Atlantic Highly Migratory Species; Vessel Monitoring Systems, 75492-75503 [2011-30956]
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Federal Register / Vol. 76, No. 232 / Friday, December 2, 2011 / Rules and Regulations
(2) Spiny lobster must be landed
either all whole or all tailed on a single
fishing trip.
■ 12. In § 640.22, paragraphs (a)(3) and
(b)(3)(i) are revised to read as follows:
ACL is 7.32 million lb (3.32 million kg),
whole weight. The ACT is 6.59 million
lb, (2.99 million kg) whole weight.
■ 15. Add § 640.29 to read as follows:
§ 640.22
(a) Certain material is incorporated by
reference into this part with the
approval of the Director of the Federal
Register under U.S.C. 552(a) and 1 CFR
part 51. These materials are
incorporated as they exist on the date of
approval and a notice of any change in
these materials will be published in the
Federal Register. This incorporation by
reference was approved by the Director
of the Office of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1
CFR part 51. These materials are
incorporated as they exist on the date of
approval and a notice of any change in
these materials will be published in the
Federal Register. All material
incorporated by reference is available
for inspection at the NMFS, Office of
Sustainable Fisheries, Office of the
Regional Administrator, 1315 East-West
Highway, Silver Spring, MD; and the
National Archives and Records
Administration (NARA), Office of the
Federal Register, 800 North Capitol
Street NW., Suite 700, Washington, DC.
For more information on the availability
of this material at NARA, call (202) 741–
6030 or go to https://www.archives.gov/
federal_resister/
code_of_federal_regulations/
ibr_locations.html.
(b) Florida Administrative Code
(F.A.C.): Florida Division of Marine
Fisheries Management, 620 South
Meridian Street, Tallahassee, FL 32399;
telephone: (850) 488–4676; https://
laws.flrules.org.
(1) F.A.C., Chapter 68B–24: Spiny
lobster (crawfish) and slipper lobster,
Rule 68B–24.002: Definitions, in effect
as of July 1, 2008, IBR approved for
§ 640.4.
(2) F.A.C., Chapter 68B–24: Spiny
lobster (crawfish) and slipper lobster,
Rule 68B–24.005: Seasons, in effect as of
June 1, 2004, IBR approved for § 640.20.
(3) F.A.C., Chapter 68B–24: Spiny
lobster (crawfish) and slipper lobster,
Rule 68B–24.006: Gear: Traps, Buoys,
Identification Requirements, Prohibited
Devices, in effect as of July 1, 2008, IBR
approved for § 640.6 and § 640.22.
(4) F.A.C., Chapter 68B–55: Trap
retrieval and trap debris removal, Rule
68B–55.002: Retrieval of Trap Debris, in
effect as of October 15, 2007, IBR
approved for § 640.6 and § 640.20.
(5) F.A.C., Chapter 68B–55: Trap
retrieval and trap debris removal, Rule
68B–55.004: Retrieval of Derelict and
Traps Located in Areas Permanently
Closed to Trapping, in effect as of
Gear and diving restrictions.
(a) * * *
(3) Poisons and explosives may not be
used to take a spiny lobster in the EEZ
as defined in § 640.1(b). For the
purposes of this paragraph (a)(3),
chlorine, bleach, and similar substances,
which are used to flush a spiny lobster
out of rocks or coral, are poisons. A
vessel in the spiny lobster fishery may
not possess on board in the EEZ any
dynamite or similar explosive
substance.
*
*
*
*
*
(b) * * *
(3) * * *
(i) For traps in the EEZ off Florida, by
the Division of Law Enforcement,
Florida Fish and Wildlife Conservation
Commission, in accordance with the
procedures in Rule 68B–24.006(7),
Florida Administrative Code, in effect as
of July 1, 2008 (incorporated by
reference, see § 640.29).
*
*
*
*
*
■ 13. Section 640.25 is revised to read
as follows:
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§ 640.25 Adjustment of management
measures.
In accordance with the framework
procedure of the Fishery Management
Plan for the Spiny Lobster Fishery of the
Gulf of Mexico and South Atlantic, the
Regional Administrator may establish or
modify the following items: Reporting
and monitoring requirements,
permitting requirements, bag and
possession limits, size limits, vessel trip
limits, closed seasons, closed areas,
reopening of sectors that have been
prematurely closed, annual catch limits
(ACLs), annual catch targets (ACTs),
quotas, accountability measures (AMs),
maximum sustainable yield (or proxy),
optimum yield, total allowable catch
(TAC), management parameters such as
overfished and overfishing definitions,
gear restrictions, gear markings and
identification, vessel identification
requirements, allowable biological catch
(ABC) and ABC control rule, rebuilding
plans, and restrictions relative to
conditions of harvested fish (such as
tailing lobster, undersized attractants,
and use as bait).
■ 14. Add § 640.28 to read as follows:
§ 640.28 Annual catch limits (ACLs) and
accountability measures (AMs).
For recreational and commercial
spiny lobster landings combined, the
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§ 640.29
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Incorporation by reference.
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October 15, 2007, IBR approved for
§ 640.6 and § 640.20.
(c) Florida Statute: Florida Division of
Marine Fisheries Management, 620
South Meridian Street, Tallahassee, FL
32399; telephone: (850) 488–4676;
https://www.leg.state.fl.us/Statutes/
index.cfm.
(1) Florida Statutes, Chapter 379: Fish
and Wildlife Conservation, Part VII:
Nonrecreational Licenses, Section
379.367: Spiny lobster; regulation,
379.367, in effect as of June 1, 1994, IBR
approved for § 640.6.
(2) [Reserved]
[FR Doc. 2011–31025 Filed 12–1–11; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 635
[Docket No. 110520295–1659–02]
RIN 0648–BA64
Atlantic Highly Migratory Species;
Vessel Monitoring Systems
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
The National Marine
Fisheries Service (NMFS) is finalizing
requirements for fishermen to replace
currently required Mobile Transmitting
Unit (MTU) Vessel Monitoring System
(VMS) units with Enhanced Mobile
Transmitting Unit (E–MTU) VMS in
Atlantic HMS fisheries. The key
difference between MTU and E–MTU
VMS units is that the E–MTU VMS
units are capable of two-way
communication. The purpose of this
final action is to facilitate enhanced
communication with HMS vessels at
sea, provide HMS fishery participants
with an additional means of sending
and receiving information at sea, ensure
that HMS VMS units are consistent with
the current VMS technology and type
approval requirements that apply to
newly installed units, and to provide
NMFS enforcement with additional
information describing gear onboard
and target species. This rule affects all
HMS pelagic longline (PLL), bottom
longline (BLL), and shark gillnet
fishermen who are currently required to
have VMS onboard their vessels.
DATES: This final rule is effective on
January 1, 2012. Implementation dates:
As of January 1, 2012, vessel owners
SUMMARY:
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and/or operators must use a qualified
marine electrician when installing an
E–MTU VMS unit on a vessel. By March
1, 2012, vessel owners and/or operators
must have an E–MTU VMS unit
installed on their vessel and must use
the unit to provide position reports,
declare target species and fishing gear
possessed onboard two hours prior to
departing on a fishing trip, and provide
notification of landing three hours in
advance of returning to port.
ADDRESSES: Supporting documents,
including the Regulatory Impact
Review, Final Regulatory Flexibility
Analysis (RIR/FRFA), and compliance
guides are available from Michael Clark,
Highly Migratory Species (HMS)
Management Division, Office of
Sustainable Fisheries (F/SF1), NMFS,
1315 East West Highway, Silver Spring,
MD 20910. These documents and
others, such as the Fishery Management
Plans described below, also may be
downloaded from the HMS Web site at
https://www.nmfs.noaa.gov/sfa/hms/. A
list of E–MTU VMS units that are
currently type approved for use in
Atlantic HMS fisheries is available on
the NMFS Office of Law Enforcement
Web site at https://www.nmfs.noaa.gov/
ole/docs/2011/07/noaa_fisheries_
service_type_approved_vms_units.pdf.
A current list of type approved units
and other information may also be
obtained by contacting the VMS
Support Center at (phone) (888) 219–
9228, (fax) (301) 427–0049,
ole.helpdesk@noaa.gov, or write to
NMFS Office for Law Enforcement,
VMS Support Center, 8484 Georgia
Avenue, Suite 415, Silver Spring, MD
20910.
For
information on this rule and
requirements for Atlantic HMS fisheries
contact, Michael Clark (phone: (301)
427–8503; fax: (301) 713–1917).
SUPPLEMENTARY INFORMATION: Atlantic
HMS are managed under the dual
authority of the Magnuson-Stevens
Fishery Conservation and Management
Act (MSA) and the Atlantic Tunas
Convention Act (ATCA). Under the
MSA, NMFS must ensure consistency
with 10 National Standards and manage
fisheries to maintain optimum yield,
rebuild overfished fisheries, and prevent
overfishing. Under ATCA, the Secretary
of Commerce is required to promulgate
regulations, as necessary and
appropriate, to implement measures
adopted by the International
Commission for the Conservation of
Atlantic Tunas (ICCAT). The
implementing regulations for Atlantic
HMS are at 50 CFR part 635.
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FOR FURTHER INFORMATION CONTACT:
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Background
Prior to January 2008, NMFS
approved for use several MTU Vessel
Monitoring System (VMS) units for use
in fisheries nationwide, including the
HMS fishery (68 FR 11534; March 11,
2003). On January 31, 2008, NMFS
published in the Federal Register (73
FR 5813) a type approval notice listing
the specifications for approved MTU
VMS, including a requirement for twoway communication. In that notice,
NMFS stated that ‘‘[p]reviously installed
MTUs approved under prior notices will
continue to be approved for the
remainder of their service life’’ and that
new installations ‘‘must comply with all
of the requirements’’ of the notice,
including the requirement to have twoway communication capability.
On June 21, 2011, NMFS published a
proposed rule (76 FR 36071) to require
replacement of currently required
Mobile Transmitting Unit (MTU) Vessel
Monitoring System (VMS) units with
Enhanced Mobile Transmitting Unit
(E–MTU) VMS units in Atlantic HMS
fisheries; implement a declaration
system that requires vessels to declare
target fishery and gear type(s) possessed
on board; and require that a qualified
marine electrician install all E–MTU
VMS units.
NMFS considered two alternatives in
the proposed rule. Alternative One, the
no action alternative, would maintain
the existing VMS requirements in
Atlantic HMS fisheries. Under
Alternative Two, vessels in the HMS
fishery with an MTU (as opposed to an
E–MTU) installed would not be allowed
to wait until the end of the installed
MTU’s service life (as had been
provided for in the January 31, 2008,
Federal Register notice (73 FR 5813))
but instead, would be required to
replace the MTU with a NMFS type
approved E–MTU and to have the new
unit installed by a qualified marine
electrician. This alternative would also
implement a fishery declaration system
where vessels would declare their target
species and gear type(s) possessed
onboard, as well as require vessels to
provide advanced notice of departure
and landing. Vessels with type
approved E–MTU units already
installed would not need to take any
action. The proposed rule contained
details regarding the alternatives
considered and a brief summary of the
recent management history. Those
details are not repeated here.
This final rule finalizes the provisions
proposed in the June 21, 2011, rule. The
purpose of this final action is to
facilitate enhanced communication with
HMS vessels at sea, provide HMS
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75493
fishery participants with a means of
sending and receiving information at
sea, ensure that HMS VMS units are
consistent with the current VMS
technology and type approval
requirements that apply to newly
installed units, and to provide NMFS
enforcement with additional
information describing gear onboard
and target species.
As of January 1, 2012, all E–MTU
VMS units must be installed by a
qualified marine electrician. This is to
ensure that E–MTU VMS units are
installed properly.
As of March 1, 2012, vessel owners
and/or operators must have an E–MTU
VMS unit installed on their vessel and
must use the unit to provide position
reports, declare target species and
fishing gear possessed onboard two
hours prior to departing on a fishing
trip, and provide notification of landing
three hours in advance of returning to
port. The March 1, 2012, effective date
provides about 90 days to have E–MTU
VMS units installed and operational.
NMFS extended the standard 30-day
delay in effectiveness here to provide
sufficient time for coming into
compliance with the E–MTU VMS
requirements while still providing an
opportunity to take advantage of
reimbursement funds.
Under the requirements of this final
rule, VMS units that are approved by
NMFS as meeting the E–MTU type
approval specifications (73 FR 5813;
January 31, 2008), including two-way
communication and the ability to send
and receive free-form Internet email text
messages and electronic forms, will
meet the requirements of this rule.
Further, VMS units that were approved
by NMFS prior to January 2008, but that
comply with all of the requirements of
the E–MTU type approval specifications
notice (73 FR 5813; January 31, 2008),
including two-way communication and
the ability to send and receive free-form
Internet email text messages and
electronic forms, will meet the
requirements of this rule. See
ADDRESSES above for information about
viewing or obtaining a list of E–MTU
VMS units that are currently type
approved for use in Atlantic HMS
fisheries. With this final rule, three
MTU VMS units approved by NMFS
prior to January 2008 for use in the HMS
fishery—Trimble Galaxy 7001 and 7005
and Thrane & Thrane Sailor VMS Silver
(68 FR 11534; March 11, 2003)—will not
meet the requirements of this rule
because these units do not possess the
capability for two-way communications
or the ability to send and receive freeform Internet email text messages and
electronic forms. Vessels with one of
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these three units installed will be
required to replace the unit with one of
the approved E–MTUs by March 1,
2012.
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Comments and Responses
NMFS received four written and
numerous verbal comments from nongovernmental organizations, fishermen,
and other interested parties on the
proposed rule. NMFS heard comments
from constituents at five public
hearings. A summary of the comments
received on the proposed rule during
the public comment period is provided
below with NMFS’ response. All written
comments submitted during the
comment period can be found at
https://www.regulations.gov/ by
searching for RIN 0648–BA64.
E–MTU VMS Comments
Comment 1: The replacement of
MTUs with E–MTUs will enhance
enforcement by requiring the best
available technologies for tracking and
communicating with fishing vessels.
Response: Requiring that vessels use
E–MTUs to provide information on the
type of gear possessed onboard and the
target species will provide valuable
information to NMFS enforcement. This
information will aid in determining
which time/area closures and other
regulations apply to a given vessel on a
given trip and will reduce the need to
send enforcement vessels or aircraft to
discern an individual vessel’s activity.
Coupled with the hourly location
reports and the ability to engage in twoway communication with vessels,
E–MTU VMS will be a useful tool to
track and communicate with vessels.
Comment 2: The proposed rule does
not demonstrate a compelling need for
requiring E–MTUs in the PLL fishery.
E–MTUs are not needed as a safety tool
because vessels already have electronic
emergency communication equipment
and MTUs already have the capability of
sending distress messages. In contrast,
NMFS also heard that the use of
E–MTUs can increase safety and
provide a way for owners to monitor
what their boats are doing on the water.
