National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
NMFS is issuing regulations that require use of a NMFS-approved vessel monitoring system (VMS) and institute a pre-trip notification requirement for West Coast large-mesh swordfish drift gillnet (DGN) vessel owners and operators. The DGN fishery operates under the authority of the Federal Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP). Installing and operating VMS on vessels in this fishery will provide NMFS and law enforcement personnel with the ability to monitor the DGN fishery for compliance with conservation measures, efficiently deploy agents to inspect vessels, and provide the ability Start Printed Page 10393to more closely examine and compare the distribution of observed and unobserved fishing effort. The pre-trip notification will assist NMFS with timely and efficient placement of NMFS-trained observers on board DGN vessels. This action implements the recommendations of the Pacific Fishery Management Council (Council) and satisfies terms and conditions of the NMFS' 2013 Endangered Species Act (ESA) Section 7 Biological Opinion (Opinion).
This final rule is effective on March 30, 2015, except for the amendments to paragraphs (l), (o), and (p) of § 660.705 and paragraphs (f)(2) through (g)(5) of § 660.713. Those paragraphs contain collection-of-information requirements that the Office of Management and Budget (OMB) has not yet approved under the Paperwork Reduction Act. NMFS will publish a document in the Federal Register announcing the effective date of these amendments.
Copies of supporting documents that were prepared for this final rule, including the Regulatory Impact Review and the proposed rule, are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2014-0116. A summary of the regulatory flexibility analysis was included in the proposed rule. These documents are also available from the Regional Administrator, NMFS, West Coast Regional Office, 7600 Sand Point Way NE., Bldg 1, Seattle, WA. 98115-0070, or RegionalAdministrator.WCRHMS@noaa.gov. 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 the West Coast Region and by email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.
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FOR FURTHER INFORMATION CONTACT:
Amber Rhodes, NMFS, (562) 980-3231, or Amber.Rhodes@noaa.gov.
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The DGN fishery is managed under the HMS FMP, which was prepared by the Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801, et seq., by regulations at 50 CFR part 660.
On September 15, 2014, NMFS published a proposed rule in the Federal Register (79 FR 54950) that would add regulations at 50 CFR part 660, subpart K, to require use of a NMFS-approved VMS and institute a 48-hour pre-trip call-in notification requirement for DGN vessel owners and operators. The proposed rule was open to public comment through September 30, 2014. The comments that were received are addressed in this rule.
The proposed rule incorporated additional background information on the basis for the new regulations, including recommendations of the Council and information on temporary rules (78 FR 54548, September 4, 2013, and 79 FR 29377, May 22, 2014) that, among other measures, required the use of VMS and the pre-trip notification components being implemented with this rule, as well as the status of the DGN fishery's compliance with the Marine Mammal Protection Act and ESA.
This final rule establishes regulations requiring DGN vessel owners and operators to use a NMFS-approved VMS and to notify NMFS prior to making a fishing trip that will use DGN gear. Installing and operating VMS on vessels in this fishery will allow NMFS and law enforcement personnel to monitor the DGN fishery for compliance with conservation measures, efficiently deploy personnel to inspect vessels, and more closely examine and compare the distribution of observed and unobserved fishing effort. The pre-trip notification will assist NMFS with timely and efficient placement of NMFS-trained observers on board DGN vessels. This final rule implements the recommendations of the Council and satisfies key terms and conditions of NMFS' 2013 ESA Section 7 Opinion. Additional information regarding this Opinion can be found in the proposed rule (79 FR 54950).
Pre-Trip Notification Requirements
DGN vessel owners or operators will be required to notify the NMFS or the NMFS-designated observer provider at least 48 hours prior to departing on each fishing trip. The vessel owners or operators must provide their name, contact information, vessel name, port of departure, and estimated date and time of departure to the observer provider. Upon receipt of a pre-trip notification, the observer provider will notify the DGN vessel owner/operator whether their fishing trip has been selected for observer coverage. Additionally, DGN vessel owners and operators must provide the NMFS West Coast Division Office of Law Enforcement (OLE) with a declaration report before the vessel leaves port to fish with DGN gear in state or Federal waters. (See the regulatory text for pre-trip notification and declaration reporting schedules and contact information.)
