[Federal Register Volume 66, Number 7 (Wednesday, January 10, 2001)]
[Rules and Regulations]
[Pages 1907-1908]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-448]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[I.D. 110800A]
RIN 0648-AJ67


Atlantic Highly Migratory Species; Pelagic Longline Fishery 
Vessel Monitoring Systems

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

ACTION: Final rule; stay of effectiveness; request for comments.

-----------------------------------------------------------------------

SUMMARY: As ordered by the U.S. District Court for the District of 
Columbia on September 25, 2000, NMFS is undertaking further 
consideration of the scope of vessel monitoring system (VMS) 
requirements in the Atlantic pelagic longline fishery in light of any 
relevant conservation requirements. NMFS previously provided notice of 
the Court's ruling by distribution on the Highly Migratory Species Fax 
Network and in a mailing to permit holders. NMFS requests comments on 
options for implementing VMS requirements in the Atlantic pelagic 
longline fishery. As a result of the Court's order, NMFS delays the 
effective date of regulations regarding application of VMS requirements 
to the Atlantic pelagic longline fishery adopted as part of the Fishery 
Management Plan for Atlantic Tunas, Swordfish, and Sharks (HMS FMP), 
pending further ruling of the Court on the agency's reconsideration of 
this matter.

DATES: Effective October 1, 2000, 50 CFR 635.69 is stayed indefinitely. 
Written comments must be received on or before February 8, 2001.

ADDRESSES: Copies of the HMS FMP, accompanying regulations and 
supporting documents, and the Hawaii VMS Pilot Project Report can be 
obtained from Othel Freeman, 301-713-2347; fax: 301-713-1917. Written 
comments should be addressed to Jill Stevenson, Highly Migratory 
Species Division, NMFS, 9721 Executive Center Drive North, St. 
Petersburg, FL 33702 or by fax. Comments submitted via e-mail or on the 
Internet will not be accepted.

FOR FURTHER INFORMATION CONTACT: Jill Stevenson or Buck Sutter, 727-
570-5447; fax: 727-570-5656; or e-mail at [email protected] or 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    NMFS published final regulations implementing the HMS FMP on May 
28, 1999 (64 FR 29090). Those regulations require all pelagic longline 
fishermen to report hourly using a NOAA-approved VMS. In June 1999, 
after the final regulations were published, a coalition of commercial 
pelagic longline fishermen and dealers sued the Secretary of Commerce, 
challenging, among other measures, the VMS requirements of the final 
rule. On September 25, 2000, Judge Richard W. Roberts, U.S. District 
Court for the District of Columbia, issued an order that found that 
there was inadequate evidence in the record to support fleet-wide 
application of the VMS requirements under national standards 7 and 8 of 
the Magnuson-Stevens Fishery Conservation and Management Act. The Judge 
indicated that ``the Secretary failed to set forth a rational 
connection between the factual record and the choice to impose a 
blanket VMS requirement on all pelagic longline fishers, regardless of 
whether they are geographically located near a time/area closure....'' 
Judge Roberts ordered that the agency further consider the scope of the 
VMS requirements in light of potential conservation benefits compared 
to costs.
    In the biological and economic analyses of the HMS FMP that 
accompanied publication of the regulations, NMFS included information 
concerning fishery conservation benefits and the potential enforcement 
and communication benefits of VMS to both fishery managers and 
fishermen. Those benefits include increased communications for 
fishermen and real-time monitoring, which significantly improves 
enforcement of large offshore closed areas. For example, NMFS and the 
U.S. Coast Guard would be able to detect and to document unlawful 
incursions into closed areas. Without the VMS, such violations could 
only be detected with costly at-sea monitoring efforts. Monitoring the 
Atlantic pelagic longline fleet through the use of VMS would require 
only a small percentage of the cost of traditional surveillance 
methods.

Reconsideration of VMS Program

    NMFS did not include in its original analyses supporting the 
rulemaking all of the background information that has been used by NMFS 
and fishery managers and enforcement agencies world-wide as a standard 
for application of VMS requirements. Pursuant to Judge Roberts' order, 
NMFS is now reviewing that background information and the results of 
VMS programs implemented in other fisheries around the world.
    In addition, new circumstances that may influence NMFS's 
consideration of the scope of VMS requirements have arisen since the 
final regulations were published in 1999. Specifically, on August 1, 
2000, NMFS published regulations establishing three new closed areas to 
reduce bycatch and incidental catch in the pelagic longline fishery in 
the Gulf of Mexico and the Southeast Atlantic Ocean off the coasts of 
South Carolina, Georgia, and Florida. Also, on October 13, 2000 (65 FR 
60889), NMFS established one more closed area in the North Atlantic 
Ocean

