[Federal Register Volume 78, Number 168 (Thursday, August 29, 2013)]
[Proposed Rules]
[Pages 53397-53404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21067]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 130426413-3719-01]
RIN 0648-BD24


Atlantic Highly Migratory Species; Vessel Monitoring Systems

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to modify the declaration requirements for 
vessels required to use Vessel Monitoring System (VMS) units in 
Atlantic Highly Migratory Species (HMS) fisheries. This proposed rule 
would require operators of vessels that have been issued HMS permits 
and are required to use VMS to use their VMS units to provide hourly 
position reports 24 hours a day, 7 days a week (24/7). The proposed 
rule would also allow the operators of such vessels to make 
declarations out of the fishery when not retaining or fishing for HMS 
for specified periods of time encompassing two or more trips. These 
changes would make the current Atlantic HMS VMS requirements consistent 
with other VMS-monitored Atlantic fisheries and provide additional 
reporting flexibility for vessel operators by eliminating the 
requirement to hail-out two hours in advance of leaving port. 
Additionally, these changes will continue to provide NOAA's Office of 
Law Enforcement (OLE) with information necessary to facilitate 
enforcement of HMS regulations. This rule would affect all commercial 
fishermen who fish for Atlantic HMS who are required to use VMS.

DATES: Submit comments on or before September 30, 2013. We will hold an 
operator-assisted public hearing via conference call and webinar for 
this proposed rule on September 23, 2013, from 1 p.m. to 3 p.m., EDT. 
We will also discuss the proposed rule with the HMS Advisory Panel 
during the AP meeting the week of September 9, 2013; the details of 
that meeting were published in a separate Federal Register notice on 
July 23, 2013 (78 FR 44095).

ADDRESSES:
    You may submit comments on this document, identified by NOAA-NMFS-
2013-0132, by any one of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to 
www.regulations.gov/#!docketDetail;D= NOAA-NMFS-2013-0132, click the 
``Comment Now!'' icon, complete the required fields, and enter or 
attach your comments.
     Mail: Submit written comments to Margo Schulze-Haugen, 
NMFS/SF1, 1315 East West Highway, National Marine Fisheries Service, 
SSMC3, Silver Spring, MD 20910.
     Fax: 301-713-1917, Phone: 301-427-8503; Attn: Margo 
Schulze-Haugen.
    Instructions: Please include the identifier NOAA-NMFS-2013-0132 
when submitting comments. Comments sent by any other method, to any 
other address or individual, or received after the close of the comment 
period, may not be considered by NMFS. All comments received are a part 
of the public record and generally will be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address), confidential business information, 
or otherwise sensitive information submitted voluntarily by the sender 
will be publicly accessible. We will accept anonymous comments (enter 
``N/A'' in the required fields if you wish to remain anonymous). 
Attachments to electronic comments will be accepted in Microsoft Word, 
Excel, or Adobe PDF file formats only. Written comments regarding the 
burden-hour estimates or other aspects of the collection-of-information 
requirements contained in this proposed rule may be submitted to the 
Atlantic Highly Migratory Species Management Division by email to 
[email protected], or fax to 202-395-7285.

Public Hearing and Webinar Information

    The call-in information for the public hearing is phone number 888-
997-8509; participant pass code 3166031. We will also provide a brief 
presentation via webinar. Participants can register for the webinar at 
https://www1.gotomeeting.com/register/242124417. Following the 
registration process, participants will receive a confirmation email 
with webinar log-in information. Presentation materials and other 
supporting information will be posted on the HMS Web site at: http://www.nmfs.noaa.gov/sfa/hms.

FOR FURTHER INFORMATION CONTACT: Cliff Hutt or Karyl Brewster-Geisz by 
phone at 301-427-8503 or by fax at 301-713-1917.
    Copies of this proposed rule and any related documents can be 
obtained by writing to the HMS Management Division, 1315 East-West 
Highway, Silver Spring, MD 20910, visiting the HMS Web site at http://www.nmfs.noaa.gov/sfa/hms/, or by contacting Cliff Hutt.

SUPPLEMENTARY INFORMATION:

Background

    Atlantic HMS fisheries are managed under the dual authority of the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the 
Atlantic Tunas Conservation Act (ATCA). Under the MSA, management 
measures must be consistent with ten National Standards, and fisheries 
must be managed to maintain optimum yield, rebuild overfished 
fisheries, and prevent overfishing. Under ATCA, the Secretary of 
Commerce shall 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.
    Maintaining the VMS monitoring program ensures compliance with both

