Vessel Monitoring Systems; Requirements for Type-Approval of Cellular Transceiver Units, 40915-40926 [2020-14600]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 131 (Wednesday, July 8, 2020)]
[Rules and Regulations]
[Pages 40915-40926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14600]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 200626-0173]
RIN 0648-BJ15


Vessel Monitoring Systems; Requirements for Type-Approval of 
Cellular Transceiver Units

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

ACTION: Final rule.

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SUMMARY: The U.S. Vessel Monitoring System (VMS) program type-approves 
enhanced mobile transceiver units (EMTUs) for use in U.S. fisheries. 
Currently, the only approved method for transferring VMS data from a 
vessel to NMFS is by satellite-linked communication services. This 
final rule amends the existing VMS type-approval regulations to add 
cellular-based EMTUs (EMTU-Cs) type-approval application and testing 
procedures; compliance and revocation processes; and technical, 
service, and performance standards. This rule is necessary to allow for 
the use of EMTU-Cs and cellular communication service, in addition to 
satellite-only models, in federally managed fisheries.

DATES: The final rule will be effective August 7, 2020.

ADDRESSES: Copies of the Final Regulatory Impact Review, Final 
Regulatory Flexibility Analysis and the information collection request 
submitted to the Office of Management and Budget (OMB) may be obtained 
at https://www.fisheries.noaa.gov/topic/enforcement#vessel-monitoring. 
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 NMFS Office of Law Enforcement, attention 
Kelly Spalding, 1315 East-West Highway, Silver Spring, MD 20910, or to 
OMB by email [email protected].

FOR FURTHER INFORMATION CONTACT: Kelly Spalding, Vessel Monitoring 
System Program Manager, NMFS: 301-427-8269 or [email protected].

[[Page 40916]]


SUPPLEMENTARY INFORMATION: 

Background

    If Federal fishery regulations require use of VMS, fishing vessels 
must have a NMFS-approved EMTU (or mobile transmitter unit, although 
MTUs are no longer approved for new installations). EMTUs are affixed 
to fishing vessels as required by Federal regulations, and report GPS 
locations and potentially other fisheries information to NMFS. The EMTU 
allows the NMFS Office of Law Enforcement (OLE) to determine the 
geographic position of the vessel at specified intervals or during 
specific events, via satellite mobile communication services (MCSs). 
These satellite MCSs and EMTUs send data securely and at near real-time 
so that fisheries management and enforcement can monitor vessels' 
activity as it occurs.
    Fishermen must comply with applicable Federal fishery VMS 
regulations, and in doing so, may select from a variety of EMTU vendors 
that have been approved by NMFS to participate in the VMS program for 
specific fisheries. NMFS uses national VMS type-approval standards (50 
CFR part 600, subpart Q) to approve an EMTU, including any installed 
software, and associated MCS, collectively referred to as a bundle, 
before they are authorized for use in federally managed fisheries (79 
FR 77399, December 24, 2014).
    On October 26, 2018, NMFS published a proposed rule that would 
require owners and operators of recreational charter vessels and 
headboats (for-hire vessels) with Gulf of Mexico (Gulf) permits for 
reef fish or coastal migratory pelagic species to report GPS vessel 
location information to NMFS, among other management measures (83 FR 
54069). NMFS approved an amendment to the fishery management plans 
associated with that proposed rule, and is nearing completion of a 
final rule to implement those requirements. The Gulf of Mexico Fishery 
Management Council determined that real-time satellite transmission is 
not necessary to meet the requirements for the Gulf for-hire reporting 
rule's vessel monitoring purposes and that cellular data transmission 
will be sufficient.
    NMFS seeks to accommodate the requirements for for-hire Gulf permit 
holders and to adapt to fishery monitoring trends while also 
maintaining type-approval standards that are equitably applied to all 
fisheries. So, in light of the above rule, this final rule modifies the 
existing NMFS VMS type-approval regulations to provide for type-
approval of EMTU-Cs and allow VMS communications to be sent through 
secure cellular communication services. Having a single, codified type-
approval process for satellite and cellular-based tracking devices will 
ensure the approval process is efficient, transparent, and enforceable 
for all approved devices nation-wide. Although the impetus for this 
rule was the Gulf proposed rule, this rule will apply nationally for 
type-approval of EMTU-Cs, if cellular-based VMS systems are adopted in 
other NMFS regions and monitoring programs.
    NMFS issued a proposed rule to provide for type-approval of EMTU-Cs 
on January 24, 2020 (85 FR 4257). The proposed rule provides further 
background on this rulemaking, which is not repeated here. Written 
comments on the proposed rule were received through February 24, 2020 
through the Federal e-rulemaking portal, and are available for viewing 
in the docket for this rulemaking (see https://www.regulations.gov/docket?D=NOAA-NMFS-2019-0126). In the following section, NMFS 
summarizes and responds to public comments received on the proposed 
rule.

Changes From the Proposed Rule

    There are no changes from the proposed rule.

Responses to Public Comments

    NMFS received seven public comments on the proposed rule.
    Comment 1. A commenter asked if solar-powered EMTU-Cs would be 
allowed in the VMS program in addition to cable-powered EMTU-Cs, and if 
so, suggested that solar panels would need to be kept sufficiently 
clean so as to ensure sufficient power.
    Response 1. Solar powered VMS units will be allowed in the NMFS 
Vessel Monitoring Program. NMFS will not regulate the type of power 
source for VMS units and will not regulate the proper care of solar 
panels used to power VMS units. NMFS does require that the unit operate 
properly and continuously, so cleaning the solar panel may be necessary 
in order for a fisherman to remain in compliance with VMS regulations.
    Comment 2. One commenter asked if there would be a requirement for 
EMTU-Cs to have an internal backup battery.
    Response 2. The NMFS VMS type-approval regulations do not require 
that any EMTU have an internal back-up battery. Regulations for 
fisheries that have a VMS requirement generally require that the VMS 
unit be operational for the duration of the fishing trip, and in some 
cases, even while in port. Because of these requirements, it is 
advisable that any EMTU always be connected to a reliable and 
continuous power source in order for a vessel to remain in compliance.
    Comment 3. A commenter asked if EMTU-C devices submitted to OLE 
will require prior Federal Communications Commission (FCC) 
certification.
    Response 3. NMFS does not enforce FCC requirements. If the FCC has 
set requirements for VMS units, then type-approval applicants and 
holders, and VMS vendors should ensure compliance with the FCC and with 
all other government requirements.
    Comment 4. Another commenter asked if NMFS will consider type 
approval for units that can serve both EMTU and EMTU-C end-users? In 
other words, a single device that is ``dual band'' in that it can be 
programmed to accommodate either cellular or satellite transmissions 
(or both, via least cost routing logic)?
    Response 4. If the VMS regulations applicable to a particular 
fishery allow for the use of store-and-forward reporting, then an EMTU, 
EMTU-C, or a hybrid of the two may be used (see definition of ``Vessel 
Monitoring System (VMS) Unit'' under Sec.  600.1500).
    Comment 5. One commenter expressed concern that the rule, as 
proposed, would allow vessels to take infinite time to send position 
reports if they do not enter areas with cellular coverage.
    Response 5. The time frames for sending position reports in 
fisheries that require use of VMS and allow store-and-forward position 
reporting will be established in the VMS regulations applicable to that 
particular fishery. Type-approved VMS units will automatically send a 
vessel's stored VMS data once the VMS unit is in its cellular range, 
and fishermen will be responsible for ensuring that the VMS unit that 
they purchase has sufficient cellular coverage within their geographic 
fishing range.
    Comment 6. A commenter suggested that non-real time reporting/
monitoring devices (store and forward position reporting) should not be 
limited to cellular-based systems. The commenter noted that satellite-
based systems could significantly lower the cost of service if they are 
not required to report in real time (cost competitive with cellular, 
but with the advantage of global coverage) and that limiting all non-
real time reporting to cellular-based systems would discourage future 
technological advancements by manufacturers of satellite-based systems 
and deny them the opportunity to compete.

