On April 13, 2015 NOAA proposed a rule implementing regulations to improve administration of the High Seas Fishing Compliance Act (HSFCA) program and facilitate the monitoring of vessels operating on the high seas (outside the 200 nautical mile Exclusive Economic Zone). The following links may prove helpful in your review of the proposed actions:
Text of the proposed rule – http://www.regulations.gov/#!documentDetail;D=NOAA-NMFS-2015-0052-0002
High Seas Fishing Compliance Act – https://www.law.cornell.edu/uscode/text/16/chapter-75
Objectives of the proposed rule:
- Provide explicit procedures for reviews of high seas fishing activities under environmental laws, particularly the Endangered Species Act (ESA), the Marine Mammal Protection Act (MMPA), and National Environmental Policy Act (NEPA), prior to permitting such activities.
- Fill, for high seas areas, gaps in the monitoring, control, and surveillance requirements not covered by other fisheries related laws.
- Describes how NMFS will, through high seas permit conditions, address impacts to vulnerable marine ecosystems from bottom fishing consistent with international conservation and management measures recognized by the United States.
The proposed regulations
- Adjust permitting and reporting procedures; and
- Includes requirements for:
- Requires installation and operation of enhanced mobile transmitter units (“EMTUs”) for vessel monitoring;
- Carrying observers on vessels;
- Reporting of transshipments taking place on the high seas; and
- Protection of vulnerable marine ecosystems.
Public comments are welcome on any part of the proposed Rule; but NMFS is specifically asking for comments on the following items:
- The time it takes to procure an EMTU and have it installed. Currently, NMFS is considering requiring that vessel owners have an EMTU installed and operational within 90 days of publication of the final rule;
- The number of hours and costs associated with having the EMTU installed by a qualified marine electrician;
- Current levels of transshipment on the high seas involving U.S. vessels and the areas where the transshipments occur; and
- The fisheries in state waters, territorial seas, or within the EEZ in which high seas fishing vessels participate and details on how vessels transit from the high seas to those fisheries.
Public comments will be taken until May 13, 2015.
Permitting and reporting procedures:
Permit Application Process – The current High Seas Fishing Permit Application[1]requires the applicant to identify those fisheries which he/she prosecutes. The proposed rule will include that requirement in Federal Regulations. Permits will still be valid for five years and the application fee will remain at $129. The rule would also require a color, bow-to-stern, side-view photograph of the vessel be submitted with the permit application.
Required Permittees – In addition to vessels harvesting fish vessels which play a support role are also required to possess a valid high seas fishing permit. This includes transshipment and/or supply vessels.
Authorized Fisheries – The proposed rule formalizes a process whereby an individual, group of persons or an organization can ask NMFS to add a fishery to the list of those authorized on the high seas.
Additional requirements:
1. EMTUs [2]
The proposed rule will require ALL high seas fishing vessels have an operational EMTU. This proposal is intended to strengthen NMFS’ ability to ensure that U.S. high seas vessels do not undermine international conservation and management measures recognized by the United States. As a general rule, the EMTU will be on at all times, with hourly transmission of position reports whenever a US vessel with a high seas permit is on the high seas. Exceptions exist if (1) the vessel will be at dock or on a permanent mooring for more than 72 consecutive hours, or (2) when the vessel will not operate (a) on the high seas or (b) in any fishery that requires EMTU operation for more than 30 consecutive days. NMFS requires advance notice before turning the unit on and off. The impact of this proposed rule will be felt by “albacore trollers operating in the Pacific Ocean” as these vessels have generally not been subject to Vessel Monitoring System (“VMS”) requirements. In a notice dated May 6, 2008, NOAA revised the EMTU Reimbursement Program[3]. Generally, funds of up to $3,100 are available to fishing vessel owners and/or operators that have purchased an approved EMTU device in order to comply with fishery regulations. A table contained within the proposed rule summarizes the costs associated with the EMTU requirement.
| Description | Cost |
| EMTU Purchase | Up to $3,100 |
| Installation Cost (one-time) | $50-400 ($400 used for estimation |
| Daily position report costs (hourly, 24/day, $0.06/report * 24 reports/day | $1.44 |
| Annual position report cost per vessel ($1.44/day * 365) | $525/vessel |
| Annual EMTU maintenance cost | $50-100 ($100 used for estimation) |
| Total cost per vessel (Year 1; unit + installation + position reports | $4,025 |
| Total cost per vessel after reimbursement of EMTU cost (for eligible vessels only) | $925 |
| Cost per vessel (Year 2 and beyond; position reports and EMTU maintenance) | $625/year |
| Number of affected vessels | 200 |
| Total cost (Year 1; total cost per vessel before reimbursement * number of affected vessels) | $805,000 |
| Total cost (Year 2 and beyond; total cost per vessel * number of affected vessels) | $125,000 |
NMFS specifically requests public comments on the estimated installation costs of $50 – 400. This estimate is based on experience in other fisheries with EMTU requirements. The units will need to be installed by a qualified marine electrician.