[[Page 53398]]

international and domestic requirements while facilitating enforcement 
of Atlantic HMS fisheries regulations. Requirements to use VMS in the 
pelagic longline fishery were implemented on June 25, 2003 (68 FR 
37772). NMFS issued a rule on December 24, 2003 (68 FR 74746), which 
required VMS operation for vessels with bottom longline gear onboard 
between 33[deg]00' N. latitude and 36[deg]30' N. latitude to ensure 
compliance with the mid-Atlantic shark closed area from January 1 
through July 31 each year, and also required VMS for fishermen fishing 
for sharks with gillnet gear operating from November 15 through April 
15 each year due to concerns about interactions with right whales. In 
all of these rules, fishermen were allowed to power down the VMS unit 
between trips as long as the VMS unit was turned on at least two hours 
prior to leaving port and remained on until the vessel returned to 
port. These requirements were specific to vessels both holding an HMS 
permit and having longline or gillnet gear onboard, regardless of 
whether a vessel was fishing for HMS on any particular trip.
    On December 2, 2011, NMFS published a final rule (76 FR 75492) that 
required the use of Electronic Mobile Transmitting Unit (EMTU) VMS 
units for all HMS-permitted fishing vessels that are required to use 
VMS. The rule required vessel operators to ``hail-out'' at least two 
hours prior to departure for each fishing trip and declare the target 
fishery and gear type being utilized. Additionally, vessel operators 
are required to ``hail-in'' and notify NMFS at least three hours before 
the vessel returns to port.
    Following the publication of the 2011 rule, NMFS received feedback 
from vessel operators regarding the hail-in/hail-out requirements. Some 
vessel operators reported that the hail-out requirement can be 
burdensome. For example, fishermen who are using gear that requires 
little preparatory work prior to departure (e.g., gillnet gear) feel 
the current VMS requirements are burdensome by requiring them to arrive 
at port two hours before departure to notify NMFS of their departure. 
In addition, fishermen who hold HMS permits but do not fish for or 
target HMS exclusively (for example, some mid-Atlantic gillnet 
fishermen who make daily trips for monkfish over winter months do not 
fish for HMS during that time), have stated that requiring them to 
hail-out every time they leave for a fishing trip, even when those 
trips are not targeting HMS, is burdensome. Regardless of what is being 
fished for, those fishermen that have been issued an HMS permit and 
have pelagic longline, bottom longline, or gillnet gear onboard, are 
required, under current regulations, to provide hail-outs each trip.
    Although the existing hail-in requirement was established to 
provide NOAA OLE the ability to properly plan and arrange for 
inspections upon vessel return, current regulations allow fishermen to 
hail-in at any time as long as that hail-in occurs at least three hours 
before returning to port (i.e., they could hail-in before they even 
leave the dock). Allowing vessels the flexibility to hail-in so far in 
advance of their actual return to port undermines NOAA OLE's ability to 
know when and where to meet a returning vessel for inspection.
    In this proposed rule, NMFS is considering modifications to the 
requirements for hail-in/hail-out declarations as they apply to HMS 
permit holders. Specifically, fishermen who will not be fishing for or 
retaining HMS for two or more fishing trips would be given the option 
to declare out of the fishery. Once a vessel ``declares out,'' that 
fisherman would be exempt from the HMS hail-in/hail-out VMS 
requirements. Under this change, if a fisherman has declared out of the 
fishery, but incidentally catches any HMS while fishing that they wish 
to retain, he or she would be required to issue a declaration 
specifying the target species and fishing gear used while at sea before 
returning to port with any HMS. The fisherman would also have to hail-
in on that trip to report advance notice of landing to NMFS. That 
fisherman would then need to decide whether to hail-out or declare out 
of the fishery before leaving for their next trip. It is important to 
note that declaring out of the fishery exempts fishermen only from the 
HMS VMS hail-in/hail-out requirements; their VMS units would still be 
required to be on to provide hourly location signals. All other 
requirements and restrictions for vessels that have an HMS permit would 
still apply (e.g., those vessels would not be allowed in relevant 
closed or gear restricted areas), and other applicable VMS requirements 
for any other fisheries they are participating in would still apply. 
Vessels operating under a declaration out of the HMS fishery that wish 
to begin fishing for and retaining HMS again would need to resume 
hailing-in and hail-out for each fishing trip. This change in the hail-
in/hail-out requirements should reduce reporting burden on fishermen 
while continuing to provide NOAA OLE with information needed to 
facilitate enforcement of HMS regulations.
    NMFS also considered proposing that fishermen, who target HMS for 
two or more consecutive trips, and use the same type of fishing gear 
each trip, be allowed to issue a ``declaration into the fishery.'' As 
an example, NMFS is aware that there are fishermen who always use 
pelagic longline gear and always fish for and retain HMS. Allowing such 
fishermen to ``declare into the fishery,'' would have exempted them 
from making hail-outs before each trip while still requiring them to 
hail-in prior to landing HMS. NMFS is not proposing this change at this 
time because of NOAA OLE concerns that they would not receive 
information needed to effectively monitor HMS fisheries with advance 
notice if vessel operators did not hail-out before each trip.
    In this rule, NMFS is also proposing that all VMS units be required 
to remain on to provide hourly position reports 24 hours a day, 7 days 
a week (24/7), even when in port. This represents a change from the 
current regulations, which allow fishermen to turn their VMS unit off 
while the vessel is in port and require they turn the VMS unit back on 
at least two hours before leaving port. The proposed change to this 
requirement would provide vessel operators with additional flexibility 
since they would no longer be required to hail-out at least two hours 
before leaving port, but could instead wait to hail-out when leaving 
port. This change would also improve consistency of HMS fisheries VMS 
regulations with other Federal fishery VMS regulations while still 
providing NOAA OLE with location data to facilitate enforcement. 
Consistent with existing regulatory requirements regarding times that 
VMS must be used by particular fisheries, vessels with pelagic longline 
gear onboard, which are required to use VMS units year round, would be 
required to provide 24/7 location reporting year round. Vessels with a 
shark limited access permit (LAP) and gillnet gear onboard would be 
required to provide 24/7 location signals from November 15 through 
April 15 of each year. Vessels with bottom longline gear onboard, and 
located between 33[deg]00'' N. latitude and 36[deg]30'' N. latitude 
would be required to provide 24/7 location signals from January 1 
through July 31 each year. Fishermen would need to request a documented 
exemption from the VMS requirements if their VMS unit needs to be 
powered down for various reasons such as placing the vessel in drydock 
for repairs or suspending fishing activity for an extended period. 
Under those or similar situations, fishermen should

