[Federal Register Volume 65, Number 201 (Tuesday, October 17, 2000)]
[Rules and Regulations]
[Pages 61264-61267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-26656]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Part 679

[Docket No. 000524152-0274-02; I.D. 030100C]
RIN 0648-AM34


Fisheries of the Exclusive Economic Zone Off Alaska; Vessel 
Monitoring System (VMS)

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

ACTION: Final rule; VMS component notice of approval.

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SUMMARY:  NMFS issues a final rule requiring 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, and revising regulations 
governing Atka mackerel harvest in the Community Development Quota 
(CDQ) fisheries. Additionally, NMFS issues notification of the approval 
of VMS components for use off Alaska. These actions are necessary to 
enhance monitoring of fishery activities within critical habitat areas. 
They are 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: Effective November 11, 2000.

ADDRESSES: Copies of the Regulatory Impact Review/Final Regulatory 
Flexibility Analysis (RIR/FRFA) prepared for this action may be 
obtained from Sue Salveson, Assistant Regional Administrator, 
Sustainable Fisheries Division, Alaska Region, NMFS, P.O. Box 21668, 
Juneau, AK 99802-1668, Attn: Lori Gravel, or by calling the Alaska 
Region, NMFS, at 907-586-7228. Send comments on any ambiguity or 
unnecessary complexity arising from the language used in this final 
rule to the Regional Administrator at the same address. Send comments 
on collection-of-information requirements to the same address and to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget (OMB), Washington DC 20503 (Attn: NOAA Desk Officer).
    For ArgoNet Mar GE information, contact NACLS Inc., 9200 Basil 
Court, Suite 306, Largo, MD 20774; phone 301-341-1814.
    To obtain copies of the list of approved VMS components, VMS 
installation instructions, or to apply to have a VMS component approved 
for use off Alaska, contact Guy Holt, Enforcement Division, Alaska 
Region, NMFS, P.O. Box 21767, Juneau, AK 99802-1668; phone (907)-586-
9353.

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

SUPPLEMENTARY INFORMATION:

Background

    NMFS notes as an initial point that as a result of a U.S. District 
Court Order, NMFS has closed waters within critical habitat to all 
trawling. An interim rule implementing this closure was published on 
August 15, 2000 (65 FR 49766). While this closure is in effect, no 
trawling for Atka mackerel may occur inside critical habitat and no 
Atka mackerel catch should accrue against the inside critical habitat 
portion of the quota, unless it is harvested by non-trawl gear. This 
rule does not affect that closure.
    In 1997, NMFS listed the western stock of Steller sea lions 
(Eumetopias jubatus) as an endangered species. A statutory requirement 
of the Endangered Species Act is that Federal actions taken within 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. Because Atka mackerel are an important 
prey species for Steller sea lions, the Atka mackerel fishery must be 
managed to avoid potential jeopardy to Steller sea lions.

[[Page 61265]]

    On January 22, 1999, NMFS published a final rule that reduced 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 regulations implemented by that final rule 
prohibit 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 regulations 
for the year and district. A critical habitat trawl closure remains in 
effect until NMFS closes the Atka mackerel fishery in that area.
    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 and costly. 
Effective enforcement of these closures would be 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.
    This final rule requires vessels participating in a directed 
fishery for Atka mackerel in the AI 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 (GPS) 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. The vessel owner should 
be unaware of exactly when the unit is transmitting and will be unable 
to alter the signal or the time of transmission.
    This rule requires the owner of a vessel participating in the AI 
Atka mackerel fishery to obtain and install a NMFS-approved VMS 
transmitter. The rule also requires the use of the transmitter at all 
times when engaging in directed fishing for Atka mackerel. The rule 
prohibits trawl vessels not carrying properly installed and operating 
VMS units 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 rule also revises regulations governing Atka mackerel harvest 
in the CDQ fisheries. Current regulations prohibit any trawling by a 
CDQ group inside critical habitat after the specified percent of the 
group's annual Atka mackerel CDQ has been reached. This action will 
change these requirements so that each CDQ group may harvest no more 
than the specified percentage of their Atka mackerel CDQ inside the 
critical habitat areas. This will provide more flexibility to the CDQ 
groups for management of their Atka mackerel CDQs.

