessels.
All vessels that fish in conservation areas would increase
their gross receipts by being able to fish in more productive
areas, having the effect of increasing profitability and
mitigating the cost of the VMS. This mitigation would be
less for smaller vessels, due to their smaller catches
and, therefore, income from groundfish.
Section 212 of the Small Business Regulatory Enforcement
and Fairness Act of 1996 states that, for each rule or
group of related rules for which an agency is required
to prepare a FRFA, the agency shall publish one or more
guides to assist small entities in complying with this
final rule, and shall designate such publications as "small
entity compliance guides.'' The agency shall explain the
actions a small entity is required to take to comply with
a rule or group of rules. As part of this rulemaking process,
a letter to permit holders that also serves as small entity
compliance guide (the guide) will be prepared. Copies of
this final rule are available from the Northwest Regional
Office, and the guide, i.e., permit holder letter, will
be sent to all holders of limited entry permits for the
Pacific Coast groundfish fishery. The guide and this final
rule will also be available upon request.
This final rule contains a collection-of-information requirement
subject to the Paperwork Reduction Act (PRA). The collection
of this information has been approved by OMB, OMB Control
Number 0648-0478. Public reporting burden for this collection
of information is estimated to average as follows: 4 minutes
per response for each declaration report at an estimated
time burden on the public of 578 hours annually for all
723 respondents; At 4 hours per response for installation
of the VMS transceiver unit and 5 minutes per response
to send the installation/activation report with an estimated
time burden to the public from all 424 respondents of 1,696
hours for installation of the VMS transceiver units and
34 hours annually for sending the installation/activation
report; At 5 seconds per response for each hourly position
report, the expected time burden on the public from all
424 respondents would be 5,159 hours annually; and at 4
minutes per response for each exemption report the expected
time burden on the public from 145 respondents would be
19 hours annually. These estimates include the time for
reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing
and reviewing the collection information. Written comments
regarding the burden-hour estimates or other aspects of
the collection-of-information requirements contained in
this rule may be submitted to NMFS at the address above
and by e-mail to David_Rostker@omb.eop.gov,
or faxed to (202) 395-7285.
Notwithstanding any other provision of the law, no person
is required to respond to, and no person shall be subject
to penalty for failure to comply with, a collection of
information subject to the requirements of the PRA, unless
that collection of information displays a currently valid
OMB control number.
This final rule has been determined to be not significant
for purposes of Executive Order 12866.
This final rule was developed after meaningful consultation
and collaboration with the tribal representative on the
Council who has agreed with the provisions that apply to
tribal vessels.
List of Subjects in 50 CFR Part
660
Administrative practice and procedure, American Samoa,
Fisheries, Fishing, Guam, Hawaiian Natives, Indians, Northern
Mariana Islands, Reporting and recordkeeping requirements.
Dated: October 29, 2003.
Rebeccca Lent,
Deputy Assistant Administrator for Regulatory Programs,
National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 660
is amended as follows:
PART 660-FISHERIES OFF THE WEST COAST STATES AND IN THE
WESTERN PACIFIC
Subpart G-West Coast Groundfish Fisheries
1. The authority citation for part 660 continues
to read as follows:
Authority: 16 U.S.C. 1801 et seq.
2. In Sec. 660.302, add "Address of record'', "Groundfish
Conservation Area or GCA'', "Mobile transceiver
unit'', "Office for Law Enforcement'', and "Vessel
monitoring system or VMS'', in alphabetical order to
read as follows:
Sec. 660.302 Definitions.
Address of record. Address of Record means the business
address of a person, partnership, or corporation used by
NMFS to provide notice of actions.
Groundfish Conservation Area or GCA means a geographic
area defined by coordinates expressed in degrees latitude
and longitude, created and enforced for the purpose of
contributing to the rebuilding of overfished West Coast
groundfish species. Specific GCAs are referred to or defined
at 660.304(c).
