[Federal Register Volume 78, Number 221 (Friday, November 15, 2013)]
[Rules and Regulations]
[Pages 68757-68764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27418]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 635

[Docket No. 130426413-3934-02]
RIN 0648-BD24


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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[[Page 68758]]

SUMMARY: NMFS is modifying the reporting requirements for vessels 
required to use Vessel Monitoring System (VMS) units in Atlantic Highly 
Migratory Species (HMS) fisheries. This final rule requires vessel 
owners or operators, who have been issued HMS permits and are required 
to use VMS, to provide hourly position reports 24 hours a day, 7 days a 
week (24/7) via VMS. The final rule also allows the vessel owners or 
operators of such vessels to declare out of the HMS fishery when not 
fishing for or retaining HMS for a period of time encompassing two or 
more trips. This final action will continue to provide NOAA Office of 
Law Enforcement needed information on the target fishery and gear 
possessed in order to facilitate enforcement of closed areas and other 
HMS regulations, while reducing the reporting burden on vessel owners 
and operators. This action will also bring HMS fisheries regulations in 
line with VMS regulations in other fisheries. This rule affects all 
owners and/or operators of permitted vessels that fish for HMS and are 
required to use VMS.

DATES: This final rule is effective December 16, 2013, except for 
amendatory instruction 2 to Sec.  635.69, which is effective November 
14, 2013.

ADDRESSES: Supporting documents and compliance guides are available 
from Cliff Hutt and Karyl Brewster-Geisz, 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 also may be downloaded from the HMS Web site at 
www.nmfs.noaa.gov/sfa/hms/. Written comments regarding the burden-hour 
estimates or other aspects of the collection-of-information 
requirements contained in this final rule may be submitted to the 
Office of Sustainable Fisheries and by email to [email protected] or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: For information on this rule and 
requirements for Atlantic HMS fisheries contact, Cliff Hutt or Karyl 
Brewster-Geisz by phone at 301-427-8503 or by fax at 301-713-1917. For 
information on NMFS's VMS program, contact Pat O'Shaughnessy at NOAA 
OLE by phone at 800-758-4833 or by fax at 727-824-5318.

SUPPLEMENTARY INFORMATION: 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.

Background

    On August 29, 2013, NMFS published a proposed rule (78 FR 53397) 
that considered a series of modifications to reporting requirements in 
Atlantic HMS fisheries. Three alternatives were analyzed in the 
proposed rule: Require VMS hourly position reporting 24 hours a day, 7 
days a week (24/7), whether the vessel is at sea or in port; require 
vessel owners or operators to hail-in (i.e., declare their return date, 
location, and time of landing as required at 50 CFR 635.69(e)(3)) no 
more than 12 hours, and no less than three hours, before landing; and 
give vessel owners or operators who will not be fishing for or 
retaining HMS for periods of time encompassing two or more fishing 
trips the option to declare out of the fishery. 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 August 29, 
2013, rule without change. The purpose of this final action is to 
continue to provide NOAA Office of Law Enforcement needed information 
on the target fishery and gear possessed in order to facilitate 
enforcement of closed areas and other HMS regulations, and to bring HMS 
fisheries regulations in line with VMS regulations placed on other 
fisheries, while reducing the reporting burden on vessel owners or 
operators. All of the new requirements such as 24/7 reporting and 
changes to the hail in and hail out procedures will take effect on 
December 16, 2013 except that vessel owners or operators could begin to 
declare out of HMS fisheries on November 14, 2013.
    With this final rule, NMFS is requiring that as of December 16, 
2013 all VMS units in Atlantic HMS fisheries remain on to provide 
hourly position reports 24 hours a day, 7 days a week, whether the 
vessel is at sea or in port. The change to 24/7 location reporting 
eliminates the requirement to hail out at least two hours before 
leaving port, and allows vessel operators to hail out (i.e., declare 
their target species and gear type as required by regulations at 50 CFR 
635.69 (e)(2)) when actually leaving port. 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, now will be required to 
provide 24/7 location reporting year round. Vessels with a shark 
limited access permit (LAP) and gillnet gear onboard now will be 
required to provide 24/7 location signals from November 15 through 
April 15 of each year. Vessels with a shark LAP and bottom longline 
gear onboard that operate between 33[deg]00' N. latitude and 36[deg]30' 
N. latitude now will be required to provide 24/7 location signals from 
January 1 through July 31 each year. Vessel owners or operators must 
request and receive a documented ``power down'' exemption for a vessel 
to be exempt from the VMS requirements if they need to turn off their 
VMS unit for reasons such as placing the vessel in drydock for repairs 
or suspending all fishing activity for an extended period. Under those 
or similar situations, vessel owners or operators should contact NOAA 
OLE (see FOR FURTHER INFORMATION CONTACT) to request a documented power 
down exemption. Additionally, as of December 16, 2013, vessel owners or 
operators must hail in no more than 12 hours, and no less than three 
hours, before landing.
    Finally, as of November 14, 2013, vessel owners or operators that 
will not be fishing for or retaining HMS for periods of time 
encompassing two or more fishing trips may declare out of the fishery. 
Once a vessel owner or operator declares a vessel out, that vessel 
would be exempt from the HMS hail-in/hail-out VMS requirements. If a 
vessel is declared out of the fishery, but incidentally catches any HMS 
while fishing that the vessel owner or operator wishes to retain, the 
vessel owner or operator must declare the vessel back in to the fishery 
by issuing a ``hail out'' to specify the target species and fishing 
gear used while at sea before landing with any HMS. The vessel must 
also hail-in on that trip consistent with the timing requirements of 
this final rule to report advance notice of HMS landing to NMFS. Before 
leaving for the next trip, the vessel owner or operator must declare 
the vessel out of the HMS fishery again if the vessel will not be 
fishing for or retaining HMS for a period of time encompassing two or 
more trips. If the vessel does not declare out of the HMS fishery, the 
vessel owner or operator then needs to hail out