[[Page 53399]]

contact NOAA OLE to request a documented exemption.
    Finally, NMFS is also proposing to modify the current hail-in 
regulations to require vessel operators to hail-in no more than 12 
hours, and no less than three hours, before returning to port. 
Currently, vessel operators are required to hail-in at least three 
hours prior to returning to port to specify where they will be landing, 
but no restriction exists on how far in advance a hail-in declaration 
can be made prior to landing. Some vessel operators on multi-day trips 
submit hail-ins days in advance of landing, thus making it difficult 
for NOAA OLE to plan dockside inspections of vessels landing HMS. By 
establishing a maximum time limit on when a hail-in can be submitted, 
NOAA OLE will be more efficient in coordinating inspections of vessels 
landing HMS to monitor compliance with, and enforce, HMS regulations.
    NMFS conducted the following Regulatory Impact Review (RIR) to 
comply with Executive Order 12866 (E.O. 12866) and provide analyses of 
the economic benefits and costs of this proposed action to the nation 
and the fishery as a whole. The information contained in this document, 
taken together with the data and analysis incorporated by reference, 
comprise the complete RIR.
    Neutral social and economic impacts from the proposed action are 
expected, as the proposed alternatives are not expected to increase 
reporting costs for affected vessels and would reduce reporting burden 
for many vessels. Table 1 provides a summary of the financial impact to 
affected vessels under the current VMS requirements. NMFS does not 
anticipate that the proposed changes to the VMS regulations would 
result in any change to current costs associated with VMS for most 
vessels because the hourly location signals are automated and most 
service providers include them in the base cost of the VMS unit plan. 
For those vessels with VMS plans that charge per location signal, the 
charge per signal is relatively small ($0.06 per signal), so the change 
to 24/7 hourly position reports should not result in a significant cost 
increase. However, there are additional benefits associated with the 
proposed action relative to the no-action alternative. For example, 
requiring 24/7 hourly position reports would provide NOAA OLE with 
enhanced communication with HMS vessel operators and provide valuable 
information concerning target species and gear possessed to facilitate 
enforcement of closed areas and other regulations. Requiring 24/7 
reporting would also reduce the reporting burden on vessel operators by 
allowing them to hail-out when leaving port instead of doing so at 
least two hours in advance. Furthermore, allowing vessels not fishing 
for or retaining HMS for two or more consecutive trips to ``declare out 
of the fishery'' would reduce their overall reporting burden.

  Table 1--Estimated Costs of Compliance Under Current VMS Regulations in Affected HMS Fisheries. No Change in
                           Costs is Expected Under the Proposed Rule for Most Vessels
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                                                                Shark bottom longline
                                    Pelagic longline vessels           vessels            Shark gillnet vessels
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Monthly E-MTU VMS Unit Plans       $44.00                     $44.00                    $44.00.
 average including 24/7 Position
 Reports and data.
Estimated Days (Months) Fishing/   324 (12)                   212 (7)                   152 (5).
 Year.
Annual Compliance Costs/Vessel     $528/vessel                $308/vessel               $220/vessel.
 ($44/month * months fishing/
 year).
Annual Compliance Costs +          $1,028                     $808                      $720.
 Maintenance Costs ($500/year).
Annual Number of Fishing Trips...  36                         212                       152.
Number of Affected Vessels.......  253                        25                        30.
Annual Cost for all Vessels......  $260,084                   $20,200                   $21,600.
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** The declaration costs per trip will vary based upon the number of target species and gear types possessed
  onboard as operators would be required to submit one declaration for each target fishery/fishing gear
  possessed.