Mobile transceiver unit means a vessel monitoring system
or VMS device, as set forth at Sec. 660.359, installed
on board a vessel that is used for vessel monitoring and
transmitting the vessel's position as required by this
subpart.
Office for Law Enforcement (OLE) refers to the National
Marine Fisheries Service, Office for Law Enforcement, Northwest
Division.
Vessel monitoring system or VMS means a vessel monitoring
system or mobile transceiver unit as set forth in Sec.
660.359 and approved by NMFS for use on vessels that take
(directly or incidentally) species managed under the Pacific
Coast Groundfish FMP, as required by this subpart.
3. Section 660.303 is revised to read as follows:
Sec. 660.303 Reporting and recordkeeping.
(a) This subpart recognizes that catch and effort data
necessary for implementing the PCGFMP are collected by
the States of Washington, Oregon, and California under
existing state data collection requirements. Telephone
surveys of the domestic industry may be conducted by NMFS
to determine amounts of whiting that may be available for
reallocation under 50 CFR 660.323(a)(4)(vi). No Federal
reports are required of fishers or processors, so long
as the data collection and reporting systems operated by
state agencies continue to provide NMFS with statistical
information adequate for management.
(b) Any person who is required to do so by the applicable
state law must make and/or file, retain, or make available
any and all reports of groundfish landings containing all
data, and in the exact manner, required by the applicable
state law.
(c) Any person landing groundfish must retain on board
the vessel from which groundfish is landed, and provide
to an authorized officer upon request, copies of any and
all reports of groundfish landings containing all data,
and in the exact manner, required by the applicable state
law throughout the cumulative limit period during which
a landing occurred and for 15 days thereafter.
(d) Reporting requirements for vessels fishing in conservation
areas-
(1) Declaration reports for trawl vessels intending to
fish in a conservation area. The operator of any vessel
registered to a limited entry permit with a trawl endorsement;
any vessel using trawl gear, including exempted gear used
to take pink shrimp, spot and ridgeback prawns, California
halibut and sea cucumber; or any tribal vessel using trawl
gear must provide NMFS with a declaration report, as specified
at paragraph 660.303(d)(5), of this section to identify
the intent to fish within the CCA, as defined at Sec. 660.304,
or any trawl RCA, as defined in the groundfish annual management
measures that are published in the Federal Register.
(2) Declaration reports for non-trawl vessels intending
to fish in a conservation area. The operator of any vessel
registered to a limited entry permit with a longline or
pot endorsement must provide NMFS OLE with a declaration
report, as specified at paragraph (d)(5) of this section,
to identify the intent to fish within the CCA, as defined
at Sec. 660.304, or any non-trawl RCA, as defined in the
groundfish annual management measures that are published
in the Federal Register.
(3) When a declaration report for fishing in a conservation
area is required, as specified in paragraphs (d)(1) and
(d)(2) of this section, it must be submitted before the
vessel leaves port: (i) On a trip in which the vessel will
be used to fish in a conservation area for the first time
during the calendar year; (ii) On a trip in which the vessel
will be used to fish in a conservation area with a gear
type that is different from the gear declaration provided
on a valid declaration report as defined at paragraph 660.303(d)(6)
of this section; or (iii) On a trip in which the vessel
will be used to fish in a conservation area for the first
time after a declaration report to cancel fishing in a
conservation area was received by NMFS.
(4) Declaration report to cancel fishing in a conservation
area. The operator of any vessel that provided NMFS with
a declaration report for fishing in a conservation area,
as required at paragraphs (d)(1) or (d)(2) of this section,
must submit a declaration report to NMFS OLE to cancel
the current declaration report before the vessel leaves
port on a trip in which the vessel is used to fish with
a gear that is not in the same gear category set out in
paragraph Sec. 660.303(d)(5)(i) declared by the vessel
in the current declaration.
