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CFR Citation: 50 CFR Part 660

Docket ID: [Docket No. 070703215-7530-02]

RIN ID: RIN 0648-AU08

NOTICE: RULES

ACTION: Fishery conservation and management:

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Fisheries off West Coast States; Pacific Coast Groundfish Fishery; Vessel Monitoring System; Open Access Fishery

DATES: Effective February 4, 2008.

DOCUMENT SUMMARY: NMFS issues this final rule to require all vessels fishing pursuant to the harvest guidelines, quotas, and other management measures governing the open access groundfish fishery, and all trawl vessels to provide declaration reports and to activate and use a vessel monitoring system (VMS) transceiver while fishing off the coasts of Washington, Oregon and California. NMFS has implemented a series of largescale geographicallydefined closed areas intended to: minimize the bycatch of overfished groundfish species, minimize the bycatch of protected salmon species, and protect Essential Fish Habitat (EFH) from harm through contact with fishing gear. This action is intended to improve the monitoring of compliance with those closed areas through regular VMS transmissions of vessel locations for those vessels subject to groundfish closed area restrictions.

SUMMARY: West Coast States and Western Pacific fisheries—; Pacific Coast groundfish,

SUPPLEMENTAL INFORMATION

This final rule is accessible via the Internet at the Office of the Federal Register's Web site at http://www.access.gpo.gov/su_docs/aces/aces140.html. Background information and documents are available at the NMFS Northwest Region Web site at http:// http://www.pcouncil.org. Background

On August 8, 2007, NMFS published a proposed rule to implement a VMS program for the West Coast groundfish open access fisheries (72 FR 44469,) requesting public comments through September 7, 2007. During the comment period, NMFS received eight emails of comment, which are addressed later in the preamble to this final rule. See the preamble to the proposed rule for additional background information on the VMS program and the open access fishery.

A VMS transceiver is an electronic device that is installed on a vessel to monitor the vessel's position in relation to geographically defined areas. The Council has determined that implementation of VMS requirements is necessary to monitor and enforce the extensive system of depth and habitatbased closed areas employed in West coast groundfish management. This final rule requires all open access vessels to have a typeapproved VMS transceiver unit that is properly activated and used from the time a vessel leaves port on a trip in which: groundfish is taken and retained in the EEZ; groundfish is possessed while operating in the EEZ (including transiting); or groundfish taken in the EEZ is landed. In addition, this final rule requires any vessel fishing in the EEZ with nongroundfish trawl gear to have a type approved VMS transceiver unit properly installed and activated prior to leaving port. Once the VMS unit is activated, it must remain on throughout the remainder of the fishing year, unless such vessel is granted an exemption to the requirements for continuous operation. This final rule supplements the VMS program implemented on January 1, 2004, for the limited entry groundfish fisheries (November 4, 2003; 68 FR 62374).

Comments and Responses

During the comment period for the proposed rule for this action, NMFS received eight comments by email, which are addressed here:

Comment 1: One commenter supports the proposed requirements that all vessels fishing for groundfish carry a VMS transceiver unit to enhance the ability to enforce depthbased management measures.

Response: NMFS agrees that the proposed VMS requirements for the open access fisheries will allow enforcement resources to be used more efficiently and effectively to ensure the integrity of management areas that were implemented to restrict fishing mortality on overfished species and to protect EFH.

Comment 2: The current list of typeapproved VMS transceiver units for the Pacific Coast Groundfish fishery includes basic units that are only capable of oneway communications. These basic VMS transceiver units are small and capable of transmitting a vessel's position without requiring additional onboard computer support. Two commenters expressed concern that the basic VMS transceiver units will be removed from the list of typeapproved VMS units and not available for use in the OA fishery. The commenters believe that the majority of the OA fleet would choose to purchase the basic units. If the basic VMS transceiver units are not available to open access fishers, the commentors are concerned that many of the smallest OA vessels (many vessels are less than 26 feet (8 meters) in length), with minimal electronic support, would be unable to comply with the requirements and would need to leave the fishery.