[[Page 40917]]

    Response 6. We recognize that satellite-based VMS units are 
approved and can be used for store and forward services. If the VMS 
regulations applicable to a particular fishery allow for the use of 
store-and-forward reporting, then an EMTU, EMTU-C, or a hybrid of the 
two may be used (see definition of ``Vessel Monitoring System (VMS) 
Unit'' under Sec.  600.1500).
    Comment 7. One commenter noted that in the proposed rule, 90 
percent of all GPS position reports over a 24-hour period must reach 
the NMFS within 15 minutes of being transmitted by the EMTU-C (for 10 
out of 11 consecutive days). However, fishermen may fish in areas with 
little or no cellular coverage for hours on end during any 24-hour 
period, making it difficult, if not impossible, to meet this 
requirement.
    Response 7. If a vessel fishes beyond the range of cellular 
service, the EMTU-C would still record and store position reports, but 
would not send them to NMFS until back within cellular service range. 
At that time, the latency requirement in this rule would be triggered: 
90 Percent of position reports must be received within 15 minutes of 
being sent. This latency requirement is in addition to whatever 
fishery-specific regulations are applicable. Likely, VMS regulations 
for fisheries that allow use of cellular VMS units will require VMS 
data to be reported within a specified time before and/or after landing 
or coming in to port.

Classification

    The NMFS Assistant Administrator has determined that this rule is 
consistent with the Magnuson-Stevens Act, and other applicable laws.

Executive Order 12866

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.

Executive Order 13771

    This final rule is considered an Executive Order 13771 deregulatory 
action.

Regulatory Flexibility Act (RFA)

    A Final Regulatory Flexibility Analysis (FRFA) was prepared 
pursuant to 5 U.S.C. 604(a). The FRFA incorporates the Initial 
Regulatory Flexibility Analysis (IRFA), a summary of the significant 
issues raised by the public comments in response to the IRFA, NMFS's 
responses to those comments, and a summary of the analyses completed to 
support the action.
    The preamble to the proposed rule included a detailed summary of 
the analyses contained in the IRFA, and that discussion is not repeated 
here. The full FRFA is included below.
    The Magnuson-Stevens Act provides the statutory basis for this 
final rule. A description of this final rule, why it is being 
implemented, and the purpose of this final rule are contained in the 
SUMMARY and SUPPLEMENTARY INFORMATION sections of this final rule.
    The public did not submit any comments relating to the IRFA or to, 
in general, socio-economic implications, and no changes to this final 
rule were made as a result of public comment. No comments were received 
from the Office of Advocacy for the Small Business Administration 
(SBA).
    This final rule will directly apply to any companies that wish to 
obtain VMS type-approval for EMTU-Cs in the future. There are currently 
no EMTU-C units that have been type-approved by NMFS and no end users 
of such devices. NMFS received inquiries and quotes from six 
prospective telecommunications and/or computer and electronic product 
manufacturing companies within the past year expressing interest in 
seeking VMS type-approval for EMTU-Cs. Half of these are foreign 
companies based in either the United Kingdom or New Zealand. Because 
these foreign companies do not have a place of business located in the 
United States, do not operate primarily within the United States, or 
make a significant contribution to the U.S. economy through payment of 
taxes or use of American products, materials, or labor, they are not 
considered to be small businesses by the Small Business Administration 
(SBA) and only the effects on U.S. applicant companies will be 
discussed. One of the prospective U.S. companies is a publicly traded 
firm that primarily operates in the satellite telecommunications 
industry. The other two prospective U.S. applicant companies for EMTU-
Cs are privately held businesses that do not publicly disclose total 
earnings or employment numbers. Based on information from their 
websites and product offerings, NMFS believes that one of them 
primarily operates in the radio and television broadcasting, and 
wireless communications equipment manufacturing industry, and the other 
primarily operates in the search, detection, navigation, guidance, 
aeronautical, and nautical system and instrument manufacturing 
industry. It is not possible to estimate how many additional companies 
may enter the marketplace for NMFS approved EMTU-Cs in the future.
    It is important to note that this final rule will not be expected 
to affect the existing satellite-based EMTU type-approval process. 
Therefore, no impacts on current VMS type-approval holders or end users 
are anticipated.
    Additionally, this final rule will not directly apply to fishing 
businesses or end users of EMTU-C devices. This final rule may affect 
the availability of EMTU-Cs for purchase, the retail price of these 
devices, monthly service charges, and future replacement costs. 
However, these will all be indirect effects of this final rule. 
Consideration of indirect effects is outside the scope of the RFA and, 
therefore, only the effects on EMTU-C vendor companies will be 
discussed.
    The SBA has established size standards for all major industry 
sectors in the U.S. including satellite telecommunications businesses 
(NAICS code 517410), radio and television broadcasting and wireless 
communications equipment manufacturers (NAICS code 334220), and search, 
detection, navigation, guidance, aeronautical, and nautical system and 
instrument manufacturers (NAICS 334511). A business primarily involved 
in the satellite telecommunications industry is 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 $32.5 million for all its affiliated 
operations worldwide. A business primarily involved in the radio and 
television broadcasting and wireless communications equipment 
manufacturing industry is classified as a small business if it is 
independently owned and operated, is not dominant in its field of 
operation (including its affiliates), and employs 1,250 or fewer 
persons on a full-time, part-time, temporary, or other basis at all its 
affiliated operations worldwide. Finally, a business primarily involved 
in the search, detection, navigation, guidance, aeronautical, and 
nautical system and instrument manufacturing industry is classified as 
a small business if it is independently owned and operated, is not 
dominant in its field of operation (including its affiliates), and 
employs 1,250 or fewer persons on a full-time, part-time, temporary, or 
other basis at all its affiliated operations worldwide.
    Based on financial records from a 2018 annual report to 
stockholders, NMFS has determined that the publicly traded U.S. vendor 
company that may be directly affected by this final rule will not be 
considered a small business under the SBA size criteria for its

[[Page 40918]]