(5) Declaration reports will include: the vessel name
and/or identification number, and gear declaration (as
defined in Sec. 660.303(d)(5)(i)). Upon receipt of a declaration
report, NMFS will provide a confirmation code or receipt.
Retention of the confirmation code or receipt to verify
that the declaration requirement was met is the responsibility
of the vessel owner or operator.
(i) One of the following gear types must be declared:
(A) Limited entry fixed gear,
(B) Limited entry midwater trawl,
(C) Limited entry bottom trawl,
(D) Trawl gear including exempted gear used to take pink
shrimp, spot and ridgeback prawns, California halibut south
of Pt. Arena, CA, and sea cucumber,
(E) Tribal trawl,
(F) Other gear including: gear used to take spot and ridgeback
prawns, crab or lobster, Pacific halibut, salmon, California
halibut, California sheephead, highly migratory species,
species managed under the Coastal Pelagic Species Fishery
Management Plan, and any species in the gillnet complex
as managed by the State of California,
(G) Non-trawl gear used to take groundfish.
(ii) Declaration reports must be submitted through the
VMS or another method that is approved by NMFS OLE and
announced in the Federal Register. Other methods may include
email, facsimile, or telephone. NMFS OLE will provide,
through appropriate media, instructions to the public on
submitting declaration reports. Instructions and other
information needed to make declarations may be mailed to
the limited entry permit owner's address of record. NMFS
will bear no responsibility if a notification is sent to
the address of record and is not received because the permit
owner's actual address has changed without notification
to NMFS, as required at Sec. 660.335(a)(2). Owners of vessels
that are not registered to limited entry permits and owners
of vessels registered to limited entry permits that did
not receive instructions by mail are responsible for contacting
NMFS OLE during business hours at least 3 days before the
declaration is required to obtain information needed to
make declaration reports. NMFS OLE must be contacted during
business hours (Monday through Friday between 0800 and
1700 Pacific Time).
(6) A declaration report will be valid until a declaration
report to revise the existing gear declaration or a declaration
report to cancel fishing in a conservation area is received
by NMFS OLE. During the period that a vessel has a valid
declaration report on file with NMFS, it cannot fish with
a gear other than a gear type that is within the gear category
(50 CFR 660.303(d)(5)) declared by the vessel. After a
declaration report to cancel fishing in the RCA is received,
that vessel must not fish in a conservation area until
another declaration report for fishing by that vessel in
a conservation area is received by NMFS.
4. Section 660.304 is revised to read as follows:
Sec. 660.304 Management areas, including conservation
areas, and commonly used geographic coordinates.
(a) Management areas.
(1) Vancouver.
(i) The northeastern boundary is that part of a line connecting
the light on Tatoosh Island, WA, with the light on Bonilla
Point on Vancouver Island, British Columbia (at 48°35'75''
N. lat., 124°43'00'' W. long.) south of the International
Boundary between the U.S. and Canada (at 48°29'37.19''
N. lat., 124°43'33.19'' W. long.), and north of the
point where that line intersects with the boundary of the
U.S. territorial sea.
(ii) The northern and northwestern boundary is a line
connecting the following coordinates in the order listed,
which is the provisional international boundary of the
EEZ as shown on NOAA / NOS Charts 18480 and 18007:
| Point |
N. Lat. |
W. Long. |
| 1 |
48°29'37.19'' |
124°43'33.19'' |
| 2 |
48°30'11'' |
124°47'13'' |
| 3 |
48°30'22'' |
124°50'21'' |
| 4 |
48°30'14'' |
124°54'52'' |
| 5 |
48°29'57'' |
124°59'14'' |
| 6 |
48°29'44'' |
125°00'06'' |
| 7 |
48°28'09'' |
125°05'47'' |
| 8 |
48°27'10'' |
125°08'25'' |
| 9 |
48°27'10'' |
125°09'12'' |
| 10 |
48°20'16'' |
125°22'48'' |
| 11 |
48°18'22'' |
125°29'58'' |
| 12 |
48°11'05'' |
125°53'48'' |
| 13 |
47°49'15'' |
126°40'57'' |
| 14 |
47°36'47'' |
127°11'58'' |
| 15 |
47°22'00'' |
127°41'23'' |
| 16 |
46°42'05'' |
128°51'56'' |
| 17 |
46°31'47'' |
129°07'39'' |
(iii) The southern limit is 47°30' N. lat.