Request for Comments

    NMFS is requesting comments on any of the measures or analyses 
described in this proposed rule. Furthermore, NMFS also requests 
comments related to the economic impacts and reporting burden 
associated with this proposed rule, and any other VMS requirements 
placed on HMS fishermen for which modifications are not being proposed, 
including:
    1. The proposed change to 24/7 reporting, whether the vessel is at 
sea or in port, unless the vessel operator has a documented power down 
exemption.
    2. The option to declare out of the fishery when not fishing for or 
retaining HMS for two or more consecutive trips.
    3. The proposed modifications to the advance timeframes associated 
with hail-out and hail-in requirements (i.e., eliminating the 
requirement to hail-out two hours in advance of leaving port, and 
requiring vessels to hail-in no less than three hours, but no more than 
twelve hours, before returning port).
    4. The time and costs associated with having an E-MTU VMS unit 
installed by a qualified marine electrician.
    5. The time and costs associated with operation of the E-MTU VMS 
unit, and the time and costs associated with issuing transmissions 
(i.e., hail-out/hail-in, declarations) from the E-MTU VMS unit.
    Comments on this proposed rule may be submitted via http://www.regulations.gov, mail, or fax. Comments may also be submitted 
during the public hearing call-in and webinar (see DATES and 
ADDRESSES). Comments must be received by September 30, 2013. NMFS is 
holding one public hearing via conference call and webinar for this 
proposed rule. NMFS reminds the public that participants at the public 
hearings should conduct themselves appropriately. At the beginning of 
the conference call, a moderator will explain the ground rules (e.g., 
attendees will be called to give their comments in the order in which 
they are received; each attendee will have an equal amount of time to 
speak; and, participants should address one another in a respectful 
manner). All members of the public participating in the conference call 
will have the opportunity to comment, if they so choose. Participants 
that do not respect the ground rules will be removed from the 
conference call. NMFS will also discuss the proposed rule with the HMS 
Advisory Panel during the week of September 9, 2013; the details of 
that meeting were published in a separate Federal Register notice on 
July 23, 2013 (78 FR 44095).

Classification

    The NMFS Assistant Administrator has determined that this proposed 
rule is consistent with the 2006 Consolidated

[[Page 53400]]

HMS Fishery Management Plan (FMP) and its amendments, the MSA and 
National Standards, and other applicable law, subject to further 
consideration after public comment. Upon review, we have determined 
that this action will not result in significant adverse effects, 
individually or cumulatively, on the human environment. Therefore, the 
action may appropriately be categorically excluded from the requirement 
to prepare either an environmental assessment or environmental impact 
statement in accordance with Section 6.03c.3(i) of NAO 216-6. This 
action would not affect fishing effort, quotas, fishing gear, 
authorized species, or interactions with threatened or endangered 
species.

Executive Order 12866

    Under E.O. 12886, the Office of Management and Budget (OMB) has 
determined this rule to be not significant.

Paperwork Reduction Act

    This proposed rule would modify a collection-of-information 
requirement that has been previously approved by the Office of 
Management and Budget (OMB) under control number 0648-0372. The 
proposed modification in this rule is subject to review and approval by 
OMB under the Paperwork Reduction Act (PRA), and will be submitted for 
approval. There would be 308 vessel operators (respondents) that may be 
affected by this collection; however, the rule's proposed provisions 
would reduce the overall burden to vessel operators as opposed to 
increasing it. Under the current VMS requirements, HMS vessel operators 
are required to make two declarations per trip (2 minutes per 
declaration). Under the current regulatory requirements, NMFS 
calculated the number of trips made by HMS vessels per year for which 
they are required to make hail-out/hail-in declarations, and estimated 
that these trips would result in a total of 37,936 declarations and 
result in a total reporting burden of 1,264 hours, or 4.10 hours per 
vessel. NMFS estimates that the proposed action, which would allow for 
long-term declarations out of the fishery and exempt vessels from 
submitting declarations for each trip during that time frame, could 
theoretically reduce the average reporting burden hours for each vessel 
issuing a long-term declaration by as much as 4 hours if the 
declaration is issued for the entire fishing season. It is highly 
unlikely that vessels would declare out for the fishery for the entire 
season, but NMFS does not currently have an estimate of the number of 
vessels that may take advantage of the long-term declaration.