VMS Requirements and Costs
Vessel owners may choose the OLE type-approved VMS unit that best fits their needs. The unit cost, physical size, available features, transmission fees, and service packages vary among the different type-approved VMS mobile transceiver units (VMS unit). Current information on OLE type-approved VMS units can be obtained by contacting: OLE, 1315 East West Hwy, Suite 3301, Silver Spring, MD 20910-3282; telephone: (888) 210-9288; fax: (301) 427-0049. Or, by contacting NMFS OLE VMS Helpdesk: telephone: (888) 219-9228; email: email@example.com. The business hours of the VMS Helpdesk are: Monday through Friday, except Federal holidays, 7 a.m. to 11 p.m., Eastern Time.
The vessel owner is responsible for all costs associated with the purchase, installation, and maintenance of the VMS unit, and for all charges levied by the mobile communications service provider as necessary to ensure the transmission of automatic position reports to NMFS. Federal funds are currently available for reimbursement of type-approved VMS units—up to $3,100 or as determined by the VMS Reimbursement Program. The availability of funds for reimbursement of the cost of purchasing a VMS unit is not guaranteed; rather, funds are available on a first-come first-served basis. To be eligible to receive reimbursement, the owner must submit proof of professional installation of the VMS unit to OLE in compliance with the requirements of the VMS Reimbursement Program. More information on the VMS Reimbursement Program can be obtained by calling the NMFS OLE VMS Helpdesk: telephone: (888) 219-9228, and online: http://www.psmfc.org/program/vessel-monitoring-system-reimbursement-program-vms?pid=17.
Prior to fishing, the vessel owner, or the vessel operator on the owner's behalf, is required to send an activation report to OLE. Activation of a VMS unit is required any time the unit is installed or reinstalled, any time the mobile communications service provider has changed, and any other time as directed by NMFS. Activation involves submitting a report to NMFS via mail, facsimile or email with information about the vessel, its fishing strategy, its owner or operator, and the VMS unit, as well as receiving confirmation from NMFS that the VMS unit is transmitting Start Printed Page 10394position reports properly. (See the regulatory text for more information regarding day-to-day operation of VMS units, including activation reports, declaration reports, exemption reports, repairing and replacing units, and contact information for OLE and the Special Agent-in-Charge.)
Public Comments and Responses
Three written public comments were submitted during the proposed rulemaking stage. One comment came in the form of an Enforcement Consultants Report to the Council during the Council's September 2014 meeting. The other comments included suggestions for additional restrictions on the DGN fleet that are beyond the scope of this action and are not addressed further. The summarized comments that pertained to this rulemaking and NMFS' responses are below.
Comment 1: Small-boat DGN fishermen based out of San Diego, CA, are being unfairly punished and should be exempted from this rule as they do not venture into the Pacific Leatherback Closure Area or other closed areas that are further offshore.
Response: The VMS requirements provide assurance that permitted DGN vessels are complying with the regulations found at 50 CFR 660.713. Without VMS coverage for the entire fleet, it would be difficult to monitor compliance with important conservation measures such as closed areas. Furthermore, some of these closed areas, like the Pacific Loggerhead Conservation Area, which was effective in 2014 (79 FR 43268, July 25, 2015), occur in near-shore southern California waters, including areas close to San Diego, CA.
Comment 2: We request that NMFS modify the rule to include a continuous transit requirement when operating in closed areas and increase the frequency of the signal transimission rate to 15 minutes for the VMS, consistent with the Enforcement Consultants Report to the Council at its September 2014 meeting.