(2) Columbia.
(i) The northern limit is 47°30' N. lat.
(ii) The southern limit is 43°00' N. lat.
(3) Eureka.
(i) The northern limit is 43°00' N. lat.
(ii) The southern limit is 40°30' N. lat.
(4) Monterey.
(i) The northern limit is 40°30' N. lat.
(ii) The southern limit is 36°00' N. lat.
(5) Conception.
(i) The northern limit is 36°00' N. lat.
(ii) The southern limit is the U.S.-Mexico International
Boundary, which is a line connecting the following coordinates
in the order listed:
| Point |
N. Lat. |
W. Long. |
| 1 |
32°35'22'' |
117°27'49'' |
| 2 |
32°37'37'' |
117°49'31'' |
| 3 |
31°07'58'' |
118°36'18'' |
| 4 |
30°32'31'' |
121°51'58'' |
(b) Commonly used geographic coordinates.
(1) Cape Falcon, OR--45°46' N. lat.
(2) Cape Lookout, OR--45°20'15'' N. lat.
(3) Cape Blanco, OR--42°50' N. lat.
(4) Cape Mendocino, CA--40°30' N. lat.
(5) North/South management line--40°10' N. lat.
(6) Point Arena, CA--38°57'30'' N. lat.
(7) Point Conception, CA--34°27' N. lat.
(c) Groundfish Conservation Areas (GCAs).
In Sec. 660.302, a GCA is defined as "a geographic
area defined by coordinates expressed in latitude and longitude,
created and enforced for the purpose of contributing to
the rebuilding of overfished West Coast groundfish species." Specific
GCAs may be defined here in this paragraph, or in the Federal
Register, within the harvest specifications and management
measures process. While some GCAs may be designed with
the intent that their shape be determined by ocean bottom
depth contours, their shapes are defined in regulation
by latitude/longitude coordinates and are enforced by those
coordinates. Fishing activity that is prohibited or permitted
within a particular GCA is detailed in Federal Register
documents associated with the harvest specifications and
management measures process.
(1) Rockfish Conservation Areas (RCAs). RCAs are defined
in the Federal Register through the harvest specifications
and management measures process. RCAs may apply to a single
gear type or to a group of gear types, such as "trawl
RCAs'' or "non-trawl RCAs''.
(2) Cowcod Conservation Areas (CCAs).
(i) The Western CCA is an area south of Point Conception
that is bound by straight lines connecting all of the following
points in the order listed:
| |
33°50' N. lat. |
119°30' W. long. |
| 33°50' N. lat. |
118°50' W. long. |
| 32°20' N. lat. |
118°50' W. long. |
| 32°20' N. lat. |
119°37' W. long. |
| 33°00' N. lat. |
119°37' W. long. |
| 33°00' N. lat. |
119°53' W. long. |
| 33°33' N. lat. |
119°53' W. long. |
| 33°33' N. lat. |
119°30' W. long. |
and connecting back to 33°50' N. lat., 119°30'
W. long.
(2) The Eastern CCA is a smaller area west of San Diego
that is bound by straight lines connecting all of the following
points in the order listed:
| |
32°42' N. lat. |
118°02 W. long. |
| 32°42' N. lat. |
117°50 W. long. |
| 32°36'42'' N. lat. |
117°50 W. long. |
| 32°30' N. lat. |
117°53'30'' W. long. |
| 32°30' N. lat. |
118°02 W. long. |
and connecting back to 32°42' N. lat., 118 °02'