Regulatory Flexibility Act

    NMFS prepared an Initial Regulatory Flexibility Analysis (IRFA), as 
required by 5 U.S.C. 603 of the Regulatory Flexibility Act (RFA), to 
analyze the economic impacts that this proposed rule would have on 
small entities. The full IRFA is included below.
    Section 603(b)(1) of the RFA requires that the Agency describe the 
reasons the action is being considered. A description of the proposed 
action, why it is being considered, and the legal basis for this 
proposed action is described in more detail in the preamble to the 
proposed rule. The purpose of this proposed rulemaking, consistent with 
the MSA and the 2006 Consolidated HMS FMP and its amendments, is to aid 
NOAA OLE in compliance monitoring and enforcement of HMS fisheries 
regulations while also minimizing the reporting burden on fishermen. 
The proposed action would provide fishermen with additional flexibility 
regarding the hail-out requirement and also remove the option of 
turning the VMS off unless the vessel operator has obtained a 
documented power down exemption from NOAA OLE. Specifically, fishermen 
that hold an HMS permit and are required to use VMS could declare out 
of the fishery if they do not intend to fish for and retain HMS for two 
or more consecutive trips. This declaration would exempt them from the 
requirement to hail-out before every trip (which can be daily for some 
fisheries) and hail-in before returning from every trip, but does not 
exempt them from other applicable HMS regulations (e.g., gear 
requirements, time/area closures, etc.) or from applicable regulations 
in other fisheries, including VMS requirements. Additionally, fishermen 
would still need to operate their VMS units 24 hours a day, 7 days a 
week to provide hourly location signals for the duration of long-term 
declaration out of the fishery. Requiring VMS units remain on at all 
times would mean fishermen could hail-out while they are leaving port. 
These proposed changes are a direct result of public feedback that 
indicated the current hail-out requirements were burdensome. Finally, 
vessel operators would still be required to hail-in at least three 
hours before returning to port, but would also be required to do so no 
more than 12 hours before landing. These proposed changes considered 
the need of NOAA OLE agents to have information on target species and 
gear being deployed in order to facilitate enforcement of closed areas 
and other regulations.
    Section 603(b)(2) of the RFA requires a succinct statement of the 
objectives of, and legal basis for, the proposed rule. The objectives 
of this proposed rulemaking are to consider changes to the HMS 
regulations at 50 CFR part 635 requiring the use of VMS in Atlantic HMS 
fisheries that would be less burdensome to fishermen while maintaining 
the information needed by NOAA OLE to monitor compliance and enforce 
the regulations. For example, properly functioning VMS units aid NOAA 
OLE in monitoring and enforcing closed areas implemented to reduce 
bycatch of undersized swordfish, sharks, sea turtles, and other species 
necessary to comply with the Marine Mammal Protection Act (MMPA), 
Endangered Species Act (ESA), and National Standard 9 (bycatch and 
bycatch mortality reduction) of the MSA.
    Under 5 U.S.C. 603(b)(3), Federal agencies must provide an estimate 
of the number of small entities to which the rule would apply. The 
Small Business Administration (SBA) has established size criteria for 
all major industry sectors in the United States, including fish 
harvesters. Previously, a business involved in fish harvesting was 
classified as a small business if it is independently owned and 
operated, is not dominant in its field of operation (including its 
affiliates), and has combined annual receipts not in excess of $4.0 
million (NAICS code 114111, finfish fishing) for all its affiliated 
operations worldwide. In addition, SBA has defined a small charter/
party boat entity (NAICS code 713990, recreational industries) as one 
with average annual receipts of less than $7.0 million. On June 20, 
2013, SBA issued a final rule revising the small business size 
standards for several industries effective July 22, 2013 (78 FR 37398; 
June 20, 2013). The rule increased the size standard for Finfish 
Fishing from $4.0 to 19.0 million, Shellfish Fishing from $4.0 to 5.0 
million, and Other Marine Fishing from $4.0 to 7.0 million.
    NMFS has reviewed the analyses prepared for this action in light of 
the new size standards. Under the former, lower size standards, all 
entities subject to this action were considered small entities, thus 
they all would continue to be considered small under the new standards. 
NMFS does not believe that the new size standards affect analyses 
prepared for this action and solicits public comment on the analyses in 
light of the new size standards. NMFS estimates that this proposed rule 
would require 308 vessel owners deploying

[[Page 53401]]