Response: E–MTUs are needed to
have reliable, enhanced communication
with HMS vessels at sea, provide HMS
fishery participants with a means of
sending and receiving information at
sea, ensure that all HMS VMS units are
consistent with the current VMS
technology and type approval
requirements that apply to newly
installed units, and provide NMFS
enforcement with additional
information describing gear onboard
and target species onboard to support
fishery management measures including
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compliance with time/area closures.
Furthermore, one of the issues with
existing MTU VMS units is their
elevated ‘‘failure’’ rates. The two-way
communication capability and
improved reliability of E–MTUs provide
the added benefits of being capable of
sending distress messages and/or
providing context and additional
information prior to sending a distress
message. Additionally, the new E–MTU
units provide a way for the vessel owner
and/or operator to determine if the unit
is working; the previously required
MTU VMS units did not have this
functionality.
The E–MTU VMS units are not
intended as a replacement for existing
electronic emergency communication
equipment, such as Emergency Position
Indicating Radio Beacons (EPIRBs) or
other emergency equipment that have
the capability of sending a distress
message. While some of the existing
MTUs have the capability of sending
distress messages, most do not have this
capability. The ability to engage in twoway communication between vessel
owners on shore and their operators at
sea could facilitate troubleshooting
mechanical issues, allow updates on
market conditions/prices for seafood
products, and could provide owners
with additional peace of mind.
Comment 3: The proposed rule does
not demonstrate a need for vessels to
declare the target fishery and gears
possessed onboard, and NMFS should
not require these declarations because
they are unnecessary and redundant
with other reporting requirements.
Response: In HMS fisheries, many of
the management measures, including
closed areas, are applicable to certain
gear types and some only apply at
certain times of year. Providing a
declaration that includes the gear
possessed onboard prior to embarking
on a fishing trip is useful for NMFS
enforcement officials when they are
evaluating which management measures
apply to a particular vessel during a
particular trip.
Comment 4: The need for requiring
E–MTUs in the PLL fishery does not
justify the financial expense and burden
that the requirement will have on
fishermen.
Response: The enhanced
communication capability of E–MTUs
will facilitate enhanced communication
with HMS vessels at sea, provide HMS
fishery participants with a means of
sending and receiving information at
sea, ensure that all HMS VMS units are
consistent with the current VMS
technology and type approval
requirements that apply to newly
installed units, and to provide NMFS
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enforcement with additional
information describing gear onboard
and target species onboard to support
fishery management measures including
compliance with time/area closures.
Fishing vessels possessing pelagic
longline gear onboard are already
required to have a functioning VMS
onboard. Older MTUs are not supported
by the current NMFS VMS type
requirements, thus when units are
replaced, they must be replaced with
E–MTUs regardless of this final rule.
Experience using E–MTU VMS units in
other fisheries indicates that they
require less maintenance than MTU
VMS units. Installing the E–MTU VMS
units may reduce maintenance costs and
lost fishing time because of system
failure compared to MTU VMS units.
Currently, the Agency has
reimbursement funds available that
vessel owners may receive to offset the
costs of purchasing an E–MTU VMS
unit. Reimbursement funds are subject
to availability. The additional cost of
two-way reporting and installation of E–
MTUs by a qualified marine electrician
on average is expected to equal $745/
vessel (including $400 for installation)
in the first year. Installation costs will
vary depending on proximity to a
qualified marine electrician. Estimates
for transmission costs (declaration and
location reports) represent the
maximum financial burden that could
be incurred by vessels because it is
based on the maximum amount of
fishing time vessels could be active.
However, vessels often fish less
frequently depending on seasons, fish
availability, moon phase, and
opportunities in other fisheries so actual
costs may be less. The Agency is
mitigating the economic impacts to
participants by making some
reimbursement funds available for
E–MTU units and by delaying the
implementation date to provide
fishermen with additional time to
comply with the requirements. Vessel
owners that participate in other fisheries
deploying the same fishing gear may
already be required to use E–MTU VMS;
therefore, the economic impacts to some
participants may be negligible.
Comment 5: The requirement to use
E–MTUs in the PLL fishery
disadvantages U.S. fishermen compared
to foreign competitors. The cumulative
effect of this and other regulations on
the PLL fishery will result in a bankrupt
fishery.
Response: VMS requirements are
currently in place in many U.S. fisheries
and are also required by Regional
Fisheries Management Organizations. In
the United States, requirements to use
VMS for PLL vessels were implemented
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in response to requirements of other
domestic laws, including the MSA,
Endangered Species Act (ESA), and the
Marine Mammal Protection Act
(MMPA). In addition, ICCAT has a VMS
requirement for contracting parties. The
Agency is reducing the economic
impacts of this rule on fishermen by
delaying the implementation date and
by providing some reimbursement funds
for the E–MTU units.
Comment 6: Civil liberties are
violated by mandating the use of vessel
tracking devices and requiring a
separate line of communication using
E–MTUs only compounds that
violation.
Response: VMS units are required
only of people who have sought out an
HMS permit, the possession and use of
which comes with certain obligations
and responsibilities under law.
Maintaining a valid HMS permit
requires vessel owners and operators to
comply with all applicable regulations
for participation in HMS fisheries. VMS
units are a tool to ensure compliance
with regulations in HMS fisheries and
have been required since 2003. The
position and certain other data collected
from VMS are subject to MSA
confidentiality provisions and
protections, which prevent
inappropriate disclosure (see 18 U.S.C.
1881a(b)). VMS requirements are
currently in place in many U.S. fisheries
and are also required by Regional
Fisheries Management Organizations.
Comment 7: Some small vessels may
not have enough room to mount an
E–MTU.
Response: The Agency is aware of this
issue, particularly for shark vessels
fishing with bottom longline or gillnet
gear that are subject to VMS
requirements. There are several models
of E–MTU VMS units available that
range in size, some of which are quite
small. Often the largest or most bulky
part of the E–MTU VMS system is the
screen or messaging terminal; however,
this depends on the model. It may be
possible to find a screen that is smaller
in size and may be more appropriate for
mounting on smaller vessels.
Comment 8: NMFS should allow the
declaration of target species and fishing
gears possessed to be made by phone.
Some small fishing vessels remain
within cell phone range throughout
their fishing trip. Allowing declaration
by phone could remove the need for
E–MTUs for these vessels and could
result in less additional burden than
requiring E–MTUs.
Response: E–MTU VMS terminals
represent a more reliable means of
communication than cellular phones
because they use satellites rather than
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cell towers as the principle means of
transmitting data. Furthermore, vessels
need to provide position reports every
hour when they are away from port, and
cell phones cannot consistently provide
that capability. The E–MTU VMS units
represent a more reliable means of
providing position reports and also
allow two-way communication in the
event that NMFS enforcement needs to
contact a vessel concerning an
emergency closure, adverse weather, or
other issue.
Comment 9: Gulf of Mexico reef fish
vessels are already using E–MTUs;
however, the Boatracs model is not
authorized for use in HMS fisheries.
Will vessels that also have shark permits
need to replace these units? If so, the
small businesses that own these vessels
may have difficulty purchasing an
additional E–MTU.
Response: NMFS administers a
process for updating E–MTU type
approval for specific fisheries. NMFS is
investigating the possibility of Boatracs
E–MTUs meeting NMFS type approval
for Atlantic HMS fisheries. The Agency
will provide updates regarding
additional units being added to the list
of type approved devices as necessary.
Comment 10: Will Gulf of Mexico
vessels that have already been
reimbursed for an E–MTU that is not
type approved for Atlantic HMS
fisheries be eligible for reimbursement
when an E–MTU required for
participation in Atlantic HMS fisheries
is installed?
Response: Vessels currently are
eligible to receive reimbursement for the
costs of an E–MTU that satisfies the type
approval requirements for the fishery.
Some E–MTUs that are type approved
for use in non-HMS Gulf of Mexico
fisheries are also type approved for
Atlantic HMS fisheries. Generally, the
owner of a vessel is only eligible for
reimbursement for one E–MTU per
vessel. Vessel owners should contact
NMFS enforcement if they have
questions about VMS installation and
reimbursement procedures.
Comment 11: The use of E–MTUs can
increase safety and provide a way for
owners to monitor what their boats are
doing on the water.
Response: NMFS agrees for reasons
outlined in the response to comment
number 2 above, but reiterates that the
E–MTU VMS units are not intended as
a replacement for Emergency Position
Indicating Radio Beacons (EPIRBs) or
other emergency equipment that have
the capability of sending a distress
message.
Comment 12: NMFS should not have
reporting requirements beyond those
required by ICCAT.
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75495
Response: NMFS implements VMS
requirements pursuant to federal laws,
including the MSA, ESA, and MMPA,
and also taking into consideration
relevant ICCAT recommendations.
Comment 13: NMFS is displaying
favoritism by requiring E–MTUs for the
purpose of increasing safety if they do
not implement similar requirements
across all Atlantic HMS fisheries.
Response: NMFS is not requiring
E–MTUs solely to increase safety. The
purpose of this final rule is to enhance
communication capability in the
Atlantic HMS fisheries that are
currently required to use VMS. When a
vessel declares the type of gear
possessed onboard and target species,
useful information is provided to NMFS
enforcement, which enables
enforcement to determine which
regulations apply. Other potential
benefits of using E–MTU VMS at sea
instead of MTUs include improved
reliability, reduced maintenance costs,
and two-way communication (email
messages) if a vessel were experiencing
conditions that may endanger the safety
of the vessel or the crew during fishing
activities. E–MTU VMS units are not
intended to replace EPIRBs or other
safety equipment that can be used to
transmit a distress signal and vessel
position information.
Comment 14: An upgrade to E–MTUs
should only be required if the MTU on
a vessel is old.
Response: E–MTUs provide enhanced
communication that will support fishery
management measures. When vessels
declare the fishing gear onboard and
target species using an E–MTU, NMFS
enforcement officials will know which
regulations apply to that particular
vessel during that particular trip. MTUs
do not provide this type of enhanced
communication and are only capable of
providing position information. The
E–MTU VMS units also provide vessel
operators with confirmation that the
unit is functioning properly, which was
not always possible with MTU VMS
units.
Comment 15: The enhanced units
have a level of complexity far exceeding
the old systems. This may result in an
increased rate of system failure. When
E–MTUs fail, the cost of shipping them
to service agents has been an economic
and logistical burden. The lost fishing
time while waiting for repairs has been
costly.
Response: NMFS has not experienced
increased system failures with the
E–MTUs that are currently type
approved in other fisheries. Rather,
NMFS enforcement reports that the rate
of system failure is less than that of
MTUs. NMFS expects that there will be
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a reduction in lost fishing time as a
result of system failure at port or at sea
by requiring that E–MTU VMS units be
installed by a qualified marine
electrician in HMS fisheries.
Hail-Out and Hail-In Declaration
Comments
Comment 16: NMFS should require
vessels in the Atlantic HMS fleet to
declare their target fishery and gear two
hours before leaving port and provide
three hours of advanced notice of
landing.
Response: NMFS agrees. Requiring
the declaration of fishing gear possessed
and target species facilitates
enforcement and monitoring by
allowing NMFS enforcement to know
what fisheries regulations, such as
closed areas, apply for the vessel during
a given fishing trip. The final rule will
require that vessels declare target
species and fishing gear onboard two
hours prior to leaving port and notify
the Agency of their intended landing
location three hours prior to returning to
port.
Comment 17: Fishermen cannot
declare their target catch two hours in
advance of their fishing trip because
they do not know what they are going
to catch ahead of time. It should be
sufficient that NMFS knows HMS are
generally targeted by a PLL vessel that
is permitted in Atlantic HMS fisheries
when the vessel departs on a fishing
trip. This basic information is known by
the VMS track provided by a MTU.
Response: It is the Agency’s intention
for vessel operators to declare the type
of fishing gear possessed and target
catch by species groups to facilitate the
effectiveness of fishery management
measures through improved
enforcement efforts. The Agency
realizes that fishing is opportunistic and
it may not be possible to list all species
that may be encountered and retained
on any particular trip. There may be
instances where the vessel possesses
multiple gear types and would target
(and declare) multiple species groups,
which would be acceptable. The E–
MTU VMS units have the capability to
report all of this information. This
information will augment the location
information provided by VMS units to
discern which fisheries regulations are
applicable.
Comment 18: It is not practical for
fishing vessels that make trips less than
three hours in length to hail in three
hours in advance of landing.
Response: The hail-in requirement is
necessary to facilitate enforcement of
fishery regulations by providing
adequate time for an enforcement agent
to meet a vessel at the dock. Vessels that
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anticipate a fishing trip less than three
hours in length must, prior to departure,
provide a hail-in declaration stating
where they intend to return to port at
least three hours in advance of landing.
If the vessel’s fishing trip deviates from
the original declaration, then a
subsequent hail-in message can be sent
using the E–MTU unit.
Comment 19: NMFS should keep the
amount of required text characters in a
message to a minimum because of the
expense of these messages.
Response: NMFS anticipates that text
messages will be minimal in length.
Most, if not all communications, will
occur via electronic forms that are filled
with the use of inexpensive drop-down
menus. Costs for transmitting
information using the E–MTU are
minimal and are approximately $0.06
per message (both sent and received).
Messaging cost varies slightly by service
provider.
Comment 20: If NMFS requires hailin notification, any confirmation from
NMFS back to the vessel needs to occur
quickly. NMFS should not expect boats
to sit at idle while waiting for a
confirmation code before they can tie up
to the dock. This situation currently
occurs in southeast reef fish fisheries.
Response: This final rule does not
require that vessels obtain a hail-in
confirmation number from NMFS prior
to landing and the vTrack system does
not contain a mechanism to send back
a specific confirmation number. Rather,
vessels will receive an on-screen
confirmation from the vendor that the
prelanding notice was successfully
transmitted, which should occur
without delay.
Comment 21: NMFS should allow
changes to the declaration because
fishermen sometimes have incidental
catches of species not listed on their
initial declaration.
Response: Declaration of target
species will be for species groups and is
not intended to capture all species that
a vessel lands. If the vessel switches to
a gear type or species group not reported
on the initial declaration, another
declaration must be submitted before
fishing begins.
E–MTU Reimbursement Comments
Comment 22: Requiring vessel owners
to outlay the cost of an E–MTU (up to
$3,100) before the money is reimbursed
is a real hardship.
Response: NMFS understands that the
initial outlay of the cost of an E–MTU
and installation by a qualified marine
electrician is burdensome for fishermen.
In order to mitigate the economic
impacts, NMFS is delaying
implementation of the requirement to
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purchase and install an E–MTU until
March 1, 2012, in order to provide time
for fishermen to save for this initial
outlay of money.
