[Federal Register Volume 85, Number 16 (Friday, January 24, 2020)]
[Proposed Rules]
[Pages 4257-4268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00675]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Doc. No. 200113-0010]
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: Proposed rule; request for comments.
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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
proposed rule would amend 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 proposed 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: Comments on this proposed rule must be received by February 24,
2020.
ADDRESSES: You may submit comments on this proposed rule identified by
``NOAA-NMFS-2019-0126'' by either of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Go to
www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0126, click the
``Comment Now!'' icon, complete the required fields, and enter or
attach your comments.
Mail: Send all written comments to Kelly Spalding, 1315
East-West Highway, Room 3207, Silver Spring, MD 20910.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered by NMFS. All comments received are a part of the
public record and will generally be posted for public viewing on
www.regulations.gov without change. All personal identifying
information (e.g., name, address, etc.), confidential business
information, or otherwise sensitive information submitted voluntarily
by the sender will be publicly accessible. NMFS will accept anonymous
comments (enter ``N/A'' in the required fields if you wish to remain
anonymous).
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted to Kelly Spalding, Vessel Monitoring
System Program Manager, 1315 East-West Highway, Room 3207, Silver
Spring, MD 20910, by email to [email protected], or by fax to
202-395-5806.
FOR FURTHER INFORMATION CONTACT: Kelly Spalding, Vessel Monitoring
System Program Manager, NMFS: 301-427-8269 or [email protected].
SUPPLEMENTARY INFORMATION:
Purpose of This Proposed Rule
EMTU-Cs transmit data via cellular communication services, which
are less expensive than satellite communications services used with
EMTUs. EMTU-Cs are capable of collecting global positioning system
(GPS) location data at regular intervals while vessels are at the dock
and at sea; however, they can only transmit the data when the EMTU-Cs
are within range of their land-based cellular receivers. Thus, unlike
EMTUs, EMTU-C data cannot be sent at near real-time during the majority
of fishing trips in Federal waters.
Whether EMTU-Cs are appropriate for a particular fishery needs to
be evaluated under the relevant fishery management plan and its
regulations. If EMTU-Cs are required, this proposed rule would amend
the existing type-approval requirements to allow for type-approval of
the EMTU-Cs for use in the fishery. NMFS regulations at 50 CFR part
600, subpart Q, specify the procedures and requirements for EMTUs for
initial type-approvals; compliance with, and revocations and appeals of
type-approvals; and technical, service, and performance standards. This
proposed rule would use the same procedures and requirements for EMTU-
Cs, amending existing regulations accordingly to add in EMTU-Cs. It is
important to note that this proposed rule would not affect the existing
satellite-based EMTU type-approval process; therefore, no impacts on
current VMS applicants or end users are anticipated.
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 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 drafting 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 NMFS fishery monitoring trends while also
maintaining type-approval standards that are equitably applied to all
fisheries. So, in light of the above rule, this proposed rule would
modify the existing NMFS VMS type-approval
[[Page 4258]]
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 would ensure the approval process
is efficient, transparent, and enforceable for all approved devices
nation-wide. Although the impetus for this proposed rule was the Gulf
proposed rule, this rule would be applied nationally for type-approval
of EMTU-Cs, if adopted in other NMFS regions and monitoring programs.
Management Measures Contained in This Proposed Rule
The measures described below are the current type-approval process
and requirements for satellite-based EMTUs and associated communication
services. This proposed rule would amend the measures to include EMTU-
Cs. EMTU-Cs would not be universally allowed for use in all fisheries,
and the specific type-approvals may differ among fisheries and areas.
The type-approved units for each applicable Federal fishery or area are
located at https://www.fisheries.noaa.gov/national/enforcement/noaa-fisheries-type-approved-vms-units.
A requestor seeking type-approval would submit a written request
and electronic copies of supporting materials to NMFS OLE along with
two EMTU-Cs for testing. The documentation would list each of the type-
approval requirements, and the requestor must certify that the required
features and components comply with each requirement specified in
subpart Q. OLE would test the EMTU-C and, unless additional time is
required for testing, OLE would notify the requestor, in writing, of
their approval or disapproval within 90 days from receipt of complete
written request.