[[Page 68759]]

consistent with the timing requirements in this rule, before leaving on 
the next fishing trip. It is important to note that declaring out of 
the HMS fishery exempts the vessel owner or operator only from the HMS 
VMS hail in/hail out requirements; the vessel's VMS unit must remain on 
and must continue to provide hourly position reports. All other 
requirements and restrictions for vessels that have an HMS permit still 
apply (e.g., those vessels are not allowed in relevant closed or gear 
restricted areas), and other applicable VMS requirements for any other 
fisheries they are participating in still apply. Vessels that have 
declared out of the HMS fishery must resume hailing-in and hailing-out 
for each fishing trip before again fishing for or retaining HMS.

Comments and Responses

    NMFS received three written and several verbal comments from non-
governmental organizations, fishermen, and other interested parties on 
the proposed rule. NMFS heard comments from constituents during a 
public webinar/conference call and at the Atlantic HMS Advisory Panel 
meeting. A summary of the comments received on the proposed rule during 
the public comment period is provided below with NMFS's response. Some 
of the comments received were in regard to issues outside the scope of 
this rulemaking (e.g., the use of VMS to protect right whales in their 
calving grounds off Georgia and whether the regulations will be enough 
to protect calving right whales if the Navy builds its planned 
submarine training ground next to the calving area) and are not 
summarized below. All written comments submitted during the comment 
period can be found at http://www.regulations.gov/ by searching for RIN 
0648-BD24.
    Comment 1: Requiring vessels to provide hourly location signals 
whether at sea or in port will increase costs for commercial HMS 
fishermen, but allowing for documented power down exemptions when 
vessels remain in port for extended periods will help to reduce some of 
those costs.
    Response: Requiring vessels to provide hourly position reports via 
VMS could result in minor increased costs for vessel owners whose VMS 
service plans charge per report. For plans that charge per position 
report, the costs are approximately $0.06 per report or $1.44 per day. 
However, most VMS service plans charge a flat monthly rate for hourly 
position reporting, and vessel owners with these plans will experience 
no change in their reporting costs. Additionally, NMFS has received 
comments in the past that some HMS vessel owners/operators already 
leave their VMS units on while at port, so the changes in this rule 
would not result in any increased reporting costs for them. NMFS agrees 
that allowing for documented power down exemptions could help reduce 
costs for those vessel owners that have VMS service plans that charge 
per position report, although such exemptions are granted only in 
limited circumstances. OLE may grant ``power down exemptions'' to 
vessels if they need to turn off their VMS unit for reasons such as 
placing the vessel in drydock for repairs or suspending fishing 
activity for an extended period. It should be noted that a ``power 
down'' exemption is different from declaring out of the HMS fishery 
when not fishing for HMS for two or more trips. A ``declaration out'' 
of the HMS fishery only exempts a vessel from the requirement to hail 
in and hail out of the HMS fishery; the vessel's VMS unit must remain 
on and must continue to provide hourly position reports even during its 
time out of the HMS fishery.
    Comment 2: Allowing HMS fishermen to hail out as they are leaving 
port as opposed to two hours in advance of leaving port will shorten 
the lead time that fishermen must arrive at their vessel prior to 
departing on a trip.
    Response: NMFS received feedback on several occasions from Atlantic 
HMS fishermen indicating that the requirement to issue a hail-out 
declaration two hours before leaving port was especially burdensome 
because of the lead time required prior to trip departure. This final 
rule allows vessel owners and operators to hail-out when leaving port 