Comment 23: The allowable
reimbursement amount of $3,100 is not
enough money to reimburse fishermen
fully for the total cost of this
requirement. NMFS should make
reimbursement funds available for any
fees incurred by breaking existing
contracts.
Response: The reimbursement amount
of up to $3,100 should cover the cost of
the least expensive E–MTU that meets
the NMFS type approval. All of the
costs associated with existing MTU
units were incurred by PLL fishermen.
Consistent with existing policy, NMFS
will not pay for installation or any
subsequent transmission costs.
Reimbursement of the cost of an E–MTU
will help fishermen with the rule’s
financial burden. Reimbursement is not
available to cover any cost related to
changes to contracts incurred by vessels
transitioning to E–MTU VMS. NMFS is
not aware of any fees being incurred by
participants as a result of switching
from MTU to E–MTU VMS units.
Comment 24: NMFS should ensure
that sufficient funding is available to
reimburse all eligible fishery
participants for an E–MTU.
Response: Reimbursement funds are
available on a first-come, first-served
basis as long as the funds last. In recent
years, the reimbursement fund has been
adequately funded to cover all eligible
requests; however, this funding level is
not guaranteed.
Delayed Implementation of E–MTU
Requirement
Comment 25: NMFS should make the
rule effective at a time when fishing
activity is slowest so the burden on
fishermen is the least.
Response: This final rule is expected
to publish and be implemented during
the winter of 2012, which coincides
with a period of reduced fishing activity
for most Atlantic HMS fisheries affected
by the regulation.
Comment 26: NMFS should allow up
to 6-months for a phased-in period of
implementation. Delayed
implementation of the E–MTU
requirement would ease the economic
burden by allowing fishermen more
time to save money for the unit and
could prevent manufacturer’s
inventories of E–MTUs from becoming
depleted and the filling of orders from
being delayed. Delayed implementation
would also allow existing MTU service
contracts to expire.
Response: NMFS is issuing this final
rule with a delayed effective date of
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about 90-days in order to minimize the
financial burden to fishermen as a result
of compliance with the new regulation.
The selected delayed effective dates
coincide with a period of reduced
fishing activity for many HMS
participants affected by the new
requirement. A delayed effective date
balances the need for fishermen to save
money for the initial outlay to procure
the unit with the need to expedite the
requirement so fishermen are ensured
access to the reimbursement. A 6-month
phase in period, as suggested by the
public comment, would increase the
likelihood that reimbursement funds are
not available to fishermen, thus was not
chosen. The delayed implementation
date would also allow vendors of type
approved E–MTUs to ensure they have
an adequate supply of units in stock.
NMFS has contacted vendors of type
approved E–MTUs and an adequate
supply exists for Atlantic HMS
participants affected by this
requirement.
rule. NMFS should consider having
VMS units installed by a capable, but
unspecified, technician.
Response: By requiring E–MTU
installation by a qualified marine
electrician, NMFS intends to provide
some flexibility for fishermen in
choosing a business that is relatively
convenient while ensuring that it is
someone qualified to install E–MTU
VMS units. It is important that someone
familiar with these units and marine
electronics complete the installation
and fill out the VMS installation
checklist because the checklist provides
NMFS enforcement with important
information concerning the installation
and results in improved troubleshooting
capability should problems occur.
NMFS revised the estimate for an
average E–MTU installation by a
qualified marine electrician to $400.00
instead of $200.00, which was originally
analyzed in the Initial Regulatory
Flexibility Analysis and proposed rule
based on public comment.
Installation by a Qualified Marine
Electrician Comments
Comment 27: Installation by a
qualified marine electrician will
minimize the chance of equipment
failure at sea.
Response: NMFS agrees. One purpose
of requiring installation by a qualified
marine electrician is to ensure the
reliability of E–MTUs and the
information they provide to NMFS.
Comment 28: It is difficult to believe
that self-installation has been a frequent
cause of VMS unit failure instead of
mechanical malfunction of the unit.
Response: NMFS enforcement has
documented instances of VMS unit
failure due to improper installation by
an unqualified person. Not all persons
associated with a vessel that might
install an E–MTU are familiar with the
specific electronic and mechanical
requirements of E–MTU installation.
Installation of E–MTUs by a qualified
marine electrician is necessary to ensure
the units function properly. Units that
fail at sea may impact fishing activities
and result in lost revenues because
vessels may need to return to port
during a fishing trip to deal with VMS
issues.
Comment 29: Requiring that the
enhanced units be installed by a
qualified marine electrician is not
practical because there are a limited
number of qualified marine electricians
with experience installing E–MTUs and
because of the long distance that a
qualified marine electrician would have
to travel in some areas. The cost of
travel for the installer will be more than
the $200.00 estimated in the proposed
General VMS Comments
Comment 30: Fishermen should not
be held responsible for any VMS
equipment failure because of the
complexity of the units.
Response: NMFS disagrees.
Fishermen that are required to use VMS
are responsible for ensuring that their
units are functioning properly during
fishing activities just as they would be
for any other fishing equipment on their
vessels. Because of the complexity of
the units and the problems that may
occur subsequent to installation by an
inexperienced person, NMFS is
requiring that E–MTU units be installed
by a qualified marine electrician.
Comment 31: NMFS should not
increase use of electronics to enforce
regulations.
Response: Enforcement of fisheries
regulations using electronic tools such
as VMS is a proven, cost effective
method. The requirements of this final
rule will enhance communication
between fishing vessels and NMFS to
strengthen VMS as an enforcement tool
with benefits to both NMFS, through
improved data availability, and
fishermen, through increased reliability
and increased ability to communicate
with enforcement, thereby avoiding
compliance issues. The enhanced
reliability and two-way communication
capabilities of E–MTU VMS may also be
an effective tool for improving safety at
sea because communication between
fishing vessels and NMFS enforcement/
and Coast Guard (describing the vessels’
circumstances) can be initiated prior to
the need to send a distress signal.
However, E–MTU VMS units are not
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75497
intended as a replacement for
Emergency Position Indicating Radio
Beacons (EPIRBs) or other emergency
equipment that have the capability of
sending a distress message.
Comment 32: VMS equipment is not
made for boats and regularly fails at sea.
Response: The E–MTU units that are
type approved for use in Atlantic HMS
fisheries are designed and marketed
exclusively for use in the marine
environment. VMS has proven to be an
effective tool for monitoring vessel
position and two-way communication.
VMS is used in many other federally
managed fisheries in the United States
and throughout the world. NMFS
enforcement has documented numerous
instances where the MTU VMS
currently being used in HMS fisheries
have failed at sea. The E–MTU units
themselves have demonstrated that they
are more reliable at sea than the MTU
units. Furthermore, requiring that
installation is conducted by a qualified
marine electrician is also expected to
improve performance.
Comment 33: Who is authorized to
repair E–MTUs? Nearly all of the type
approved units are manufactured abroad
(Norway, Denmark, and Canada). Will
fishermen be burdened by having to get
their E–MTUs serviced at foreign
locations?
Response: Specific information
concerning E–MTU service and repair
should be attained through the
authorized dealer from which the
original unit was purchased. The
location and availability of service and
repair companies varies by VMS
manufacturer; however, the experience
in other federally managed fisheries is
that some units can be repaired by
technicians within the United States
without the need to send units to
foreign locations. In some cases,
E–MTUs may have software repairs
conducted remotely via two-way
communication, which can reduce cost
and repair time. The Agency is
preparing a compliance guide that will
provide additional information on the
locations of authorized dealers and
service providers.
Comments Outside the Scope of the
Rule
Comment 34: NMFS needs to reexamine the rationale for prohibiting
fishing when a vessel’s VMS unit is not
working and the vessel is far from a
closed area.
Response: A properly operating VMS
is required and necessary to verify the
location of a vessel, regardless of its
location, to ensure that it is not fishing
in closed areas.
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Comment 35: NMFS should expand
this rule to implement reporting
requirements, observer coverage,
increased enforcement, and VMS
requirements in the Atlantic Tunas
General category fishery commensurate
with requirements and level of
enforcement in the PLL fishery.
Response: Regulations are in place for
the Atlantic Tunas General permit
fishery including, but not limited to,
permitting, authorized gears, retention
and size limits, and reporting
requirements. In the Gulf of Mexico,
Atlantic Tunas General permit holders
cannot engage in directed fishing for
bluefin tuna and possession of bluefin
tuna is not authorized. Therefore, NMFS
determined that additional requirements
for Atlantic Tunas General Category
permitted vessels within the scope of
this final rule are not necessary at this
time.
Comment 36: ICCAT
recommendations require VMS on
vessels greater than 24 m Length Overall
(LOA), yet NMFS requires VMS on
vessels according to the gear they
possess and not vessel length.
Implementing VMS requirements in this
way excludes the largest percentage of
U.S. Atlantic HMS vessels and
selectively enforces ICCAT VMS
requirements on a small percentage of
commercial HMS permit holders.
Response: VMS requirements,
implemented under the authority of the
MSA, facilitate enforcement of closed
areas in the U.S. EEZ for certain gear
types (PLL, BLL, and gillnet) at certain
times of year (specific to gear type and
location). These closed areas apply to
vessels in possession of a certain gear
type regardless of the vessel size or
length. NMFS may consider additional
monitoring requirements for Atlantic
HMS fisheries in the future.
Comment 37: NMFS should require
E–MTUs to be used by Atlantic HMSpermitted vessels that use gears other
than PLL, BLL, and gillnet so that twoway communications and the ability for
real-time reporting of landings will be in
place throughout Atlantic HMS
fisheries.
Response: NMFS is considering
alternative methods for improving the
timeliness and quality of information
collected throughout Atlantic HMS
fisheries.
Comment 38: In order to increase
safety at sea, NMFS should allow PLL
vessels to fish in closed areas along the
east coast during winter months when
sea conditions make fishing farther from
shore more dangerous. NMFS should
also make the PLL closed areas smaller
so that they are easier to enforce.
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Response: This comment is not
germane to this rulemaking. However,
NMFS continues to evaluate the
effectiveness of time/area closures and
their impacts, and may make changes, if
appropriate.
Comment 39: NMFS should consider
using E–MTUs in lieu of observer
coverage in order to get better scientific
data.
Response: VMS units and observers
are both important tools in fisheries
management; however, they provide
different information to fishery
managers and enforcement officials.
VMS units are primarily an enforcement
tool and provide important information
about location and allow self-reported
fisheries data from vessels to fisheries
enforcement officers. Observers are not
used for enforcement of fisheries
regulations; rather, they provide
valuable information about catch,
discards, effort, and fishing gear (among
other things) to fisheries managers.
NMFS may consider options for using
E–MTU VMS to report landings or
discards in a future rulemaking.
Comment 40: NMFS should not have
comment periods shorter than 60 days,
with the exception of emergency
actions, to allow fishermen ample time
to participate in the regulatory process.
Response: NMFS strives to provide
adequate time for fishermen to provide
public comments consistent with legal
obligations. Public hearings are
scheduled at locations that are designed
to be accessible to members of the
public, including fishermen, who are
interested in the subject matter.
Comments may be submitted in person
at public hearings, electronically via
https://www.regulations.gov, via fax, or
by mail.
Comment 41: NMFS should reduce
the frequency of VMS reports from 24 to
no more than six per day.
Response: The current frequency of
VMS reports (1 per hour) has been
implemented to monitor closed or gearrestricted areas. The required frequency
is necessary to provide NMFS
enforcement with enough information to
substantiate what fishing gear is being
used based on vessel track, location of
the fishing gear, and location of the
vessel in relation to closed areas. If the
frequency of reporting is reduced, then
it may limit NMFS enforcement’s ability
to monitor fishing activities adjacent to
closed areas, thus compromising the
effectiveness of closed areas.
Changes From the Proposed Rule
The estimates of costs associated with
installation of E–MTU VMS units
increased from $200 to $400 based on
public comment on the Initial
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Regulatory Flexibility Analysis. A minor
change to the paragraph at § 635.69(a)
has been made to better describe what
a NMFS-approved E–MTU VMS is and
to reference the type approval
requirements that were published in the
Federal Register. A minor change to the
paragraph at § 635.69 (a) has been made
to clarify the implementation dates of
this final rule.
Classification
The NMFS AA has determined that
this final action is consistent with the
Magnuson-Stevens Act, 2006
Consolidated Atlantic HMS FMP and its
amendments, ATCA, and other
applicable law.
This final rule has been determined to
be not significant for purposes of
Executive Order 12866.
This final rule would modify a
collection-of-information requirement
associated with VMS use in Atlantic
HMS fisheries subject to the Paperwork
Reduction Act (PRA), and that has been
approved by the Office of Management
and Budget (OMB) under control
number (0648–0372). The modifications
are subject to review and approval by
OMB under the Paperwork Reduction
Act (PRA). There would be 329 vessel
owners (respondents) that may be
affected by this collection. Public
reporting burden for having the E–MTU
VMS units installed by a qualified
marine electrician (4 hours, one-time),
submitting a checklist (completed by a
qualified marine electrician) (5 minutes,
one-time), and providing declaration
reports before and after leaving port (5
minutes/declaration, ongoing) is
estimated to result in an estimated total
annual burden of 4,452 hours in the first
year. A total of 48,358 responses
(checklists and declaration reports)
would be collected in the first year. The
annual burden would decrease in
subsequent years because the
installation and submission of a
completed checklist would be one-time
burdens. Table 1 provides estimates of
the number of participants affected by
this collection and the financial burden
associated with this action in year one
and subsequent years.
Environmental impacts are not
expected and the action is within the
scope of that previously analyzed when
existing VMS requirements were
implemented (64 FR 29090; May 28,
1999; and 68 FR 74746; December 24,
2003). This action would not directly
affect fishing effort, quotas, fishing gear,
authorized species, or interactions with
threatened or endangered species.
NMFS has prepared a Final
Regulatory Flexibility Analysis (FRFA),
as required by 5 U.S.C. Section 604 of
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the Regulatory Flexibility Act, to
analyze the economic impacts that this
final rule will have on small entities. A
description of the final action, why it is
being implemented, and the legal basis
for this action are contained in the
preamble to this proposed rule. A
summary of the analysis follows. A copy
of the complete analysis is available
from NMFS (see ADDRESSES).
Section 604(a)(1) of the Regulatory
Flexibility Act requires that the Agency
describe the need for, and objectives, of
the final rule. The purpose of this final
rule is, consistent with the MagnusonStevens Act and the 2006 Consolidated
HMS FMP and its amendments, to aid
NMFS in monitoring and enforcing
fisheries regulations, including those
implemented at 50 CFR part 635.
Specifically, this final action will
facilitate enhanced communication with
HMS vessels at sea, provide HMS
fishery participants with a means of
sending and receiving information at
sea, ensure that HMS VMS units are
consistent with the current VMS
technology and requirements used in
other U.S. VMS monitored fisheries, and
to provide NMFS enforcement with
additional information describing gear
onboard and target species.
