[Federal Register Volume 65, Number 113 (Monday, June 12, 2000)]
[Proposed Rules]
[Pages 36810-36813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14775]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration (NOAA)

50 CFR Part 679

[Docket No. 000524152-0152-01; I.D. 030100C]
RIN 0648-AM34


Fisheries of the Exclusive Economic Zone Off Alaska; Requirement 
to Use Vessel Monitoring System Transmitter for Atka Mackerel in 
Aleutian Islands Subarea

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS publishes a proposed rule to require vessels 
participating in the directed fishery for Atka mackerel in the Aleutian 
Islands subarea (AI) of the Bering Sea and Aleutian Islands Area to 
carry and use a Vessel Monitoring System (VMS) transmitter. This action 
is necessary to enhance monitoring of fishery activities within 
critical habitat areas. It is intended to further the conservation 
goals and objectives of the Fishery Management Plan for the Groundfish 
Fishery of the Bering Sea and Aleutian Islands Area (FMP).


DATES: Comments must be received by June 26, 2000.

ADDRESSES: Comments may be mailed to Sue Salveson, Assistant Regional 
Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, 
P.O. Box 21668, Juneau, AK 99802-1668, Attn: Lori Gravel. Comments will 
not be accepted if submitted via e-mail or Internet. Hand or courier 
delivered comments may be sent to the Federal Building, 709 West 9th 
Street, Room 453, Juneau, AK 99801. Copies of the Regulatory Impact 
Review/Initial Regulatory Flexibility Analysis (RIR/IRFA) prepared for 
this action may be obtained from the same address or by calling the 
Alaska Region, NMFS, at 907-586-7228. Send comments on collection-of 
information requirements to 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).


FOR FURTHER INFORMATION CONTACT: Alan Kinsolving, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

    The number of Steller sea lions (Eumetopias jubatus) in the Bering 
Sea and Aleutian Islands Management Area has declined significantly 
during the past several decades and in 1997 NMFS listed the western 
stock of Steller sea lions as an endangered species. A requirement of 
the Endangered Species Act is that Federal actions affecting the 
critical habitat of a listed species must not jeopardize the continued 
existence of the populations of those species or adversely affect or 
modify their critical habitat. Atka mackerel is an important prey 
species for Steller sea lions and stocks adequate for the food needs of 
Steller sea lions must remain available in Steller sea lion critical 
habitat. Hence, the Atka mackerel fishery must be managed to provide 
for the food needs of Steller sea lions and avoid potential jeopardy to 
them.
    On January 22, 1999, NMFS published a final rule that reduces the 
percentage of Atka mackerel taken from Steller sea lion critical 
habitat over a 4-year period in the Western and Central Districts of 
the AI (64 FR 3446). The final rule also prohibits all trawling for 
groundfish within areas designated as Steller sea lion critical habitat 
when NMFS determines that the harvest of Atka mackerel has reached the 
applicable limits specified in the

[[Page 36811]]

regulations for the year and district. A critical habitat trawl closure 
remains in effect until NMFS closes the Atka mackerel fishery in that 
area.
    The Atka mackerel fishery is a high-volume, low-value fishery 
pursued by a small group of large factory trawlers, mostly greater than 
200 feet (61 m) in length. In 1997, for example, 12 factory trawlers 
participated in the AI Atka mackerel fishery, with 8 of these vessels 
accounting for over 80 percent of the retained catch in the fishery. 
The fishery is highly localized and occurs at depths between 100 and 
200 meters in the same few locations each year, most commonly in island 
passes. Important Atka mackerel fishing locations in the AI include 
Seguam Pass, Tanaga Pass, Petrel Bank, and the seamounts and reefs near 
Buldir Island. All of these locations are in or near Steller sea lion 
critical habitat.
    When critical habitat areas are closed, continued Atka mackerel 
fishing takes place very close or adjacent to the closed critical 
habitat areas. The boundaries of these areas are complex, the areas are 
remote, and the weather is frequently poor. Ensuring that no fishing is 
taking place inside critical habitat using traditional methods of 
enforcement, such as aerial surveillance, is difficult. Effective 
enforcement of these closures will be greatly enhanced if vessels 
participating in the fishery use a VMS transmitter that automatically 
and frequently transmits vessel position to NMFS so that vessels 
fishing near critical habitat can be monitored closely.
    NMFS' intent to implement a VMS in 1999 before the Atka mackerel 
``B'' season, beginning September 1, 1999, was noted in the final rule 
that established the protective measures (64 FR 3446, January 22, 
1999). The North Pacific Fishery Management Council determined that the 
additional information provided by a VMS program would assist in the 
management of the Atka mackerel fishery and requested that NMFS develop 
regulations to implement such a system.
    Under this action, a vessel participating in a directed fishery for 
Atka mackerel in the AI would be required to have an operating NMFS-
approved VMS transmitter on board. These transmitters automatically 
determine the vessel's location several times per hour using Global 
Positioning System satellites and send the position information to NMFS 
via a mobile communication service provider. The VMS transmitters are 
designed to be tamper-resistant and automatic. In most cases, the 
vessel owner would be unaware of exactly when the unit was transmitting 
and would be unable to alter the signal or the time of transmission. 
NMFS estimates that a NMFS-approved VMS transmitter would cost 
approximately $1,800 per unit and the charge to the vessel owner for 
the transmission of VMS position data would be $5 per day.

