[Federal Register Volume 76, Number 232 (Friday, December 2, 2011)]
[Rules and Regulations]
[Pages 75492-75503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30956]


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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.

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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 http://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 http://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, 
[email protected], 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 http://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 http://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 http://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, 
[email protected], 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).
----------------------------------------------------------------------------------------------------------------
Gross Cost of Compliance, Year One                                    $1,292,398.
 (all HMS vessels combined).
Potential Reimbursement Funds ($3,100/                                $1,019,900.
 vessel * Number of Affected Vessels).
----------------------------------------------------------------------------------------------------------------
Compliance Costs (Year 1) (avg. cost/  $870/vessel............  $730/vessel............  $637/vessel.
 vessel) (installation + position
 reports + declaration reports).
Compliance Costs/Vessel (Year 2 and    $471/vessel............  $331/vessel............  $237/vessel.
 Beyond) (position reports +
 declaration reports).
----------------------------------------------------------------------------------------------------------------
** 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 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 
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 two-
way 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

[[Page 75502]]

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.

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.

    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

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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.

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2. In Sec.  635.69, paragraph (a) introductory text, and paragraphs 
(d), (e), and (g) are revised to read as follows:


Sec.  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 
Sec.  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 NMFS-approved 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 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 Sec.  635.69(d) of this part.
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[FR Doc. 2011-30956 Filed 12-1-11; 8:45 am]
BILLING CODE 3510-22-P