Section 604(a)(2) requires a summary
of the significant issues raised by the
public comments in response to the
Initial Regulatory Flexibility Analysis
(IRFA) and a statement of any changes
made in the proposed rule as a result of
such comments. The Agency received
comments concerning the Initial
Regulatory Flexibility Analysis stating
that the Agency’s estimate of $200 for
installation of E–MTU VMS units by a
qualified marine electrician was not
appropriate for vessels that may be
docked at remote ports far from larger
population centers because of the travel
time necessary for a qualified marine
electrician. As a result, the estimate for
installation of E–MTU VMS units by a
qualified marine electrician has been
increased from $200 to $400 in response
to these comments. Estimates of the
economic impacts of compliance with
the final regulations have been updated
in the FRFA and final rule.
Comments were also received on the
delayed implementation date discussed
in the IRFA and proposed rule. The
Agency is implementing a delayed
implementation date to mitigate
economic impacts and provide
stakeholders with some additional time
to get new E–MTU units installed and
operating. Commenters asked for
additional time, up to six months, to
comply with the new requirements and
for the effective date to coincide with a
period of low fishing activity. NMFS is
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implementing this final rule with two
effective dates. As of January 1, 2012, all
E–MTU VMS units must be installed by
a qualified marine electrician. As of
March 1, 2012, vessel owners and/or
operators must have an E–MTU VMS
unit installed on their vessel and must
use the unit to provide position reports,
declare target species and fishing gear
possessed onboard two hours prior to
departing on a fishing trip, and provide
notification of landing three hours in
advance of returning to port. The
selected delayed effective dates coincide
with a period of reduced fishing activity
for many HMS participants affected by
the new requirement. This date also
balances the need for fishermen to save
money for the initial costs of buying the
unit with the need to expedite the
requirement so fishermen are ensured
access to the reimbursement. A 6-month
phase in period, as suggested by the
public comment, would increase the
likelihood that reimbursement funds are
not available to fishermen, thus was not
chosen. The delayed implementation
date would also allow vendors of type
approved E–MTUs to ensure they have
an adequate supply of units in stock.
Under section 604(a)(3), Federal
agencies must provide an estimate of the
number of small entities to which the
rule would apply. The Small Business
Administration (SBA) standards for a
‘‘small’’ versus ‘‘large’’ business entity
are entities that have average annual
receipts less than $4.0 million for fishharvesting; average annual receipts less
than $6.5 million for charter/party
boats; 100 or fewer employees for
wholesale dealers; or 500 or fewer
employees for seafood processors.
Under these standards, NMFS considers
all HMS permit holders subject to this
rulemaking to be small entities. This
action would apply to all 249
participants in the Atlantic HMS pelagic
PLL fishery, 50 participants in the shark
bottom longline (BLL) fishery, and 30
participants in the shark gillnet fishery.
These permit estimates are based on
October 2010 permit data and fisheryspecific assumptions to determine the
potential affected universe of
participants. Atlantic HMS PLL vessels
are required to use VMS year-round
whenever they are away from port. The
number of vessels was determined by
adding the number of swordfish
directed (177) and incidental (72)
permit holders. One of these permits is
required to retain swordfish with PLL
gear and the majority of swordfish
fishermen with those permits use PLL
gear. The estimate for BLL participants
was derived by adding the number of
shark incidental and directed permit
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75499
holders residing in states adjacent to the
Mid-Atlantic closed areas, including:
Virginia (3), North Carolina (28), and
South Carolina (19). The estimate for
shark gillnet vessels was based on
recent analysis conducted in
Amendment 3 to the Consolidated
Atlantic HMS FMP, which determined
that there were 30 directed permit
holders fishing with shark gillnet gear.
All of these vessel owners are
commercial fishermen and considered
small entities. Depending on the fishing
gear possessed on board, vessels will
continue to use VMS units when away
from port to provide location reports
consistent with existing regulations.
These vessels will also be required to
declare target species and gear types
possessed on board to NMFS
enforcement prior to leaving port and
then provide NMFS enforcement
advanced notice of landing. The
position reports, fishery declaration,
and return reports must be sent via an
E–MTU VMS unit.
Under section 604(a)(4), Federal
agencies must provide a description of
the projected reporting, recordkeeping,
and other compliance requirements of
the rule. The final action will require
that the small entities (commercial
fishermen) procure an approved E–MTU
VMS unit and have the new units
installed by a qualified marine
electrician. A form describing the
technical specifications of the unit will
be filled out by the qualified marine
electrician and then submitted to NMFS
enforcement by the vessel owner. This
represents a slight deviation from
existing protocols for installation of
VMS units. Currently, vessel owners
themselves are able to complete the
installation and then submit the
checklist.
The E–MTU VMS units allow for twoway communication, including the
ability to send and receive electronic
messages. Consistent with existing
regulations, fishermen would be
required to send hourly location reports
while they are away from port using the
VMS units. Additionally, the final rule
contains some new reporting and
compliance requirements using the
E–MTU VMS units in addition to
providing location reports. Vessels will
be required to send an electronic
message to NMFS enforcement two
hours prior to departing the dock and
describe target species and what fishing
gear(s) will be possessed on board the
vessel. Creating a fishery declaration
system will allow NMFS enforcement
officials to more accurately track and
monitor vessels for compliance in
specific fisheries. The new declaration
system will be compatible with the
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capabilities of newly required E–MTU
VMS units. Additionally, the
requirement to notify NMFS
enforcement at least three hours prior to
returning to port provides notification
that fishing activities are being
completed, and the vessel is transiting
back to port.
Under section 604(a)(5), agencies are
required to describe any alternatives to
the rule which accomplish the stated
objectives and which minimize any
significant economic impacts. Economic
impacts are discussed below and in the
Environmental Assessment for the
actions that initially established VMS
requirements. Additionally, the
Regulatory Flexibility Act (5 U.S.C. 603
(c)(1)–(4)) lists four general categories of
significant alternatives that would assist
an agency in the development of
significant alternatives. These categories
of alternatives are: (1) Establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) clarification, consolidation,
or simplification of compliance and
reporting requirements under the rule
for such small entities; (3) use of
performance rather than design
standards; and, (4) exemptions from
coverage of the rule for small entities.
In order to meet the objectives of this
final rule, consistent with the
Magnuson-Stevens Act, NMFS cannot
exempt small entities or change the
reporting requirements only for small
entities because all of the participants in
Atlantic HMS fisheries are considered
small entities. The requirements to have
an updated E–MTU VMS unit installed
by a qualified marine technician and
expand reporting requirements to
include a declaration system is expected
to improve the reliability of VMS
transmissions and provide NMFS
enforcement with additional
information to accurately monitor
fishing activities. NMFS does not
specify a particular manufacturer or
model of VMS unit that vessel owners
would need to procure to comply with
the final action. As noted above, there
are several models available that meet
the specifications described in the latest
type approval notice (73 FR 5813;
January 31, 2008). A list of E–MTU VMS
units that are currently type approved
for use in Atlantic HMS fisheries is
available on the NMFS Office of Law
Enforcement Web site at https://www.
nmfs.noaa.gov/ole/docs/2011/07/noaa_
fisheries_service_type_approved_vms_
units.pdf. Copies of this list and other
information may be obtained by
contacting the VMS Support Center at
(phone) (888) 219–9228, (fax) (301) 427–
0049, ole.helpdesk@noaa.gov, or write
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to NMFS Office for Law Enforcement,
VMS Support Center, 8484 Georgia
Avenue, Suite 415, Silver Spring, MD
20910.
NMFS considered two alternatives in
compliance with the Regulatory
Flexibility Act. Alternative one, the no
action alternative, would maintain the
existing VMS requirements in Atlantic
HMS fisheries. Alternative two, the
preferred alternative, would mandate
that Atlantic HMS vessels that are
required to use VMS replace their MTU
VMS unit with an E–MTU VMS by
March 1, 2012, and have the new unit
installed by a qualified marine
electrician. This alternative would also
implement a fishery declaration system
where vessels would declare their target
species and gear type(s) possessed
onboard, as well as require vessels to
provide advanced notice of departure
and landing. Alternative two is the
preferred alternative.
Under the no action alternative,
vessels that are required to use VMS
would be able to continue to use the
MTU VMS units currently being
employed in the PLL, BLL, and gillnet
fisheries or access reimbursement funds
($3,100 per VMS unit) to voluntarily
replace these units with E–MTU VMS
units. The decision to replace existing
units with E–MTU VMS units would be
at the discretion of individual vessel
owners. In the event that existing units
failed beyond repair, E–MTU VMS units
would need to be installed, and owners
would be eligible for reimbursement
funds ($3,100 per VMS unit) to offset
the initial costs of the unit. Costs for
individual E–MTU VMS units that meet
the type approval specifications start at
approximately $3,100 per unit
depending on the manufacturer, model,
and additional features of the unit.
NMFS expects that any vessel owner
who applies for reimbursement funds
will receive those funds; however,
reimbursement funds are not guaranteed
and are subject to limitations and
distributed on a first-come, first-serve
basis. In the event of necessary
replacement, the E–MTU VMS units
would need to be procured by vessel
owners before returning to fishing
activities, consistent with existing
regulations, depending on the gear
possessed onboard the vessel, timing,
and location of the fishing activity. This
alternative would not require that the
new units be installed by a qualified
marine electrician. Rather, the new
units could be installed by vessel
owners/operators and an installation
checklist would need to be completed
and sent to NMFS enforcement per
existing requirements.
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Under the no action alternative, vessel
owners or operators would not be
required to provide NMFS enforcement
with information concerning target
species and gear possessed on board
prior to leaving port to engage in fishing
activities. Furthermore, vessel owners or
operators would not be required to
provide NMFS enforcement with
advanced notice of departure and
landing. Vessels would still be required
to provide hourly position reports,
starting two hours before leaving port,
when away from port. It is estimated
that these reports would continue to
cost $1.00 per day assuming 24 reports
are sent. Maintenance costs for these
units are estimated at $500 per vessel
per year. Some vessels may be
committed to long-term service
contracts with communication service
providers and maintaining the status
quo would not require vessels to break
these contracts, avoiding any early
termination fees. Unlike the MTU VMS
units, which could have maintenance
costs of approximately $500 per year,
E–MTU VMS units have very low to no
maintenance costs.
Under the preferred alternative,
fishery participants would be required
to replace by March 1, 2012, MTU VMS
units with E–MTU VMS units
(including approximately 80 to 100
fishery participants that would replace
MTUs with E–MTUs), however they
would be able to access reimbursement
funds ($3,100 per VMS unit) to offset
the initial costs of the units.
Reimbursement funds would be subject
to limitations and distributed on a firstcome, first-serve basis. Furthermore,
individuals that have previously
received reimbursement funds for an E–
MTU VMS unit required in another
fishery would not be eligible for
additional funds. In the IRFA, the
Agency estimated that the proposed
action require that the units be installed
by a qualified marine electrician ($200
per installation) to ensure that units are
installed and operating properly to
avoid transmission failures that may
occur when vessels are away from port
and subject to VMS requirements. The
Agency received several public
comments indicating that an estimate of
$200 for installation may not be
appropriate for vessels that are docked
in remote ports that are far from large
population centers. Therefore, the
Agency has revised its estimate for
installation by a qualified marine
electrician from $200 to $400 consistent
with public comments received. Marine
electricians are also capable of
providing information on E–MTU VMS
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use and troubleshooting during the
installation process.
NMFS is also planning on delaying
the implementation date in order to
allow vessel owners time to procure and
have an E–MTU. The Agency received
comments requesting that the effective
date be delayed even further, to six
months after publication of the final
rule. The effective date also coincides
with a period of reduced fishing activity
for many HMS participants affected by
the new requirement. A delayed
effective date balances the need for
fishermen to save money for the initial
outlay to procure the unit with the need
to expedite the requirement so
fishermen may access the
reimbursement funds. The extended
implementation period would also
allow vendors of type approved
E–MTUs to ensure they have an
adequate supply of units in stock.
Costs of compliance with the
preferred alternative for vessel owners
are estimated to be $3,971; $3,830;
$3,737 per vessel for PLL, BLL, and
shark gillnet vessels, respectively, in the
first year (Table 1). These are the costs
of compliance, pre-reimbursement.
Reimbursement funds of $3,100 per
VMS unit would reduce the costs to
75501
$745 per vessel, on average, across all
fisheries. Costs in year two (and beyond)
would be limited to the costs of
sending/receiving declaration reports
($0.06 per report) and providing vessel
location information on an hourly basis
($1.56 per vessel per day) and is
estimated to be $471; $331; and $237
per vessel for PLL, BLL, and shark
gillnet vessels, respectively.
Table 1 summarizes some of the costs
associated with the final rule. A
description of the figures and
calculations used in Table 1 is provided
below the table.
TABLE 1—COSTS OF COMPLIANCE EXPECTED AS A RESULT OF REQUIRING E–MTU VMS UNITS IN AFFECTED HMS
FISHERIES
Pelagic longline vessels
E–MTU VMS Unit ............................................................
Estimated Installation Costs (one-time) ..........................
Shark bottom longline
vessels
Shark gillnet
vessels
$3,100 ................................
$50–400 ($400 used for
estimation purposes.
$1.44 ..................................
$3,100 ................................
$50–400 ($400 used for
estimation purposes).
$1.44 ..................................
$3,100.
$50–400 ($400 used for
estimation purposes).
$1.44.
Daily Position Report Costs (Hourly, 24/day) ($0.06/report * 24 reports/day).
Estimated Days Fishing/Year ..........................................
Annual Position Report Costs/Vessel ($1.44/day * days
fishing/year).
Annual Number of Fishing Trips .....................................
Annual Gear/Spp. Declaration Costs ($0.12/trip)/Vessel
($0.12/trip * trips/year) **.
Total Estimated Costs/Vessel (Year 1) (VMS unit + installation + position reports + declaration reports).
Number of Affected Vessels ............................................
324 .....................................
$466.56/vessel ..................
212 .....................................
$305.28/vessel ..................
152.
$218.88/vessel.
36 .......................................
$4.32 ..................................
212 .....................................
$25.44 ................................
152.
$18.24.
$3,971 ................................
$3,830 ................................
$3,737.
249 .....................................
50 .......................................
30.
Total Costs by Fishery (Year 1) (Total Estimated
Costs/Vessel * Number of Affected Vessels).
$988,749 ............................
$191,536 ............................
$112,113.
Gross Cost of Compliance, Year One (all HMS vessels
combined).
Potential Reimbursement Funds ($3,100/vessel * Number of Affected Vessels).
Compliance Costs (Year 1) (avg. cost/vessel) (installation + position reports + declaration reports).
Compliance Costs/Vessel (Year 2 and Beyond) (position reports + declaration reports).
$1,292,398.
