04-18825. 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.

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 VMS mobile transmitting and communications service providers contact the National Marine Fisheries Service, Office for Law Enforcement (OLE):

• ail: 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):

• ail: 1315 East-West Highway, Silver Spring, MD 20910
• nternet: http://www.nmfs.noaa.gov/​sfa/​hms/​
• hone: 301-713-2347
• ax: 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):

• mail: [e-mail] Fax: [phone].

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 [phone] or fax [phone].

For a current listing of NOAA-approved VMS units, contact Mark Oswell, phone [phone], fax [phone].

For questions regarding VMS installation and activation checklists, contact Jonathan Pinkerton, phone [phone], fax [phone].

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 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° 00′ and 36° 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 § 635.69(a)(3)) and the mid-Atlantic time/area closure (effective as of January 1, 2005, for § 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, and reduce 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 the resource 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 Regulatory Flexibility 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 FR 74746) 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 estimated at: 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.

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

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.

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

§ 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°00′ N. lat. and 36°30′ N. lat., and the mid-Atlantic shark closed area is closed as specified in § 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 § 229.32(f) of this title.