AGENCY:

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

ACTION:

Proposed rule; request for comments.

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 OIRA_Submission@omb.eop.gov, or by fax to 202-395-5806.

FOR FURTHER INFORMATION CONTACT:

Kelly Spalding, Vessel Monitoring System Program Manager, NMFS: 301-427-8269 or kelly.spalding@noaa.gov.

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 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 § 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 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 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 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 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.

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 OIRA_Submission@omb.eop.gov, 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

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

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.

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

Subpart Q—Vessel Monitoring System Type-Approval