$1,019,900.
$870/vessel .......................
$730/vessel .......................
$637/vessel.
$471/vessel .......................
$331/vessel .......................
$237/vessel.
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** The declaration costs per trip will vary based upon the number of gear types possessed onboard as operators would be required to submit
one declaration for each fishing gear possessed.
There are benefits associated with the
final action relative to the no-action
alternative. Requiring that an E–MTU
VMS unit be installed by a qualified
marine electrician would improve the
reliability of VMS data transmitted from
HMS vessels. Implementing a
declaration system would enhance
NMFS communication with HMS
vessels at sea and provide valuable
information concerning target species
and gear type(s) possessed onboard
vessels to ensure enforcement of closed
areas and other regulations.
Furthermore, the delayed
implementation date associated with the
preferred alternative would allow more
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15:16 Dec 01, 2011
Jkt 226001
time for fishermen to make the
transition to the new VMS units and a
declaration system coincides with a
period of low fishing activity for many
HMS permit holders. NMFS solicited
comment from the public regarding the
implementation date and costs for
installation to ensure that economic
impacts are accurate. Based on public
comment, the estimate for installation
by a qualified marine electrician was
revised to $400 to reflect costs of
installation at remote ports. Vessels at
these ports would expect to pay more to
cover costs of having a marine
electrician travel to and from these
areas. One of the objectives of this final
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Frm 00075
Fmt 4700
Sfmt 4700
action is to modify the requirements in
order to ensure that small entities
affected can access the reimbursement
funds and make the transition to
E–MTU VMS.
The preferred alternative was selected
over the no action alternative even
though it was not the lowest cost
alternative because it will ensure that all
Atlantic HMS vessels that are required
to use VMS are using a more reliable
type of unit that is also capable of twoway communication (E–MTU VMS).
Under the no action alternative, the
regulations require that these updated
units are installed only in the event of
the MTU VMS units failing. Once the
MTU units fail, then individual vessels
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would be required to install E–MTU
VMS units. The preferred alternative
would require that all vessels make the
transition to E–MTU VMS at the same
time to ensure that all vessels have the
same capabilities.
The preferred alternative would also
require that E–MTU VMS units are
installed by a qualified marine
electrician. Installation of these units
can be complicated and improper
installation has been responsible for
VMS units failing at sea during fishing
activities. Ensuring that the units are
properly installed and that a qualified
marine electrician provides valuable
information about the unit and
installation to NMFS enforcement will
increase the reliability and functionality
of the updated units.
One of the primary objectives of the
rulemaking is to improve NMFS
enforcement’s ability to monitor fishing
vessels and ensure compliance with
fishery management measures. The
preferred alternative implements a
fishery declaration requirement where
vessels would provide valuable
information concerning fishing gear
onboard and target species prior to
leaving port. With this information,
NMFS enforcement will know which
regulations should apply to an
individual vessel without having to
dispatch an aircraft or enforcement
vessel to board a fishing vessel to
discern its activities.
This final action does not contain
regulatory provisions with federalism
implications sufficient to warrant
preparation of a Federalism Assessment
under E.O. 13132.
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Small Entity Compliance Guide
Section 212 of the Small Business
Regulatory Enforcement 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
the 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. Copies of the
compliance guide for this final rule are
available (see ADDRESSES).
List of Subjects in 50 CFR Part 635
Fisheries, Fishing, Fishing vessels,
Foreign relations, Imports, Penalties,
Reporting and recordkeeping
requirements, Treaties.
VerDate Mar<15>2010
15:16 Dec 01, 2011
Jkt 226001
Dated: November 25, 2011.
Patricia A. Montanio,
Acting Deputy Assistant Administrator for
Operations, National Marine Fisheries
Service.
For the reasons set out in the
preamble, 50 CFR part 635 is amended
as follows:
PART 635—ATLANTIC HIGHLY
MIGRATORY SPECIES
1. The authority citation for 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, paragraph (a)
introductory text, and paragraphs (d),
(e), and (g) are revised to read as
follows:
■
§ 635.69
Vessel monitoring systems.
*
*
*
*
*
(a) Applicability. To facilitate
enforcement of time/area and fishery
closures, an owner or operator of a
commercial vessel permitted, or
required to be permitted, to fish for
Atlantic HMS under § 635.4 and that
fishes with pelagic or bottom longline or
gillnet gear, is required to install a
NMFS-approved enhanced mobile
transmitting unit (E–MTU) vessel
monitoring system (VMS) on board the
vessel and operate the VMS unit under
the circumstances listed in paragraphs
(a)(1) thorugh (a)(4) of this section. For
purposes of this section, a NMFSapproved E–MTU VMS is one that has
been approved by NMFS as satisfying its
type approval listing for E–MTU VMS
units. Those requirements are published
in the Federal Register and may be
updated periodically.
*
*
*
*
*
(d) Installation and activation. As of
March 1, 2012, only an E–MTU VMS
that has been approved by NMFS for
Atlantic HMS Fisheries may be used. As
of January 1, 2012, any VMS unit must
be installed by a qualified marine
electrician. When any NMFS-approved
E–MTU VMS is installed and activated
or reinstalled and reactivated, the vessel
owner or operator must—
(1) Follow procedures indicated on a
NMFS-approved installation and
activation checklist for the applicable
fishery, which is available from NMFS;
(2) Submit to NMFS a statement
certifying compliance with the
checklist, as prescribed on the checklist;
and,
(3) Submit to NMFS the checklist,
completed by a qualified marine
electrician. Vessels fishing prior to
NMFS’ receipt of the completed
checklist and compliance certification
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Fmt 4700
Sfmt 4700
statement will be in violation of the
VMS requirement.
(e) Operation.—(1) Owners or
operators of vessels subject to
requirements specified in paragraph (a)
of this section, must activate the VMS
unit to submit automatic position
reports at least 2 hours prior to leaving
port and continuing until the vessel
returns to port. While at sea, the unit
must always be on, operating and
reporting without interruption, and
NMFS enforcement must receive
position reports without interruption.
No person may interfere with, tamper
with, alter, damage, disable, or impede
the operation of a VMS, or attempt any
of the same. Vessels fishing outside the
geographic area of operation of the
installed VMS will be in violation of the
VMS requirement.
(2) At least 2 hours prior to departure
for each trip, a vessel owner or operator
must initially report to NMFS any HMS
the vessel will target on that trip and the
specific type(s) of fishing gear, using
NMFS-defined gear codes, that will be
on board the vessel. If the vessel owner
or operator participates in multiple
HMS fisheries, or possesses multiple
fishing gears on board the vessel, the
vessel owner or operator must submit
multiple electronic reports to NMFS. If,
during the trip, the vessel switches to a
gear type or species group not reported
on the initial declaration, another
declaration must be submitted before
this fishing begins. This information
must be reported to NMFS using an
attached VMS terminal.
(3) A vessel owner or operator must
report advance notice of landing to
NMFS. For the purposes of this
paragraph, landing means to arrive at a
dock, berth, beach, seawall, or ramp.
The vessel owner or operator is
responsible for ensuring that NMFS is
contacted at least 3 hours in advance of
landing regardless of trip duration. This
information must be reported to NMFS
using an attached VMS terminal.
*
*
*
*
*
(g) Repair and replacement. After a
fishing trip during which interruption of
automatic position reports has occurred,
the vessel’s owner or operator must
have a qualified marine electrician
replace or repair the VMS unit prior to
the vessel’s next trip. Repair or
reinstallation of a VMS unit or
installation of a replacement, including
change of communications service
provider, shall be in accordance with
the installation and activation
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requirements specified at § 635.69(d) of
this part.
*
*
*
*
*
[FR Doc. 2011–30956 Filed 12–1–11; 8:45 am]
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BILLING CODE 3510–22–P
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75503
]]>Agencies
[Federal Register Volume 76, Number 232 (Friday, December 2, 2011)]
[Rules and Regulations]
[Pages 75492-75503]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30956]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 635
[Docket No. 110520295-1659-02]
RIN 0648-BA64
Atlantic Highly Migratory Species; Vessel Monitoring Systems
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Marine Fisheries Service (NMFS) is finalizing
requirements for fishermen to replace currently required Mobile
Transmitting Unit (MTU) Vessel Monitoring System (VMS) units with
Enhanced Mobile Transmitting Unit (E-MTU) VMS in Atlantic HMS
fisheries. The key difference between MTU and E-MTU VMS units is that
the E-MTU VMS units are capable of two-way communication. The purpose
of this final action is to facilitate enhanced communication with HMS
vessels at sea, provide HMS fishery participants with an additional
means of sending and receiving information at sea, ensure that HMS VMS
units are consistent with the current VMS technology and type approval
requirements that apply to newly installed units, and to provide NMFS
enforcement with additional information describing gear onboard and
target species. This rule affects all HMS pelagic longline (PLL),
bottom longline (BLL), and shark gillnet fishermen who are currently
required to have VMS onboard their vessels.
DATES: This final rule is effective on January 1, 2012. Implementation
dates: As of January 1, 2012, vessel owners
[[Page 75493]]
and/or operators must use a qualified marine electrician when
installing an E-MTU VMS unit on a vessel. By March 1, 2012, vessel
owners and/or operators must have an E-MTU VMS unit installed on their
vessel and must use the unit to provide position reports, declare
target species and fishing gear possessed onboard two hours prior to
departing on a fishing trip, and provide notification of landing three
hours in advance of returning to port.
ADDRESSES: Supporting documents, including the Regulatory Impact
Review, Final Regulatory Flexibility Analysis (RIR/FRFA), and
compliance guides are available from Michael Clark, Highly Migratory
Species (HMS) Management Division, Office of Sustainable Fisheries (F/
SF1), NMFS, 1315 East West Highway, Silver Spring, MD 20910. These
documents and others, such as the Fishery Management Plans described
below, also may be downloaded from the HMS Web site at https://www.nmfs.noaa.gov/sfa/hms/. A list of E-MTU VMS units that are
currently type approved for use in Atlantic HMS fisheries is available
on the NMFS Office of Law Enforcement Web site at https://www.nmfs.noaa.gov/ole/docs/2011/07/noaa_fisheries_service_type_approved_vms_units.pdf. A current list of type approved units and
other information may also be obtained by contacting the VMS Support
Center at (phone) (888) 219-9228, (fax) (301) 427-0049,
ole.helpdesk@noaa.gov, or write to NMFS Office for Law Enforcement, VMS
Support Center, 8484 Georgia Avenue, Suite 415, Silver Spring, MD
20910.
FOR FURTHER INFORMATION CONTACT: For information on this rule and
requirements for Atlantic HMS fisheries contact, Michael Clark (phone:
(301) 427-8503; fax: (301) 713-1917).
SUPPLEMENTARY INFORMATION: Atlantic HMS are managed under the dual
authority of the Magnuson-Stevens Fishery Conservation and Management
Act (MSA) and the Atlantic Tunas Convention Act (ATCA). Under the MSA,
NMFS must ensure consistency with 10 National Standards and manage
fisheries to maintain optimum yield, rebuild overfished fisheries, and
prevent overfishing. Under ATCA, the Secretary of Commerce is required
to promulgate regulations, as necessary and appropriate, to implement
measures adopted by the International Commission for the Conservation
of Atlantic Tunas (ICCAT). The implementing regulations for Atlantic
HMS are at 50 CFR part 635.
Background
Prior to January 2008, NMFS approved for use several MTU Vessel
Monitoring System (VMS) units for use in fisheries nationwide,
including the HMS fishery (68 FR 11534; March 11, 2003). On January 31,
2008, NMFS published in the Federal Register (73 FR 5813) a type
approval notice listing the specifications for approved MTU VMS,
including a requirement for two-way communication. In that notice, NMFS
stated that ``[p]reviously installed MTUs approved under prior notices
will continue to be approved for the remainder of their service life''
and that new installations ``must comply with all of the requirements''
of the notice, including the requirement to have two-way communication
capability.
On June 21, 2011, NMFS published a proposed rule (76 FR 36071) to
require replacement of currently required Mobile Transmitting Unit
(MTU) Vessel Monitoring System (VMS) units with Enhanced Mobile
Transmitting Unit (E-MTU) VMS units in Atlantic HMS fisheries;
implement a declaration system that requires vessels to declare target
fishery and gear type(s) possessed on board; and require that a
qualified marine electrician install all E-MTU VMS units.
NMFS considered two alternatives in the proposed rule. Alternative
One, the no action alternative, would maintain the existing VMS
requirements in Atlantic HMS fisheries. Under Alternative Two, vessels
in the HMS fishery with an MTU (as opposed to an E-MTU) installed would
not be allowed to wait until the end of the installed MTU's service
life (as had been provided for in the January 31, 2008, Federal
Register notice (73 FR 5813)) but instead, would be required to replace
the MTU with a NMFS type approved E-MTU and to have the new unit
installed by a qualified marine electrician. This alternative would
also implement a fishery declaration system where vessels would declare
their target species and gear type(s) possessed onboard, as well as
require vessels to provide advanced notice of departure and landing.
Vessels with type approved E-MTU units already installed would not need
to take any action. The proposed rule contained details regarding the
alternatives considered and a brief summary of the recent management
history. Those details are not repeated here.
This final rule finalizes the provisions proposed in the June 21,
2011, rule. The purpose of this final action is to facilitate enhanced
communication with HMS vessels at sea, provide HMS fishery participants
with a means of sending and receiving information at sea, ensure that
HMS VMS units are consistent with the current VMS technology and type
approval requirements that apply to newly installed units, and to
provide NMFS enforcement with additional information describing gear
onboard and target species.
As of January 1, 2012, all E-MTU VMS units must be installed by a
qualified marine electrician. This is to ensure that E-MTU VMS units
are installed properly.
As of March 1, 2012, vessel owners and/or operators must have an E-
MTU VMS unit installed on their vessel and must use the unit to provide
position reports, declare target species and fishing gear possessed
onboard two hours prior to departing on a fishing trip, and provide
notification of landing three hours in advance of returning to port.
The March 1, 2012, effective date provides about 90 days to have E-MTU
VMS units installed and operational. NMFS extended the standard 30-day
delay in effectiveness here to provide sufficient time for coming into
compliance with the E-MTU VMS requirements while still providing an
opportunity to take advantage of reimbursement funds.
Under the requirements of this final rule, VMS units that are
approved by NMFS as meeting the E-MTU type approval specifications (73
FR 5813; January 31, 2008), including two-way communication and the
ability to send and receive free-form Internet email text messages and
electronic forms, will meet the requirements of this rule. Further, VMS
units that were approved by NMFS prior to January 2008, but that comply
with all of the requirements of the E-MTU type approval specifications
notice (73 FR 5813; January 31, 2008), including two-way communication
and the ability to send and receive free-form Internet email text
messages and electronic forms, will meet the requirements of this rule.