The VMS Approval Process

    A VMS consists of a NMFS-approved VMS transmitter that 
automatically determines the vessel's position and transmits it to a 
NMFS-approved communications service provider. The communications 
service provider receives the transmission and relays it to NMFS. On 
March 31, 1994, NMFS published standards for the use of VMS (59 FR 
15180). NMFS will use the criteria described below, which are based on 
the 1994 standards, to approve VMS transmitters and communication 
service providers.
    1. The VMS transmitter must be tamper-proof and it must be 
impossible for the vessel operator to input false position information;
    2. The VMS transmitter must be able to determine, store and 
transmit vessel position;
    3. The VMS transmitter must allow for regular as well as random 
automatically generated position reporting. The interval between 
position reports must be programmable;
    4. Each position report must include: (a) the vessel location, 
accurate within 400 m; (b) a transmitter identifier that is unique to 
that transmitter; and (c) the date and time that the vessel position 
was taken;
    5. The VMS transmitter must be equipped with an onboard alarm 
system that will alert the vessel crew if the unit malfunctions or is 
not able to transmit;
    6. The VMS transmitter, in conjunction with the VMS communication 
service provider, must provide seamless and transparent communications 
from any location within the exclusive economic zone off Alaska;
    7. The transmitter must be able to fix the vessel's position at 
least once every 20 minutes and be able to store those positions in 
local, non-volatile memory until they can be transmitted to, and 
received by, the communication service provider;
    8. In addition to regular position reports, the VMS transmitter 
must be capable of transmitting a specially identified status report 
giving the vessel position whenever the transmitter is powered-up, 
powered-down, is unable to determine vessel position or has its antenna 
disconnected;
    9. It must not be possible for the vessel operator to determine 
when the VMS transmitter is transmitting or taking a position for later 
transmission;
    10. Transmissions from the VMS transmitter and the communication 
service provider must be secure, and it must not be possible for 
unauthorized parties to intercept vessel location information.
    NMFS will publish notice in the Federal Register as VMS components 
are approved for use. At this time, NMFS believes that only the Argos 
system is suitable for use in all areas off Alaska. The Argos system 
uses the ArgoNet Mar GE transmitter in conjunction with the Argos 
system of polar-orbiting satellites. While there are other space-based 
communications service providers that provide coverage for waters off 
Alaska, such as Inmarsat-C, only the Argos system has demonstrated that 
it offers 100 percent coverage of all areas off Alaska. However, 
because of the rapid pace of technological change in the field of 
satellite-based vessel monitoring, NMFS anticipates that other vendors 
will produce VMS components that meet all NMFS standards in the near 
future.
    NMFS will contact the owners of all vessels that participated in 
the AI Atka mackerel fishery in 1998 or 1999 and ensure that they are 
aware of which VMS transmitters have been approved by NMFS and have 
received installation instructions. Owners of vessels that wish to 
participate in AI Atka mackerel fisheries that did not do so in 1997 or 
1998 would need to contact the Sustainable Fisheries Division (see 
ADDRESSES) and request a list of NMFS-approved VMS transmitters. In 
most instances, NMFS anticipates that the installation of the VMS 
transmitter would take less than 6 hours. Installation would be the 
responsibility of the vessel owners.
    This regulatory amendment would require that the owner or operator 
of a vessel participating in the AI Atka mackerel fishery carry and use 
a NMFS-approved VMS transmitter at all times when engaging in directed 
fishing for Atka mackerel. Trawl vessels not carrying properly 
installed and operating VMS units would be prohibited from retaining 
Atka mackerel at more than the maximum retainable amount of 20 percent 
established in regulations at Sec. 679.20(e) and (f) while fishing in 
the AI subarea.
    This proposed rule would also revise regulations governing Atka 
mackerel harvest in the Community Development Quota (CDQ) fisheries. 
Current regulations prohibit any trawling by a CDQ group in the 
critical habitat areas