Specific standards for automatic position reporting, two-way
communications, and billing are described at 50 CFR 600.1502.
Regulations at 50 CFR 600.1503 would require that the EMTU-C be able to
transmit position reports that meet the latency standards (the time
delay between transmission and receipt of position reports) and
automatically begin reporting upon power-up. Section 600.1503 describe
the GPS reporting requirements for EMTU and EMTU-C, such as a minimum
of 100-meter (328.1-ft) accuracy and position fix precision to the
decimal minute hundredths. Section 600.1503 would also specify the
requirements related to storage capacities, reporting intervals, and
specially identified position reports such as EMTU-C power-ups and
power-downs, and loss of communication signals.
Delivery of VMS data to NMFS would be required to be encrypted and
sent securely through all associated cellular, satellite and internet
communication pathways and channels, and the EMTU-C must also have the
durability and reliability necessary to meet all requirements in
subpart Q. The EMTU-C cabling and antennas must be resistant to salt,
moisture, and shock associated with sea-going vessels in the marine
environment.
The proposed rule would establish a latency requirement that 90
percent of the positions reports during each 24-hour period reach NMFS
within 15 minutes of being sent from the EMTU-C, and gives notice of
NMFS continual monitoring of latency compliance.
Messaging and electronic forms requirements and capabilities are
stated in 50 CFR 600.1505 and 600.1506. The EMTU-C must support, or be
able to connect to a device that supports, a 1-KB minimum message
length, message delivery confirmation, notice to senders of failed
message delivery to the EMTU-C and the reason for the failure, and an
address book capability. The EMTU-C must store, or be able to connect
to a device that can store, a minimum of 50 messages in a format that
can be searched by date or by sender.
The EMTU-C must support, or be able to connect to a device that
supports, forms software and a minimum of 20 electronic forms that can
be selected from a menu. Each form must be capable of being defined as
optional, mandatory or logic driven, and mandatory fields must be
filled before the form can be submitted. A minimum of 20 previous forms
must be stored and searchable, and they must indicate whether or not
the form was successfully delivered, the cause for any delivery
failure, and the option of attempting redelivery. Each form must be
capable of including VMS position data, including latitude, longitude,
and date and time. Data to populate these fields must be automatically
generated by the EMTU-C, and prevented from being manually entered or
altered.
The proposed rule would require that the EMTU-C and MCS be capable
of providing updates to forms or adding new form requirements via
wireless transmission and without manual installation, as NMFS may
provide type-approved vendors with requirements for new forms or
modifications to existing forms periodically. NMFS may also provide
notice of forms and form changes through the NMFS Work Order System.
Type-approved vendors would be given at least 60 calendar days from the
time of notification to complete their implementation of new or changed
forms.
The type-approved vendor would be responsible for field and
technical services as described at 50 CFR 600.1508 of this proposed
rule. The vendor must be able to receive customer service requests 24-
hours per day with initial response times of no more than 24 hours.
Field and technical services may include diagnostic and trouble-
shooting support to NMFs and to fishermen, warranty and maintenance
agreements, escalation procedures for resolution of problems, and
assistance to the fishermen with the maintenance and repair of their
EMTU-C and any communications anomalies caused by the EMTU-C or MCS.
This level of customer service is necessary to reduce the economic
impacts of cancelled trips due to equipment problems. Customer services
to NMFS OLE and its contractors, upon request, would include issue
resolution efforts regarding the VMS operation, other technical issues,
and data analyses related to the VMS Program or system. In light of
NMFS OLE's established practice of paying the reasonable cost for such
assistance via NMFS-authorized service or purchase agreements, work
order or contracts, NMFS is proposing to strike the provision in the
existing regulations at Sec. 600.1508(h) stating that the assistance
would be provided free of charge by the type-approved vendor unless
otherwise specified by NMFS.
Section 600.1509 of the proposed rule specifies the required
handling of personally identifying information (PII), business
identifying information (BII), and VMS data, which are confidential.
All such data would be handled by NMFS in accordance with 16 U.S.C.