instead of requiring them to do so two hours in advance. The previous 
requirement to hail-out two hours in advance of leaving port was meant 
to ensure NOAA OLE received at least one position report from the 
vessel while it was still in port. Thus, requiring 24/7 hourly position 
reports makes hailing-out two hours prior to leaving port unnecessary 
to accomplish NOAA OLE's enforcement needs.
    Comment 3: NMFS received a comment in support of the proposed VMS 
rule as it allows regulators to better monitor the activities of 
commercial operators and thus has the potential to provide better 
protection of at-risk species in the opinion of the commenter.
    Response: NMFS agrees that the changes this rule makes to VMS 
reporting requirements in Atlantic HMS fisheries will allow NMFS and 
NOAA OLE to better monitor the activities of vessels fishing for or 
retaining Atlantic HMS, and enforce Atlantic HMS regulations and closed 
areas. In doing so, this action may well provide for better protection 
of any ``at risk'' species affected by Atlantic HMS fisheries.
    Comment 4: NMFS should require half-hourly reporting including 
speed and location which is especially important for pelagic fisheries 
to gather information about fishing effort, logbook data, and to 
effectively implement and enforce time/area closures. Half-hourly 
reporting is consistent with other federally managed fisheries (e.g., 
it is required in scallop fisheries) to facilitate enforcement of time/
area closures.
    Response: While this rulemaking specifies when owners or operators 
of HMS-permitted vessels are required to provide position reports, it 
was not the objective of this rulemaking to change the time interval 
between individual position reports. The time between position reports 
(i.e., polling frequency) is different for different fisheries. While 
half-hourly location signals may be practical and necessary in 
fisheries involving multiple, short dredge tows each day, at this time, 
such frequent position reports are not necessary to monitor fisheries 
that use gears that are fished multiple hours at a time as is the case 
in Atlantic HMS fisheries. In general, most HMS fishing activities, 
such as steaming to fishing location or setting the gear, are conducted 
over multiple hours, so having a time interval shorter than an hour 
between individual position reports is not considered necessary in the 
HMS fishery at this time to aid in the enforcement of closed areas. 
Additionally, many of the closed areas established for HMS fisheries 
(e.g., Sec.  635.21(c)(2)) encompass large areas that cannot be crossed 
by fishing vessels in less than an hour. If NOAA OLE determines that 
changes in the reporting frequency of location signals are necessary in 
Atlantic HMS fisheries due to enforcement concerns, or if other 
relevant issues arise, NMFS could revisit this issue in the future.
    Comment 5: NMFS needs to provide guidance in the regulations on 
what commercial fishermen should do when their VMS units are not 
operating properly due to loss of power resulting from electrical 
malfunctions or maintenance.
    Response: This rulemaking does not change the existing regulations 
that require affected vessels to possess and use type-approved VMS 
units. It is the vessel owner's or operator's responsibility to ensure 
that a VMS unit is working properly. Vessel owners and/or operators 
experiencing unanticipated power outages, or malfunctions in their VMS 
units should contact NOAA OLE

[[Page 68760]]

to notify them of the situation as soon as possible at 888-219-9228 or 
727-824-5344.

Changes From the Proposed Rule

    Except for the administrative changes needed to implement portions 
of the regulations at different times and editorial changes to add 
clarity, there are no changes from the proposed rule.

Classification

    The NMFS Assistant Administrator has determined that this final 
action is consistent with the 2006 Consolidated HMS Fishery Management 
Plan (FMP) and its amendments, the MSA and National Standards, and 
other applicable law.

Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant for purposes of E.O. 12866.

Paperwork Reduction Act

    This final rule contains a collection-of-information requirement 
subject to the Paperwork Reduction Act (PRA) and which has been 
approved by OMB under control number 0648-0372. Public reporting burden 
for hail-out and hail-in declarations are estimated to average 2 
minutes per response, or 4.10 hours per year, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. NMFS estimates that the final action, which 
would allow for long-term declarations out of the fishery, which would 
exempt vessel owners and operators from hailing in and out for each 
trip during that time frame, could theoretically reduce the average 
reporting burden hours for each vessel that declares out of the HMS 
fishery long-term declaration by as much as 4 hours if it declares out 
for the entire HMS fishing season. Hourly position reports are not 
considered a form of reporting burden because they are issued 
automatically by the VMS unit. Send comments regarding these burden 
estimates or any other aspect of this data collection, including 
suggestions for reducing the burden, to NMFS (see ADDRESSES) or by 
email to [email protected], or fax to 202-395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

Regulatory Flexibility Act

    NMFS prepared a Final Regulatory Flexibility Analysis (FRFA), as 
required by 5 U.S.C. 604 of the Regulatory Flexibility Act (RFA), to 
analyze the economic impacts that this final rule would have on small 
entities. The full FRFA is included below.
    Section 604(a)(1) of the RFA requires that the Agency describe the 
need for, and objectives of, the final rule. A description of the final 
action, why it is being considered, and the legal basis for this final 
action are summarized here and described in more detail in the preamble 
to the proposed rule. The purpose of this final 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 
vessel owners or operators. The final action would provide vessel 
owners or operators with additional flexibility regarding the hail-out 
requirement and require that the VMS remain on at all times that VMS 
use is required unless the vessel operator has obtained a documented 
power down exemption from NOAA OLE. Specifically, HMS-permitted vessels 
that are required to use VMS could declare out of the fishery if they 
do not intend to fish for or retain HMS for two or more consecutive 
trips. Declaring out exempts the vessel 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, the vessel's VMS unit would 
still need to remain on 24 hours a day, 7 days a week to provide hourly 
position reports for the duration of the long-term declaration out of 
the fishery. Requiring VMS units to remain on at all times would mean 
vessel owners or operators could hail-out when they are actually 
leaving port rather than having to do so at least two hours in advance. 
These changes will not affect enforcement capabilities and are, in 
part, a result of public feedback indicating that the previous hail-out 
requirements were burdensome. Vessel owners or operators would still be 
required to hail-in at least three hours before landing, but would also 
be required to do so no more than 12 hours before landing. These 
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. VMS reporting 
facilitates monitoring and enforcement of 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.
    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 statement of any changes made in the 
proposed rule as a result of such comments. The Agency received 
comments concerning the IRFA stating that requiring 24/7 hourly 
position reports would increase reporting costs for Atlantic HMS vessel 
owners, but that allowing for documented power down exemptions when a 
vessel remains in port for an extended period will help reduce some of 
those costs. Requiring vessel owners or operators to provide hourly 
position reports will result in minor increased costs for some vessel 
owners whose VMS service plans charge per report. On average, these 
plans charge approximately $0.06 per position report or $1.44 per day, 
and these costs and the ability of vessel owners to obtain exemptions 
allowing for a vessel to be powered down for extended periods were 
reflected in the analysis provided in the IRFA and proposed rule. Also, 
most VMS service plans charge a flat monthly rate of hourly position 
reports, and vessel owners with these plans will experience no change 
in their reporting costs. As such, NMFS did not alter the cost analysis 
in the FRFA and final rule. No other comments regarding the economic 
impact were received.
    Under 5 U.S.C. 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) 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

[[Page 68761]]