Response: NMFS recognizes the Enforcement Consultants' recommendation to increase the VMS signal transmission rate to 15 minutes in conjunction with a continuous transit requirement to improve the ability of NMFS to monitor vessel activity in closed areas. NMFS examined VMS tracks of DGN vessels in consideration of continuous transit requirements and found that an addition of continuous transit provisions to this final rule would likely have impacts to the fleet that were not considered during the proposed rule stage. Additionally, following the presentation of the Enforcement Consultants Report, the Council recommended that the VMS signal transmission rate for the DGN fishery not be further enhanced. The maker of the motion contended that such an enhancement was not the right tool for monitoring the DGN fishery since fishing with DGN gear takes several hours to execute once the net is set (e.g., 8 to 12 hour soak times), and further recommended that the Council consider other types of equipment better tailored to the monitoring needs of the fishery. The motion carried unanimously. This final rule is consistent with the Council's recommendation during their September 2014 meeting.
Changes From the Proposed Rule
No substantive changes have been made to this rule since the proposed rule stage. To further clarify the specific contents, reporting frequency, and process for confirmation of receipt of declaration reports, additional information was provided at § 660.713, including paragraphs (f)(2)(i) and (f)(2)(ii), and paragraphs (g)(4)(ii) and (g)(4)(ii)(A).
The Administrator, West Coast Region, NMFS, has determined that this final rule is necessary for the conservation and management of the DGN fishery for swordfish and is consistent with MSA and other applicable laws.
Executive Order 12866
This final rule has been determined to be not significant for purposes of Executive Order 12866.
Regulatory Flexibility Act
The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification and no other information has been received that would impact this determination. As a result, a Final Regulatory Flexibility Analysis is not required and none was prepared.
Paperwork Reduction Act (PRA)
This final rule contains a collection-of-information requirement subject to the PRA. The pre-trip notification requirement has been approved by the OMB under OMB Control Number 0648-0593. Public reporting burden for the pre-trip notification requirement is estimated to average 5 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. The VMS requirement is still pending approval by OMB under OMB Control Number 0648-0498. Public reporting burden for compliance with the VMS requirements are estimated to include a one-time, 4-hour response time for installing a VMS unit and a 1-hour response time annually to maintain and repair a unit. Activation and on-off reports are estimated to average 5 minutes per response, including time to review instructions, prepare, and submit the reports. Send comments regarding burden estimates or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by email to OIRA_Submission@omb.eop.gov, or fax 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.
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- Reporting and recordkeeping requirements
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Dated: February 13, 2015.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:End Amendment Part
PART 660--FISHERIES OFF WEST COAST STATES
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1. The authority citation for 50 CFR part 660 continues to read as follows: End Amendment Part
Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 773 et seq., and 16 U.S.C. 7001 et seq.
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2. In § 660.702, the definitions for “Regional Administrator,” “Special-Agent-In-Charge (SAC),” and “Vessel monitoring system unit (VMS unit)” are revised to read as follows: End Amendment Part
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Regional Administrator means the Regional Administrator for the West Start Printed Page 10395Coast Region, National Marine Fisheries Service, or a designee.
Special Agent-In-Charge (SAC) means the Special Agent-In-Charge, NMFS, Office of Enforcement, West Coast Division, or a designee of the Special Agent-In-Charge.
* * * * *
Vessel monitoring system unit (VMS unit) means an automated, remote system and mobile transceiver unit that is approved by NMFS and provides information about a vessel's identity, location, and activity for the purposes of routine monitoring, control, surveillance and enforcement of area and time restrictions and other fishery management measures.
3. In § 660.705, paragraphs (l), (o), and (p) are revised and paragraphs (rr) and (ss) are added to read as follows: End Amendment Part
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(l) Fail to install, activate, repair, replace, carry, operate or maintain a VMS unit as required under § 660.712 and § 660.713.
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(o) Fish for, catch, or harvest HMS with longline or drift gillnet gear without an operating VMS unit on board the vessel after installation of the VMS unit.