[[Page 1908]]

to reduce the serious injury and mortality of threatened and endangered 
sea turtles incidentally caught in this fishery.
    In addition to the fishing closures implemented under the HMS FMP 
and its Amendment 1, U.S. pelagic longline fishermen are also subject 
to closures in the Exclusive Economic Zones (EEZs) of other nations 
unless contractual arrangements have been made by vessel operators. 
Pelagic longline vessels are very mobile, with some vessels fishing in 
the South Atlantic Ocean (e.g., off the coasts of Namibia or Brazil). 
U.S. Atlantic pelagic longline vessels frequently traverse waters close 
to or within the EEZs of Canada, Mexico, the Bahamas, and other 
Caribbean nations on the way to high seas fishing grounds.
    The United States supports recent international initiatives, 
including those undertaken by the International Commission for the 
Conservation of Atlantic Tunas (ICCAT) to eliminate illegal, 
unregulated, and unreported fishing activities. NMFS was recently 
informed at the 2000 ICCAT meeting that at least one U.S. longline 
vessel is fishing in the Mediterranean Sea. The fishing activities of 
that vessel have not been reported by that vessel to NMFS. Noting the 
obligation of every ICCAT Contracting Party to monitor the fishing 
activities of all vessels throughout the ICCAT management unit in order 
to comply with ICCAT conservation and management measures, it is clear 
that the United States must monitor pelagic longline activities ocean-
wide.

Costs to Fishermen

    NMFS also notes that VMS operating cost estimates have decreased by 
25 to almost 50 percent since the HMS FMP economic analyses were 
completed. Currently, the cost of the VMS is approximately $1,800 to 
$3,800 per vessel for the initial purchase of the equipment, depending 
on which model is chosen by the vessel owner. Installation of the 
equipment could cost up to $1,000, and communication charges for 
required automated position reports range $1.00-5.00 per day. Repair 
and maintenance costs may approach $1,000 per year.
    NMFS has considered mitigating costs to pelagic longline fishermen, 
but alternatives such as low-interest loans from the government and 
outright purchase by the agency were not adopted in the final 
regulations. The western Pacific pelagic longline VMS program was 
funded by the government as a pilot program solely for the purposes of 
testing the viability and effectiveness of VMS technology when utilized 
in longline fisheries. That study has been completed, and the study 
report is available from NMFS (See ADDRESSES).
    The VMS requirement is imposed fleet-wide in the western Pacific 
pelagic longline fishery due to the mobility of that fleet. The program 
is successful and meets the enforcement and monitoring needs of NMFS 
and the United States Coast Guard (USCG), such as near-real time 
detection of unlawful incursions into closed areas. Considering the 
experience in the Western Pacific pelagic longline pilot program, NMFS 
has pursued the use of VMS in several other U.S. fisheries. 
Installation of a VMS unit is now required at the vessel owners' or 
operators' expense in the Western Pacific crustacean fishery, the 
Atlantic sea scallop fishery, and the Alaska Atka mackerel fishery.
    The Atlantic pelagic longline VMS program would allow NMFS and USCG 
to monitor vessel position on a real-time basis anywhere in the 
Atlantic Ocean. This is particularly important for enforcement of time/
area closures due to the mobility of this fleet. While some pelagic 
longline vessels are small and do not venture far from shore, many 
vessels are large enough to follow the migrations of swordfish and 
other HMS up and down the east coast, through the Caribbean, or even 
into the Eastern Atlantic Ocean, South Atlantic Ocean, and 
Mediterranean Sea. In light of this information and the Court's 
concerns regarding the necessity of a fleet-wide VMS program, NMFS is 
reconsidering the scope of the VMS program with respect to costs and 
benefits to the Atlantic pelagic longline fishery.

Request For Comments

    NMFS requests comments on alternatives for implementing VMS 
requirements in the Atlantic pelagic longline fishery. Specifically, 
NMFS requests comments on the scope of the program:
    How can NMFS achieve the goal of effectively monitoring, on a real-
time basis, the location of U.S. pelagic longline vessels?
    Should NMFS apply VMS requirements fleet-wide in the Atlantic 
pelagic longline fishery in order to monitor all fishing activities?
    Should NMFS impose VMS requirements only on certain sectors of the 
fleet based on geographic location of home port or other criteria?
    Additionally, NMFS seeks input on the costs and benefits of a VMS 
program:
    Should NMFS consider other alternatives for enforcing time/area 
closures and monitoring the fleet other than VMS and existing reporting 
strategies?
    NMFS will consider comments received prior to the close of the 
comment period when responding to the Court. Send comments to NMFS at 
the specified location (see ADDRESSES).

Delayed Effective Date

    The VMS requirement specified at 50 CFR 635.69 initially was to be 
effective September 1, 1999. On August 9, 1999, NMFS delayed the 
effective date of this final rule until January 1, 2000 (64 FR 43101). 
On October 14, 1999, NMFS again delayed the effective date of this 
final rule until June 1, 2000 (64 FR 55633). NMFS further delayed the 
effective date of this final rule until October 1, 2000 (65 FR 49941, 
August 16, 2000). NMFS now stays indefinitely the effectiveness and 
implementation of Sec. 635.69, the VMS regulations, pending the Court's 
ruling on the agency's reconsideration. NMFS will notify the public at 
such time as the stay is removed and an implementation date is 
specified or the regulations are amended pursuant to the direction of 
the Court.

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

    Dated: December 29, 2000.
Valerie Chambers,
Acting Director, Office of Sustainable Fisheries, National Marine 
Fisheries Service.
[FR Doc. 01-448 Filed 1-9-01; 8:45 am]
BILLING CODE 3510-22-S