W. long.
(d) Yelloweye Rockfish Conservation Area (YRCA). The YRCA
is a C-shaped area off the northern Washington coast that
is bound by straight lines connecting all of the following
points in the order listed:
| |
48°18' N. lat. |
125°18' W. long. |
| 48°18' N. lat. |
124°59' W. long. |
| 48°11' N. lat. |
124°59' W. long. |
| 48°11' N. lat. |
125°11' W. long. |
| 48°04' N. lat. |
125°11' W. long. |
| 48°04' N. lat. |
124°59' W. long. |
| 48°00' N. lat. |
124°59' W. long. |
| 48°00' N. lat. |
125°18' W. long. |
and connecting back to 48°18' N. lat., 125 °18'
W. long.
(e) International boundaries.
(1) Any person fishing subject to this subpart is bound
by the international boundaries described in this section,
notwithstanding any dispute or negotiation between the
United States and any neighboring country regarding their
respective jurisdictions, until such time as new boundaries
are established or recognized by the United States.
(2) The inner boundary of the fishery management area
is a line coterminous with the seaward boundaries of the
States of Washington, Oregon, and California (the "3-mile
limit''.
(3) The outer boundary of the fishery management area
is a line drawn in such a manner that each point on it
is 200 nm from the baseline from which the territorial
sea is measured, or is a provisional or permanent international
boundary between the United States and Canada or Mexico.
5. In Sec. 660.306, new paragraphs (z), (aa) and
(bb) are added to read as follows:
Sec. 660.306 Prohibitions.
(z) Vessel monitoring systems.
(1) Use any vessel registered to a limited entry permit
to operate in State or Federal waters seaward of the baseline
from which the territorial sea is measured off the States
of Washington, Oregon or California, unless that vessel
carries a NMFS OLE type-approved mobile transceiver unit
and complies with the requirements described at Sec. 660.359.
(2) Fail to install, activate, repair or replace a mobile
transceiver unit prior to leaving port as specified at
Sec. 660.359.
(3) Fail to operate and maintain a mobile transceiver
unit on board the vessel at all times as specified at Sec.
660.359.
(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
at Sec. 660.359.
(5) Fail to contact NMFS OLE or follow NMFS OLE instructions
when automatic position reporting has been interrupted
as specified at Sec. 660.359.
(6) Register a VMS transceiver unit registered to more
than one vessel at the same time.
(aa) Fishing in conservation areas. Fish with any trawl
gear, including exempted gear used to take pink shrimp,
spot and ridgeback prawns, California halibut south of
Pt. Arena, CA, and sea cucumber; or with trawl gear from
a tribal vessel or with any gear from a vessel registered
to a groundfish limited entry permit in a conservation
area unless the vessel owner or operator has a valid declaration
confirmation code or receipt for fishing in conservation
area as specified at Sec. 660.303(d)(5).
(bb) Operate any vessel registered to a limited entry
permit with a trawl endorsement in a Trawl Rockfish Conservation
Area (as defined at660.302), except for purposes of continuous
transiting, with all groundfish trawl provided that all
groundfish trawl gear is stowed in accordance with 660.322(b)(8),
or except as authorized in the annual groundfish management
measures published in the Federal Register.
6. In Sec. 660.322 new paragraph (b)(7) is added
to read as follows:
Sec. 660.322 Gear restrictions.
(b)(7) Trawl vessels may transit through the trawl RCA,
with or without groundfish on board, provided all groundfish
trawl gear is stowed either:
(i) Below deck; or
(ii) If the gear cannot readily be moved, in a secured
and covered manner, detached from all towing lines, so
that it is rendered unusable for fishing; or
(iii) Remaining on deck uncovered if the trawl doors are
hung from their stanchions and the net is disconnected
from the doors.
7. Section 660.359 is added to subpart G to read as follows:
Sec. 660.359 Vessel Monitoring System (VMS) Requirements.
(a) What is a VMS?
