[Federal Register Volume 69, Number 158 (Tuesday, August 17, 2004)]
[Rules and Regulations]
[Pages 51010-51012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-18825]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 040504142-4142-01; I.D. 042204B]
RIN 0648-AS07


Atlantic Highly Migratory Species (HMS) Fisheries; Vessel 
Monitoring System (VMS) Requirement; Effective Date for Atlantic Shark 
Fisheries

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

ACTION: Final rule.

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SUMMARY: NMFS is establishing effective dates for the requirement to 
have a NOAA-approved VMS unit installed and operating on vessels with 
directed shark limited access permits (LAPs) and with gillnet or bottom 
longline gear on board. VMS will aid in the enforcement of time/area 
closures.

DATES: Final rule will become effective September 16, 2004.

ADDRESSES: To obtain copies of the list of NMFS-approved VMSmobile 
transmitting and communications service providers contact the National 
Marine Fisheries Service, Office for Law Enforcement (OLE):
    Mail: 8484 Georgia Avenue, Suite 415, Silver Spring, MD 
20910.
    For copies of Amendment 1 to the Fisheries Management Plan for 
Atlantic Tunas, Swordfish, and Sharks or its implementing regulations 
contact the National Marine Fisheries Service, Office of Sustainable 
Fisheries, Highly Migratory Species (HMS) Management Division (F/SF1):
    Mail: 1315 East-West Highway, Silver Spring, MD 20910
    Internet: http://www.nmfs.noaa.gov/sfa/hms/
    Phone: 301-713-2347
    Fax: 301-713-1917.
    For information or comments regarding the collection of information 
requirements contained in this rule contact the HMS Management Division 
at the address noted above and the Office of Management and Budget 
(OMB):
    Email: [email protected]Fax: 202-395-7285.

FOR FURTHER INFORMATION CONTACT: For additional information regarding 
the effective dates specified in this document, contact Mike Clark, 
Chris Rilling, or Karyl Brewster-Geisz, phone 301-713-2347 or fax 301-
713-1917.
    For a current listing of NOAA-approved VMS units, contact Mark 
Oswell, phone 301-427-2300, fax 301-427-2055.
    For questions regarding VMS installation and activation checklists, 
contact Jonathan Pinkerton, phone 301-427-2300, fax 301-427-2055.
    An installation checklist, and relevant updates are available at 
the OLE website:http://www.nmfs.noaa.gov/ole/vms.html.

SUPPLEMENTARY INFORMATION: The Atlantic shark fisheries are managed 
under the authority of the Magnuson-Stevens Fishery Conservation and 
Management Act (Magnuson-Stevens Act). The Fishery Management Plan for

[[Page 51011]]

Atlantic Tunas, Swordfish, and Sharks (HMS FMP) and Amendment 1 to the 
HMS FMP are implemented by regulations at 50 CFR part 635.
    On December 24, 2003, NMFS issued a final rule (68 FR 74746) 
requiring the installation of a NOAA-approved VMS unit on: (1) all 
commercial vessels issued a directed shark LAP with bottom longline 
gear on board that are located between 33[deg] 00' and 36[deg] 30' N. 
latitudes between January 1 and July 31 and (2) all commercial vessels 
issued a directed shark LAP with gillnet gear on board during the right 
whale calving season (November 15 - March 31), regardless of location. 
As specified in the final rule, the requirement to have VMS on board 
coincides with the start of time/area closures for the right whale 
calving season (effective as of November 15, 2004, for Sec.  
635.69(a)(3)) and the mid-Atlantic time/area closure (effective as of 
January 1, 2005, for Sec.  635.69(a)(2)) for shark gillnet and bottom 
longline vessels, respectively.
    The December 24, 2003, (68 FR 74746) VMS requirements were stayed 
pending the publication of a type-approval notice which was published 
in the Federal Register on April 15, 2004 (69 FR 19979). The type-
approval notice describes the relevant features of each unit for use by 
vessels engaged in HMS fisheries. The units may be used by vessels 
participating in any HMS fishery including vessels with pelagic 
longline gear on board. This final rule does not revise any other 
requirement or management measure published in the December 24, 2003, 
final rule, but would establish the effective date for the VMS 
requirement as 30 days after publication of this final rule.
    The proposed rule establishing the VMS effective dates published on 
May 18, 2004, (69 FR 28106). One comment was received and is summarized 
below.