either pelagic longline, bottom longline, or gillnet gear in HMS 
fisheries to use their VMS units to send hourly location reports 24 
hours a day, 7 days a week. The action would also allow vessel 
operators the option of making a long-term declaration out of the HMS 
fishery for any period of time encompassing two or more trips during 
which the vessel will not be fishing for or retaining HMS. Such a 
declaration would exempt the vessel from hail-in and hail-out 
requirements until the vessel resumes fishing for and retaining HMS at 
which time the vessel will need to resume hailing-out and hailing-in 
for each trip.
    This proposed rule modified some existing reporting, recordkeeping, 
or other compliance requirements (5 U.S.C. 603(b)(4)). Specifically, 
vessel operators that do not plan to fish for or retain HMS for a 
period of time encompassing two or more trips would be given the option 
to declare out of the HMS fishery which would exempt them from having 
to hail-out and hail-in for each trip. Additionally, the 308 HMS vessel 
operators currently required to use VMS units would be required to 
leave their VMS units on 24 hours a day, 7 days a week, to facilitate 
the delivery of hourly location signals to NOAA OLE. This requirement 
would also allow vessel operators pursuing HMS to wait until they leave 
port to issue the required hail-out as opposed to being required to do 
so at least two hours before leaving port. Finally, this proposed rule 
would also require vessel operators to hail-in at least three hours 
before returning to port, but no more than 12 hours before doing so.
    This proposed rule would not conflict, duplicate, or overlap with 
other relevant Federal rules (5 U.S.C. 603(b)(5)). Fishermen, dealers, 
and managers in these fisheries must comply with a number of laws, 
including, but not limited to, the MSA, ATCA, the High Seas Fishing 
Compliance Act, the MMPA, the ESA, the National Environmental Policy 
Act, and the Coastal Zone Management Act. The proposed regulations 
would not duplicate, overlap, or conflict with any relevant 
regulations, Federal or otherwise.
    One of the requirements of an IRFA is to describe any alternatives 
to the proposed rule that accomplish the stated objectives and that 
minimize any significant economic impacts. These impacts are discussed 
below. Additionally, the RFA (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 proposed rule, consistent 
with the MSA, 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. Thus, none of the 
alternatives being considered fall under the first and fourth 
categories described above.
    Furthermore, because the purpose of this rulemaking is to modify 
existing VMS reporting requirements, the use of performance standards, 
such as those mentioned in the third category above, would not be 
suitable to achieve the goals of this rulemaking. Finally, the proposed 
modification to the hail-out/hail-in requirement is expected to reduce 
the burden of reporting for vessels not fishing for or retaining HMS 
and provide NOAA OLE agents with additional information to accurately 
monitor fishing activities. Furthermore, the proposed requirement for 
vessel operators to maintain power to the VMS unit 24 hours a day, 7 
days a week will not increase burden over the current requirement 
(i.e., only having the VMS on while away from port and at least two 
hours before leaving port) because the hourly location signals are 
automated, the proposed change would eliminate the need for vessel 
operators to hail-out at least two hours before leaving port, and 
hourly location signals are included in the base cost of the VMS unit 
plans offered by most providers. Since the purpose of the current 
requirement to hail-out at least two hours before leaving port was to 
ensure NOAA OLE received at least one location signal from a vessel 
before it left port, switching to 24 hours a day, 7 days a week 
reporting under this proposed rule would make advance hail-outs 
unnecessary. As such, NMFS has determined that this rulemaking meets 
the objectives stated in the second category. NMFS analyzed several 
alternatives in this proposed rulemaking, and the rationale for 
selecting the preferred alternatives is provided below.
    NMFS is considering two categories of issues related to the use of 
VMS by the Atlantic HMS fleet; each issue has its own set of 
alternatives. The first category (Alternatives A1-A2) addresses the 
required frequency of hourly location signals issued by VMS units used 
by HMS fishermen, and whether vessel operators should be allowed to 
power down their VMS units between trips. The second category 
(Alternatives B1-B3) addresses hail-out/hail-in requirements, and 
proposes the addition of long-term declarations (i.e., `declare out of 
fishery' option) to the options available to vessels operating under 
HMS commercial permits. The preferred alternatives include Alternative 
A2 and Alternative B2. The potential economic impacts that would occur 
under these preferred alternatives were compared with the other 
alternatives to determine if economic impacts to small entities could 
be minimized while still accomplishing the goals of this rule.
    For the hourly position reports, Alternative A1, the no action 
alternative, would maintain the existing VMS requirements in Atlantic 
HMS fisheries which allow vessel operators to power down their VMS 
units while at port, and require them to power them back on at least 
two hours before leaving port for their next trip. Alternative A2 would 
require that Atlantic HMS vessels provide hourly position reports 24/7, 
during those periods of the year in which they are required to use VMS, 
unless extenuating circumstances (e.g., scheduled maintenance, putting 
the boat in drydock) warrant powering the VMS unit down. In such 
circumstances, vessel operators would need to contact NOAA OLE to 
request a documented power down exemption. Additionally, this 
alternative would eliminate the requirement for vessel operators to 
hail-out at least two hours before leaving port, and would instead 
allow them to wait until they are actually leaving port to hail-out. 
The justification for the current requirement to hail-out two hours 
before leaving port was to ensure VMS units would transmit at least one 
location signal while the vessel was still in port. The proposed change 
to 24/7 location reporting would thus obviate the need for this 
requirement. Alternative A2 would also require vessel operators to 
hail-in at least three hours before returning to port, but no more than 
12 hours before doing so. NMFS is proposing this change because the 
open-ended requirement specified in the current regulations has allowed 
vessel operators to submit hail-in declarations days before returning 
to port, making it difficult for enforcement agents to determine when a 
vessel will actually return to port.
    NMFS estimated the costs of 24/7 hourly position reports for all 
vessels by

[[Page 53402]]