industry designation, the satellite telecommunications industry. NMFS 
conservatively assumes that the other two prospective U.S. vendor 
companies for EMTU-Cs that are believed to primarily operate in either 
the radio and television broadcasting, and wireless communications 
equipment manufacturing industry, or the search, detection, navigation, 
guidance, aeronautical, and nautical system and instrument 
manufacturing industry are small entities. NMFS therefore estimates 
that this rule will impact at least two small entities in the short 
term and likely more in the long term.
    This final rule will involve reporting, record keeping, and other 
compliance requirements for the type-approval application process, 
notifications to NMFS for any substantive changes to type-approved 
EMTU-Cs or MCSs, customer service, potential responses to revocation 
notices or revocation appeals, and litigation support.
    The type-approval application process will require an applicant 
requesting type-approval of an EMTU-C, MCS, or bundle to make a written 
request to NMFS that must include the following information pertaining 
to the EMTU-C, MCS, or bundle: Communication class; manufacturer; brand 
name; model name; model number; software version and date; firmware 
version number and date; hardware version number and date; antenna 
type; antenna model number and date; tablet, monitor or terminal model 
number and date; MCS to be used in conjunction with the EMTU-C; entity 
providing MCS to the end user; current global and regional coverage of 
the MCS; the requestor-approved third party business entities 
associated with the EMTU-C and its use; the NMFS region(s) and/or 
Federal fisheries reporting program for which type-approval is sought; 
copies of, or citation to, applicable VMS regulations and requirements; 
communications functionality; position report data formats and 
transmission standards; latency specifications; messaging and 
electronic form capabilities; communications security specifications; 
details of customer service that will be provided to NMFS and 
fishermen; general durability and reliability of the unit; protection 
of PII, BII, and other protected information associated with the 
purchase or activation of an EMTU-C from disclosure; certification that 
the features, components, configuration, and services of the 
requestor's EMTU-C, MCS, or bundle comply with each applicable 
requirement set out in 50 CFR 600.1502 through 600.1509 and the 
applicable VMS regulations and requirements in effect for the NMFS 
region(s) and/or Federal fisheries reporting program for which the 
requestor seeks type-approval; and a certification that the requestor 
accepts responsibility for ensuring compliance with type-approval 
regulations during the type-approval period. In addition, the 
application must include two EMTU-Cs, loaded with forms and software if 
required by the applicable fishery(s), with activated MCS, at no cost 
to the government for each NMFS region or Federal fishery for which the 
application is made for a minimum of 90 calendar days for testing and 
evaluation. Two EMTU-Cs are needed for testing in each NMFS region or 
Federal fishery in order to quickly conduct in-office and field trials 
simultaneously. The application must also include thorough 
documentation, including EMTU-C fact sheets, installation guides, user 
manuals, any necessary interfacing software, MCS global and regional 
coverage, performance specifications, and technical support 
information. This application process will likely require engineering 
and product manager expertise for preparation of the application.
    The final rule will also require type-approval holders to notify 
NMFS within 2 calendar days of any substantive changes from the 
original submission for type-approval. Such change or modification 
notices will likely require engineering and product manager support as 
well.
    EMTU-C type-approval holders will be responsible for ensuring that 
customer service includes diagnostic and troubleshooting support to 
NMFS and fishermen, which is available 24 hours a day, 7 days per week, 
and year round. This may require dedicated customer service 
representative or technician support.
    If NMFS issues a Notification Letter indicating intent to revoke a 
type-approval, the type-approval holder must respond, in writing, 
within 30 to 120 calendar days from the date specified in the NMFS 
Notification Letter if they believe the notification is in error or can 
propose a solution to correct the issue. This response will likely 
require engineering and product manager expertise to develop. 
Additionally, a type-approval holder may file a petition to appeal a 
type-approval revocation, which could involve additional technical or 
legal support.
    Finally, as a condition of type-approval, the type-approval holder 
will be required to provide technical and expert support for litigation 
to substantiate the EMTU-C, MCS, or bundle capabilities to establish 
NMFS OLE cases against potential violators, as needed. If the 
technology has been subject to prior scrutiny in a court of law, the 
type-approval applicant or holder will be required to provide a brief 
summary of the litigation and any court finding on the reliability of 
the technology.
    The final rule will apply to all companies that wish to obtain VMS 
type-approval for EMTU-Cs in the future. As discussed previously, there 
are currently no EMTU-C units that have been type-approved by NMFS and 
no end users of such devices. However, three U.S. companies are 
expected to request type-approvals for EMTU-Cs. NMFS believes two of 
these companies are small entities. It is unknown how many additional 
companies may enter this market in the future. Because the majority of 
prospective applicant companies that are likely to be directly 
regulated by this final rule are believed to be small entities, NMFS 
conservatively assumes that this rule will affect a substantial number 
of small entities.
    All entities likely to be affected by this rule are expected to 
face comparable costs for the type-approval application process. 
Although detailed company information is not available for the small 
entities that will be directly regulated by this final rule, based on 
the nature of the products and services sold by these businesses, it is 
assumed they have the requisite resources to comply with most of the 
technical requirements included in this final rule as well. The 
requirement for customer service that is available 24 hours a day, 7 
days per week, and year round will, however, have the potential to 
disproportionately burden small entities relative to large entities. 
This final rule may necessitate that small businesses hire dedicated 
customer service support staff. This increase in overhead costs could 
place them at a competitive disadvantage to large businesses that 
likely already have robust customer service resources. Small entities 
are typically not able to achieve the same economies of scale or scope 
as large entities. In other words, large entities are able to drive 
down overhead costs per unit by operating at higher levels of output or 
spreading overhead costs, such as customer service labor, across 
multiple products. This requirement may create a barrier to entry for 
small businesses that wish to participate in the EMTU-C market.
    The following information summarizes the expected direct effects of 
this final rule on small entities.

[[Page 40919]]

Vessel Monitoring System Type-Approval Application Process

    Under this final rule, an applicant will need to submit a written 
type-approval request and electronic copies of supporting materials 
that include the information required under 50 CFR 600.1501 to NMFS 
OLE. The application process will likely require engineering and 
product manager expertise for preparation of the application. NMFS 
estimates that applicants will utilize up to approximately 40 hours of 
engineering labor and 40 hours of product management labor to compile 
the written request and statement that details how the applicant's 
EMTU-C meets the minimum national VMS standards as required by this 
rule. This estimate also includes the amount of time it will take to 
compile the EMTU-C documentation and the packaging of the EMTU-Cs to 
ship to each NMFS region or Federal fishery for which an application is 
submitted. Based on the Bureau of Labor Statistics May 2018 National 
Occupational Employment and Wage Estimates, the mean hourly wage for 
engineers is $47.71 per hour; for general and operations managers it is 
approximately $59.56 per hour. Therefore, NMFS estimates the total wage 
costs to be approximately $4,300 per EMTU-C application.
    With respect to providing OLE two EMTU-Cs for each NMFS region, 
NMFS estimates that applicants will likely spend between $55 and $86 
per shipment (two units each) based on current United States Postal 
Service (USPS) ground shipping rates for a package of up to 30 pounds 
($49.62-$80.51 depending on the region) and box/packaging costs of 
$5.00. Upon completion of testing and evaluation by OLE in each NMFS 
region, applicants will also be responsible for the cost of EMTU-C 
return shipments. Therefore, assuming an applicant sends units to all 
five NMFS regions, the total shipping cost per application will be $674 
based on USPS ground delivery costs of approximately $50 per region in 
the continental United States and $81 per region for the Alaska and the 
Pacific Islands offices. The cost will be lower if type-approval is 
requested for fewer regions.
    In addition, applicants will be responsible for covering the costs 
of the MCS during the testing period. Using the average applicant 
quoted monthly service charge to customers, NMFS estimates that this 
could run approximately $25 per month per unit. Assuming a 90-day 
testing period for 10 units (2 sent to each NMFS region), the total MCS 
cost will be approximately $750. It will be less for requests that 
involve fewer regions.
    The average estimated retail price of an EMTU-C unit, as based on 
six different vendor quotes, is approximately $458. The applicant 
seeking type-approval will be unable to sell the EMTU-C units as new 
after providing them to NMFS for testing and evaluation for 90 days. 
They might only get 60 to 80 percent of the regular retail value on 
refurbished units. If 10 EMTU-Cs that regularly retail new for $458 
each are sent to 5 regions, the reduced retail revenue will total 
approximately $916 to $1,832 per type-approval application. Again, if 
type-approval is requested for fewer than five regions, the cost will 
be lower. Alternatively, the applicant may opt to use these units as 
demo units for trade shows and other marketing purposes and therefore 
considerably lower the costs of providing the evaluation units. It is 
difficult to estimate the exact costs associated with providing the 
units to NMFS given the uncertainty associated with what applicants 
will do with these EMTU-Cs after the 90-day evaluation period.
    The total upper bound cost to applicants of the VMS type-approval 
application process is estimated to be $6,631 to $7,547 per application 
($4,291 in wages, plus $674 in shipping, plus $750 in MCS charges, plus 
$916 to $1,832 in reduced retail revenue for the demo units). This cost 
will be lower if type-approval is requested for fewer than five 
regions.

Changes or Modifications to Type-Approvals

    After a type-approval is issued, the type-approval holder must 
notify NMFS OLE in writing no later than 2 days following modification 
to or replacement of any functional component or piece of their type-
approved EMTU-C, MCS, or bundle. If the changes are substantial, NMFS 
OLE will notify the type-approval holder in writing within 60 calendar 
days that an amended type-approval is required or that NMFS will 
initiate the type-approval revocation process. NMFS estimates that 
small entities will utilize up to approximately 4 hours of engineering 
labor and 4 hours of product management labor to notify NMFS of any 
substantive changes to the original type-approval submission and 
provide the agency with the details of those changes. NMFS estimates 
the total wage costs to be approximately $429 for the change 
notification process. NMFS estimates that there will likely be less 
than two change/modification notices submitted per year based on past 
experience. There were two change/modification notices submitted in 
2017 for existing VMS type-approvals, as well as two in 2018. 
Therefore, the annual total cost to small entities for this provision 
will likely be less than $858 per year.