Response to Comments

    NMFS received two letters of comment on the proposed rule that was 
published June 12, 2000, for a 30-day comment period (65 FR 36810). 
Both letters indicated support for the action but expressed concerns or 
suggested clarifications; these comments are summarized below followed 
by NMFS' responses.
    Comment 1. The proposed rule states that installation of a VMS 
transmitter would take less than 6 hours and estimates that 4 hours per 
year will be required to maintain the unit. Under most circumstances, 
the installation of the Argos MAR GE requires less than 2 hours. The 
unit has a lifetime of 5 years and should require no annual 
maintenance.
    Response. Comment noted. However, NMFS attempts to estimate 
conservatively the burden that a regulation may impose on the public. 
In this case, NMFS believes that in some circumstances the installation 
of a VMS transmitter could take as much as 6 hours. Further, NMFS 
believes that annual maintenance could be required in some 
circumstances.
    Comment 2. VMS transmitters should only be required in the Western 
and Central Districts of the AI. Because there is no separate 
apportionment of the Atka mackerel TAC to critical habitat areas in the 
Eastern District of the AI, there is no need to require VMS 
transmitters in that district. Requiring VMS transmitters in the 
Eastern AI would impose an unnecessary burden on vessels that fish for 
Atka mackerel in the Eastern AI, but do not fish for Atka mackerel in 
the Central or Western AI.
    Response. NMFS disagrees. Though there is not a separate 
apportionment of TAC to critical habitat areas in the Eastern AI, there 
are critical habitat areas in the Eastern AI that are closed to 
directed fishing for Atka mackerel and preventing illegal fishing 
activity in those areas is just as difficult. Thus, NMFS believes that 
allowing some vessels to fish for Atka mackerel in the AI without VMS 
transmitters would unnecessarily complicate enforcement. Second, NMFS 
believes that the number of vessels that target Atka mackerel in the 
Eastern AI that do not also target Atka mackerel in the Central or 
Western AI is not significant. Based on Weekly Production Report Data 
from 1998 and 1999, only one vessel reported landings from the Eastern 
AI in an Atka mackerel target that did not also report landings in an 
Atka mackerel target in the Western or Central AI. Based on 1999 
observer data from vessels that did not retain Atka mackerel in excess 
of the maximum retainable bycatch (MRB) amount in the Central and 
Western AI, only two hauls were made in the Eastern AI where the amount 
of retained Atka mackerel exceeded the MRB amount. These data indicate 
that virtually no targeting of Atka mackerel in the Eastern AI by 
vessels that do not also target Atka mackerel occurs in the Central or 
Western AI.
    Comment 3. Vessel personnel should have the ability to monitor the 
VMS unit's GPS reading.
    Response. The type approval specifications for VMS units do not 
prevent the unit from displaying the location so long as the vessel 
operator cannot determine when the unit is transmitting a location. If 
sufficient market demand exists, transmitter providers could offer this 
feature. However, this feature should not be necessary for achieving 
NMFS' monitoring and enforcement goals. Until recently, the Department 
of Defense deliberately degraded the GPS signal so that it was only 
accurate to within +/- 100m. However, as of May 1, 2000, deliberate 
degrading of the GPS system has been stopped and different GPS units 
should agree with each other within +/- 20 meters.
    Comment 4. NMFS needs to develop a waiver system to allow vessels 
with inoperative VMS transmitters to continue fishing.
    Response. NMFS disagrees and believes that granting of waivers 
would unnecessarily complicate enforcement. In comparison to the size 
of the fishery and the gross revenues of the vessels that participate 
in it, the cost of a transmitter is quite low. Vessel owners must 
balance the approximate $1,800 cost of a backup transmitter with the 
risk of lost fishing time in the event of transmitter failure.
    After consideration of the comments received, NMFS approves this 
final rule. No changes in the regulatory text were made between the 
proposed and final rule.

Notice of VMS Component Approval

    In the proposed rule to require VMS in the Atka mackerel fishery 
(65 FR

[[Page 61266]]

36810, June 12, 2000), NMFS set forth criteria for the approval of VMS 
components. These criteria were based on national standards published 
in the Federal Register on March 31, 1994 (59 FR 15180).
    Based on the information reviewed to date, NMFS approves the 
ArgoNet Mar GE transmitter, for which North American Collection and 
Location by Satellite, Inc. (NACLS) is the sole communications service 
provider.
    The MAR GE transmitter also has been approved for use in the 
Atlantic Highly Migratory Species Fisheries. Additional details 
concerning this transmitter may be found in the notice of approval 
published in the Federal Register on September 9, 1999 (64 FR 48988).
    A vessel owner wishing to purchase this transmitter should contact 
the provider (see ADDRESSES).
    At this time, NMFS believes that only one vendor produces VMS 
components that provide seamless and transparent communications from 
all areas off Alaska. However, other vendors that manufacture or 
distribute VMS components that meet the approval criteria set out in 
the proposed rule, are encouraged to contact NMFS. As additional 
components are approved, notification will be published in the Federal 
Register.