See ADDRESSES above for information about viewing or obtaining a list
of E-MTU VMS units that are currently type approved for use in Atlantic
HMS fisheries. With this final rule, three MTU VMS units approved by
NMFS prior to January 2008 for use in the HMS fishery--Trimble Galaxy
7001 and 7005 and Thrane & Thrane Sailor VMS Silver (68 FR 11534; March
11, 2003)--will not meet the requirements of this rule because these
units do not possess the capability for two-way communications or the
ability to send and receive free-form Internet email text messages and
electronic forms. Vessels with one of
[[Page 75494]]
these three units installed will be required to replace the unit with
one of the approved E-MTUs by March 1, 2012.
Comments and Responses
NMFS received four written and numerous verbal comments from non-
governmental organizations, fishermen, and other interested parties on
the proposed rule. NMFS heard comments from constituents at five public
hearings. A summary of the comments received on the proposed rule
during the public comment period is provided below with NMFS' response.
All written comments submitted during the comment period can be found
at https://www.regulations.gov/ by searching for RIN 0648-BA64.
E-MTU VMS Comments
Comment 1: The replacement of MTUs with E-MTUs will enhance
enforcement by requiring the best available technologies for tracking
and communicating with fishing vessels.
Response: Requiring that vessels use E-MTUs to provide information
on the type of gear possessed onboard and the target species will
provide valuable information to NMFS enforcement. This information will
aid in determining which time/area closures and other regulations apply
to a given vessel on a given trip and will reduce the need to send
enforcement vessels or aircraft to discern an individual vessel's
activity. Coupled with the hourly location reports and the ability to
engage in two-way communication with vessels, E-MTU VMS will be a
useful tool to track and communicate with vessels.
Comment 2: The proposed rule does not demonstrate a compelling need
for requiring E-MTUs in the PLL fishery. E-MTUs are not needed as a
safety tool because vessels already have electronic emergency
communication equipment and MTUs already have the capability of sending
distress messages. In contrast, NMFS also heard that the use of E-MTUs
can increase safety and provide a way for owners to monitor what their
boats are doing on the water.
Response: E-MTUs are needed to have reliable, enhanced
communication with HMS vessels at sea, provide HMS fishery participants
with a means of sending and receiving information at sea, ensure that
all HMS VMS units are consistent with the current VMS technology and
type approval requirements that apply to newly installed units, and
provide NMFS enforcement with additional information describing gear
onboard and target species onboard to support fishery management
measures including compliance with time/area closures. Furthermore, one
of the issues with existing MTU VMS units is their elevated ``failure''
rates. The two-way communication capability and improved reliability of
E-MTUs provide the added benefits of being capable of sending distress
messages and/or providing context and additional information prior to
sending a distress message. Additionally, the new E-MTU units provide a
way for the vessel owner and/or operator to determine if the unit is
working; the previously required MTU VMS units did not have this
functionality.
The E-MTU VMS units are not intended as a replacement for existing
electronic emergency communication equipment, such as Emergency
Position Indicating Radio Beacons (EPIRBs) or other emergency equipment
that have the capability of sending a distress message. While some of
the existing MTUs have the capability of sending distress messages,
most do not have this capability. The ability to engage in two-way
communication between vessel owners on shore and their operators at sea
could facilitate troubleshooting mechanical issues, allow updates on
market conditions/prices for seafood products, and could provide owners
with additional peace of mind.
Comment 3: The proposed rule does not demonstrate a need for
vessels to declare the target fishery and gears possessed onboard, and
NMFS should not require these declarations because they are unnecessary
and redundant with other reporting requirements.
Response: In HMS fisheries, many of the management measures,
including closed areas, are applicable to certain gear types and some
only apply at certain times of year. Providing a declaration that
includes the gear possessed onboard prior to embarking on a fishing
trip is useful for NMFS enforcement officials when they are evaluating
which management measures apply to a particular vessel during a
particular trip.
Comment 4: The need for requiring E-MTUs in the PLL fishery does
not justify the financial expense and burden that the requirement will
have on fishermen.
Response: The enhanced communication capability of E-MTUs will
facilitate enhanced communication with HMS vessels at sea, provide HMS
fishery participants with a means of sending and receiving information
at sea, ensure that all HMS VMS units are consistent with the current
VMS technology and type approval requirements that apply to newly
installed units, and to provide NMFS enforcement with additional
information describing gear onboard and target species onboard to
support fishery management measures including compliance with time/area
closures.
Fishing vessels possessing pelagic longline gear onboard are
already required to have a functioning VMS onboard. Older MTUs are not
supported by the current NMFS VMS type requirements, thus when units
are replaced, they must be replaced with E-MTUs regardless of this
final rule. Experience using E-MTU VMS units in other fisheries
indicates that they require less maintenance than MTU VMS units.
Installing the E-MTU VMS units may reduce maintenance costs and lost
fishing time because of system failure compared to MTU VMS units.
Currently, the Agency has reimbursement funds available that vessel
owners may receive to offset the costs of purchasing an E-MTU VMS unit.
Reimbursement funds are subject to availability. The additional cost of
two-way reporting and installation of E-MTUs by a qualified marine
electrician on average is expected to equal $745/vessel (including $400
for installation) in the first year. Installation costs will vary
depending on proximity to a qualified marine electrician. Estimates for
transmission costs (declaration and location reports) represent the
maximum financial burden that could be incurred by vessels because it
is based on the maximum amount of fishing time vessels could be active.
However, vessels often fish less frequently depending on seasons, fish
availability, moon phase, and opportunities in other fisheries so
actual costs may be less. The Agency is mitigating the economic impacts
to participants by making some reimbursement funds available for E-MTU
units and by delaying the implementation date to provide fishermen with
additional time to comply with the requirements. Vessel owners that
participate in other fisheries deploying the same fishing gear may
already be required to use E-MTU VMS; therefore, the economic impacts
to some participants may be negligible.
Comment 5: The requirement to use E-MTUs in the PLL fishery
disadvantages U.S. fishermen compared to foreign competitors. The
cumulative effect of this and other regulations on the PLL fishery will
result in a bankrupt fishery.
Response: VMS requirements are currently in place in many U.S.
fisheries and are also required by Regional Fisheries Management
Organizations. In the United States, requirements to use VMS for PLL
vessels were implemented
[[Page 75495]]
in response to requirements of other domestic laws, including the MSA,
Endangered Species Act (ESA), and the Marine Mammal Protection Act
(MMPA). In addition, ICCAT has a VMS requirement for contracting
parties. The Agency is reducing the economic impacts of this rule on
fishermen by delaying the implementation date and by providing some
reimbursement funds for the E-MTU units.
Comment 6: Civil liberties are violated by mandating the use of
vessel tracking devices and requiring a separate line of communication
using E-MTUs only compounds that violation.
Response: VMS units are required only of people who have sought out
an HMS permit, the possession and use of which comes with certain
obligations and responsibilities under law. Maintaining a valid HMS
permit requires vessel owners and operators to comply with all
applicable regulations for participation in HMS fisheries. VMS units
are a tool to ensure compliance with regulations in HMS fisheries and
have been required since 2003. The position and certain other data
collected from VMS are subject to MSA confidentiality provisions and
protections, which prevent inappropriate disclosure (see 18 U.S.C.
1881a(b)). VMS requirements are currently in place in many U.S.
fisheries and are also required by Regional Fisheries Management
Organizations.
Comment 7: Some small vessels may not have enough room to mount an
E-MTU.
Response: The Agency is aware of this issue, particularly for shark
vessels fishing with bottom longline or gillnet gear that are subject
to VMS requirements. There are several models of E-MTU VMS units
available that range in size, some of which are quite small. Often the
largest or most bulky part of the E-MTU VMS system is the screen or
messaging terminal; however, this depends on the model. It may be
possible to find a screen that is smaller in size and may be more
appropriate for mounting on smaller vessels.
Comment 8: NMFS should allow the declaration of target species and
fishing gears possessed to be made by phone. Some small fishing vessels
remain within cell phone range throughout their fishing trip. Allowing
declaration by phone could remove the need for E-MTUs for these vessels
and could result in less additional burden than requiring E-MTUs.
Response: E-MTU VMS terminals represent a more reliable means of
communication than cellular phones because they use satellites rather
than cell towers as the principle means of transmitting data.
Furthermore, vessels need to provide position reports every hour when
they are away from port, and cell phones cannot consistently provide
that capability. The E-MTU VMS units represent a more reliable means of
providing position reports and also allow two-way communication in the
event that NMFS enforcement needs to contact a vessel concerning an
emergency closure, adverse weather, or other issue.
Comment 9: Gulf of Mexico reef fish vessels are already using E-
MTUs; however, the Boatracs model is not authorized for use in HMS
fisheries. Will vessels that also have shark permits need to replace
these units? If so, the small businesses that own these vessels may
have difficulty purchasing an additional E-MTU.
Response: NMFS administers a process for updating E-MTU type
approval for specific fisheries. NMFS is investigating the possibility
of Boatracs E-MTUs meeting NMFS type approval for Atlantic HMS
fisheries. The Agency will provide updates regarding additional units
being added to the list of type approved devices as necessary.
Comment 10: Will Gulf of Mexico vessels that have already been
reimbursed for an E-MTU that is not type approved for Atlantic HMS
fisheries be eligible for reimbursement when an E-MTU required for
participation in Atlantic HMS fisheries is installed?
Response: Vessels currently are eligible to receive reimbursement
for the costs of an E-MTU that satisfies the type approval requirements
for the fishery. Some E-MTUs that are type approved for use in non-HMS
Gulf of Mexico fisheries are also type approved for Atlantic HMS
fisheries. Generally, the owner of a vessel is only eligible for
reimbursement for one E-MTU per vessel. Vessel owners should contact
NMFS enforcement if they have questions about VMS installation and
reimbursement procedures.
Comment 11: The use of E-MTUs can increase safety and provide a way
for owners to monitor what their boats are doing on the water.
Response: NMFS agrees for reasons outlined in the response to
comment number 2 above, but reiterates that the E-MTU VMS units are not
intended as a replacement for Emergency Position Indicating Radio
Beacons (EPIRBs) or other emergency equipment that have the capability
of sending a distress message.
Comment 12: NMFS should not have reporting requirements beyond
those required by ICCAT.
Response: NMFS implements VMS requirements pursuant to federal
laws, including the MSA, ESA, and MMPA, and also taking into
consideration relevant ICCAT recommendations.
Comment 13: NMFS is displaying favoritism by requiring E-MTUs for
the purpose of increasing safety if they do not implement similar
requirements across all Atlantic HMS fisheries.
Response: NMFS is not requiring E-MTUs solely to increase safety.
The purpose of this final rule is to enhance communication capability
in the Atlantic HMS fisheries that are currently required to use VMS.
When a vessel declares the type of gear possessed onboard and target
species, useful information is provided to NMFS enforcement, which
enables enforcement to determine which regulations apply. Other
potential benefits of using E-MTU VMS at sea instead of MTUs include
improved reliability, reduced maintenance costs, and two-way
communication (email messages) if a vessel were experiencing conditions
that may endanger the safety of the vessel or the crew during fishing
activities. E-MTU VMS units are not intended to replace EPIRBs or other
safety equipment that can be used to transmit a distress signal and
vessel position information.
Comment 14: An upgrade to E-MTUs should only be required if the MTU
on a vessel is old.
Response: E-MTUs provide enhanced communication that will support
fishery management measures. When vessels declare the fishing gear
onboard and target species using an E-MTU, NMFS enforcement officials
will know which regulations apply to that particular vessel during that
particular trip. MTUs do not provide this type of enhanced
communication and are only capable of providing position information.
The E-MTU VMS units also provide vessel operators with confirmation
that the unit is functioning properly, which was not always possible
with MTU VMS units.
Comment 15: The enhanced units have a level of complexity far
exceeding the old systems. This may result in an increased rate of
system failure. When E-MTUs fail, the cost of shipping them to service
agents has been an economic and logistical burden. The lost fishing
time while waiting for repairs has been costly.
Response: NMFS has not experienced increased system failures with
the E-MTUs that are currently type approved in other fisheries. Rather,
NMFS enforcement reports that the rate of system failure is less than
that of MTUs. NMFS expects that there will be
[[Page 75496]]
a reduction in lost fishing time as a result of system failure at port
or at sea by requiring that E-MTU VMS units be installed by a qualified
marine electrician in HMS fisheries.
Hail-Out and Hail-In Declaration Comments
Comment 16: NMFS should require vessels in the Atlantic HMS fleet
to declare their target fishery and gear two hours before leaving port
and provide three hours of advanced notice of landing.
Response: NMFS agrees. Requiring the declaration of fishing gear
possessed and target species facilitates enforcement and monitoring by
allowing NMFS enforcement to know what fisheries regulations, such as
closed areas, apply for the vessel during a given fishing trip. The
final rule will require that vessels declare target species and fishing
gear onboard two hours prior to leaving port and notify the Agency of
their intended landing location three hours prior to returning to port.
Comment 17: Fishermen cannot declare their target catch two hours
in advance of their fishing trip because they do not know what they are
going to catch ahead of time. It should be sufficient that NMFS knows
HMS are generally targeted by a PLL vessel that is permitted in
Atlantic HMS fisheries when the vessel departs on a fishing trip. This
basic information is known by the VMS track provided by a MTU.
Response: It is the Agency's intention for vessel operators to
declare the type of fishing gear possessed and target catch by species
groups to facilitate the effectiveness of fishery management measures
through improved enforcement efforts. The Agency realizes that fishing
is opportunistic and it may not be possible to list all species that
may be encountered and retained on any particular trip. There may be
instances where the vessel possesses multiple gear types and would
target (and declare) multiple species groups, which would be
acceptable. The E-MTU VMS units have the capability to report all of
this information. This information will augment the location
information provided by VMS units to discern which fisheries
regulations are applicable.
Comment 18: It is not practical for fishing vessels that make trips
less than three hours in length to hail in three hours in advance of
landing.
Response: The hail-in requirement is necessary to facilitate
enforcement of fishery regulations by providing adequate time for an
enforcement agent to meet a vessel at the dock. Vessels that anticipate
a fishing trip less than three hours in length must, prior to
departure, provide a hail-in declaration stating where they intend to
return to port at least three hours in advance of landing. If the
vessel's fishing trip deviates from the original declaration, then a
subsequent hail-in message can be sent using the E-MTU unit.
Comment 19: NMFS should keep the amount of required text characters
in a message to a minimum because of the expense of these messages.
Response: NMFS anticipates that text messages will be minimal in
length. Most, if not all communications, will occur via electronic
forms that are filled with the use of inexpensive drop-down menus.
Costs for transmitting information using the E-MTU are minimal and are
approximately $0.06 per message (both sent and received). Messaging
cost varies slightly by service provider.