calculating the average monthly costs from the five main providers of 
VMS units and services. The monthly cost of these plans ranges from $35 
to $50 per month (average cost $44 per month) and includes 24/7 hourly 
position reports and data costs associated with messaging for 
declarations and hail-in/hail-outs. It is likely that this pricing 
model has been adopted because most fisheries using VMS already require 
24/7 reporting. Annual costs of compliance for both alternatives for 
vessel owners are estimated to be $528, $308, and $220 per vessel for 
pelagic longline, bottom longline, and shark gillnet vessels, 
respectively (Table 1). NMFS does not anticipate these costs to be 
different from current monthly VMS costs for most HMS vessels since 
most VMS providers use plans that include 24/7 hourly position reports 
and data (for making hail-in/hail-outs and other declarations). For 
purposes of estimation, NMFS assumed continuous reporting over the 
course of the year, or that portion of the year in which HMS permitted 
vessels are required to use VMS. Additionally, maintenance costs for 
VMS units are estimated at $500 per vessel per year, but changing to 
24/7 reporting is not expected to affect these costs. Changing to 24/7 
position reporting would, however, eliminate the need for vessel 
operators to hail-out at least two hours before leaving port, thus 
giving them greater flexibility in planning their trip schedules.
    Next, NMFS considered alternatives to modify the current hail-in/
hail-out reporting requirements to include long-term declarations that 
can apply to multiple trips. Alternative B1, the no action alternative, 
would maintain the current hail-in/hail-out declaration requirements. 
HMS vessel operators required to use VMS currently must hail-out and 
hail-in for each fishing trip in addition to submitting a declaration 
indicating which species they will be targeting, and the gear they will 
be fishing. Alternative B2, the preferred alternative, would allow for 
vessels not fishing for or retaining HMS for two or more trips to 
advise NMFS as such by issuing a declaration out of the fishery. 
Vessels under a long-term declaration out of the fishery would be 
exempted from issuing hail-in/hail-out declarations each trip, but 
would still be required to follow all other Atlantic HMS regulations 
including continuing to provide 24/7 location signals on their VMS 
units. Vessels operating under the proposed long-term declaration would 
still have the option to land HMS if they catch them incidentally, but 
would have to first declare back into the HMS fishery and issue a hail-
in at least three hours, and no more than twelve hours, before 
returning to port.
    Based on public comments received, NMFS assumed that many, if not 
all, shark gillnetters and bottom longliners would declare out of the 
HMS fishery for at least part of the season in which they are required 
to use VMS. NMFS expects few, if any, fishermen using pelagic longline 
to declare out of the HMS fishery as most of these vessels target HMS 
almost exclusively. Therefore, to assess the effect of Alternatives B2 
on reporting burden, NMFS estimated the total number of HMS fishing 
trips that bottom longline vessels from Virginia to South Carolina and 
shark gillnet vessels could annually take and thus be required to make 
daily hail-in/hail-outs (Table 1). The estimates vary by gear type 
possessed onboard. Bottom longline vessels primarily target large 
coastal sharks (LCS) and Council-managed species (snapper/grouper, 
tilefish, etc.). Bottom longline vessels from Virginia to South 
Carolina (between 33[deg]00[min] N. latitude and 36[deg]30[min] N. 
latitude) are required to use VMS to provide hourly position signals 
from January 1st to July 31st of each year to facilitate enforcement of 
the Mid-Atlantic bottom longline closed area. In recent years, except 
for 2013, the seasons for LCS in the Atlantic region have not opened 
until July 15, resulting in a two-week period where vessels could be 
fishing for or retaining LCS with bottom longline gear and would be 
required to use VMS. However, seasons for small coastal sharks (SCS), 
pelagic sharks, and Council-managed species also require consideration 
as affected vessels may be fishing for other species with bottom 
longline gear onboard. NMFS assumes that approximately 50 bottom 
longline vessels could be fishing (day trips) in the vicinity (between 
33[deg]00[min] N. latitude and 36[deg]30[min] N. latitude) of the Mid 
Atlantic bottom longline closed area where VMS is required during the 
entire 212 day-closure (January 1-July 31), resulting in 212 trips per 
year. Shark gillnet vessels can target LCS, SCS, and Council-managed 
species, but have targeted sharks less in recent years. The gillnet 
fishery primarily targets small coastal sharks (SCS) and blacktip 
sharks (included in the aggregate LCS management group in the Atlantic 
region and as its own management group in the Gulf of Mexico region). 
Season length for the different shark management groups varies annually 
based on quota availability, catch rates, and other considerations. 
Many shark gillnet vessel owners have been issued permits that allow 
them to participate in other fisheries using gillnet gear; therefore, 
to estimate burden, NMFS assumed that affected vessels could be engaged 
in fishing activities and subject to VMS requirements from November 15-
April 15 for the duration of this time period every year (152 days). 
NMFS also assumed that vessels would return to port once every 24 hours 
to offload catch and procure supplies. Based on public comments, NMFS 
expects many gillnetters and bottom longliners would make long-term 
declarations out of the fishery if given the option, which would 
require them to make only one declaration report. However, if HMS are 
caught during a trip and the fishermen wish to land them, they must 
declare back in to the HMS fishery and then provide NOAA OLE with a 
hail-in at least three hours, and no more than twelve hours, before 
returning to port. While NMFS does not expect there to be a difference 
in costs for vessel operators between Alternatives B1 and B2, 
Alternative B2 could result in a substantial reduction in reporting 
burden for vessels not fishing for or retaining HMS. For this reason 
and because the enforcement capabilities are the same under either 
alternative, we prefer Alternative B2 at this time.
    Finally, Alternative B3 would allow vessels fishing for the same 
HMS with the same gear for two or more consecutive trips to make long-
term declarations into the HMS fishery which would exempt them from 
making daily hail-out declarations, but would still require them to 
hail-in before landing HMS. NMFS determined that pelagic longline 
vessels would be most likely to take advantage of a long-term 
declaration into the HMS fishery as many of those vessels target HMS 
almost exclusively. Logbook data (2006-2009) for pelagic longline 
vessels indicates that across all regions and months of the year, 
vessels make approximately 6.7 sets per trip. Each set takes 
approximately one day. For the purpose of estimation, seven sets per 
trip were used in the following calculations. Vessels would require at 
least one day transiting to and from fishing grounds and at least one 
day in between fishing trips for offloading. Therefore, NMFS estimates 
that average pelagic longline trips are 10 days (7 days fishing + 2 
days transit + 1 day offload/resupply) in duration, meaning vessels 
could make up to 36 complete trips per year (365 days per year/10 days 
per trip). Under Alternative B3, aside from the initial long-term 
declaration into the fishery, declaration reports would only be 
required prior to the

[[Page 53403]]

vessels return to port (1 declaration/trip). Assuming the vessels make 
36 trips per year, they would submit 37 declarations (36 trips per year 
* 1 declaration per trip + 1 long-term declaration into the fishery = 
37 declarations per year), which are included in the cost of the VMS 
unit plans offered by most providers. These calculations would 
represent a maximum possible burden on pelagic longline vessels in 
Alternative B3 were adopted. NMFS assumed that costs will vary slightly 
among individual vessel owners based on the number of days at sea per 
year, the VMS provider, and the number of messages sent and received 
using the VMS unit. While NMFS does not expect there to be a difference 
in costs for vessel operators between Alternatives B1 and B3, 
Alternative B3 would result in a reduction in reporting burden for 
vessels exclusively fishing for HMS as they would only have to make one 
declaration per trip. However, because this alternative would 
potentially complicate NOAA OLE's ability to monitor vessels fishing 
for HMS by reducing the frequency of communication with fishermen, and 
eliminating notification of when HMS trips are beginning, this 
alternative is not preferred at this time.