Response: To assure compatibility with the national monitoring center, NMFS requires that VMS systems meet defined standards (58 FR 49285, September 23, 1993; March 31, 1994, 59 FR 15180; October 27, 2005, 70 FR 61941; and 72 FR 60826, October 6, 2007), while recognizing the need to promulgate regulations and approve systems on a fisheryby fishery basis. VMS transceiver units approved for use by NMFS are referred to as typeapproved. On November 17, 2003 (68 FR 64860), NMFS published a notice identifying VMS transceiver units and communication service providers that are typeapproved for the Pacific Coast groundfish fishery.

The commenters are correct that the current list of VMS units type approved for use in the Pacific Coast groundfish fishery includes small VMS transceiver units that are only capable of one way communications. At this time, NMFS Office for Law Enforcement is considering revising the list of typeapproved units to include only units capable of two way communications. The reason for considering such a revision is that the VMS transceiver units are valuable tools that can also be used to transmit other necessary fisheries management data to and from the vessels. There are VMS transceiver units that are capable of twoway communications that are similar in size and cost to the oneway units that are currently typeapproved for the Pacific coast groundfish fishery.

Comment 3: One commenter suggested that minimum performance parameters need to be specified for VMS transceiver units, rather than typeapproving specific units. The minimum performance parameters should require VMS transceiver units to be capable of supporting text messaging and email so the system is capable of transmitting other types of data such as vessel logbooks and observer data.

Response: NMFS does not believe that performance standards alone would be adequate. Due to the need to have reliable VMS transceiver units that are suitable for fisheries applications, NMFS uses a type approval process. With a typeapproval process, VMS manufacturing companies submit for typeapproval VMS transceiver units that meet minimum standards. The VMS transceiver units are field tested to assure that it will meet minimum performance requirements. NMFS believes it is necessary to conduct field testing on each model to determine if they will perform adequately over time in a harsh marine environment and in remote conditions before fishers invest in the equipment and before fisheries managers and enforcement are dependent on the data for managing the fisheries. New units may be added to the type approved list for a particular fishery as new equipment becomes available and is tested.

The open access fleet consists of smaller sized vessels, with most being under 40 feet (metric equiv),fishery management and enforcement may benefit from having smaller units capable of twoway
communications. However, the extremely limited space, minimal electronic support for a system, and difficulty in protecting electronic equipment from the marine environment on a large portion of vessels in the open access fleet was considered in the initial type approval of VMS transceiver units for the Pacific Coast groundfish fishery (68 FR 64860; November 17, 2003). At this time NMFS is considering revising the list of type
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approved VMS transceiver units to include only VMS transceiver units that are capable of twoway communications which could support email or vessel logbooks(see comment 2 above).

Comment 4: One commenter recommended that NMFS refine the regulatory language requiring the VMS unit to be on the vessel and operational at all times to specifically state that the VMS unit must be energized at all times and cannot be turned on and off.

Response: NMFS believes that the language at Sec. 660.312 (d)(3) regarding the vessel owner's responsibility to operate the mobile transceiver unit continuously 24 hours a day throughout the calendar year, unless such vessel is specifically exempted, adequately states that the VMS unit must be on at all times.

Comment 5: One commenter recommended that regulatory language be added to require vessels to contact NMFS before each departure to ensure that the VMS transceiver unit is operating properly. The commenter suggested that NMFS develop backup procedures for reporting vessel positions using other communications such as cell phone, satellite phone, or radio, for vessels whose VMS transceiver units fail while the vessel is at sea. The commenter also suggests that NMFS provide backup VMS units for vessels when their VMS transceiver units are being serviced.