[[Page 36812]]

after the specified percent of the group's annual Atka mackerel CDQ has 
been reached. These regulations do not allow the CDQ groups to account 
separately for Atka mackerel catch inside and outside the critical 
habitat areas, but rather assume that all catch of Atka mackerel is 
made within the critical habitat areas until the maximum percent is 
reached and the critical habitat area closes. NMFS proposes to change 
these requirements so that each CDQ group would be prohibited from 
catching more than the specified percentage of its Atka mackerel CDQ 
inside the critical habitat areas. The CDQ groups and NMFS would use 
catch location data for each haul collected by observers onboard the 
vessels to determine whether the Atka mackerel was caught inside the 
critical habitat area. This action will provide greater flexibility to 
the CDQ groups for management of their Atka mackerel CDQs. Further, 
these proposed revisions would create a management structure for the 
CDQ Atka mackerel fishery consistent with the management structure that 
NMFS intends to propose later in 2000 for management of pollock CDQ 
fishing in the Bering Sea critical habitat areas.

Classification

    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to a 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 proposed rule contains a new collection-of-information 
requirement subject to review and approval by OMB under the Paperwork 
Reduction Act (PRA). This collection-of-information requirement has 
been submitted to OMB for approval. The new information requirements 
include the requirement to install, maintain, and use a NMFS-approved 
VMS unit. The public reporting burden for this collection of 
information is estimated to average 6 hours to install the unit, 4 
hours per year to maintain the unit, and 5 seconds per response to 
transmit data. These estimates include the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Public comment is sought regarding whether this proposed collection 
of information is necessary for the proper performance of the functions 
of the agency, including whether the information has practical utility; 
the accuracy of the burden estimate; ways to enhance the quality, 
utility, and clarity of the information to be collected; and ways to 
minimize the burden of the collection of information, including through 
the use of automated collection techniques or other forms of 
information technology.
    Send comments regarding this burden estimate or any other aspect of 
the collection of information to NMFS at the previously listed ADDRESS, 
and to the Office of Information and Regulatory Affairs, Office of 
Management and Budget, Washington, D.C. 20503 (Att: NOAA Desk Officer).
    NMFS prepared an IRFA for this proposed rule pursuant to the 
requirements of 5 U.S.C. 603, without first determining whether the 
proposal would have a significant impact on a substantial number of 
small entities. The following is a summary of the IRFA:
    This action would require that factory trawlers participating in 
the Aleutian Islands Atka mackerel fishery carry and use a VMS unit. It 
is intended to facilitate NMFS' ability to ensure that federally 
managed fisheries not adversely affect designated critical habitat, and 
it is being promulgated under the authority of the Magnuson-Stevens 
Act. This action will have a small but negative impact on the 
approximately 13 factory trawlers that fish for Atka mackerel in the 
Aleutian Islands. NMFS believes that none of the vessels that fish for 
Atka mackerel in the Aleutian Islands would qualify as small entities. 
The preferred alternative would impose a new reporting and 
recordkeeping requirement on these vessels of approximately 12.1 hours 
per year per vessel. It would not duplicate, overlap, or conflict with 
existing Federal rules. In addition to the preferred alternative, NMFS 
considered a ``no action'' alternative that would not require the use 
of VMS units for vessels engaged in directed fishing for Atka mackerel 
in the Aleutian Islands. This alternative was rejected because it would 
fail to relieve an unnecessary restriction on vessels participating in 
other fisheries, and because it would fail to meet NMFS' need to 
facilitate monitoring and enforcement of Steller sea lion protective 
measures.
    A copy of the RIR/IRFA can be obtained from NMFS (see ADDRESSES).
    This proposed rule has been determined to be not significant for 
purposes of E.O. 12866.
    The President has directed Federal agencies to use plain language 
in their communications with the public, including regulations. To 
comply with that directive, we seek public comment on any ambiguity or 
unnecessary complexity arising from the language used in this proposed 
rule.