Customer Service

    The type-approval holder will be responsible for ensuring that 
customer service includes: Diagnostic and troubleshooting support to 
NMFS and fishermen, which is available 24 hours a day, 7 days per week, 
and year round; response times for customer service inquiries that do 
not exceed 24 hours; warranty and maintenance agreements; escalation 
procedures for resolution of problems; established facilities and 
procedures to assist fishermen in maintaining and repairing their EMTU-
C; assistance to fishermen in the diagnosis of the cause of 
communications anomalies; assistance in resolving communications 
anomalies that are traced to the EMTU-C; and assistance to NMFS OLE and 
its contractors, upon request, in VMS operation, resolving technical 
issues, and data analyses related to the VMS Program or system. NMFS is 
unable to estimate the direct costs to businesses to comply with these 
customer service requirements. However, they may be nontrivial. Costs 
will likely vary depending on each vendor's existing assets, 
liabilities, and profit maximization strategies.

Revocation Process

    If at any time, a type-approved EMTU-C or bundle fails to meet 
requirements at 50 CFR 600.1502 through 600.1509 or applicable VMS 
regulations and requirements in effect for the region(s) and Federal 
fisheries for which the EMTU-C is type-approved, NMFS OLE may issue a 
Notification Letter to the type-approval holder that: Identifies the 
EMTU-C, MCS, or bundle that allegedly fails to comply with type-
approval regulations and requirements; identifies the alleged failure 
to comply with type-approval regulations and requirements, and the 
urgency and impact of the alleged failure; cites relevant regulations 
and requirements under 50 CFR 600, subpart Q; describes the indications 
and evidence of the alleged failure; provides documentation and data 
demonstrating the alleged failure; sets a response date by which the 
type-approval holder must submit to NMFS OLE a written response to the 
Notification Letter, including, if applicable, a proposed solution; and 
explains the type-approval holder's options if the type-approval holder

[[Page 40920]]

believes the Notification Letter is in error.
    NMFS will establish a response date between 30 and 120 calendar 
days from the date of the Notification Letter. The type-approval 
holder's response must be received in writing by NMFS on or before the 
response date. If the type-approval holder fails to respond by the 
response date, the type-approval will be revoked. At its discretion and 
for good cause, NMFS may extend the response date to a maximum of 150 
calendar days from the date of the Notification Letter. A type-approval 
holder who has submitted a timely response may meet with NMFS within 21 
calendar days of the date of that response to discuss a detailed and 
agreed-upon procedure for resolving the alleged failure. The meeting 
may be in person, conference call, or webcast.
    If the type-approval holder disagrees with the Notification Letter 
and believes that there is no failure to comply with the type-approval 
regulations and requirements, NMFS has incorrectly defined or described 
the failure or its urgency and impact, or NMFS is otherwise in error, 
the type-approval holder may submit a written objection letter to NMFS 
on or before the response date in accordance with 50 CFR 600.1512.
    NMFS estimates that the revocation process will potentially involve 
16 hours of engineering labor and 8 hours of product management labor, 
per instance, to investigate the issues raised by NMFS and prepare a 
written response. Based on the wage costs previously discussed, NMFS 
estimates the revocation process could result in approximately $1,240 
in labor costs. However, the actual amount of labor costs could vary 
considerably depending on the complexity of the issues causing the 
potential violations NMFS identified. Some vendors may decide not to 
challenge the revocation or may be unable to bring the issue to final 
resolution to NMFS' satisfaction and then face the revocation of the 
type-approval for their product. The vendor will then be impacted by 
the loss of future EMTU-C sales and monthly data communication fees 
from vessels required to carry and operate a type-approved EMTU-C, MCS, 
or bundle.
    The vendor could also opt to appeal the type-approval revocation. 
In addition to the costs associated with the engineering and product 
management support provided during the revocation process, the vendor 
may also decide to employ legal assistance to challenge the agency's 
decision. These costs could vary considerably depending on the 
complexity of the appeal arguments.

Litigation Support

    Finally, in accordance with 50 CFR 600.1515, the final rule will 
also require the type-approval holder's litigation support. All 
technical aspects of a type-approved EMTU-C, MCS, or bundle are subject 
to being admitted as evidence in a court of law, if needed, and the 
type-approval holder will be required to provide technical and expert 
support for litigation to substantiate the EMTU-C, or bundle 
capabilities to establish NMFS OLE cases against violators. NMFS will 
pay the reasonable cost for such assistance in NMFS-authorized service 
or purchase agreements, work orders or contracts. If the technologies 
have previously been subject to such scrutiny in a court of law, the 
type-approval holder must provide NMFS with a brief summary of the 
litigation and any court findings on the reliability of the technology. 
This litigation support, if not fully paid for by NMFS, will be another 
potential cost of this final rule to EMTU-C vendors or mobile 
communications service providers. Because details of future litigation 
support needs are unknown, it is not possible to estimate these costs.
    In conclusion, participation in the EMTU-C market will be 
voluntary. It is assumed vendors are profit maximizing firms that will 
only apply for type-approvals if the expected profits from selling 
EMTU-C units and services justify the costs presented in this RFA 
analysis. However, there may be disproportionate effects on small 
entities relative to large entities, due to the customer service 
requirements included as part of this final rule.
    The following discussion describes the alternatives that were not 
selected as preferred by NMFS.
    Only two alternatives were considered for this rule. The first 
alternative, the no-action alternative, would not add EMTU-Cs and 
cellular based transmissions of VMS data to the VMS type-approval 
regulations. Currently there is no type-approval process for EMTU-Cs. 
This alternative was not selected by NMFS, because a type-approval 
process is required in order to facilitate the use of EMTU-Cs and 
cellular-based VMS transmissions in federally regulated fisheries that 
will require, or allow the use of, such in the future. Therefore, the 
no-action alternative was not a viable alternative. The second 
alternative, which includes all of the provisions laid out in this 
final rule, is the preferred alternative. NMFS has not identified any 
other alternatives that would meet the objectives of the final rule 
while minimizing economic impacts on small entities.
    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).

Paperwork Reduction Act (PRA)

    This final rule contains collection-of-information requirements 
that have been submitted for approval to OMB under the PRA, Control 
Number 0648-0789, Type-Approval Requirements for Vessel Monitoring 
Systems. Public reporting burden for the application process is 
estimated to average 80 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information.
    Public comment is sought regarding: Whether this collection of 
information is necessary for the proper performance of the functions of 
the agency, including whether the information shall have practical 
utility; the accuracy of the burden estimate; ways to enhance the 
quality, utility, and clarity of the information to be collected; and 
ways to minimize the burden of the collection of information, including 
through the use of automated collection techniques or other forms of 
information technology. Send comments on these or any other aspects of 
the collection of information to NMFS OLE at the ADDRESSES above, or to 
OMB by email [email protected].
    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. All currently approved 
collections of information may be viewed at https://www.cio.noaa.gov/services_programs/prasubs.html.

List of Subjects in 50 CFR Part 600

    Administrative practice and procedure, Fisheries, Fishing, 
Reporting and recordkeeping requirements.


[[Page 40921]]


    Dated: June 29, 2020.
Christopher Wayne Oliver,
Assistant Administrator for Fisheries, National Marine Fisheries 
Service.

    For the reasons set out in the preamble, 50 CFR part 600 is amended 
as follows:

PART 600--MAGNUSON-STEVENS ACT PROVISIONS

0
1. The authority citation for part 600 continues to read as follows:

    Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.


0
2. Revise subpart Q to part 600 to read as follows:

Subpart Q--Vessel Monitoring System Type-Approval

Sec.
600.1500 Definitions and acronyms.
600.1501 Vessel Monitoring System type-approval process.
600.1502 Communications functionality.
600.1503 Position report data formats and transmission.
600.1504 Latency requirement.
600.1505 Messaging.
600.1506 Electronic forms.
600.1507 Communications security.
600.1508 Customer service.
600.1509 General.
600.1510 Notification of type-approval.
600.1511 Changes or modifications to type-approvals.
600.1512 Type-approval revocation process.
600.1513 Type-approval revocation appeals process.
600.1514 Revocation effective date and notification to vessel 
owners.
600.1515 Litigation support.
600.1516 Reimbursement opportunities for revoked Vessel Monitoring 
System type-approval products.


Sec.  600.1500  Definitions and acronyms.

