FR Doc 03-27602

[Federal Register: November 4, 2003 (Volume 68, Number 213)]
[Rules and Regulations]
[Page 62374-62385]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[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,
phone: 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 http://www.access.gpo.gpv/su-docs/aces/aces140.htm.
Background information and documents are available at the
NMFS Northwest Region Web site at http://www.nwr.noaa.gov/1sustfsh/gdfsh01.htm and at the Council's Web site at http://www.pcouncil.org.

rg.

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

[[Page 62375]]

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 used
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 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 and is therefore considering

[[Page 62376]]

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

[[Page 62377]]

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

[[Page 62378]]

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

[[Page 62379]]

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.

[[Page 62380]]

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

[[Page 62381]]

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.

0
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

0
1. The authority citation for part 660 continues to read as follows:

Authority: 16 U.S.C. 1801 et seq.

0
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.

0
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

[[Page 62382]]

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.

0
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[deg]35'75'' N. lat., 124[deg]43'00'' W. long.) south of the
International Boundary between the U.S. and Canada (at
48[deg]29'37.19'' N. lat., 124[deg]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:

[[Page 62383]]

------------------------------------------------------------------------
Point N. lat. W. long.
------------------------------------------------------------------------
1............................. 48[deg]29'37.19'' 124[deg]43'33.19''
2............................. 48[deg]30'11'' 124[deg]47'13''
3............................. 48[deg]30'22'' 124[deg]50'21''
4............................. 48[deg]30'14'' 124[deg]54'52''
5............................. 48[deg]29'57'' 124[deg]59'14''
6............................. 48[deg]29'44'' 125[deg]00'06''
7............................. 48[deg]28'09'' 125[deg]05'47''
8............................. 48[deg]27'10'' 125[deg]08'25''
9............................. 48[deg]26'47'' 125[deg]09'12''
10............................ 48[deg]20'16'' 125[deg]22'48''
11............................ 48[deg]18'22'' 125[deg]29'58''
12............................ 48[deg]11'05'' 125[deg]53'48'''
13............................ 47[deg]49'15'' 126[deg]40'57''
14............................ 47[deg]36'47'' 127[deg]11'58''
15............................ 47[deg]22'00'' 127[deg]41'23''
16............................ 46[deg]42'05'' 128[deg]51'56''
17............................ 46[deg]31'47'' 129[deg]07'39''
------------------------------------------------------------------------

(iii) The southern limit is 47[deg]30' N. lat.
(2) Columbia. (i) The northern limit is 47[deg]30' N. lat.
(ii) The southern limit is 43[deg]00' N. lat.
(3) Eureka. (i) The northern limit is 43[deg]00' N. lat.
(ii) The southern limit is 40[deg]30' N. lat.
(4) Monterey. (i) The northern limit is 40[deg]30' N. lat.
(ii) The southern limit is 36[deg]00' N. lat.
(5) Conception. (i) The northern limit is 36[deg]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:

(b) Commonly used geographic coordinates.
(1) Cape Falcon, OR--45[deg]46' N. lat.
(2) Cape Lookout, OR--45[deg]20'15'' N. lat.
(3) Cape Blanco, OR--42[deg]50' N. lat.
(4) Cape Mendocino, CA--40[deg]30' N. lat.
(5) North/South management line--40[deg]10' N. lat.
(6) Point Arena, CA--38[deg]57'30'' N. lat.
(7) Point Conception, CA--34[deg]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[deg]50' N. lat., 119[deg]30' W. long.;
33[deg]50' N. lat., 118[deg]50' W. long.;
32[deg]20' N. lat., 118[deg]50' W. long.;
32[deg]20' N. lat., 119[deg]37' W. long.;
33[deg]00' N. lat., 119[deg]37' W. long.;
33[deg]00' N. lat., 119[deg]53' W. long.;
33[deg]33' N. lat., 119[deg]53' W. long.;
33[deg]33' N. lat., 119[deg]30' W. long.; and connecting back to
33[deg]50' N. lat., 119[deg]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[deg]42' N. lat., 118[deg]02 W. long.;
32[deg]42' N. lat., 117[deg]50 W. long.;
32[deg]36'42'' N. lat., 117[deg]50 W. long.;
32[deg]30' N. lat., 117[deg]53'30'' W. long.;
32[deg]30' N. lat., 118[deg]02 W. long.; and connecting back to
32[deg]42' N. lat., 118[deg]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[deg]18' N. lat., 125[deg]18' W. long.;
48[deg]18' N. lat., 124[deg]59' W. long.;
48[deg]11' N. lat., 124[deg]59' W. long.;
48[deg]11' N. lat., 125[deg]11' W. long.;
48[deg]04' N. lat., 125[deg]11' W. long.;
48[deg]04' N. lat., 124[deg]59' W. long.;
48[deg]00' N. lat., 124[deg]59' W. long.;
48[deg]00' N. lat., 125[deg]18' W. long.; and connecting back to
48[deg]18' N. lat., 125[deg]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.

0
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 at

[[Page 62384]]

660.302), 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.

0
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.
* * * * *

0
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

[[Page 62385]]

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