Comment 20: If NMFS requires hail-in notification, any confirmation
from NMFS back to the vessel needs to occur quickly. NMFS should not
expect boats to sit at idle while waiting for a confirmation code
before they can tie up to the dock. This situation currently occurs in
southeast reef fish fisheries.
Response: This final rule does not require that vessels obtain a
hail-in confirmation number from NMFS prior to landing and the vTrack
system does not contain a mechanism to send back a specific
confirmation number. Rather, vessels will receive an on-screen
confirmation from the vendor that the prelanding notice was
successfully transmitted, which should occur without delay.
Comment 21: NMFS should allow changes to the declaration because
fishermen sometimes have incidental catches of species not listed on
their initial declaration.
Response: Declaration of target species will be for species groups
and is not intended to capture all species that a vessel lands. If the
vessel switches to a gear type or species group not reported on the
initial declaration, another declaration must be submitted before
fishing begins.
E-MTU Reimbursement Comments
Comment 22: Requiring vessel owners to outlay the cost of an E-MTU
(up to $3,100) before the money is reimbursed is a real hardship.
Response: NMFS understands that the initial outlay of the cost of
an E-MTU and installation by a qualified marine electrician is
burdensome for fishermen. In order to mitigate the economic impacts,
NMFS is delaying implementation of the requirement to purchase and
install an E-MTU until March 1, 2012, in order to provide time for
fishermen to save for this initial outlay of money.
Comment 23: The allowable reimbursement amount of $3,100 is not
enough money to reimburse fishermen fully for the total cost of this
requirement. NMFS should make reimbursement funds available for any
fees incurred by breaking existing contracts.
Response: The reimbursement amount of up to $3,100 should cover the
cost of the least expensive E-MTU that meets the NMFS type approval.
All of the costs associated with existing MTU units were incurred by
PLL fishermen. Consistent with existing policy, NMFS will not pay for
installation or any subsequent transmission costs. Reimbursement of the
cost of an E-MTU will help fishermen with the rule's financial burden.
Reimbursement is not available to cover any cost related to changes to
contracts incurred by vessels transitioning to E-MTU VMS. NMFS is not
aware of any fees being incurred by participants as a result of
switching from MTU to E-MTU VMS units.
Comment 24: NMFS should ensure that sufficient funding is available
to reimburse all eligible fishery participants for an E-MTU.
Response: Reimbursement funds are available on a first-come, first-
served basis as long as the funds last. In recent years, the
reimbursement fund has been adequately funded to cover all eligible
requests; however, this funding level is not guaranteed.
Delayed Implementation of E-MTU Requirement
Comment 25: NMFS should make the rule effective at a time when
fishing activity is slowest so the burden on fishermen is the least.
Response: This final rule is expected to publish and be implemented
during the winter of 2012, which coincides with a period of reduced
fishing activity for most Atlantic HMS fisheries affected by the
regulation.
Comment 26: NMFS should allow up to 6-months for a phased-in period
of implementation. Delayed implementation of the E-MTU requirement
would ease the economic burden by allowing fishermen more time to save
money for the unit and could prevent manufacturer's inventories of E-
MTUs from becoming depleted and the filling of orders from being
delayed. Delayed implementation would also allow existing MTU service
contracts to expire.
Response: NMFS is issuing this final rule with a delayed effective
date of
[[Page 75497]]
about 90-days in order to minimize the financial burden to fishermen as
a result of compliance with the new regulation. The selected delayed
effective dates coincide with a period of reduced fishing activity for
many HMS participants affected by the new requirement. A delayed
effective date balances the need for fishermen to save money for the
initial outlay to procure the unit with the need to expedite the
requirement so fishermen are ensured access to the reimbursement. A 6-
month phase in period, as suggested by the public comment, would
increase the likelihood that reimbursement funds are not available to
fishermen, thus was not chosen. The delayed implementation date would
also allow vendors of type approved E-MTUs to ensure they have an
adequate supply of units in stock. NMFS has contacted vendors of type
approved E-MTUs and an adequate supply exists for Atlantic HMS
participants affected by this requirement.
Installation by a Qualified Marine Electrician Comments
Comment 27: Installation by a qualified marine electrician will
minimize the chance of equipment failure at sea.
Response: NMFS agrees. One purpose of requiring installation by a
qualified marine electrician is to ensure the reliability of E-MTUs and
the information they provide to NMFS.
Comment 28: It is difficult to believe that self-installation has
been a frequent cause of VMS unit failure instead of mechanical
malfunction of the unit.
Response: NMFS enforcement has documented instances of VMS unit
failure due to improper installation by an unqualified person. Not all
persons associated with a vessel that might install an E-MTU are
familiar with the specific electronic and mechanical requirements of E-
MTU installation. Installation of E-MTUs by a qualified marine
electrician is necessary to ensure the units function properly. Units
that fail at sea may impact fishing activities and result in lost
revenues because vessels may need to return to port during a fishing
trip to deal with VMS issues.
Comment 29: Requiring that the enhanced units be installed by a
qualified marine electrician is not practical because there are a
limited number of qualified marine electricians with experience
installing E-MTUs and because of the long distance that a qualified
marine electrician would have to travel in some areas. The cost of
travel for the installer will be more than the $200.00 estimated in the
proposed rule. NMFS should consider having VMS units installed by a
capable, but unspecified, technician.
Response: By requiring E-MTU installation by a qualified marine
electrician, NMFS intends to provide some flexibility for fishermen in
choosing a business that is relatively convenient while ensuring that
it is someone qualified to install E-MTU VMS units. It is important
that someone familiar with these units and marine electronics complete
the installation and fill out the VMS installation checklist because
the checklist provides NMFS enforcement with important information
concerning the installation and results in improved troubleshooting
capability should problems occur. NMFS revised the estimate for an
average E-MTU installation by a qualified marine electrician to $400.00
instead of $200.00, which was originally analyzed in the Initial
Regulatory Flexibility Analysis and proposed rule based on public
comment.
General VMS Comments
Comment 30: Fishermen should not be held responsible for any VMS
equipment failure because of the complexity of the units.
Response: NMFS disagrees. Fishermen that are required to use VMS
are responsible for ensuring that their units are functioning properly
during fishing activities just as they would be for any other fishing
equipment on their vessels. Because of the complexity of the units and
the problems that may occur subsequent to installation by an
inexperienced person, NMFS is requiring that E-MTU units be installed
by a qualified marine electrician.
Comment 31: NMFS should not increase use of electronics to enforce
regulations.
Response: Enforcement of fisheries regulations using electronic
tools such as VMS is a proven, cost effective method. The requirements
of this final rule will enhance communication between fishing vessels
and NMFS to strengthen VMS as an enforcement tool with benefits to both
NMFS, through improved data availability, and fishermen, through
increased reliability and increased ability to communicate with
enforcement, thereby avoiding compliance issues. The enhanced
reliability and two-way communication capabilities of E-MTU VMS may
also be an effective tool for improving safety at sea because
communication between fishing vessels and NMFS enforcement/and Coast
Guard (describing the vessels' circumstances) can be initiated prior to
the need to send a distress signal. However, E-MTU VMS units are not
intended as a replacement for Emergency Position Indicating Radio
Beacons (EPIRBs) or other emergency equipment that have the capability
of sending a distress message.
Comment 32: VMS equipment is not made for boats and regularly fails
at sea.
Response: The E-MTU units that are type approved for use in
Atlantic HMS fisheries are designed and marketed exclusively for use in
the marine environment. VMS has proven to be an effective tool for
monitoring vessel position and two-way communication. VMS is used in
many other federally managed fisheries in the United States and
throughout the world. NMFS enforcement has documented numerous
instances where the MTU VMS currently being used in HMS fisheries have
failed at sea. The E-MTU units themselves have demonstrated that they
are more reliable at sea than the MTU units. Furthermore, requiring
that installation is conducted by a qualified marine electrician is
also expected to improve performance.
Comment 33: Who is authorized to repair E-MTUs? Nearly all of the
type approved units are manufactured abroad (Norway, Denmark, and
Canada). Will fishermen be burdened by having to get their E-MTUs
serviced at foreign locations?
Response: Specific information concerning E-MTU service and repair
should be attained through the authorized dealer from which the
original unit was purchased. The location and availability of service
and repair companies varies by VMS manufacturer; however, the
experience in other federally managed fisheries is that some units can
be repaired by technicians within the United States without the need to
send units to foreign locations. In some cases, E-MTUs may have
software repairs conducted remotely via two-way communication, which
can reduce cost and repair time. The Agency is preparing a compliance
guide that will provide additional information on the locations of
authorized dealers and service providers.
Comments Outside the Scope of the Rule
Comment 34: NMFS needs to re-examine the rationale for prohibiting
fishing when a vessel's VMS unit is not working and the vessel is far
from a closed area.
Response: A properly operating VMS is required and necessary to
verify the location of a vessel, regardless of its location, to ensure
that it is not fishing in closed areas.
[[Page 75498]]
Comment 35: NMFS should expand this rule to implement reporting
requirements, observer coverage, increased enforcement, and VMS
requirements in the Atlantic Tunas General category fishery
commensurate with requirements and level of enforcement in the PLL
fishery.
Response: Regulations are in place for the Atlantic Tunas General
permit fishery including, but not limited to, permitting, authorized
gears, retention and size limits, and reporting requirements. In the
Gulf of Mexico, Atlantic Tunas General permit holders cannot engage in
directed fishing for bluefin tuna and possession of bluefin tuna is not
authorized. Therefore, NMFS determined that additional requirements for
Atlantic Tunas General Category permitted vessels within the scope of
this final rule are not necessary at this time.
Comment 36: ICCAT recommendations require VMS on vessels greater
than 24 m Length Overall (LOA), yet NMFS requires VMS on vessels
according to the gear they possess and not vessel length. Implementing
VMS requirements in this way excludes the largest percentage of U.S.
Atlantic HMS vessels and selectively enforces ICCAT VMS requirements on
a small percentage of commercial HMS permit holders.
Response: VMS requirements, implemented under the authority of the
MSA, facilitate enforcement of closed areas in the U.S. EEZ for certain
gear types (PLL, BLL, and gillnet) at certain times of year (specific
to gear type and location). These closed areas apply to vessels in
possession of a certain gear type regardless of the vessel size or
length. NMFS may consider additional monitoring requirements for
Atlantic HMS fisheries in the future.
Comment 37: NMFS should require E-MTUs to be used by Atlantic HMS-
permitted vessels that use gears other than PLL, BLL, and gillnet so
that two-way communications and the ability for real-time reporting of
landings will be in place throughout Atlantic HMS fisheries.
Response: NMFS is considering alternative methods for improving the
timeliness and quality of information collected throughout Atlantic HMS
fisheries.
Comment 38: In order to increase safety at sea, NMFS should allow
PLL vessels to fish in closed areas along the east coast during winter
months when sea conditions make fishing farther from shore more
dangerous. NMFS should also make the PLL closed areas smaller so that
they are easier to enforce.
Response: This comment is not germane to this rulemaking. However,
NMFS continues to evaluate the effectiveness of time/area closures and
their impacts, and may make changes, if appropriate.
Comment 39: NMFS should consider using E-MTUs in lieu of observer
coverage in order to get better scientific data.
Response: VMS units and observers are both important tools in
fisheries management; however, they provide different information to
fishery managers and enforcement officials. VMS units are primarily an
enforcement tool and provide important information about location and
allow self-reported fisheries data from vessels to fisheries
enforcement officers. Observers are not used for enforcement of
fisheries regulations; rather, they provide valuable information about
catch, discards, effort, and fishing gear (among other things) to
fisheries managers. NMFS may consider options for using E-MTU VMS to
report landings or discards in a future rulemaking.
Comment 40: NMFS should not have comment periods shorter than 60
days, with the exception of emergency actions, to allow fishermen ample
time to participate in the regulatory process.
Response: NMFS strives to provide adequate time for fishermen to
provide public comments consistent with legal obligations. Public
hearings are scheduled at locations that are designed to be accessible
to members of the public, including fishermen, who are interested in
the subject matter. Comments may be submitted in person at public
hearings, electronically via https://www.regulations.gov, via fax, or by
mail.
Comment 41: NMFS should reduce the frequency of VMS reports from 24
to no more than six per day.
Response: The current frequency of VMS reports (1 per hour) has
been implemented to monitor closed or gear-restricted areas. The
required frequency is necessary to provide NMFS enforcement with enough
information to substantiate what fishing gear is being used based on
vessel track, location of the fishing gear, and location of the vessel
in relation to closed areas. If the frequency of reporting is reduced,
then it may limit NMFS enforcement's ability to monitor fishing
activities adjacent to closed areas, thus compromising the
effectiveness of closed areas.
Changes From the Proposed Rule
The estimates of costs associated with installation of E-MTU VMS
units increased from $200 to $400 based on public comment on the
Initial Regulatory Flexibility Analysis. A minor change to the
paragraph at Sec. 635.69(a) has been made to better describe what a
NMFS-approved E-MTU VMS is and to reference the type approval
requirements that were published in the Federal Register. A minor
change to the paragraph at Sec. 635.69 (a) has been made to clarify
the implementation dates of this final rule.
Classification
The NMFS AA has determined that this final action is consistent
with the Magnuson-Stevens Act, 2006 Consolidated Atlantic HMS FMP and
its amendments, ATCA, and other applicable law.
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
This final rule would modify a collection-of-information
requirement associated with VMS use in Atlantic HMS fisheries subject
to the Paperwork Reduction Act (PRA), and that has been approved by the
Office of Management and Budget (OMB) under control number (0648-0372).
The modifications are subject to review and approval by OMB under the
Paperwork Reduction Act (PRA). There would be 329 vessel owners
(respondents) that may be affected by this collection. Public reporting
burden for having the E-MTU VMS units installed by a qualified marine
electrician (4 hours, one-time), submitting a checklist (completed by a
qualified marine electrician) (5 minutes, one-time), and providing
declaration reports before and after leaving port (5 minutes/
declaration, ongoing) is estimated to result in an estimated total
annual burden of 4,452 hours in the first year. A total of 48,358
responses (checklists and declaration reports) would be collected in
the first year. The annual burden would decrease in subsequent years
because the installation and submission of a completed checklist would
be one-time burdens. Table 1 provides estimates of the number of
participants affected by this collection and the financial burden
associated with this action in year one and subsequent years.
Environmental impacts are not expected and the action is within the
scope of that previously analyzed when existing VMS requirements were
implemented (64 FR 29090; May 28, 1999; and 68 FR 74746; December 24,
2003). This action would not directly affect fishing effort, quotas,
fishing gear, authorized species, or interactions with threatened or
endangered species.
NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA),
as required by 5 U.S.C. Section 604 of
[[Page 75499]]
the Regulatory Flexibility Act, to analyze the economic impacts that
this final rule will have on small entities. A description of the final
action, why it is being implemented, and the legal basis for this
action are contained in the preamble to this proposed rule. A summary
of the analysis follows. A copy of the complete analysis is available
from NMFS (see ADDRESSES).