    In addition to the definitions in the Magnuson-Stevens Act and in 
Sec.  600.10, and the acronyms in Sec.  600.15, the terms and acronyms 
in this subpart have the following meanings:
    Authorized entity means a person, defined at 16 U.S.C. 1802(36), 
authorized to receive data transmitted by a VMS unit.
    Bench configuration means the configuration of a VMS unit after it 
has been customized to meet the Federal VMS requirements.
    Bundle means a mobile communications service and VMS unit sold as a 
package and considered one product. If a bundle is type-approved, the 
requestor will be the type-approval holder for the bundled MCS and VMS 
unit.
    Cellular communication means the wireless transmission of VMS data 
via a cellular network.
    Communication class means the satellite or cellular communications 
operator from which communications services originate.
    Electronic form means a pre-formatted message transmitted by a VMS 
unit that is required for the collection of data for a specific fishery 
program (e.g., declaration system, catch effort reporting).
    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 an antenna, and dedicated message 
terminal and display which can support a dedicated input device such as 
a tablet or keyboard, installed on fishing vessels participating in 
fisheries with a VMS requirement.
    Enhanced Mobile Transceiver Unit, Cellular Based (EMTU-C) means an 
EMTU that transmits and receives data via cellular communications, 
except that it may not need a dedicated message terminal and display 
component at the time of approval as explained at Sec.  600.1502(a)(6). 
An EMTU-C only needs to be capable of transmission and reception when 
in the range of a cellular network.
    Latency means the state of untimely delivery of Global Positioning 
System position reports and electronic forms to NMFS (i.e., information 
is not delivered to NMFS consistent with timing requirements of this 
subpart).
    Mobile Communications Service (MCS) means the satellite and/or 
cellular communications services used with particular VMS units.
    Mobile Communications Service Provider (MCSP) means an entity that 
sells VMS satellite and/or cellular communications services to end 
users.
    Mobile Transmitter Unit (MTU) means a VMS unit capable of 
transmitting Global Positioning System position reports via satellite. 
(MTUs are no longer approved for new installations on VMS vessels).
    Notification Letter means a letter issued by NMFS to a type-
approval holder identifying an alleged failure of a VMS unit, MCS, or 
the type-approval holder to comply with the requirements of this 
subpart.
    Position report means the unique global positioning system (GPS) 
report generated by a vessel's VMS unit, which identifies the vessel's 
latitude/longitude position at a point in time. Position reports are 
sent from the VMS unit via the MCS, to authorized entities.
    Requestor means a vendor seeking type-approval.
    Service life means the length of time during which a VMS unit 
remains fully operational with reasonable repairs.
    Sniffing means the unauthorized and illegitimate monitoring and 
capture, through use of a computer program or device, of data being 
transmitted over a network.
    Spoofing means the reporting of a false Global Positioning System 
position and/or vessel identity.
    Time stamp means the time, in hours, minutes, and seconds in a 
position report. Each position report is time stamped.
    Type-approval holder means an applicant whose type-approval request 
has been approved pursuant to this subpart.
    Vendor means a commercial provider of VMS hardware, software, and/
or mobile communications services.
    Vessel Monitoring System (VMS) means, for purposes of this subpart, 
a satellite and/or cellular based system designed to monitor the 
location and movement of vessels using onboard VMS units that send 
Global Positioning System position reports to an authorized entity.
    Vessel Monitoring System (VMS) data means the data transmitted to 
authorized entities from a VMS unit.
    Vessel Monitoring System Program means the Federal program that 
manages the vessel monitoring system, data, and associated program-
components, nationally and in each NMFS region; it is housed in the 
Department of Commerce, National Oceanic and Atmospheric 
Administration, National Marine Fisheries Service's Office of Law 
Enforcement.
    Vessel Monitoring System (VMS) Unit means MTU, EMTU or EMTU-C, as 
well as the units that can operate as both an EMTU and an EMTU-C.
    Vessel Monitoring System (VMS) Vessels means vessels that operate 
in federally managed fisheries with a requirement to carry and operate 
a VMS unit.


Sec.  600.1501  Vessel Monitoring System type-approval process.

    (a) Applicability. Unless otherwise specified, this section applies 
to EMTUs, EMTU-Cs, units that operate as both an EMTU and EMTU-C, and 
MCSs. Units that can operate as both an EMTU and EMTU-C must meet the 
requirements for both an EMTU and an EMTU-C in order to gain type-
approval as both. MTUs are no longer eligible for type-approval.
    (b) Application submission. A requestor must submit a written type-
approval request and electronic copies

[[Page 40922]]

of supporting materials that include the information required under 
this section to the NMFS Office of Law Enforcement (OLE) at: U.S. 
Department of Commerce; National Oceanic and Atmospheric 
Administration; National Marine Fisheries Service; Office of Law 
Enforcement; Attention: Vessel Monitoring System Office; 1315 East-West 
Highway, SSMC3, Suite 3301, Silver Spring, Maryland 20910.
    (c) Application requirements. (1) EMTU, EMTU-C, and MCS Identifying 
Information: In a type-approval request, the requestor should indicate 
whether the requestor is seeking approval for an EMTU, EMTU-C, MCS, or 
bundle and must specify identifying characteristics, as applicable: 
Communication class; manufacturer; brand name; model name; model 
number; software version and date; firmware version number and date; 
hardware version number and date; antenna type; antenna model number 
and date; tablet, monitor or terminal model number and date; MCS to be 
used in conjunction with the EMTU/EMTU-C; entity providing MCS to the 
end user; and current global and regional coverage of the MCS.
    (2) Requestor-approved third party business entities: The requestor 
must provide the business name, address, phone number, contact name(s), 
email address, specific services provided, and geographic region 
covered for the following third party business entities:
    (i) Entities providing bench configuration for the EMTU/EMTU-C at 
the warehouse or point of supply.
    (ii) Entities distributing/selling the EMTU/EMTU-C to end users.
    (iii) Entities currently approved by the requestor to install the 
EMTU/EMTU-C onboard vessels.
    (iv) Entities currently approved by the requestor to offer a 
limited warranty.
    (v) Entities approved by the requestor to offer a maintenance 
service agreement.
    (vi) Entities approved by the requestor to repair or install new 
software on the EMTU/EMTU-C.
    (vii) Entities approved by the requestor to train end users.
    (viii) Entities approved by the requestor to advertise the EMTU/
EMTU-C.
    (ix) Entities approved by the requestor to provide other customer 
services.
    (3) Regulatory Requirements and Documentation: In a type-approval 
request, a requestor must:
    (i) Identify the NMFS region(s) and/or Federal fisheries for which 
the requestor seeks type-approval.
    (ii) Include copies of, or citation to, applicable VMS regulations 
and requirements in effect for the region(s) and Federal fisheries 
identified under paragraph (c)(3)(i) of this section that require use 
of VMS.
    (iii) Provide a table with the type-approval request that lists in 
one column each requirement set out in Sec. Sec.  600.1502 through 
600.1509 and regulations described under paragraph (c)(3)(ii) of this 
section. NMFS OLE will provide a template for the table upon request. 
The requestor must indicate in subsequent columns in the table:
    (A) Whether the requirement applies to the type-approval; and
    (B) Whether the EMTU, EMTU-C, MCS, or bundle meets the requirement.
    (iv) Certify that the features, components, configuration and 
services of the requestor's EMTU/EMTU-C, MCS, or bundle comply with 
each requirement set out in Sec. Sec.  600.1502 through 600.1509 and 
the regulations described under paragraph (c)(3)(ii) of this section.
    (v) Certify that, if the request is approved, the requestor agrees 
to be responsible for ensuring compliance with each requirement set out 
in Sec. Sec.  600.1502 through 600.1509 and the regulations described 
under paragraph (c)(3)(ii) of this section over the course of the type-
approval period.
    (vi) Provide NMFS OLE with two EMTU/EMTU-Cs loaded with forms and 
software, if applicable, for each NMFS region or Federal fishery, with 
activated MCS, for which a type-approval request is submitted for a 
minimum of 90 calendar days for testing and evaluation. For EMTU-Cs, 
the forms and software may be loaded onto a dedicated message terminal 
and display component to which the EMTU-C can connect. Copies of forms 
currently used by NMFS are available upon request. As part of its 
review, NMFS OLE may perform field tests and at-sea trials that involve 
demonstrating every aspect of EMTU/EMTU-C and communications operation. 
The requestor is responsible for all associated costs including paying 
for: Shipping of the EMTU/EMTU-C to the required NMFS regional offices 
and/or headquarters for testing; the MCS during the testing period; and 
shipping of the EMTU/EMTU-C back to the vendor.
    (vii) Provide thorough documentation for the EMTU/EMTU-C and MCS, 
including: EMTU/EMTU-C fact sheets; installation guides; user manuals; 
any necessary interfacing software; MCS global and regional coverage; 
performance specifications; and technical support information.
    (d) Certification. A requestor seeking type-approval of an EMTU/
EMTU-C to operate with a class or type of communications, as opposed to 
type-approval for use with a specific MCS, shall certify that the EMTU/
EMTU-C meets requirements under this subpart when using at least one 
MCSP within that class or type of communications.
    (e) Notification. Unless additional time is required for EMTU/EMTU-
C testing, NMFS OLE will notify the requestor within 90 days after 
receipt of a complete type-approval request as follows:
    (1) If a request is approved or partially approved, NMFS OLE will 
provide notice as described under Sec.  600.1510 and the type-approval 
letter will serve as official documentation and notice of type-
approval. OLE will publish and maintain the list of type-approved units 
on their Vessel Monitoring System web page.
    (2) If a request is disapproved or partially disapproved:
    (i) OLE will send a letter to the requestor that explains the 
reason for the disapproval/partial disapproval.
    (ii) The requestor may respond to NMFS OLE in writing with 
additional information to address the reasons for disapproval 
identified in the NMFS OLE letter. The requestor must submit this 
response within 21 calendar days of the date of the OLE letter sent 
under paragraph (e)(2)(i) of this section.
    (iii) If any additional information is submitted under paragraph 
(e)(2)(ii) of this section, NMFS OLE, after reviewing such information, 
may either take action under paragraph (e)(1) of this section or 
determine that the request should continue to be disapproved or 
partially disapproved. In the latter case, the NMFS OLE Director will 
send a letter to the requestor that explains the reasons for the 
continued disapproval/partial disapproval. The NMFS OLE Director's 
decision is final upon issuance of this letter and is not appealable.