(p) Possess on board a vessel without an operating VMS unit HMS harvested with longline or drift gillnet gear after installation of the VMS unit.
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(rr) Fail to notify NMFS or the NMFS-designated observer provider at least 48 hours prior to departure on a fishing trip using drift gillnet gear as required under § 660.713.
(ss) Fail to submit a declaration report to the NMFS Office of Law Enforcement prior to departure on a fishing trip using drift gillnet gear as required under § 660.713.
4. In § 660.713, paragraphs (f) and (g) are added to read as follows: End Amendment Part
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Drift gillnet fishery.
* * * * *
(f) Pre-trip notification requirements. (1) Drift gillnet vessel owners or operators are required to notify NMFS or the NMFS-designated observer provider at least 48 hours prior to departing on each fishing trip. The vessel owners or operators must communicate to the observer provider: the owner's or operator's name, contact information, vessel name, port of departure, estimated date and time of departure, and a telephone number at which the owner or operator may be contacted during the business day (Monday through Friday between 8 a.m. to 4:30 p.m., Pacific Time) to indicate whether an observer will be required on the subject fishing trip. Contact information for the current observer provider can be obtained by calling the NMFS West Coast Region Sustainable Fisheries Division at 562-980-4025.
(2) Drift gillnet vessel owners or operators must provide the NMFS Office of Law Enforcement for the West Coast Region (OLE) with a declaration report before the vessel leaves port to fish for thresher shark/swordfish with large-mesh drift gillnet gear in state and federal waters between 0 and 200 nautical miles offshore of California, Oregon, or Washington. Declaration reports will include: The vessel name and/or identification number, and gear type.
(i) Upon receipt of a declaration report, OLE will provide a confirmation code or receipt to confirm that a valid declaration report was received for the vessel. Retention of the confirmation code or receipt to verify that a valid declaration report was filed and the declaration requirement was met is the responsibility of the vessel owner or operator.
(ii) The vessel operator must send a new declaration report before leaving port on a trip during which the fishing gear that will be used is different from the gear type most recently declared for the vessel. A declaration report will be valid until another declaration report revising the existing gear declaration is received by OLE.
(iii) OLE's declaration hotline is 1-888-585-5518. The business hours for the OLE are Monday through Friday, except Federal holidays, 8 a.m. to 4:30 p.m., Pacific Time; voice messages left on the hotline will be retrieved at the start of the next business day.
(g) Vessel Monitoring System (VMS) requirements. Drift gillnet vessel owners are required to install an OLE type-approved VMS mobile transceiver unit (VMS unit) and to arrange for a OLE type-approved communications service provider to receive and relay transmissions to the OLE prior to fishing for thresher shark/swordfish with large-mesh drift gillnet gear.
(1) What is a VMS? A VMS consists of an OLE type-approved VMS unit that automatically determines the vessel's position and transmits it to an OLE type-approved communications service provider. The communications service provider receives the transmission and relays it to the OLE.
(2) What vessels are required to have a VMS? Any vessel registered for use with both a limited-entry California state large-mesh thresher shark/swordfish drift gillnet permit and a federal highly migratory species permit that fishes in state or federal waters off the coasts of California, Oregon, or Washington (0-200 nm offshore).
(3) How are VMS units and communications dervice providers approved by OLE?
(i) VMS unit manufacturers or communication service providers will submit products or services to the OLE for evaluation based on the published specifications.
(ii) The OLE will publish a list of OLE type-approved VMS units and communication service providers for the DGN fishery in the Federal Register or notify the public through other appropriate media; and the OLE may publish amendments to the list as necessary.
(4) 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 on your behalf must:
(i) Obtain an OLE type-approved VMS unit and have it installed on board your vessel in accordance with the instructions provided by the OLE. You may obtain a copy of the VMS installation and operation instructions from the Special-Agent-In-Charge (SAC).