A VMS consists of a NMFS OLE type-approved mobile transceiver
unit that automatically determines the vessel's position
and transmits it to a NMFS OLE type-approved communications
service provider. The communications service provider
receives the transmission and relays it to NMFS OLE.
(b) Who is required to have VMS?
A vessel registered for use with a Pacific Coast groundfish
limited entry permit that fishes in state or Federal
water seaward of the baseline from which the territorial
sea is measured off the States of Washington, Oregon
or California is required to install a NMFS OLE type-approved
mobile transceiver unit and to arrange for an NMFS OLE
type-approved communications service provider to receive
and relay transmissions to NMFS OLE, prior to fishing.
(c) How are mobile transceiver units and communications
service providers approved by NMFS OLE?
(1) NMFS OLE will publish type-approval specifications
for VMS components in the Federal Register or notify the
public through other appropriate media.
(2) Mobile transceiver unit manufacturers or communication
service providers will submit products or services to NMFS
OLE for evaluation based on the published specifications.
(3) NMFS OLE may publish a list of NMFS OLE type-approved
mobile transceiver units and communication service providers
for the Pacific Coast groundfish fishery in the Federal
Register or notify the public through other appropriate
media. As necessary, NMFS OLE may publish amendments to
the list of type-approved mobile transceiver units and
communication service providers in the Federal Register
or through other appropriate media. A list of VMS transceivers
that have been type-approved by NMFS OLE may be mailed
to the permit owner's address of record. NMFS will bear
no responsibility if a notification is sent to the address
of record and is not received because the applicant's actual
address has changed without notification to NMFS, as required
at 660.335(a)(2).
(d) What are the vessel owner's responsibilities?
If you are a vessel owner that must participate in the
VMS program, you or the vessel operator must:
(1) Obtain a NMFS OLE type-approved mobile transceiver
unit and have it installed on board your vessel in accordance
with the instructions provided by NMFS OLE. You may get
a copy of the VMS installation and operation instructions
from the NMFS OLE Northwest, VMS Program Manager upon request
at 7600 Sand Point Way NE., Seattle, WA 98115-6349, phone:
(206) 526-6133.
(2) Activate the mobile transceiver unit, submit an activation
report, and receive confirmation from NMFS OLE that the
VMS transmissions are being received before participating
in a fishery requiring the VMS. Instructions for submitting
an activation report may be obtained from the NMFS OLE,
Northwest VMS Program Manager upon request at 7600 Sand
Point Way NE., Seattle, WA 98115-6349, phone: (206)526-6133.
An activation report must again be submitted to NMFS OLE
following reinstallation of a mobile transceiver unit or
change in service provider before the vessel may participate
in a fishery requiring the VMS.
(i) Activation reports. If you are a vessel owner who
must use VMS and you are activating a VMS transceiver unit
for the first time or reactivating a VMS transceiver unit
following a reinstallation of a mobile transceiver unit
or change in service provider, you must fax NMFS OLE an
activation report that includes: Vessel name; vessel owner's
name, address and telephone number, vessel operator's name,
address and telephone number, USCG vessel documentation
number/state registration number; if applicable, the groundfish
permit number the vessel is registered to; VMS transceiver
unit manufacturer; VMS communications service provider;
VMS transceiver identification; identifying if the unit
is the primary or backup; and a statement signed and dated
by the vessel owner confirming compliance with the installation
procedures provided by NMFS OLE.
(ii) Ownership of the VMS transceiver unit may be transferred
from one vessel to another vessel by submitting a new activation
report, which identifies that the transceiver unit was
previously registered to another vessel, and by providing
proof of ownership of the VMS transceiver unit or proof
of service termination from the communication
service provider.
(3) Operate the mobile transceiver unit continuously 24
hours a day throughout the calendar year, unless such vessel
is exempted under paragraph (d)(4) of this section.