List of Subjects in 50 CFR Part 679

    Alaska, Fisheries, Reporting and recordkeeping requirements.

    Dated: June 6, 2000.
Bruce C. Morehead,
Acting Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For the reasons set forth in the preamble, 50 CFR part 679 is 
proposed to be amended as follows:

PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

    1. The authority citation for part 679 continues to read as 
follows:

    Authority: 16 U.S.C. 773 et seq., 1801 et seq. and 3631 et seq.

    2. In Sec. 679.7, paragraph (a)(2) is revised and a new paragraph 
(c)(3) is added to read as follows:


Sec. 679.7  Prohibitions.

    (a) * * *
    (2) Conduct any fishing contrary to notification of inseason 
action, closure, or adjustment issued under Sec. Sec. 679.20, 679.21, 
679.22 or 679.25.
* * * * *
    (c) * * *
    (3) Use a vessel to participate in a directed fishery for Atka 
mackerel in the Aleutian Islands subarea unless that vessel carries a 
NMFS-approved Vessel Monitoring System (VMS) transmitter and complies 
with the requirements described at Sec. 679.28(f).
* * * * *
    3. In Sec. 679.22, paragraph (a)(8)(iii)(D) is revised to read as 
follows:


Sec. 679.22  Closures.

    (a) * * *
    (8) * * *
    (iii) * * *
    (D) CDQ fishing. Harvesting groundfish CDQ with trawl gear is 
prohibited within areas designated as Steller sea lion critical habitat 
in the Western and/or Central Districts of the AI (see Table 1, Table 
2, and Figure 4 to part 226 of this title) for the duration of the year 
when the Regional Administrator announces, by notification in the 
Federal Register, that the harvest of Atka mackerel within the critical 
habitat areas by vessels fishing for CDQ groups has reached the 
applicable percentage specified for the year and district at paragraph 
(a)(8)(iii)(B) of this section.
* * * * *
    4. In Sec. 679.28, the section heading and paragraph (a) are 
revised and a new paragraph (f) is added to read as follows:

[[Page 36813]]

Sec. 679.28  Equipment and operational requirements.

    (a) Applicability. This section contains the requirements for 
scales, observer sampling stations, bins for volumetric estimates, and 
vessel monitoring system hardware. This section does not require any 
vessel or processor to provide this equipment. Such requirements appear 
elsewhere in this part.
* * * * *
    (f) Vessel Monitoring System (VMS) Requirements. (1) What is a VMS? 
A VMS consists of a NMFS-approved VMS transmitter that automatically 
determines the vessel's position and transmits it to a NMFS-approved 
communications service provider. The communications service provider 
receives the transmission and relays it to NMFS.
    (2) How are VMS transmitters and communications service providers 
approved by NMFS? (i) NMFS publishes type approval specifications for 
VMS components in the Federal Register.
    (ii) Transmitter manufacturers or communication service providers 
may submit products or services to NMFS for evaluation based on the 
published specifications.
    (iii) NMFS will publish a list of NMFS-approved transmitters and 
communication service providers in the Federal Register. As necessary, 
NMFS will publish amendments to the list of approved components in the 
Federal Register.
    (3) What are the vessel owner's responsibilities? If you are a 
vessel owner that must participate in a VMS, you or your crew must:
    (i) Obtain a NMFS-approved VMS transmitter and have it installed 
onboard your vessel in accordance with the instructions provided by 
NMFS. You may get a copy of the VMS installation and operation 
instructions from the Regional Administrator upon request.
    (ii) Activate the VMS transmitter and receive confirmation from 
NMFS that the VMS transmissions are being received before participating 
in a fishery requiring the VMS;
    (iii) Continue the VMS transmissions until the fishery requiring 
VMS has closed or until notified by NMFS staff that you may stop 
transmissions;
    (iv) Stop fishing immediately if informed by NMFS staff or an 
authorized officer that NMFS is not receiving position reports from the 
VMS transmitter;
    (v) Make the VMS transmitter available for inspection by NMFS 
personnel, observers, or an authorized officer;
    (vi) Ensure that the VMS transmitter is not tampered with, 
disabled, destroyed, or operated improperly;
    (vii) Pay all charges levied by the communication service provider.
    (2) [Reserved]
[FR Doc. 00-14775 Filed 6-9-00; 8:45 am]
BILLING CODE 3510-22-F