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. NMFS estimates that this final rule 
would require 308 vessels deploying 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 owners and operators the option to declare out 
of the HMS fishery for a 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 owner or operator 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.
    Under section 604(a)(4), Federal agencies must provide a 
description of the projected reporting, recordkeeping, and other 
compliance requirements of the rule. This final action will give vessel 
owners and operators that do not plan to fish for or retain HMS for a 
period of time encompassing two or more trips 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 vessels currently 
required to use VMS units will be required to leave their VMS units on 
24 hours a day, 7 days a week, to issue hourly position reports. This 
requirement will also allow vessels fishing for HMS to wait until they 
leave port to hail-out as opposed to being required to do so at least 
two hours before leaving port. Finally, this final rule will also 
require vessel owners or operators to hail-in at least three hours 
before landing, but no more than 12 hours before doing so.
    One of the requirements of a FRFA is to describe any alternatives 
to the rule that accomplish the stated objectives and that minimize any 
significant economic impacts (5 U.S.C. 604(a)(5)). 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 final 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 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 
requirement for vessel owners/operators to keep the VMS unit on 24 
hours a day, 7 days a week will not increase reporting 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 position 
reports are automated. This action would also eliminate the need for 
vessel owner or operators to hail-out at least two hours before leaving 
port, and hourly position reports are included in the base cost of the 
VMS unit plans offered by most providers. Since the purpose of the 
requirement to hail-out at least two hours before leaving port was to 
ensure NOAA OLE received at least one position report from a vessel 
before it left port, switching to 24 hours a day, 7 days a week 
reporting under this final 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 rulemaking, and the rationale for selecting the 
preferred alternatives is provided below.
    NMFS considered two categories of issues related to the use of VMS 
by vessels permitted to fish for Atlantic HMS; each issue had its own 
set of alternatives. The first category (Alternatives A1-A2) addressed 
the required frequency of hourly position reports issued by VMS units 
used by HMS-permitted vessels, and whether vessel operators should be 
allowed to power down their VMS units between trips. The second 
category (Alternatives B1-B3) addressed hail-out/hail-in requirements, 
and proposed 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 included 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, the 
preferred alternative, 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 that VMS units 
would transmit at least one position report while the vessel was still 
in port. The proposed change to 24/7 location reporting would obviate 
the need for this requirement. Alternative A2 would also require vessel 
operators to hail-in at least three hours before

[[Page 68762]]

landing, but no more than 12 hours before doing so. NMFS proposed this 
change because the open-ended requirement previously specified in the 
regulations allowed vessel operators to submit hail-in declarations 
days before landing, making it difficult for enforcement agents to 
determine when a vessel would actually land.
    NMFS estimated the costs of 24/7 hourly position reports for all 
vessels by 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 
include 24/7 hourly position reports and data costs associated with 
electronic messaging. 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 vessel owners 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 scheduling trips. The preferred alternative was 
selected over the no action alternative because it will provide better 
reporting information to NOAA OLE for enforcement purposes, reduces the 
reporting burden on HMS vessel owners and operators, and is not 
estimated to represent a significant increase in costs for HMS vessel 
owners and operators.
    Next, NMFS considered alternatives to modify hail-in/hail-out 
reporting requirements to include declarations that can apply to 
multiple trips. Alternative B1, the no action alternative, would 
maintain the requirement to hail-in/hail-out for each fishing trip. HMS 
vessel owners and operators required to use VMS were required to hail-
out before each fishing trip to report which species they will be 
targeting, and the type of gear they will be fishing, and hail in prior 
to landing to indicate the location, date, and approximate time they 
will return to port. Alternative B2, the preferred alternative, would 
allow vessels not fishing for or retaining HMS for two or more trips to 
advise NMFS as such by declaring out of the HMS fishery. Vessels that 
declare out of the fishery would be exempted from hailing-in/hailing-
out each trip, but would still be required to follow all other Atlantic 
HMS regulations including continuing to provide 24/7 position reports 
on their VMS units. Vessels that have declared out of the fishery would 
still have the option to land HMS if they catch them incidentally, but 
would have to first declare back into the HMS fishery by hailing out 
consistent with 50 CFR 635.69 (e)(5)(ii), and then hailing in at least 
three hours, and no more than 12 hours, before landing.

  Table 1--Estimated Costs of Compliance Under Current VMS Regulations in Affected HMS Fisheries. No Change in
                             Costs Is Expected Under the Final Rule for Most Vessels
----------------------------------------------------------------------------------------------------------------
                                           Pelagic longline      Shark bottom longline
                                               vessels                  vessels           Shark gillnet vessels
----------------------------------------------------------------------------------------------------------------
Monthly E-MTU VMS Unit Plans average   $44.00.................  $44.00.................  $44.00.
 including 24/7 Position Reports and
 data.
Estimated Days (Months) Fishing/Year.  324 (12)...............  212 (7)................  152 (5).
Annual Compliance Costs/Vessel ($44/   $528/vessel............  $308/vessel............  $220/vessel.
 month * months fishing/year).
Annual Compliance Costs + Maintenance  $1,028.................  $808...................  $720.
 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.
----------------------------------------------------------------------------------------------------------------
* 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 type
  possessed.