(4) VMS exemptions. A vessel that is required to operate
the mobile transceiver unit continuously 24 hours a day
throughout the calendar year may be exempted from this
requirement if a valid exemption report, as described at
Sec. 660.359(d)(4)(iii), is received by NMFS OLE and the
vessel is in compliance with all conditions and requirements
of the VMS exemption identified in this section.
(i) Haul out exemption. When it is anticipated that a
vessel will be continuously out of the water for more than
7 consecutive days and a valid exemption report has been
received by NMFS OLE, electrical power to the VMS mobile
transceiver unit may be removed and transmissions may be
discontinued. Under this exemption, VMS transmissions can
be discontinued from the time the vessel is removed from
the water until the time that the vessel is placed back
in the water.
(ii) Outside areas exemption. When the vessel will be
operating seaward of the EEZ off Washington, Oregon, or
California continuously for more than 7 consecutive days
and a valid exemption report has been received by NMFS
OLE, the VMS mobile transceiver unit transmissions may
be reduced or discontinued from the time the vessel leaves
the EEZ off the coasts of Washington, Oregon or California
until the time that the vessel re-enters the EEZ off the
coasts of Washington, Oregon or California. Under this
exemption, the vessel owner or operator can request that
NMFS OLE reduce or discontinue the VMS transmissions after
receipt of an exemption report, if the vessel is equipped
with a VMS transceiver unit that NMFS OLE has approved
for this exemption.
(iii) Exemption reports must be submitted through the
VMS or another method that is approved by NMFS OLE and
announced in the Federal Register. Other methods may include
email, facsimile, or telephone. NMFS OLE will provide,
through appropriate media, instructions to the public on
submitting exemption reports. Instructions and other information
needed to make exemption reports may be mailed to the limited
entry permit owner's address of record. NMFS will bear
no responsibility if a notification is sent to the address
of record and is not received because the permit owner's
actual address has changed without notification to NMFS,
as required at 660.335(a)(2). Owners of vessels registered
to limited entry permits that did not receive instructions
by mail are responsible for contacting NMFS OLE during
business hours at least 3 days before the exemption is
required to obtain information needed to make exemption
reports. NMFS OLE must be contacted during business hours
(Monday through Friday between 0800 and 1700 Pacific Standard
Time).
(iv) Exemption reports must be received by NMFS at least
2 hours and not more than 24 hours before the exempted
activities defined at Sec. 660.359(d)(4)(i) and (ii) occur.
An exemption report is valid until NMFS receives a report
canceling the exemption. An exemption cancellation must
be received at least 2 hours before the vessel re-enters
the EEZ following an outside areas exemption or at least
2 hours before the vessel is placed back in the water following
a haul out exemption.
(5) When aware that transmission of automatic position
reports has been interrupted, or when notified by NMFS
OLE that automatic position reports are not being received,
contact NMFS OLE at:
7600 Sand Point Way NE
Seattle, WA 98115-6349
phone: (206) 526-6133
and follow the instructions provided to you. Such instructions
may include, but are not limited to, manually communicating
to a location designated by NMFS OLE the vessel's position
or returning to port until the VMS is operable.
(6) After a fishing trip during which interruption of
automatic position reports has occurred, the vessel's owner
or operator must replace or repair the mobile transceiver
unit prior to the vessel's next fishing trip. Repair or
reinstallation of a mobile transceiver unit or installation
of a replacement, including change of communications service
provider shall be in accordance with the instructions provided
by NMFS OLE and require the same certification.
(7) Make the mobile transceiver units available for inspection
by NMFS OLE personnel, U.S. Coast Guard personnel, state
enforcement personnel or any authorized officer.
(8) Ensure that the mobile transceiver unit is not tampered
with, disabled, destroyed or operated improperly.
(9) Pay all charges levied by the communication service
provider as necessary to ensure continuous operation of
the VMS transceiver units.
FR Doc. 03-27602 Filed 11-3-03; 8:45 am
BILLING CODE 3510-22-P