List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, 
Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: August 23, 2013.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries, performing the functions and 
duties of the Deputy Assistant Administrator for Regulatory Programs, 
National Marine Fisheries Service.
    For the reasons set out in the preamble, 50 CFR part 635, as 
proposed to be amended at 78 FR 52032, August 21, 2013, is further 
proposed to be amended as follows:

PART 635--ATLANTIC HIGHLY MIGRATORY SPECIES


0
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.

0
2. In Sec.  635.69, paragraphs (a)(1) through (3), paragraph (d) 
introductory text, and paragraphs (e)(1) through (3) are revised, and 
paragraph (e)(5) is added to read as follows:


Sec.  635.69  Vessel monitoring systems.

    (a) * * *
    (1) Whenever the vessel has pelagic longline or purse seine gear on 
board;
    (2) Whenever a vessel issued a directed shark LAP, has bottom 
longline gear on board, is located between 33[deg]00' N. lat. and 
36[deg]30' N. lat., and the mid-Atlantic shark closed area is closed as 
specified in Sec.  635.21(d)(1); or
    (3) Whenever a vessel issued a directed shark LAP has a gillnet(s) 
on board from November 15-April 15.
* * * * *
    (d) Installation and activation. Only an E-MTU VMS that has been 
approved by NMFS for Atlantic HMS Fisheries may be used. 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--
* * * * *
    (e) * * *
    (1) Owners or operators of vessels subject to requirements 
specified in paragraph (a) of this section must ensure the VMS unit is 
on so that it will submit automatic position reports every hour, 24 
hours a day. Except as otherwise noted in this paragraph, the VMS unit 
must always be on, operating and reporting without interruption, and 
NMFS enforcement must receive hourly position reports without 
interruption. No person may interfere with, tamper with, alter, damage, 
disable, or impede the operation of a VMS unit, 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. Owners of 
vessels may request a documented power down exemption from NMFS 
enforcement if the vessel will not be fishing for an extended period of 
time. The request must describe the reason an exemption is being 
requested; the location of the vessel during the time an exemption is 
sought; the exact time period for which an exemption is needed (i.e., 
the time the VMS signal will be turned off and turned on again); and 
sufficient information to determine that a power down exemption is 
appropriate. Approval of a power down must be documented and will be 
granted, at the discretion of NMFS enforcement, only in certain 
circumstances (e.g., when the vessel is going into dry dock for 
repairs, or will not be fishing for an extended period of time).
    (2) Prior to departure for each trip, a vessel owner or operator 
must initially report to NMFS any highly migratory species the vessel 
will target on that trip and the specific type(s) of fishing gear that 
will be on board the vessel, using NMFS-defined gear codes. 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 or using another method as 
instructed by NMFS enforcement.
    (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 and no more than 12 hours in advance of landing regardless of 
trip duration. This information must be reported to NMFS using an 
attached VMS terminal and must include the date, approximate time, and 
location of landing.
* * * * *
    (5) Vessel owners or operators that decide not to fish for or 
retain HMS for a period of time encompassing two or more trips may 
follow the requirements of this paragraph in lieu of paragraphs (e)(2) 
and (3) of this section.
    (i) If a vessel owner or operator decides not to fish for or retain 
HMS for a period of time encompassing two or more trips, that owner or 
operator may choose to ``declare out'' of the fishery. To ``declare 
out,'' the vessel owner or operator must contact NMFS using an attached 
VMS terminal to indicate the operator does not plan to fish for or 
retain HMS. By ``declaring out'' of the HMS fishery, the vessel owner 
or operator is exempt from the requirements of paragraphs (e)(2) and 
(3) of this section, unless the circumstances described in (e)(5)(ii) 
apply, but must still comply with all other HMS regulations that are 
applicable to the vessel including area and gear closures.
    (ii) If a vessel owner or operator has advised NMFS that it will 
not be fishing for or retaining HMS as described in paragraph (e)(5)(i) 
of this section, but incidentally catches and retains any HMS while 
fishing, the vessel owner is required to change the target species 
declaration and advise NMFS as described in paragraph (e)(2) of this 
section while at sea before returning to port with any HMS. The vessel 
must also report advance notice of landing to NMFS as described in 
paragraph (e)(3) of this section.
    (iii) Once the vessel owner or operator changes the declaration per 
paragraph

[[Page 53404]]

(e)(5)(ii) of this section, that vessel is assumed to be fishing under 
the requirements of paragraphs (e)(1) through (3) of this section until 
the vessel owner or operator makes another declaration under this 
paragraph (e)(5).
* * * * *
[FR Doc. 2013-21067 Filed 8-28-13; 8:45 am]
BILLING CODE 3510-22-P