Response: Declaration reports are used by NMFS to identify the fisher's intent to use the vessel to participate in a particular fishery with a specific gear. Because area restrictions are specific to the gear type and target fisheries, declaration reports are needed to adequately assess the vessel's activity in relation to the area restrictions. In the development of this action, NMFS considered measures that could be taken to reduce the reporting burden on the fishing industry, while still meeting the needs of NMFS. Because a single gear type is typically used for multiple trips, to reduce the reporting burden NMFS determined that it was adequate for each declaration report to be valid until a new declaration is made or until an exemption report is received. Unlike other fisheries with VMS, where vessels are at sea for extended periods, most of the participants in the open access fisheries make very short fishing trips (13 days). If a VMS transceiver unit fails, the vessel can be required to remain in port until the unit is repaired or they may use a replacement unit providing they register it with NMFS Office of Law Enforcement. Given the fishing behavior of the fleet and the added burden of reporting, NMFS does not believe that it is necessary to require vessels to provide declaration reports on every trip.

Comment 6: One commenter suggests that VMS position data be provided to fisheries managers so it can be compared to logbook and observer data. The commenter believes that restricting access to VMS data for enforcement purposes only will affect managers' ability to address bycatch issues.

Response: NMFS agrees that VMS data may provide much needed effort data to fisheries managers. Therefore, VMS data is available to fisheries managers upon request, providing the confidentiality standards set out in the MagnusonStevens Fishery Conservation and Management Act(MagnusonStevens Act) and policies established by NMFS Office for Law Enforcement are followed.

Comment 7: One commenter did not believe it was fair to require fishers to purchase VMS units until limited access restrictions for the open access fishery and quotas are decided.

Response: In the near future, the Council is scheduled to consider a license limitation program for the open access fisheries as well as harvest specifications and management measures for 2009 and 2010. Reasonably foreseeable future action by NMFS, including license limitation and future harvest specifications, were considered in the cumulative effects section (Section 4.4) of the environmental assessment for this action. The VMS is being required for open access vessels to aid in maintaining the integrity of existing depthbased management measures which were adopted for 2003 and are currently in effect in the open access fishery. NMFS believes it is necessary to adopt new measures to effectively and efficiently manage the existing fishery. If future NMFS action is taken that results in fishers leaving the open access fishery, provisions of this rulemaking allow the ownership to the VMS receiver units to transfer from one vessel owner to another vessel owner providing all the required documents are provided to NMFS OLE.

Comment 8: One commenter indicated that VMS was designed for monitoring big factory ships and large fleets that harvest millions of pounds of fish to be sure they are not overstepping their boundaries. The commenter does not believe that VMS is appropriate for the small class of vessels with small catches like the open access fishery.

Response: NMFS disagrees with the commenter. VMS is an effective enforcement tool for monitoring vessel location in relationship to geographical areas regardless of the class of vessel it is being used on. There are many open access vessels fishing near areas that are closed to reduce the catch of overfished species or to protect EFH.

Comment 9: Two commenters expressed concern about the cost of purchasing new VMS equipment and the cost to replace existing VMS equipment that may not be typeapproved for the fishery. The commentors' concern was the relationship between the cost of the VMS equipment and the value of the open access catch, particularly for small scale fisheries that operate only a few months of the year.

Response: The cost burden of VMS includes the costs for installation, VMS transceiver unit, annual maintenance, replacement cost, cost to transmit hourly positions and declaration reports. The initial cost of the VMS transceiver units, including installation, vary from $1,200$2,700 ($3,800 with a computer that meets the minimum specifications) per vessel. At this time, funds are available to reimburse fishers for the cost of purchasing a typeapproved VMS transceiver unit to comply with requirements that become effective in 2007. However, these funds are available on a firstcome firstserved basis and not all fishers may be able to take advantage of this reimbursement program. Fishers who purchased VMS transceiver units before this rule was published will not be reimbursed for existing VMS transceivers, but could be reimbursed for new VMS transceivers.

The value of the fishery to the individual vessels and the individual fisher's ability to recover the costs associated with VMS varies widely between vessels and target fisheries. In part this is because the fishery is split between vessels targeting groundfish (directed OA fishery vessels) and vessels targeting other species but landing groundfish that were caught incidentally while targeting a non groundfish species (incidental OA fishery vessels). The incidental commercial open access groundfish fishery consists of vessels fishing for Pacific halibut, California halibut, Dungeness crab, spot prawn, ridgeback prawn, California Sheephead, sea cucumber, pink shrimp, salmon and HMS that do not necessarily depend on revenue from the sale of groundfish as their a major source of income. However, it's difficult to segregate the fishery into directed and incidental vessels, and vessels may move between the categories with the choice depending on the intention of the fisher. Over the course of a year or during a single trip, a fisher may engage in different strategies and may switch
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between directed and incidental fishing categories.