(ii) Activate the VMS unit, submit an activation report and an initial declaration report, and receive confirmation from the OLE that the VMS transmissions are being received at least 72 hours prior to leaving port on a fishing trip for which VMS is required. Instructions for submitting an activation report may be obtained from the SAC. An activation report must again be submitted to the OLE following reinstallation of a VMS unit or change in service provider before the vessel may be used to fish in a fishery requiring the VMS.
(A) Activation reports. If you are a vessel owner who must use VMS and you are activating a VMS unit for the first time, or reactivating a VMS unit following a reinstallation or change in service provider, you or the vessel operator on your behalf must fax to the 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; and, if applicable, the relevant state and federal permit numbers for which vessel or owner is registered, VMS unit manufacturer, VMS communications service provider, VMS unit identification, and a statement signed and dated by the vessel owner Start Printed Page 10396confirming compliance with the installation procedures provided by the SAC and identifying whether the VMS unit is primary or backup. Immediately following submission of an activation report, submit an initial declaration report as described in paragraph (f)(2) of this section using the OLE's declaration hotline included in paragraph (f)(2)(iii) of this section.
(B) Transferring ownership of the VMS unit. Ownership of the VMS unit may be transferred from one vessel owner to another vessel owner if all of the following documents are provided to the OLE: a new activation report, which identifies that the VMS unit was previously registered to another vessel, a notarized bill of sale showing proof of ownership of the VMS unit, and documentation from the communications service provider showing proof that the service agreement for the previous vessel was terminated and that a service agreement was established for the new vessel.
(iii) Continuously operate and maintain the VMS unit in good working order 24 hours a day throughout the fishing year. The VMS unit must accurately transmit a signal indicating the vessel's position at least once every hour, 24 hours a day throughout the year, unless a valid exemption report, as described in paragraph (g)(4)(iv)(F) of this section, has been confirmed by the OLE. A reduced signal transmission rate, at least once every 4 hours, may be authorized by the OLE when a vessel remains in port for an extended period of time.
(iv) Submit an exemption report to be confirmed by the OLE as valid, as described at paragraph (g)(4)(iv)(F) of this section, and comply with all conditions and requirements of the VMS exemption identified in this section and specified in the exemption report for a vessel to be exempted from the requirement of continuously operating and maintaining the VMS unit 24 hours a day throughout the fishing year.
(A) Haul out exemption. When it is anticipated that a vessel will be continuously out of the water for more than 7 consecutive days and the OLE has confirmed a valid exemption report has been received for the vessel, electrical power to the VMS 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.
(B) Outside areas exemption. When the vessel will be continuously operating seaward of the U.S. exclusive economic zone (EEZ; beyond 200 nm) off the coasts of California, Oregon, or Washington for more than 7 consecutive days and the OLE has confirmed a valid exemption report has been received for the vessel, the VMS unit transmissions may be reduced or discontinued from the time the vessel leaves the EEZ off the coasts of California, Oregon, or Washington until the time that the vessel re-enters the EEZ off the coasts of California, Oregon, or Washington. If the vessel is equipped with a VMS unit that OLE has approved for this exemption and after the OLE has received an exemption report for the vessel, the vessel owner or operator can request that the OLE reduce or discontinue the VMS transmissions.
(C) Long-term departure exemption. A vessel participating in the DGN fishery that is required to have VMS under paragraph (g) of this section may be exempted from VMS provisions after the end of the fishing season in which it fished, provided that a completed exemption report including a statement signed by the vessel owner indicating that the vessel will not be used to take and retain or possess or land swordfish taken in state or federal waters off the coasts of California, Oregon, or Washington during the upcoming fishing year is submitted to the OLE.