Daily position report costs are depending on the type of EMTU and communication service provider.
Annual position report costs may be less depending on whether the unit is powered off as described above.
The obvious question is what happens when the vessel owner/operator receives authorization to turn off the EMTU but the reasons for doing so are removed? A couple of examples:
Owner of vessel A was granted permission to power off the EMTU because repairs were estimated to take four days. If parts arrived early and the repairs ended up taking only 1.5 days, would the vessel owner have to wait the remaining 1.5 days before being able to power the unit back up and return to fishing?
Vessel A is a pole-and-line albacore vessel. Vessel A was granted permission to power off the EMTU because the vessel was intending to fish within the EEZ for more than 30 consecutive days. If the fish moved outside the EEZ, within the 30-day window, would vessel A be allowed to follow the fish?
2. Observer coverage
Under the proposed rule, a high seas fishing vessel would be required to carry an observer for the duration of a fishing trip, if selected to do so by NMFS. Under this rule, NMFS will pay for the observer’s salary and benefits (for now); while the vessel (and by extension its crew) will be responsible for covering the observer’s food, accommodations and medical facilities. The proposed rule cites a conflict of interest as the reason for not passing the cost of salary and benefits onto the vessel; but leaves open the possibility of passing those costs on as well if and when a mechanism is established that won’t result in a conflict of interest. This could end up being quite costly as the estimated daily cost of the observer is between $250 and $500/day.
3. Transshipment
Vessels participating in the transshipment of fish/fish product will be required to provide NMFS 36-hour notice in advance of such activities. After completion of the transshipment activities, any required reports will be submitted to NMFS. These apply to both the offloading and receiving vessel. This proposal is in addition to other applicable transshipment laws/regulations.
Additional questions raised:
How does requiring EMTUs on pole-and-line albacore vessels further ‘‘international conservation and management measures’’ to the extent necessary and appropriate to carry out U.S. obligations under the Compliance Agreement or for purposes of the HSFCA?
Most pole-and-line albacore fishermen possess the high seas fishing permit as a safety net should they need to go outside the EEZ in prosecuting their fishery. As the proposed rule acknowledges, this action disproportionately impacts these permittees and could result in making an otherwise economically viable fishery, less so. Many of the rule’s goals and objectives are not furthered by including pole-and-line albacore fishermen; the only benefit will be in terms of increased monitoring and surveillance. How will this proposed rule further protections of vulnerable marine ecosystems from significant adverse impacts of bottom fishing? How are ESA and MMPA considerations furthered by inclusion of these fishermen?
The rule states the EMTU will transmit hourly transmission of position reports whenever a U.S. vessel with a high seas permit is on the high seas. Does this mean that when such a vessel is NOT on the high seas (ie – fishing within the U.S. EEZ) it will not transmit those position reports?
If a vessel with a high seas permit is selected as one which will have to carry an observer, how will this impact those albacore fishermen who plan to spend their trip within the U.S. EEZ; but may venture outside those waters in order to follow the fish? Is the mere possibility of spending a small portion of a trip outside the EEZ enough to justify the expense and inconvenience of having an observer onboard?
Conclusion:
Some provisions of the proposed rule impact certain high seas fishermen more so than others. Requiring ALL user groups to comply with these provisions wont further the stated objectives and will disproportionately impact certain fishermen. While the efforts of the U.S. to commit too and protect vulnerable marine ecosystems are to be applauded, requiring albacore troll and/or bait-and-pole fishermen to comply with the EMTU and observer requirements will do nothing to further those efforts.
[1] See – http://www.nmfs.noaa.gov/ia/permits/hsfca_application.pdf
[2] 50 CFR §600.1500 defines EMTU as follows, “Enhanced Mobile Transceiver Unit (EMTU) means a type of MTU that is capable of supporting two-way communication, messaging, and electronic forms transmission via satellite. An EMTU is a transceiver or communications device, including: Antenna; dedicated message terminal and display; and an input device such as a tablet or keyboard installed on fishing vessels participating in fisheries with a VMS requirement.”
[3] https://www.federalregister.gov/articles/2008/05/06/E8-9994/vessel-monitoring-systems-vms-revision-of-the-enhanced-mobile-transmitter-unit-e-mtu-reimbursement
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