Response to Comment

    Comment: One written comment was received by an individual who 
believes that longlines and gillnets should be banned and that NMFS is 
allowing the commercial fishing industry to do whatever it desires, no 
matter how rapacious.
    Response: While this comment does not specifically address the VMS 
requirement or effective dates, it is important to note that NMFS 
adheres to the Magnuson-Stevens Act, which requires among other things 
that the agency halt overfishing and rebuild overfished stocks, reduce 
bycatch, and identify and protect essential fish habitat. The purpose 
of this rule is to set effective dates for the use of VMS by directed 
shark vessels fishing in the vicinity of time/area closures. VMS will 
assist enforcement officials in preventing fishing in these time/area 
closures. The time/area closures were created to reduce interactions 
with endangered species of marine mammals, andreduce mortality of 
reproductive and juvenile sandbar and prohibited dusky sharks in a 
identified Habitat Area of Particular Concern. Banning gillnets and 
longlines entirely would also conflict with National Standards 5 and 7 
of the Magnuson-Stevens Act by preventing efficient utilization of 
theresource and causing excessive economic burdens to fishery 
participants.

Classification

    This action is published under the authority of the Magnuson-
Stevens Act. The Assistant Administrator for Fisheries previously 
determined that the implementation of a VMS program in the shark 
gillnet and bottom longline fisheries is necessary to monitor and 
enforce closed areas implemented to reduce bycatch.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this action would not have a significant economic 
impact on a substantial number of small entities. This rule would 
impact approximately 13 vessels, all of which are considered small 
entities. As required under the Regulatory Flexibility Act, 5 U.S.C. 
601 et seq., NMFS prepared an Initial Regulatory Flexibility Analysis 
(IRFA) for the VMS requirement in draft Amendment 1 and its proposed 
rule (68 FR 45196, August 1, 2003) and prepared a Final 
RegulatoryFlexibility Analysis (FRFA) for the final rule, (68 FR 74746, 
December 24, 2003). Economic impacts of the VMS requirement were 
addressed in those analyses. Establishing an effective date will not 
result in any further economic impacts. NMFS received no comments on 
the economic impact of this rule. As a result, a FRFA was not required 
and was not prepared.
    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
final rule is not significant.
    NMFS notified all states, consistent with the Coastal Zone 
Management Act, of the VMS requirement during the rulemaking for 
Amendment 1 of the HMS FMP. No states indicated that the VMS 
requirement is inconsistent with their coastal zone management 
programs. Thus, this final action is consistent to the maximum extent 
practicable with the enforceable policies of those Atlantic, Gulf of 
Mexico, and Caribbean states and territories that have approved coastal 
zone management programs.
    VMS are intended to aid in the enforcement of time/area closures 
and thereby reduce interactions with endangered, overfished, and 
prohibited species. The environmental impacts of the VMS requirement 
were analyzed during the development of Amendment 1 to the HMS FMP and 
the December 24, 2003 (68 FR74746) final rule. Establishing an 
effective date for this requirement is not expected to increase 
endangered species or marine mammal interaction rates beyond those 
considered in the October 29, 2003, Biological Opinion on the continued 
operation of Atlantic shark fisheries under the FMP and Draft Amendment 
1 to the HMS FMP issued by NMFS Office of Protected Resources.This 
final rule establishing the effective date on the VMS requirement 
refers to collection-of-information requirements subject to the 
Paperwork Reduction Act (PRA) which have been approved by OMB under 
control number 0648-0483. The public's reporting burden for this 
collection of information is estimatedat: 4 hours for the installation 
of a VMS, 5 minutes for the completion of a VMS certification 
statement, 2 hours per year for VMS maintenance, and < 1 second for an 
automated position report from a VMS.
    These estimates include the time for: reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information 
requirements. Written comments regarding these burden estimates or any 
other aspect of these data collection requirements, including 
suggestions for reducing the burden must be sent to NMFS and OMB (see 
ADDRESSES).
    Notwithstanding any other provision of the law, no person is 
required to respond to, nor shall any person be subject to, a penalty 
for failure to comply with a collection of information requirement of 
the PRA unless that collection of information displays a currently 
valid OMB control number.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, 
Penalties, Reporting and recordkeeping requirements, Treaties.


[[Page 51012]]


    Dated: August 11, 2004.
Rebecca Lent,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
    For the reasons set forth in the preamble, 50 CFR part 635 is 
amended as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES

0
1. The authority citation for 50 CFR part 635 continues to read as 
follows:

    Authority: 16 U.S.C. 971 et seq. 16 U.S.C. 1801 et seq.

0
2. In Sec.  635.69, paragraphs (a)(2) and (a)(3) are revised to read as 
follows:


Sec.  635.69  Vessel monitoring systems.

    (a) * * *
    (2) As of January 1, 2005, whenever a vessel issued a directed 
shark LAP, is away from port with bottom longline gear on board, is 
located between 33[deg]00' N. lat. and 36[deg]30' N. lat., and the mid-
Atlantic shark closed area is closed as specified in Sec.  
635.21(d)(1); or
    (3) As of November 15, 2004, whenever a vessel, issued a directed 
shark LAP, is away from port with a gillnet on board during the right 
whale calving season specified in the Atlantic Large Whale Take 
Reduction Plan in Sec.  229.32(f) of this title.
* * * * *
[FR Doc. 04-18825 Filed 8-16-04; 8:45 am]
BILLING CODE 3510-22-S