Sec.  600.1502  Communications functionality.

    (a) Unless otherwise specified, this subsection applies to all VMS 
units. Units that can operate as both an EMTU and EMTU-C must meet the 
requirements for both an EMTU and an EMTU-C in order to gain type-
approval as both. The VMS unit must:
    (1) Be able to transmit all automatically-generated position 
reports.
    (2) Provide visible or audible alarms onboard the vessel to 
indicate malfunctioning of the VMS unit.
    (3) Be able to disable non-essential alarms in non-Global Maritime 
Distress and Safety System (GMDSS) installations.
    (4) EMTU/EMTU-Cs must be able to send communications that function 
uniformly throughout the geographic

[[Page 40923]]

area(s) covered by the type-approval, except an EMTU-C only needs to be 
capable of transmission and reception when in the range of a cellular 
network.
    (5) EMTU/EMTU-Cs must have two-way communications between the unit 
and authorized entities, via MCS, or be able to connect to a device 
that has two-way communications.
    (6) EMTU/EMTU-Cs must be able to run or to connect to a dedicated 
message terminal and display component that can run software and/or 
applications that send and receive electronic forms and internet email 
messages for the purpose of complying with VMS reporting requirements 
in Federal fisheries. Depending on the reporting requirements for the 
fishery(s) in which the requester is seeking type-approval, an EMTU-C 
type-approval may not require the inclusion of a dedicated message 
terminal and display component at the time of approval, but the 
capability to support such a component must be shown.
    (7) Have messaging and communications mechanisms that are 
completely compatible with NMFS vessel monitoring and surveillance 
software.
    (b) In addition, messages and communications from a VMS unit must 
be able to be parsed out to enable clear billing of costs to the 
government and to the owner of a vessel or EMTU/EMTU-C, when necessary. 
Also, the costs associated with position reporting and the costs 
associated with other communications (for example, personal email or 
communications/reports to non-NMFS Office of Law Enforcement entities) 
must be parsed out and billed to separate parties, as appropriate.


Sec.  600.1503  Position report data formats and transmission.

    Unless otherwise specified, this subsection applies to all VMS 
units, MCSs and bundles. Units that can operate as both an EMTU and 
EMTU-C must meet the requirements for both an EMTU and an EMTU-C in 
order to gain type-approval as both. To be type-approved in any given 
fishery, a VMS unit must also meet any additional positioning 
information as required by the applicable VMS regulations and 
requirements in effect for each fishery or region for which the type-
approval applies. The VMS unit must meet the following requirements:
    (a) Transmit all automatically-generated position reports, for 
vessels managed individually or grouped by fleet, that meet the latency 
requirement under Sec.  600.1504.
    (b) When powered up, must automatically re-establish its position 
reporting function without manual intervention.
    (c) Position reports must contain all of the following:
    (1) Unique identification of an EMTU/EMTU-C and clear indication if 
the unit is an EMTU-C.
    (2) Date (year/month/day with century in the year) and time stamp 
(GMT) of the position fix.
    (3) Date (year/month/day with century in the year) and time stamp 
(GMT) that the EMTU-C position report was sent from the EMTU-C.
    (4) Position fixed latitude and longitude, including the hemisphere 
of each, which comply with the following requirements:
    (i) The position fix precision must be to the decimal minute 
hundredths.
    (ii) Accuracy of the reported position must be within 100 meters 
(328.1 ft).
    (d) An EMTU/EMTU-C must have the ability to: (1) Store 1,000 
position fixes in local, non-volatile memory.
    (2) Allow for defining variable reporting intervals between 5 
minutes and 24 hours.
    (3) Allow for changes in reporting intervals remotely and only by 
authorized users.
    (e) An EMTU/EMTU-C must generate specially identified position 
reports upon:
    (1) Antenna disconnection.
    (2) Loss of positioning reference signals.
    (3) Security events, power-up, power down, and other status data.
    (4) A request for EMTU/EMTU-C status information such as 
configuration of programming and reporting intervals.
    (5) The EMTUs loss of the mobile communications signals.
    (6) An EMTU must generate a specially identified position report 
upon the vessel crossing of a pre-defined geographic boundary.


Sec.  600.1504  Latency requirement.

    (a) Ninety percent of all pre-programmed or requested Global 
Positioning System position reports during each 24-hour period must 
reach NMFS within 15 minutes or less of being sent from the VMS unit, 
for 10 out of 11 consecutive days (24-hour time periods).
    (b) NMFS will continually examine latency by region and by type-
approval holder.
    (c) Exact dates for calculation of latency will be chosen by NMFS. 
Days in which isolated and documented system outages occur will not be 
used by NMFS to calculate a type-approval holder's latency.


Sec.  600.1505  Messaging.

    (a) Unless otherwise specified, this section applies to all VMS 
units, MCSs, and bundles. Units that can operate as both an EMTU and 
EMTU-C must meet the requirements for both an EMTU and an EMTU-C in 
order to gain type-approval as both. Depending on the reporting 
requirements for the fishery(s) in which the requester is seeking type-
approval, an EMTU-C type-approval may not require the inclusion of a 
dedicated message terminal and display component at the time of 
approval, but the capability to support such a component must be shown. 
To be type-approved in any given fishery, a VMS unit must meet 
messaging information requirements under the applicable VMS regulations 
and requirements in effect for each fishery or region for which the 
type-approval applies. The VMS unit must also meet the following 
requirements:
    (b) An EMTU must be able to run software and/or applications that 
send email messages for the purpose of complying with VMS reporting 
requirements in Federal fisheries that require email communication 
capability. An EMTU-C must be able to run or connect to a device that 
can run such software and/or applications. In such cases, the EMTU/
EMTU-C messaging must provide for the following capabilities:
    (1) Messaging from vessel to shore, and from shore to vessel by 
authorized entities, must have a minimum supported message length of 1 
KB. For EMTU-Cs, this messaging capability need only be functional when 
in range of shore-based cellular communications.
    (2) There must be a confirmation of delivery function that allows a 
user to ascertain whether a specific message was successfully 
transmitted to the MCS email server(s).
    (3) Notification of failed delivery to the EMTU/EMTU-C must be sent 
to the sender of the message. The failed delivery notification must 
include sufficient information to identify the specific message that 
failed and the cause of failure (e.g., invalid address, EMTU/EMTU-C 
switched off, etc.).
    (4) The EMTU/EMTU-C must have an automatic retry feature in the 
event that a message fails to be delivered.
    (5) The EMTU/EMTU-C user interface must:
    (i) Support an ``address book'' capability and a function 
permitting a ``reply'' to a received message without re-entering the 
sender's address.
    (ii) Provide the ability to review by date order, or by recipient, 
messages that were previously sent. The EMTU/EMTU-C terminal must 
support a

[[Page 40924]]

minimum message history of 50 sent messages--commonly referred to as an 
``Outbox'' or ``Sent'' message display.
    (iii) Provide the ability to review by date order, or by sender, 
all messages received. The EMTU/EMTU-C terminal must support a minimum 
message history of at least 50 messages in an inbox.