Small Entity Compliance Guide

    The following information satisfies the Small Business Regulatory 
Enforcement Fairness Act of 1996, which requires a plain language guide 
to compliance with this final rule by affected small entities.
    What is a VMS? A VMS consists of a transmitter, installed on the 
vessel, and a communications service provider that relays the 
transmitter's signal to NMFS. The transmitter determines the vessel's 
position using GPS satellites and automatically transmits the position 
to the communications service provider.
    Who must carry a VMS transmitter? A vessel that engages in directed 
fishing for Atka mackeral in the AI must carry an operating VMS 
transmitter. You must receive confirmation from NMFS that the 
transmitter is operating before you start directed fishing, and you 
must continue to use the VMS transmitter until the Atka mackerel season 
has ended unless your vessel is in port.
     How do I obtain, install, and activate my VMS transmitter? For 
complete instructions on how to install and operate your VMS 
transmitter, contact Guy Holt, Enforcement Division, Alaska Region, 
NMFS, P.O. Box 21767, Juneau, AK 99802--1668; phone (907)--586-9353. At 
this time, the only VMS transmitter approved for use off Alaska is the 
ArgoNet Mar GE. Vessel owners wishing to purchase the Mar GE 
transmitter may contact NACLS Inc., 9200 Basil Court, Suite 306, Largo, 
MD 20774; phone 301--341--1814. When purchasing a transmitter, the 
vessel owner should request a unit configured for use by vessels off 
Alaska. The vessel owner will also need to complete an ArgoNet contract 
with NACLS and establish credit with ArgoNet. The transmitter will 
automatically begin transmitting position reports when the power is 
connected. Vessel owners should confirm that the position reports are 
being received prior to directed fishing for Atka mackerel, by calling 
NMFS Enforcement Division.
    When can I turn my transmitter off? Your transmitter will 
automatically reduce the frequency of transmission to once per week 
when your vessel is stationary. You may disconnect the transmitter when 
the Atka mackerel fishery in which you participated has closed.
    What should I do if my transmitter stops working? The ArgoNet Mar 
GE is equipped with an alarm to alert you if it is unable to transmit. 
If the unit stops working, you must stop directed fishing for Atka 
mackerel until the unit is repaired or replaced. Though VMS 
transmitters have shown themselves to be reliable, we recommend that 
vessel owners consider carrying a backup transmitter.

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 Paperwork Reduction Act (PRA), unless that 
collection-of-information displays a currently valid OMB control 
number.
    This final rule contains a new collection-of-information 
requirement that was approved by the OMB under the PRA and issued OMB 
control number 0648-0417. 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.
    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, DC 20503 (Attn: NOAA Desk Officer).
    NMFS prepared a Final Regulatory Flexibility Analysis (FRFA) 
describing the impact of the action on small entities. A summary of the 
FRFA follows.
    This action requires that factory trawlers participating in the 
Aleutian Islands Atka mackerel fishery carry and use a VMS unit. It is 
necessary to ensure that NMFS does not violate a statutory requirement 
of the ESA 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. Four of these vessels caught 
and processed only small amounts of Atka mackerel and it constituted 
less than 5 percent of their retained catch. The other 9 vessels caught 
and processed over 95 percent of the Atka mackerel that was harvested. 
During 1998, these 9 vessels caught and processed 137,790 mt of 
groundfish off Alaska. Based on 1997 ex-vessel price data, this catch 
had an approximate value of $41 million prior to processing. The 
additional value added by at-sea processing is not known. None of the 9 
vessels had gross revenues of less than $3 million, the threshold 
established by the SBA for `small' fish harvesting businesses. 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 new reporting and 
recordkeeping requirements 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, the 
analysis considered a ``no action'' alternative (status quo) 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 meet NMFS' need to facilitate 
monitoring and enforcement of Steller sea lion protective measures. 
Maintaining the status quo could have minimized impacts on small 
entities. However, that alternative would not have achieved the 
objectives of this action.

[[Page 61267]]

    A copy of the RIR/FRFA can be obtained from NMFS (see ADDRESSES).
    This final 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 communication with the public, including regulations. To 
comply with this directive, we seek public comment on any ambiguity or 
unnecessary complexity arising from the language used in this final 
rule. Such comments should be sent to the Alaska Regional Administrator 
(see ADDRESSES).

List of Subjects in 15 CFR Part 902

    Reporting and recordkeeping requirements.

List of Subjects in 50 CFR Part 679

    Alaska Fisheries, Reporting and recordkeeping requirements.

    Dated: October 10, 2000.
William T. Hogarth,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 15 CFR part 902, chapter 
IX, and 50 CFR part 679 are amended as follows:

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT; OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:

    Authority: 44 U.S.C. 3501 et seq.

    2. In Sec. 902.1, the table in paragraph (b) is amended by adding 
under 50 CFR the following entries in numerical order:


Sec. 902.1  OMB Control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

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                                             Current OMB control number
CFR part or section where the information  the information  (All numbers
    collection requirement is located            begin with 0648-)
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    *            *             *             *             *
 
50 CFR
    *            *             *             *             *
679.28(f)(3)(i)                            -0417
679.28(f)(3)(ii)                           -0417
679.28(f)(3)(iii)                          -0417
    *            *             *             *             *
 
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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. 679.20, Sec. 679.21, 
Sec. 679.22, Sec. 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. A CDQ group is prohibited from exceeding the 
percentage of the annual Atka mackerel CDQ for Steller sea lion 
critical habitat in the Western and/or Central Districts of the AI 
specified at paragraph (a)(8)(iii)(B) of this section (see Table 1, 
Table 2, and Figure 4 to part 226 of this title).
* * * * *

    4. In Sec. 679.28, paragraph (a) is revised and a new paragraph (f) 
is added to read as follows:


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 vessels 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.
[FR Doc. 00-26656 Filed 10-16-00; 8:45 am]
BILLING CODE: 3510-22-S