(a) Effective January 1, 2011, all persons eligible to be issued a surfclam/ocean quahog Atlantic Ocean owner's permit for surfclam harvest under an individual fishing quota (IFQ) must have installed on the vessel an operational vessel monitoring system (VMS) unit that is approved by the department prior to the issuance of such permit. The vessel owner must activate the VMS unit and provide verification of vendor activation from a department approved VMS vendor. All VMS vendors that are on an approved Federal list maintained by the National Marine Fisheries Service (NMFS) for the surfclam individual transferable quota program in the exclusive economic zone (EEZ) will be deemed acceptable for use in the New York State surfclam IFQ fishery provided such vendors continue to satisfy the criteria as a NMFS-approved vendor. Verification of vendor activation may be undertaken by completing, signing, and mailing or faxing a VMS certification form to the department.

(b) It is unlawful to tamper with or input false positions or fishery-related information into any VMS required under this section. The VMS shall be fully automated and operational at all times, regardless of weather and environmental conditions, unless exempted by the department.

(c) The VMS shall be capable of tracking vessels in the waters of the marine and coastal district and all U.S. waters in the Atlantic Ocean from the shoreline of each coastal state to a line 15 nm offshore and shall provide position accuracy to within 400 m (1,300 ft). The VMS shall be capable of transmitting and storing information including vessel identification, date, time, and latitude/longitude.

(d) The VMS shall provide accurate position transmissions at a frequency of every 15 minutes of every day of the year unless otherwise directed or exempted by the department. In addition, the VMS shall allow polling of individual vessels or any set of vessels at any time, and receive position reports in real time. For the purposes of this section, “real time” shall constitute data that reflect a delay of 15 minutes or less between the displayed information and the vessel's actual position.

(e) The VMS shall be capable of providing network message communications between the vessel and shore. The VMS shall allow the department to initiate communications or data transfer at any time.

(f) The VMS shall be capable of providing vessel locations relative to the demarcation line of the New York State boundary and waters of the EEZ.

(g) The VMS vendor must be capable of transmitting position data to a department designated computer system via a modem and in a file format acceptable to the department. The VMS vendor shall be capable of archiving vessel position histories for a minimum of one year and providing transmission to the department of specified portions of archived data in response to any and all requests from the department.

(h) It is unlawful for any vessel to take, possess, offload or attempt to take, possess or offload surfclams under an IFQ without a fully operational and approved VMS.

(i) All VMS units installed on a vessel operating under an IFQ must transmit a signal indicating the vessel's accurate position at least every 15 minutes, 24 hours per day, throughout the year unless exempted by the department. A vessel owner may apply for a letter of exemption from the VMS transmitting requirements of this section by sending a written request to the department. In order for a vessel to be considered for exemption, one or more of the requirements must be met: The vessel must be continuously out of the water for more than 72 consecutive hours or the vessel will not engage in harvest of surfclams from the New York State waters of the Atlantic Ocean for a minimum period of 30 consecutive days. The following information must be included in such written request: Identification of the vessel requesting the exemption; the location of the vessel during the time an exemption is sought; the exact time period for which an exemption is needed indicating the time the VMS signal will be turned off and turned on again; and, reason supporting the request for exemption. Any requests for exemption shall be subject to approval by the Chief of the Bureau of Marine Resources.

(j) Any vessel exempted from the VMS transmitting requirements of this section must keep a copy of the letter of exemption onboard the vessel at all times, and the vessel may not turn off the VMS signal until the letter of exemption has been received. It is unlawful for any vessel granted an exemption to be used to harvest, possess or offload surfclams taken from the certified waters of the Atlantic Ocean.

(k) If a new or replacement VMS is necessary, the vessel owner must submit documentation to the department, within three days of the installation and prior to the vessel's next trip, verifying that the new VMS unit is an operational, approved system as described in this section. Vessel owners must confirm the VMS operation and communications service to the department as required under this section.

(l) If a VMS unit fails to transmit a signal of the vessel's position every 15 minutes, the vessel shall be deemed in violation of this section unless there is sufficient evidence documenting that the failure of the VMS to transmit was due to an unavoidable malfunction or disruption of the transmission.

(m) Vessel owners or captain/operators issued a surfclam/ocean quahog permit under this section for fishing in the IFQ program are required to declare their intended fishing activity via VMS prior to leaving port. Owners or operators that are transiting between ports or fishing in a fishery other than the New York State surfclam fishery must either declare out of fisheries or declare the appropriate fishery, if required, via the VMS unit before leaving port. No vessel shall attempt to take, harvest, possess or offload surfclams from the certified water of the Atlantic Ocean unless they have complied with the declaration and notification requirements of this section.