[Federal Register Volume 68, Number 213 (Tuesday, November 4, 2003)]
[Rules and Regulations]
[Pages 62374-62385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27602]


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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.

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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 [email protected], 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 [email protected] or [email protected]; or Svein 
Fougner (Southwest Region, NMFS), phone: 562-980-4000; fax: 562-980-
4047; and e-mail: [email protected].

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.

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 [email protected], 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:

------------------------------------------------------------------------
             Point                     N. lat.             W. long.
------------------------------------------------------------------------
1..............................  32[deg]35'22''      117[deg]27'49''
2..............................  32[deg]37'37''      117[deg]49'31''
3..............................  31[deg]07'58''      118[deg]36'18''
4..............................  30[deg]32'31''      121[deg]51'58''
------------------------------------------------------------------------

    (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