(D) Emergency exemption. Vessels required to have VMS under paragraph (g) of this section may be exempted from VMS provisions in emergency situations that are beyond the vessel owner's control, including but not limited to: fire, flooding, or extensive physical damage to critical areas of the vessel. A vessel owner may request an emergency exemption from the VMS requirements specified in paragraph (g) of this section for his/her vessel by contacting the OLE and submitting the following information in writing: the reasons for seeking an exemption including any supporting documents (e.g., repair invoices, photographs showing damage to the vessel, insurance claim forms, etc.), the time period for which the exemption is requested, and the location of the vessel while the exemption is in effect. The OLE will issue a written determination granting or denying the emergency exemption request. A vessel will not be covered by the emergency exemption until the OLE issues a determination granting the exemption. If an exemption is granted, the duration of the exemption will be specified in the OLE determination.
(E) Submission of exemption reports. Long-term departure exemption reports must be signed by the vessel owner and submitted by fax or by emailing an electronic copy of the actual report to the OLE. If an emergency exemption request will be submitted, initial contact with the OLE must be made by telephone, fax or email within 24 hours from when the emergency incident occurred. All emergency exemption requests must be submitted in writing within 72 hours from when the incident occurred. Submission methods for exemption reports, except long-term departures and emergency exemption requests, may include email, facsimile, or telephone. The 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 vessel owner's address of record. Owners of vessels required to use the VMS who do not receive instructions by mail are responsible for contacting OLE during business hours at least 3 days before the exemption is needed to obtain information necessary for exemption reports. The OLE must be contacted during business hours (Monday through Friday, except federal holidays, between 8 a.m. to 4:30 p.m., Pacific Time). Any other categories of exemptions that have not been specified in paragraph (g) of this section may be submitted to the OLE through the VMS unit or another method deemed appropriate by the OLE. Before a request for a new category of exemption can be approved by OLE, it must be announced in the Federal Register.
(F) Valid exemption reports. For an exemption report to be valid, the OLE must receive and confirm it at least 2 hours and not more than 24 hours before the exempted activities defined at paragraphs (g)(4)(iv)(A) through (D) of this section. 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; at least 2 hours before the vessel is placed back in the water following a haul-out exemption; or at least 2 hours before a vessel resumes fishing with a large-mesh drift gillnet after a long-term departure exemption. If a vessel is required to submit an activation report under paragraph (g)(4)(ii) of this section before returning to fish, that report may substitute for the exemption cancellation. After an emergency situation occurs that disrupts the VMS transmission, initial contact must be made with the OLE within 24 hours and a written emergency exemption request submitted within 72 hours from when the incident occurred. If the emergency situation, upon which an emergency exemption is based, is resolved before Start Printed Page 10397the exemption expires, an exemption cancellation must be received by OLE at least 2 hours before the vessel resumes fishing.
(v) When aware that transmission of automatic position reports has been interrupted, or when notified by OLE that automatic position reports are not being received, contact OLE and follow the instructions provided to you. Such instructions may include, but are not limited to, manually communicating the vessel's position to a location designated by the OLE or returning to port until the VMS unit is operable.
(vi) After a fishing trip during which interruption of automatic position reports has occurred, the vessel's owner or operator must replace or repair the VMS unit prior to the vessel's next fishing trip. Repair or reinstallation of a VMS unit or installation of a replacement unit, including any changes in communications service providers shall be in accordance with the instructions provided by the OLE.
(vii) Make the VMS units available for inspection by OLE personnel, USCG personnel, state enforcement personnel or any authorized officer.
(viii) Ensure that the VMS unit is not tampered with, disabled, destroyed, operated, or maintained improperly.
(ix) Pay all charges levied by the communication service provider as necessary to ensure continuous operation of the VMS units.
(5) What is the contact information for the OLE SAC? For issues related to day-to-day operation of VMS units, including declaration reports, activation reports and exemption reports, the SAC's designee is the OLE VMS Program Manager's office located at 7600 Sand Point Way NE., Seattle, WA 98115-6349; phone: (888) 585-5518; fax: (206) 526-6528); and email: firstname.lastname@example.org.
[FR Doc. 2015-03955 Filed 2-25-15; 8:45 am]
BILLING CODE 3510-22-P