    Based on public comments received prior to this rulemaking, NMFS 
assumed that many, if not all, shark gillnet and bottom longline vessel 
owners or operators 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, vessel owners or operators 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 take annually 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' N. latitude and 36[deg]30' N. latitude) 
are required to use VMS to provide hourly position reports 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 season for LCS in the Atlantic region has 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' N. 
latitude and 36[deg]30' 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

[[Page 68763]]

targeted sharks less in recent years. The gillnet fishery primarily 
targets 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 vessels 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 gillnet and bottom 
longline vessels would land once every 24 hours to offload catch and 
procure supplies. Based on public comments received prior to this 
rulemaking, NMFS expects that many gillnet and bottom longline vessel 
owners and operators 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 
vessel operator wishes to land them, they must hail out to declare back 
into the HMS fishery and then hail in with NOAA OLE at least three 
hours, and no more than 12 hours, before landing. While NMFS does not 
expect there to be a difference in costs for vessel owners 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 selected Alternative B2.
    Finally, Alternative B3 would have allowed 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 
vessel owners or operators 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 landing (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 and reports 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 vessel owners 
or operators, and eliminating notification of when HMS trips are 
beginning, this alternative was not selected.

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).

Administrative Procedure Act

    The Assistant Administrator for Fisheries finds that there is good 
cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective 
date for the provision of this rule that allows vessel owners/operators 
to declare out of the HMS fishery. Under current regulations, vessel 
owners or operators who have been issued HMS permits but who do not 
fish for or retain HMS exclusively must hail out every time they leave 
for a fishing trip. The new ``declare out'' process in this rule would 
reduce regulatory burden: under this provision, vessel owners/operators 
would not be subject to unnecessary reporting requirements when their 
vessels are not fishing for HMS. There is a need to make this provision 
effective quickly, because gillnet vessels with a directed shark LAP 
are required to resume reporting with VMS on November 15, 2013, and 
NMFS wants to ensure that the declare out optional process is available 
at that time as the shark fisheries they pursue (Atlantic small and 
large coastal sharks) are closed until January 1, 2014. Vessel owners/
operators will not need time to come into compliance with or take other 
action with regard to the provision. It is optional, and vessel owners/
operators can ``declare out'' using their existing approved VMS units. 
For the above reasons, the delay in effective date is waived for the 
``declare out'' provision, and the provision will be effective 
immediately upon the filing of this final rule with the Office of the 
Federal Register.

List of Subjects in 50 CFR Part 635

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

    Dated: November 12, 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 is 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, effective November 14, 2013, paragraph (e)(4) is 
added and reserved, and paragraph (e)(5) is added to read as follows:


Sec.  635.69  Vessel monitoring systems.

* * * * *

[[Page 68764]]

    (e) * * *
    (4) [Reserved]
    (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 (e)(5) in lieu of paragraphs 
(e)(2) and (e)(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 
(e)(3) of this section, unless the circumstances described in paragraph 
(e)(5)(ii) of this section 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 landing 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 (e)(5)(ii) of this section, that vessel is assumed to be 
fishing under the requirements of paragraphs (e)(1) through (e)(3) of 
this section until the vessel owner or operator makes another 
declaration under paragraph (e)(5) of this section.
* * * * *

0
3. In Sec.  635.69, effective December 16, 2013, paragraphs (a)(1) 
through (3), the introductory text of paragraph (d), and paragraphs 
(e)(1) through (3) are revised, to read as follows:


Sec.  635.69  Vessel monitoring systems.

    (a) * * *
    (1) Whenever the vessel has pelagic longline 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 gillnet gear 
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 (e)(1), 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) Hailing out. Prior to departure for each trip, a vessel owner 
or operator must initially report to NMFS declaring 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) Hailing in. A vessel owner or operator must report advance 
notice of landing to NMFS. For the purposes of this paragraph (e)(3), 
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.
* * * * *
[FR Doc. 2013-27418 Filed 11-14-13; 8:45 am]
BILLING CODE 3510-22-P