1881a and other applicable state and Federal laws and policies. Any
release of PII or other protected information by NMFS beyond authorized
entities may require a written request and approval. Any PII, BII, or
VMS information sent electronically by the type-approval holder to NMFS
OLE would require secure transmission that meets all state and Federal
laws, Department of Commerce Information Technology Privacy Policy, 16
U.S.C. 1881a, and NMFS policies.
Section 600.1515 of the proposed rule would 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
[[Page 4259]]
would be required to provide technical and expert support for
litigation to substantiate the EMTU-C, MCS, and/or bundle capabilities
to establish NMFS OLE cases against potential violators. NMFS will pay
the reasonable cost for such assistance in NMFS-authorized service or
purchase agreements, work orders or contracts. If these 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.
The proposed rule would establish a type-approval letter that would
serve as NMFS' official notice of type-approval and it would also
require type-approval holders to notify NMFS within 2 calendar days of
any substantive changes from the original submission for type-approval.
Timely notification of such changes is needed to allow NMFS OLE to be
aware of a change that would affect monitoring, and to give notice of
any change to our stakeholders, and to ensure that the unit is still in
a type-approved status. Within 60 calendar days of receiving such
notice, NMFS OLE would notify the type-approval holder if an amended
type-approval would be required, including additional testing, or
provide notice that OLE would initiate the type-approval revocation
process.
If NMFS were to issue notice of the intent to revoke a type-
approval, it would issue a revocation letter to the type-approval
holder. The type-approval holder would be given the opportunity to
respond, in writing, if they believe the revocation is in error or they
could propose a solution to correct the issue. Any response would have
to be submitted by a specified response date set by NMFS for between 30
to 120 calendar days from the date of the notification letter,
depending on the impact and urgency of the alleged failure.
A type-approval holder may file an appeal of a type-approval
revocation with the NMFS Assistant Administrator at the address stated
in the revocation letter. Under proposed regulations at 50 CFR
600.1513, a petition must be filed within 14 calendar days of the date
of any revocation letter. A type-approval holder would not be able to
request an extension of time to file a petition to appeal.
An appeal to NMFS about a type-approval revocation must include a
complete copy of the revocation letter and its attachments and a
written statement detailing any facts or circumstances explaining and/
or refuting the details contained in the revocation notice. Within 21
days of receipt of the appeal, the NMFS Assistant Administrator would
affirm, vacate, or modify the revocation letter by sending a letter to
the type-approval holder explaining their determination. The NMFS
Assistant Administrator's determination constitutes the final agency
decision.
Following the issuance of a revocation, NMFS would notify affected
fishermen, and offer reimbursement of the cost of a new type-approved
EMTU or EMTU-C, as appropriate for that fishery, should funding for
reimbursement be available pursuant to 50 CFR 600.1516. Under those
proposed regulations NMFS would offer, subject to the availability of
funds, a reimbursement opportunity for the purchase price of a
replacement EMTU or EMTU-C provided that all eligibility and process
requirements specified by NMFS are met as described in NMFS Policy
Directive 06-102 (available at: https://www.fisheries.noaa.gov/national/laws-and-policies/law-enforcement-policy-directives); and the
replacement type-approved EMTU or EMTU-C is installed on the vessel,
and reporting to NMFS OLE; and the type-approval for the previously
installed EMTU-C has been revoked by NMFS; or NMFS requires the vessel
owner to purchase a new EMTU or EMTU-C prior to the end of an existing
unit's service life. The monetary cap for individual reimbursement
payments is currently $3,100 for the EMTU or EMTU-C, only, and the cap
is subject to change by NMFS.
Classification
The NMFS Assistant Administrator has determined that this proposed
rule is consistent with the Magnuson-Stevens Act, and other applicable
laws, subject to further consideration after public comment.
Executive Order 12866
This proposed rule has been determined to be not significant for
purposes of Executive Order 12866.
Executive Order 13771
This proposed rule is expected to be an Executive Order 13771
deregulatory action.
Regulatory Flexibility Act (RFA)
NMFS prepared an initial regulatory flexibility analysis (IRFA) for
this proposed rule, as required by section 603 of the RFA (5 U.S.C.