Incidental fixed gear open access fishers who only land small amounts of incidentally caught groundfish may well choose to discard incidentally caught groundfish, rather than incur the cost of VMS and the burden of installation. Similarly, some fixed gear fishers may also choose to stay in state waters throughout the year rather than incur the cost of VMS and the burden of installation. NMFS recognizes that those vessels that are more actively engaged in the directed open access fishery and open access trawl fisheries will likely incur higher VMS costs than those that are not actively engaged in the directed open access fishery. However, without depthbased management, the open access fishery would likely be managed under very restrictive cumulative trip limits and seasons, which would result in much lower gross revenues for directed open access vessels, and greater restriction for incidental fishers.

Comment 10: One commenter indicted that the open access fishery did not need any further government regulations.

Response: When the Council recommended the adoption of depthbased management measures for 2003, the Council also recommended that NMFS take simultaneous action to implement a VMS monitoring program to ensure the integrity of the depthbased areas. Consistent with the Council's recommendation, NMFS implemented a pilot program in the limited entry fishery at the start of 2004 with the intention of expanding the program to the Open access fishery. This action follows the Council's original direction. As discussion in the response to comment 9, without VMS, depthbased management measures would need to be reconsidered.

Changes From the Proposed Rule

No changes were made from the regulatory text presented in the proposed rule as a result of the comments. One minor edit to remove the word ``and'' was made in Sec. 660.312 (d)(4)(vii).

Classification

NMFS has determined that this final rule is consistent with the FMP and with the MagnusonStevens Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

A final regulatory flexibility analysis (FRFA) was prepared pursuant to 5 U.S.C. 604(a). The FRFA incorporates the economic impacts described in the IRFA, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS responses to those comments, and a summary of the analyses completed to support the action. A copy of the complete FRFA is available from NMFS (see ADDRESSES).

Statement of Objective and Need: A description of the reasons why this action is being taken, and the objectives of and legal basis for this final rule are explained in the preambles to the proposed rule and this final rule and are not repeated here.

Summary of Significant Issues Raised in Public Comments: There were no significant issues raised by the public that were specific to the IRFA. However, two comments relate to the economic impacts of the rule. Comments 8 and 9 can be found along with their responses in the Comment and Response section of this preamble.

A description and an estimate of the number of small entities to which the rule will apply or an explanation why no such estimate is available: This action requires all commercial fishing vessels not registered to a limited entry groundfish permit that take and retain or possess groundfish in the EEZ (including transiting), or that land groundfish taken in the EEZ and all vessels using nongroundfish trawl gear to fish in the EEZ to have and use VMS. The installation of VMS equipment is projected to affect approximately 1,610 vessels, including: 322 vessels using longline gear (282 directed groundfish, 38 Pacific halibut, and 2 CA halibut); 193 vessels using pot gear (145 directed groundfish, 6 prawn, 21 Dungeness crab and 21 CA sheephead); 131 vessels using nongroundfish trawl gear (23 ridgeback prawn, 14 sea cucumber, and 40 CA halibut, and 54 pink shrimp vessels); 892 vessels using line gear (590 groundfish directed, 58 CA halibut, 10 HMS vessels, and 234 salmon troll vessels); and 72 vessels using net gear (25 HMS and 47 CA halibut). All of the affected entities are considered to be small businesses.

A description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for the preparation of the report or record: In addition to obtaining VMS units, to support the VMS monitoring program, the following information must be submitted to

FOR FURTHER INFORMATION CONTACT Becky Renko (Northwest Region, NMFS), phone: 2065266110; fax: 2065266736 and; email:
becky.renko@noaa.gov.