Sec.  600.1506  Electronic forms.

    Unless otherwise specified, this subsection applies to all EMTUs, 
EMTU-Cs, MCSs, and bundles.
    (a) Forms. An EMTU/EMTU-C must be able to run, or to connect to and 
transmit data from a device that can run electronic forms software. 
Depending on the reporting requirements for the fishery(s) in which the 
requester is seeking type-approval, an EMTU-C type-approval may not 
require the inclusion of a dedicated message terminal and display 
component at the time of approval, but the capability to support such a 
component must be shown. The EMTU/EMTU-C must be able to support forms 
software that can hold a minimum of 20 electronic forms, and it must 
also meet any additional forms requirements in effect for each fishery 
or region for which the type-approval applies. The EMTU/EMTU-C must 
meet the following requirements:
    (1) Form Validation: Each field on a form must be capable of being 
defined as Optional, Mandatory, or Logic Driven. Mandatory fields are 
those fields that must be entered by the user before the form is 
complete. Optional fields are those fields that do not require data 
entry. Logic-driven fields have their attributes determined by earlier 
form selections. Specifically, a logic-driven field must allow for 
selection of options in that field to change the values available as 
menu selections on a subsequent field within the same form.
    (2) A user must be able to select forms from a menu on the EMTU/
EMTU-C.
    (3) A user must be able to populate a form based on the last values 
used and ``modify'' or ``update'' a prior submission without 
unnecessary re-entry of data. A user must be able to review a minimum 
of 20 past form submissions and ascertain for each form when the form 
was transmitted and whether delivery was successfully sent to the type-
approval holder's VMS data processing center. In the case of a 
transmission failure, a user must be provided with details of the cause 
and have the opportunity to retry the form submission.
    (4) VMS Position Report: Each form must include VMS position data, 
including latitude, longitude, date and time. Data to populate these 
fields must be automatically generated by the EMTU/EMTU-C and unable to 
be manually entered or altered.
    (5) Delivery and Format of Forms Data: Delivery of form data to 
NMFS must employ the same transport security and reliability as set out 
in Sec.  600.1507 of this subpart. The forms data and delivery must be 
completely compatible with NMFS vessel monitoring software.
    (b) Updates to Forms. (1) The EMTU/EMTU-C and MCS must be capable 
of providing updates to forms or adding new form requirements via 
wireless transmission and without manual installation.
    (2) From time to time, NMFS may provide type-approved applicants 
with requirements for new forms or modifications to existing forms. 
NMFS may also provide notice of forms and form changes through the NMFS 
Work Order System. Type-approved applicants will be given at least 60 
calendar days to complete their implementation of new or changed forms. 
Applicants will be capable of, and responsible for translating the 
requirements into their EMTU/EMTU-C-specific forms definitions and 
wirelessly transmitting the same to all EMTU/EMTU-C terminals supplied 
to fishing vessels.


Sec.  600.1507  Communications security.

    Communications between an EMTU/EMTU-C and MCS must be secure from 
tampering or interception, including the reading of passwords and data. 
The EMTU/EMTU-C and MCS must have mechanisms to prevent to the extent 
possible:
    (a) Sniffing and/or interception during transmission from the EMTU/
EMTU-C to MCS.
    (b) Spoofing.
    (c) False position reports sent from an EMTU/EMTU-C.
    (d) Modification of EMTU/EMTU-C identification.
    (e) Interference with Global Maritime Distress and Safety System 
(GMDSS) or other safety/distress functions.
    (f) Introduction of malware, spyware, keyloggers, or other software 
that may corrupt, disturb, or disrupt messages, transmission, and the 
VMS system.
    (g) The EMTU/EMTU-C terminal from communicating with, influencing, 
or interfering with the Global Positioning System antenna or its 
functionality, position reports, or sending of position reports. The 
position reports must not be altered, corrupted, degraded, or at all 
affected by the operation of the terminal or any of its peripherals or 
installed-software.
    (h) VMS data must be encrypted and sent securely through all 
associated cellular, satellite, and internet communication pathways and 
channels.


Sec.  600.1508  Field and Technical Services.

    As a requirement of its type-approval, a type-approval holder must 
communicate with NMFS to resolve technical issues with a VMS Unit, MCS 
or bundle and ensure that field and technical services includes:
    (a) Diagnostic and troubleshooting support to NMFS and fishers, 
which is available 24 hours a day, seven days per week, and year-round.
    (b) Response times for customer service inquiries that shall not 
exceed 24 hours.
    (c) Warranty and maintenance agreements.
    (d) Escalation procedures for resolution of problems.
    (e) Established facilities and procedures to assist fishers in 
maintaining and repairing their EMTU, EMTU-C, or MTU.
    (f) Assistance to fishers in the diagnosis of the cause of 
communications anomalies.
    (g) Assistance in resolving communications anomalies that are 
traced to the EMTU, EMTU-C, or MTU.
    (h) Assistance to NMFS Office of Law Enforcement and its 
contractors, upon request, in VMS system operation, resolving technical 
issues, and data analyses related to the VMS Program or system.


Sec.  600.1509  General.

    (a) An EMTU/EMTU-C must have the durability and reliability 
necessary to meet all requirements of Sec. Sec.  600.1502 through 
600.1507 regardless of weather conditions, including when placed in a 
marine environment where the unit may be subjected to saltwater (spray) 
in smaller vessels, and in larger vessels where the unit may be 
maintained in a wheelhouse. The unit, cabling and antenna must be 
resistant to salt, moisture, and shock associated with sea-going 
vessels in the marine environment.
    (b) PII and Other Protected Information. Personally identifying 
information (PII) and other protected information includes Magnuson-
Stevens Act confidential information as provided at 16 U.S.C. 1881a and 
Business Identifiable Information (BII), as defined in the Department 
of Commerce Information Technology Privacy Policy. A type-approval 
holder is responsible for ensuring that:
    (1) All PII and other protected information is handled in 
accordance with applicable state and Federal law.

[[Page 40925]]

    (2) All PII and other protected information provided to the type-
approval holder by vessel owners or other authorized personnel for the 
purchase or activation of an EMTU/EMTU-C or arising from participation 
in any Federal fishery are protected from disclosure not authorized by 
NMFS or the vessel owner or other authorized personnel.
    (3) Any release of PII or other protected information beyond 
authorized entities must be requested and approved in writing, as 
appropriate, by the submitter of the data in accordance with 16 U.S.C. 
1881a, or by NMFS.
    (4) Any PII or other protected information sent electronically by 
the type-approval holder to the NMFS Office of Law Enforcement must be 
transmitted by a secure means that prevents interception, spoofing, or 
viewing by unauthorized individuals.


Sec.  600.1510  Notification of type-approval.

    (a) If a request made pursuant to Sec.  600.1501 (type-approval) is 
approved or partially approved, NMFS will issue a type-approval letter 
to indicate the specific EMTU/EMTU-C model, MCSP, or bundle that is 
approved for use, the MCS or class of MCSs permitted for use with the 
type-approved EMTU, and the regions or fisheries in which the EMTU/
EMTU-C, MCSP, or bundle is approved for use.
    (b) The NMFS Office of Law Enforcement will maintain a list of 
type-approved EMTUs/EMTU-C, MCSPs, and bundles on a publicly available 
website and provide copies of the list upon request.