603). The IRFA describes the economic impact this proposed rule, if
adopted, would have on small entities. A description of this proposed
rule, why it is being considered, and the objectives of this proposed
rule are contained in the preamble. A copy of the full analysis is
available from NMFS (see ADDRESSES). A summary of the IRFA follows.
The Magnuson-Stevens Act provides the statutory basis for this
proposed rule. No duplicative, overlapping, or conflicting Federal
rules have been identified.
This proposed rule would 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 proposed rule would 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 proposed rule would not directly apply to
fishing businesses or end users of EMTU-C
[[Page 4260]]
devices. This proposed 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 would all be indirect
effects of this proposed 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 proposed rule would not
be considered a small business under the SBA size criteria for its
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 would impact at least two small entities in the short
term and likely more in the long term.
This proposed rule would 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 would 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 would 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 proposed 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 would likely require engineering
and product manager expertise for preparation of the application.
The proposed rule would 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 would likely require engineering and product manager support as
well.
EMTU-C type-approval holders would 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 would 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
would 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 would be required to provide a brief
summary of the litigation and any
[[Page 4261]]
court finding on the reliability of the technology.
The proposed rule, if implemented, would 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 proposed rule are believed
to be small entities, NMFS conservatively assumes that this rule would
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 would be directly regulated by this proposed 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 proposed rule as well. The
requirement for customer service that is available 24 hours a day, 7
days per week, and year round would, however, have the potential to
disproportionately burden small entities relative to large entities.
This proposed 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 proposed rule on small entities.
Vessel Monitoring System Type-Approval Application Process
Under this proposed rule, an applicant would need to submit a
written type-approval request and electronic copies of supporting
materials that include the information required under proposed 50 CFR
600.1501 to NMFS OLE. The application process would likely require
engineering and product manager expertise for preparation of the
application. NMFS estimates that applicants would 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 would 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 would 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 would 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 would 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 would be lower if
type-approval is requested for fewer regions.
In addition, applicants would 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
would 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 would be approximately $750. It would 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 would total
approximately $916 to $1,832 per type-approval application. Again, if
type-approval is requested for fewer than five regions, the cost would
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
would 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
would 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 would 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 would 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
[[Page 4262]]
total cost to small entities for this provision would likely be less
than $858 per year.
Customer Service
The type-approval holder would 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
would 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 proposed 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 proposed 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 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 proposed 50 CFR
600.1512.
NMFS estimates that the proposed revocation process would
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 would 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 proposed 50 CFR 600.1515, the proposed
rule would 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 would 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, would be
another potential cost of this proposed 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 would be
voluntary. It is assumed vendors are profit maximizing firms that would
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 proposed 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
proposed rule, is the preferred alternative. NMFS has not identified
any other alternatives that would meet the objectives of the proposed
rule while minimizing economic impacts on small entities.
[[Page 4263]]
Paperwork Reduction Act (PRA)
This proposed rule contains a collection-of-information requirement
subject to review and approval by the Office of Management and Budget
(OMB) under the PRA. This requirement has been submitted to OMB for
approval. 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 proposed
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 the NMFS
OLE at the ADDRESSES above, by email to [email protected], or
fax to 202-395-7285.
Notwithstanding any other provision of the law, no person is
required to respond to, and no person shall be subject to penalty for
failure to comply with, a collection of information subject to the
requirements of the PRA, unless that collection of information displays
a currently valid OMB control number.
NMFS requests public comment on this decision, the associated
analysis and all other aspects of this proposed rule. Send comments to
NMFS at the ADDRESSES above.
List of Subjects in 50 CFR Part 600
Administrative practice and procedure, Fisheries, Fishing,
Reporting and recordkeeping requirements.
Dated: January 13, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 600 is
proposed to be 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.
[[Page 4264]]
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 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
[[Page 4265]]
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 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-
[[Page 4266]]
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 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.
[[Page 4267]]
(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) Durability. 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.
(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
[[Page 4268]]
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
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. 2020-00675 Filed 1-23-20; 8:45 am]
BILLING CODE 3510-22-P