03-19700. Atlantic Highly Migratory Species (HMS) Fisheries; Vessel Monitoring Systems

AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.

ACTION:

Final rule; reinstatement.

SUMMARY:

This document reinstates the requirement to have a NOAA-approved, Vessel Monitoring System (VMS) unit installed and operating on any vessel leaving port to fish for HMS with pelagic longline gear on board, effective September 1, 2003.

DATES:

Section 635.69 was stayed indefinitely on October 1, 2000 (66 FR 1907, January 10, 2001), and is reinstated effective September 1, 2003.

ADDRESSES:

To obtain copies of the list of NOAA-approved VMS mobile transmitting units and NOAA-approved VMS communications service providers, write to NMFS Office for Law Enforcement (OLE), 8484 Georgia Avenue, Suite 415, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:

For information regarding the requirement contact Chris Rilling, Highly Migratory Species Management Division (F/SF1), Office of Sustainable Fisheries, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910, phone [phone]. For current listing of approved VMS units contact Mark Oswell, Outreach Specialist, phone [phone], fax [phone]. For questions regarding VMS installation and activation checklists, contact Jonathan Pinkerton, National VMS Program Manager, phone [phone], fax [phone].

The public may acquire this notice, installation checklist, and relevant updates via the “fax-back” service, or at the OLE Web site http://www.nmfs.noaa.gov/​ole/​vms.html.

SUPPLEMENTARY INFORMATION:

On May 28, 1999, NMFS issued a regulation (64 FR 29090) codified at 50 CFR 635.69(a), requiring all commercial pelagic longline vessels fishing for Atlantic HMS to install a NMFS-approved VMS unit. Due to litigation, the requirement was stayed indefinitely on October 1, 2000 (66 FR 1907, January 10, 2001). On October 15, 2002, the U.S. District Court for the District of Columbia issued a final order upholding the VMS regulation. Following the favorable court ruling, NMFS began working to reinstate the VMS requirement.

On March 11, 2003, NMFS published a notice in the Federal Register (68 FR 11534) and corrected it on March 27, 2003 (68 FR 14949), to provide a list of the NMFS-approved VMS units for use by pelagic longline vessels in the Atlantic Highly Migratory Species (HMS) Fisheries and set forth relevant features of each VMS. The notification was issued to update and replace the approval notice published on September 9, 1999. An additional type approval notice was published on May 1, 2003 (68 FR 23285).

NMFS also submitted a request to the Office of Management and Budget (OMB) to reinstate approval for VMS information collection under the provisions of the Paperwork Reduction Act. A notice regarding this collection was published in the Federal Register on November 18, 2002 (67 FR 69506). The second notice of OMB review was published in the Federal Register on March 19, 2003 (68 FR 13280). OMB approved the VMS information collection request on May 10, 2003.

The placement of VMS units on fishing vessels in this fishery will enable NMFS to determine vessel locations and will complement the Agency's efforts to monitor and enforce compliance with applicable regulations. NMFS originally published an amendment of effective date on June 25, 2003 (68 FR 37772), to notify fishermen of its intent to have the VMS requirement (50 CFR 635.69(a)) be effective on September 1, 2003, and to provide fishermen approximately 60 days to purchase and install VMS to come into compliance. At that time, NMFS notified affected fishermen of the intended September 1, 2003, effective date via the HMS fax notice, NMFS' electronic newsletter, and the HMS web page. NMFS also mailed the fax notice and information regarding approved VMS units and service providers to permit holders during the month of July. This final rule reinstates § 635.69 effective September 1, 2003.

Classification

This action is published under the authority of the Magnuson-Stevens Fishery Conservation and Management Act. The Assistant Administrator (AA) has determined that implementation of a VMS program in the pelagic longline fishery is necessary to monitor and enforce closed areas implemented to reduce bycatch. The AA finds that good cause exists to waive the requirement to provide prior notice and the opportunity for comment, pursuant to authority set forth at 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. This action establishes a new effective date for the HMS VMS rule, which had been suspended due to litigation. NMFS provided for prior notice and comment before promulgating the HMS VMS rule in 1999, then provided for additional public comment pursuant to a court order. The court upheld the rule on all counts and issued a final order in October, 2002. Subsequently, NMFS renewed its Paperwork Reduction Act (PRA) approval, which included additional public comment on the information collection under the rule, and completed type approvals for VMS units for the fishery. This action does not change any substantive provisions of the HMS VMS rule, but provides a new effective date, as the original date was suspended because of the court case. Further delay of this rule to provide additional opportunity for public comment is contrary to the public interest because fishing is currently underway, and VMS would facilitate efficient allocation of limited enforcement resources to meet management objectives, including time and area closures established to protect juvenile fish and protected species. U.S. Atlantic pelagic longline vessels operate in fishing areas in the Atlantic Ocean, Caribbean Sea, and Gulf of Mexico, and given increased commitments to homeland security, VMS will play an important role in determining deployment of at-sea resources.

This rule refers to collection-of-information requirements subject to the PRA and which have been approved by OMB under control number 0648-0372. Public reporting burden for these requirements is estimated to average 4 hours for installation of equipment, 2 hours for annual maintenance of the equipment (beginning in the second year), 0.3 seconds per automated position report from the automated equipment, and 5 minutes to complete and return a one-time installation checklist. 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. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see FOR FURTHER INFORMATION CONTACT) and OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC. 20503 (Attention: NOAA Desk Officer).

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 subject to the requirements 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: July 30, 2003.

Rebecca Lent,

Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.