Sec.  600.1511  Changes or modifications to type-approvals.

    Type-approval holders must notify NMFS Office of Law Enforcement 
(OLE) in writing no later than 2 days following modification to or 
replacement of any functional component or piece of their type-approved 
EMTU, EMTU-C, or MTU configuration, MCS, or bundle. If the changes are 
substantial, NMFS OLE will notify the type-approval holder in writing 
within 60 calendar days that an amended type-approval is required or 
that NMFS will initiate the type-approval revocation process.


Sec.  600.1512  Type-approval revocation process.

    (a) If at any time, a type-approved EMTU/EMTU-C, MCS, or bundle 
fails to meet requirements at Sec. Sec.  600.1502 through 600.1509 or 
applicable VMS regulations and requirements in effect for the region(s) 
and Federal fisheries for which the EMTU/EMTU-C or MCS is type-
approved, or if an MTU fails to meet the requirements under which it 
was type-approved, OLE may issue a Notification Letter to the type-
approval holder that:
    (1) Identifies the MTU, EMTU, EMTU-C, MCS, or bundle that allegedly 
fails to comply with type-approval regulations and requirements;
    (2) Identifies the alleged failure to comply with type-approval 
regulations and requirements, and the urgency and impact of the alleged 
failure;
    (3) Cites relevant regulations and requirements under this subpart;
    (4) Describes the indications and evidence of the alleged failure;
    (5) Provides documentation and data demonstrating the alleged 
failure;
    (6) Sets a response date by which the type-approval holder must 
submit to NMFS OLE a written response to the Notification Letter, 
including, if applicable, a proposed solution; and
    (7) Explains the type-approval holder's options if the type-
approval holder believes the Notification Letter is in error.
    (b) NMFS will establish a response date between 30 and 120 calendar 
days from the date of the Notification Letter. The type-approval 
holder's response must be received in writing by NMFS on or before the 
response date. If the type-approval holder fails to respond by the 
response date, the type-approval will be revoked. At its discretion and 
for good cause, NMFS may extend the response date to a maximum of 150 
calendar days from the date of the Notification Letter.
    (c) A type-approval holder who has submitted a timely response may 
meet with NMFS within 21 calendar days of the date of that response to 
discuss a detailed and agreed-upon procedure for resolving the alleged 
failure. The meeting may be in person, conference call, or webcast.
    (d) If the type-approval holder disagrees with the Notification 
Letter and believes that there is no failure to comply with the type-
approval regulations and requirements, NMFS has incorrectly defined or 
described the failure or its urgency and impact, or NMFS is otherwise 
in error, the type-approval holder may submit a written objection 
letter to NMFS on or before the response date. Within 21 calendar days 
of the date of the objection letter, the type-approval holder may meet 
with NMFS to discuss a resolution or redefinition of the issue. The 
meeting may be in person, conference call, or webcast. If modifications 
to any part of the Notification Letter are required, then NMFS will 
issue a revised Notification Letter to the type-approval holder. 
However, the response date or any other timeline in this process would 
not restart or be modified unless NMFS decides to do so, at its 
discretion.
    (e) The total process from the date of the Notification Letter to 
the date of final resolution should not exceed 180 calendar days, and 
may require a shorter timeframe, to be determined by NMFS, depending on 
the urgency and impact of the alleged failure. In rare circumstances, 
NMFS, at its discretion, may extend the time for resolution of the 
alleged failure. In such a case, NMFS will provide a written notice to 
the type-approval holder informing him or her of the extension and the 
basis for the extension.
    (f) If the failure to comply with type-approval regulations and 
requirements cannot be resolved through this process, the NMFS OLE 
Director will issue a Revocation Letter to the type-approval holder 
that:
    (1) Identifies the MTU, EMTU, EMTU-C, MCS, or bundle for which 
type-approval is being revoked;
    (2) Summarizes the failure to comply with type-approval regulations 
and requirements, including describing its urgency and impact;
    (3) Summarizes any proposed plan, or attempts to produce such a 
plan, to resolve the failure;
    (4) States that revocation of the MTU, EMTU, EMTU-C, MCS, or 
bundle's type-approval has occurred;
    (5) States that no new installations of the revoked unit will be 
permitted in any NMFS-managed fishery requiring the use of VMS;
    (6) Cites relevant regulations and requirements under this subpart;
    (7) Explains why resolution was not achieved;
    (8) Advises the type-approval holder that:
    (i) The type-approval holder may reapply for a type-approval under 
the process set forth in Sec.  600.1501, and
    (ii) A revocation may be appealed pursuant to the process under 
Sec.  600.1513.


Sec.  600.1513  Type-approval revocation appeals process.

    (a) If a type-approval holder receives a Revocation Letter pursuant 
to Sec.  600.1512, the type-approval holder may file an appeal of the 
revocation to the NMFS Assistant Administrator.
    (b) An appeal must be filed within 14 calendar days of the date of 
the Revocation Letter. A type-approval holder may not request an 
extension of time to file an appeal.
    (c) An appeal must include a complete copy of the Revocation Letter 
and its attachments and a written statement detailing any facts or

[[Page 40926]]

circumstances explaining and refuting the failures summarized in the 
Revocation Letter.
    (d) The NMFS Assistant Administrator may, at his or her discretion, 
affirm, vacate, or modify the Revocation Letter and send a letter to 
the type-approval holder explaining his or her determination, within 21 
calendar days of receipt of the appeal. The NMFS Assistant 
Administrator's determination constitutes the final agency decision.


Sec.  600.1514  Revocation effective date and notification to vessel 
owners.

    (a) Following issuance of a Revocation Letter pursuant to Sec.  
600.1512 and any appeal pursuant to Sec.  600.1513, NMFS will provide 
notice to all vessel owners impacted by the type-approval revocation 
via letter and Federal Register notice. NMFS will provide information 
to impacted vessel owners on:
    (1) The next steps vessel owners should take to remain in 
compliance with regional and/or national VMS requirements;
    (2) The date, 60-90 calendar days from the notice date, on which 
the type-approval revocation will become effective;
    (3) Reimbursement of the cost of a new type-approved EMTU/EMTU-C, 
should funding for reimbursement be available pursuant to Sec.  
600.1516.


Sec.  600.1515  Litigation support.

    (a) All technical aspects of a type-approved EMTU, EMTU-C, MTU, 
MCS, or bundle are subject to being admitted as evidence in a court of 
law, if needed. The reliability of all technologies utilized in the 
EMTU, EMTU-C, MTU, MCS, or bundle may be analyzed in court for, inter 
alia, testing procedures, error rates, peer review, technical processes 
and general industry acceptance.
    (b) The type-approval holder must, as a requirement of the holder's 
type-approval, provide technical and expert support for litigation to 
substantiate the EMTU/EMTU-C, MCS, or bundle capabilities to establish 
NMFS Office of Law Enforcement cases against violators, as needed. If 
the technologies have previously been subject to such scrutiny in a 
court of law, the type-approval holder must provide NMFS with a brief 
summary of the litigation and any court findings on the reliability of 
the technology.
    (c) The type-approval holder will be required to sign a non-
disclosure agreement limiting the release of certain information that 
might compromise the effectiveness of the VMS operations.


Sec.  600.1516  Reimbursement opportunities for revoked Vessel 
Monitoring System type-approval products.

    (a) Subject to the availability of funds, vessel owners may be 
eligible for reimbursement payments for a replacement EMTU/EMTU-C if:
    (1) All eligibility and process requirements specified by NMFS are 
met as described in NMFS Policy Directive 06-102; and
    (2) The replacement type-approved EMTU/EMTU-C is installed on the 
vessel, and reporting to NMFS Office of Law Enforcement; and
    (3) The type-approval for the previously installed EMTU/EMTU-C has 
been revoked by NMFS; or
    (4) NMFS requires the vessel owner to purchase a new EMTU/EMTU-C 
prior to the end of an existing unit's service life.
    (b) The cap for individual reimbursement payments is subject to 
change. If this occurs, NMFS Office of Law Enforcement will publish a 
notice in the Federal Register announcing the change.

[FR Doc. 2020-14600 Filed 7-7-20; 8:45 am]
BILLING CODE 3510-22-P