Section 604(a)(1) of the Regulatory Flexibility Act requires that
the Agency describe the need for, and objectives, of the final rule.
The purpose of this final rule is, consistent with the Magnuson-Stevens
Act and the 2006 Consolidated HMS FMP and its amendments, to aid NMFS
in monitoring and enforcing fisheries regulations, including those
implemented at 50 CFR part 635. Specifically, this final action will
facilitate enhanced communication with HMS vessels at sea, provide HMS
fishery participants with a means of sending and receiving information
at sea, ensure that HMS VMS units are consistent with the current VMS
technology and requirements used in other U.S. VMS monitored fisheries,
and to provide NMFS enforcement with additional information describing
gear onboard and target species.
Section 604(a)(2) requires a summary of the significant issues
raised by the public comments in response to the Initial Regulatory
Flexibility Analysis (IRFA) and a statement of any changes made in the
proposed rule as a result of such comments. The Agency received
comments concerning the Initial Regulatory Flexibility Analysis stating
that the Agency's estimate of $200 for installation of E-MTU VMS units
by a qualified marine electrician was not appropriate for vessels that
may be docked at remote ports far from larger population centers
because of the travel time necessary for a qualified marine
electrician. As a result, the estimate for installation of E-MTU VMS
units by a qualified marine electrician has been increased from $200 to
$400 in response to these comments. Estimates of the economic impacts
of compliance with the final regulations have been updated in the FRFA
and final rule.
Comments were also received on the delayed implementation date
discussed in the IRFA and proposed rule. The Agency is implementing a
delayed implementation date to mitigate economic impacts and provide
stakeholders with some additional time to get new E-MTU units installed
and operating. Commenters asked for additional time, up to six months,
to comply with the new requirements and for the effective date to
coincide with a period of low fishing activity. NMFS is implementing
this final rule with two effective dates. As of January 1, 2012, all E-
MTU VMS units must be installed by a qualified marine electrician. As
of March 1, 2012, vessel owners and/or operators must have an E-MTU VMS
unit installed on their vessel and must use the unit to provide
position reports, declare target species and fishing gear possessed
onboard two hours prior to departing on a fishing trip, and provide
notification of landing three hours in advance of returning to port.
The selected delayed effective dates coincide with a period of reduced
fishing activity for many HMS participants affected by the new
requirement. This date also balances the need for fishermen to save
money for the initial costs of buying the unit with the need to
expedite the requirement so fishermen are ensured access to the
reimbursement. A 6-month phase in period, as suggested by the public
comment, would increase the likelihood that reimbursement funds are not
available to fishermen, thus was not chosen. The delayed implementation
date would also allow vendors of type approved E-MTUs to ensure they
have an adequate supply of units in stock.
Under section 604(a)(3), Federal agencies must provide an estimate
of the number of small entities to which the rule would apply. The
Small Business Administration (SBA) standards for a ``small'' versus
``large'' business entity are entities that have average annual
receipts less than $4.0 million for fish-harvesting; average annual
receipts less than $6.5 million for charter/party boats; 100 or fewer
employees for wholesale dealers; or 500 or fewer employees for seafood
processors. Under these standards, NMFS considers all HMS permit
holders subject to this rulemaking to be small entities. This action
would apply to all 249 participants in the Atlantic HMS pelagic PLL
fishery, 50 participants in the shark bottom longline (BLL) fishery,
and 30 participants in the shark gillnet fishery. These permit
estimates are based on October 2010 permit data and fishery-specific
assumptions to determine the potential affected universe of
participants. Atlantic HMS PLL vessels are required to use VMS year-
round whenever they are away from port. The number of vessels was
determined by adding the number of swordfish directed (177) and
incidental (72) permit holders. One of these permits is required to
retain swordfish with PLL gear and the majority of swordfish fishermen
with those permits use PLL gear. The estimate for BLL participants was
derived by adding the number of shark incidental and directed permit
holders residing in states adjacent to the Mid-Atlantic closed areas,
including: Virginia (3), North Carolina (28), and South Carolina (19).
The estimate for shark gillnet vessels was based on recent analysis
conducted in Amendment 3 to the Consolidated Atlantic HMS FMP, which
determined that there were 30 directed permit holders fishing with
shark gillnet gear. All of these vessel owners are commercial fishermen
and considered small entities. Depending on the fishing gear possessed
on board, vessels will continue to use VMS units when away from port to
provide location reports consistent with existing regulations. These
vessels will also be required to declare target species and gear types
possessed on board to NMFS enforcement prior to leaving port and then
provide NMFS enforcement advanced notice of landing. The position
reports, fishery declaration, and return reports must be sent via an E-
MTU VMS unit.
Under section 604(a)(4), Federal agencies must provide a
description of the projected reporting, recordkeeping, and other
compliance requirements of the rule. The final action will require that
the small entities (commercial fishermen) procure an approved E-MTU VMS
unit and have the new units installed by a qualified marine
electrician. A form describing the technical specifications of the unit
will be filled out by the qualified marine electrician and then
submitted to NMFS enforcement by the vessel owner. This represents a
slight deviation from existing protocols for installation of VMS units.
Currently, vessel owners themselves are able to complete the
installation and then submit the checklist.
The E-MTU VMS units allow for two-way communication, including the
ability to send and receive electronic messages. Consistent with
existing regulations, fishermen would be required to send hourly
location reports while they are away from port using the VMS units.
Additionally, the final rule contains some new reporting and compliance
requirements using the E-MTU VMS units in addition to providing
location reports. Vessels will be required to send an electronic
message to NMFS enforcement two hours prior to departing the dock and
describe target species and what fishing gear(s) will be possessed on
board the vessel. Creating a fishery declaration system will allow NMFS
enforcement officials to more accurately track and monitor vessels for
compliance in specific fisheries. The new declaration system will be
compatible with the
[[Page 75500]]
capabilities of newly required E-MTU VMS units. Additionally, the
requirement to notify NMFS enforcement at least three hours prior to
returning to port provides notification that fishing activities are
being completed, and the vessel is transiting back to port.
Under section 604(a)(5), agencies are required to describe any
alternatives to the rule which accomplish the stated objectives and
which minimize any significant economic impacts. Economic impacts are
discussed below and in the Environmental Assessment for the actions
that initially established VMS requirements. Additionally, the
Regulatory Flexibility Act (5 U.S.C. 603 (c)(1)-(4)) lists four general
categories of significant alternatives that would assist an agency in
the development of significant alternatives. These categories of
alternatives are: (1) Establishment of differing compliance or
reporting requirements or timetables that take into account the
resources available to small entities; (2) clarification,
consolidation, or simplification of compliance and reporting
requirements under the rule for such small entities; (3) use of
performance rather than design standards; and, (4) exemptions from
coverage of the rule for small entities.
In order to meet the objectives of this final rule, consistent with
the Magnuson-Stevens Act, NMFS cannot exempt small entities or change
the reporting requirements only for small entities because all of the
participants in Atlantic HMS fisheries are considered small entities.
The requirements to have an updated E-MTU VMS unit installed by a
qualified marine technician and expand reporting requirements to
include a declaration system is expected to improve the reliability of
VMS transmissions and provide NMFS enforcement with additional
information to accurately monitor fishing activities. NMFS does not
specify a particular manufacturer or model of VMS unit that vessel
owners would need to procure to comply with the final action. As noted
above, there are several models available that meet the specifications
described in the latest type approval notice (73 FR 5813; January 31,
2008). A list of E-MTU VMS units that are currently type approved for
use in Atlantic HMS fisheries is available on the NMFS Office of Law
Enforcement Web site at https://www.nmfs.noaa.gov/ole/docs/2011/07/noaa_fisheries_service_type_approved_vms_units.pdf. Copies of
this list and other information may be obtained by contacting the VMS
Support Center at (phone) (888) 219-9228, (fax) (301) 427-0049,
ole.helpdesk@noaa.gov, or write to NMFS Office for Law Enforcement, VMS
Support Center, 8484 Georgia Avenue, Suite 415, Silver Spring, MD
20910.
NMFS considered two alternatives in compliance with the Regulatory
Flexibility Act. Alternative one, the no action alternative, would
maintain the existing VMS requirements in Atlantic HMS fisheries.
Alternative two, the preferred alternative, would mandate that Atlantic
HMS vessels that are required to use VMS replace their MTU VMS unit
with an E-MTU VMS by March 1, 2012, and have the new unit installed by
a qualified marine electrician. This alternative would also implement a
fishery declaration system where vessels would declare their target
species and gear type(s) possessed onboard, as well as require vessels
to provide advanced notice of departure and landing. Alternative two is
the preferred alternative.
Under the no action alternative, vessels that are required to use
VMS would be able to continue to use the MTU VMS units currently being
employed in the PLL, BLL, and gillnet fisheries or access reimbursement
funds ($3,100 per VMS unit) to voluntarily replace these units with E-
MTU VMS units. The decision to replace existing units with E-MTU VMS
units would be at the discretion of individual vessel owners. In the
event that existing units failed beyond repair, E-MTU VMS units would
need to be installed, and owners would be eligible for reimbursement
funds ($3,100 per VMS unit) to offset the initial costs of the unit.
Costs for individual E-MTU VMS units that meet the type approval
specifications start at approximately $3,100 per unit depending on the
manufacturer, model, and additional features of the unit. NMFS expects
that any vessel owner who applies for reimbursement funds will receive
those funds; however, reimbursement funds are not guaranteed and are
subject to limitations and distributed on a first-come, first-serve
basis. In the event of necessary replacement, the E-MTU VMS units would
need to be procured by vessel owners before returning to fishing
activities, consistent with existing regulations, depending on the gear
possessed onboard the vessel, timing, and location of the fishing
activity. This alternative would not require that the new units be
installed by a qualified marine electrician. Rather, the new units
could be installed by vessel owners/operators and an installation
checklist would need to be completed and sent to NMFS enforcement per
existing requirements.
Under the no action alternative, vessel owners or operators would
not be required to provide NMFS enforcement with information concerning
target species and gear possessed on board prior to leaving port to
engage in fishing activities. Furthermore, vessel owners or operators
would not be required to provide NMFS enforcement with advanced notice
of departure and landing. Vessels would still be required to provide
hourly position reports, starting two hours before leaving port, when
away from port. It is estimated that these reports would continue to
cost $1.00 per day assuming 24 reports are sent. Maintenance costs for
these units are estimated at $500 per vessel per year. Some vessels may
be committed to long-term service contracts with communication service
providers and maintaining the status quo would not require vessels to
break these contracts, avoiding any early termination fees. Unlike the
MTU VMS units, which could have maintenance costs of approximately $500
per year, E-MTU VMS units have very low to no maintenance costs.
Under the preferred alternative, fishery participants would be
required to replace by March 1, 2012, MTU VMS units with E-MTU VMS
units (including approximately 80 to 100 fishery participants that
would replace MTUs with E-MTUs), however they would be able to access
reimbursement funds ($3,100 per VMS unit) to offset the initial costs
of the units. Reimbursement funds would be subject to limitations and
distributed on a first-come, first-serve basis. Furthermore,
individuals that have previously received reimbursement funds for an E-
MTU VMS unit required in another fishery would not be eligible for
additional funds. In the IRFA, the Agency estimated that the proposed
action require that the units be installed by a qualified marine
electrician ($200 per installation) to ensure that units are installed
and operating properly to avoid transmission failures that may occur
when vessels are away from port and subject to VMS requirements. The
Agency received several public comments indicating that an estimate of
$200 for installation may not be appropriate for vessels that are
docked in remote ports that are far from large population centers.
Therefore, the Agency has revised its estimate for installation by a
qualified marine electrician from $200 to $400 consistent with public
comments received. Marine electricians are also capable of providing
information on E-MTU VMS
[[Page 75501]]
use and troubleshooting during the installation process.
NMFS is also planning on delaying the implementation date in order
to allow vessel owners time to procure and have an E-MTU. The Agency
received comments requesting that the effective date be delayed even
further, to six months after publication of the final rule. The
effective date also coincides with a period of reduced fishing activity
for many HMS participants affected by the new requirement. A delayed
effective date balances the need for fishermen to save money for the
initial outlay to procure the unit with the need to expedite the
requirement so fishermen may access the reimbursement funds. The
extended implementation period would also allow vendors of type
approved E-MTUs to ensure they have an adequate supply of units in
stock.
Costs of compliance with the preferred alternative for vessel
owners are estimated to be $3,971; $3,830; $3,737 per vessel for PLL,
BLL, and shark gillnet vessels, respectively, in the first year (Table
1). These are the costs of compliance, pre-reimbursement. Reimbursement
funds of $3,100 per VMS unit would reduce the costs to $745 per vessel,
on average, across all fisheries. Costs in year two (and beyond) would
be limited to the costs of sending/receiving declaration reports ($0.06
per report) and providing vessel location information on an hourly
basis ($1.56 per vessel per day) and is estimated to be $471; $331; and
$237 per vessel for PLL, BLL, and shark gillnet vessels, respectively.
Table 1 summarizes some of the costs associated with the final
rule. A description of the figures and calculations used in Table 1 is
provided below the table.
Table 1--Costs of Compliance Expected as a Result of Requiring E-MTU VMS Units in Affected HMS Fisheries
----------------------------------------------------------------------------------------------------------------
Pelagic longline Shark bottom longline
vessels vessels Shark gillnet vessels
----------------------------------------------------------------------------------------------------------------
E-MTU VMS Unit....................... $3,100................. $3,100................. $3,100.
Estimated Installation Costs (one- $50-400 ($400 used for $50-400 ($400 used for $50-400 ($400 used for
time). estimation purposes. estimation purposes). estimation purposes).
Daily Position Report Costs (Hourly, $1.44.................. $1.44.................. $1.44.
24/day) ($0.06/report * 24 reports/
day).
Estimated Days Fishing/Year.......... 324.................... 212.................... 152.
Annual Position Report Costs/Vessel $466.56/vessel......... $305.28/vessel......... $218.88/vessel.
($1.44/day * days fishing/year).
Annual Number of Fishing Trips....... 36..................... 212.................... 152.
Annual Gear/Spp. Declaration Costs $4.32.................. $25.44................. $18.24.
($0.12/trip)/Vessel ($0.12/trip *
trips/year) **.
Total Estimated Costs/Vessel (Year 1) $3,971................. $3,830................. $3,737.
(VMS unit + installation + position
reports + declaration reports).
Number of Affected Vessels........... 249.................... 50..................... 30.
--------------------------------------------------------------------------
Total Costs by Fishery (Year 1) $988,749............... $191,536............... $112,113.
(Total Estimated Costs/Vessel *
Number of Affected Vessels).
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