Emergency Measures To Address Fishery Observer Coverage During the COVID-19 Coronavirus Pandemic, 17285-17287 [2020-06426]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 85, Number 60 (Friday, March 27, 2020)]
[Rules and Regulations]
[Pages 17285-17287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06426]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 200321-0084]
RIN 0648-BJ70


Emergency Measures To Address Fishery Observer Coverage During 
the COVID-19 Coronavirus Pandemic

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

ACTION: Temporary rule; emergency action; request for comments.

-----------------------------------------------------------------------

SUMMARY: NMFS issues this temporary rule (also referred to herein as 
``emergency action'') to provide it with authority to waive observer 
coverage requirements established in regulations promulgated under the 
Magnuson-Stevens Fishery Conservation and Management Act (MSA) and 
other statutes, consistent with applicable law and international 
obligations. NMFS is taking this action to address public health 
concerns relating to the evolving pandemic of Coronavirus Disease 19 
(COVID-19). NMFS is taking this action to protect public health, 
economic security, and food security, and to safeguard the health and 
safety of fishermen, observers, and other persons involved with such 
monitoring programs, while safeguarding the ability of fishermen to 
continue business operations and produce seafood for the Nation. This 
action also authorizes NMFS to waive some training or other program 
requirements to ensure that as many observers are available as possible 
while ensuring the safety and health of the observers and trainers.

DATES: Effective March 24, 2020 through September 23, 2020. Comments 
must be received by April 27, 2020.

ADDRESSES: Written comments, identified by NOAA-NMFS-2020-0036, may be 
submitted to NMFS using an electronic submission via the Federal e-
Rulemaking portal. Go to https://www.regulations.gov/docket?D=NOAA-NMFS-2020-0036, click the ``Comment Now!'' icon, complete the required 
fields, and enter or attach your comments.
    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 generally will be posted for public viewing on

[[Page 17286]]

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).

FOR FURTHER INFORMATION CONTACT: Kelly Denit at 301-427-8517.

SUPPLEMENTARY INFORMATION: 

Background

    NMFS is promulgating this emergency action in response to the 
evolving COVID-19 pandemic. Currently, NMFS requires many fishing 
vessels to carry an observer as part of a mandatory observer program 
(or provides for voluntary observer programs) under the MSA (16 U.S.C. 
1801 et seq.) and other Federal fishery statutes, including the Marine 
Mammal Protection Act (MMPA, 16 U.S.C. 1361 et seq.), and statutes 
implementing international agreements, such as the Atlantic Tunas 
Convention Act (16 U.S.C. 971 et seq.), South Pacific Tuna Act of 1988 
(16 U.S.C. 973 et seq.), Western and Central Pacific Commission 
Implementation Act (16 U.S.C. 6901 et seq.), Western and Central 
Pacific Fisheries Convention Implementation Act (16 U.S.C. 6901 et 
seq.), Antigua Convention Implementing Act (16 U.S.C. 951 et seq.), 
High Seas Fishing Compliance Act (16 U.S.C. 5501 et seq.), and the 
Agreement on the International Dolphin Conservation Program as per 
MMPA. National observer regulations for the adequacy of a vessel for 
safety purposes are at 50 CFR 600.746, but there are also fishery-
specific regulations regarding observers.
    Many fisheries across the Nation are subject to mandatory observer 
coverage requirements that prohibit a vessel from fishing unless it 
carries one or more observers or at-sea monitors. While observers most 
frequently are deployed on fishing vessels, they are also deployed on 
motherships and at shoreside locations, including first receivers and 
processing facilities. Observers can also be called ``catch-monitors'' 
or ``at-sea monitors.'' Observers provide critical fishery-dependent 
data, which are used to manage fisheries pursuant to catch limits, 
collect information on bycatch, and monitor compliance. Observers also 
collect biological information that may not otherwise be collected. In 
some fisheries, observers are placed on only a portion of fishing 
vessel trips, while in other fisheries, observers are placed on every 
fishing vessel trip. Observers are also placed at fish processing 
plants and collect additional information, such as that associated with 
a prohibited species census. Regulations requiring observer coverage do 
not expressly address the circumstances when NMFS may waive coverage 
due to a public health emergency. Further, some observer coverage 
regulations stipulate specific training and other program requirements 
that observers must meet in order to continue to serve as an observer, 
and do not address when NMFS may waive such requirements. Consistent 
with applicable law and international obligations, this emergency 
action will allow NMFS, under certain circumstances related to the 
COVID-19 pandemic, to waive observer coverage and some training and 
other program requirements for observers.
    Given the COVID-19 pandemic, the resulting national and local 
declarations of emergency, and guidance from the Centers for Disease 
Control and Prevention, NMFS has determined that an emergency action is 
needed to enable NMFS to waive observer coverage and some related 
training and other program requirements. This emergency action would 
permit waivers in appropriate circumstances to protect public health 
and to ensure the safety of fishermen, observers, and other persons 
involved with observer coverage, while meeting conservation needs and 
providing an ongoing supply of fish to markets.

Emergency Management Measures

    Under this emergency action, NMFS may waive observer coverage 
requirements if:
     Local, State, or national governments, or private 
companies or organizations that deploy observers pursuant to NMFS 
regulations, restrict travel or otherwise issue COVID-19-related social 
control guidance, or requirement(s) addressing COVID-19-related 
concerns, such that it is inconsistent with the requirement(s) or not 
recommended to place an observer(s); or
     No qualified observer(s) are available for placement due 
to health, safety, or training issues related to COVID-19.
    If either of these conditions is satisfied, then NMFS may waive 
observer coverage requirements for an individual trip or vessel, an 
entire fishery or fleet, or all fisheries administered under a NMFS 
Regional Office (see 50 CFR 600.10 (defining Region) and https://www.fisheries.noaa.gov/regions) or NMFS Headquarters Office. However, 
waivers should be issued as narrowly as possible in terms of duration 
and scope to meet the particular circumstances. Such waivers will be 
communicated in writing or electronic format. At any time, if the 
circumstances for a waiver are no longer applicable, NMFS will 
withdraw, in writing or electronic format, that waiver. In making 
decisions regarding observer coverage waivers, NMFS will gather 
information, if needed, from relevant observer service providers and 
other parties involved with observer coverage before issuing the 
waivers. Additionally, NMFS will take into account the ability of 
fishermen who are subject to observer coverage to adjust operations in 
response to this pandemic, such as for those fisheries that have year-
round access compared with those that have only seasonal availability 
of fish.
    This emergency action also allows NMFS to waive certain observer 
training and other observer program requirements (e.g., requiring a 
minimum class size or requiring that observers transfer to other 
vessels between trips). Before doing so, NMFS will ensure that any such 
waiver does not remove requirements that ensure the health and safety 
of the observer or observer trainer.
    This emergency action is effective on March 24, 2020. However, NMFS 
is soliciting public comment on this temporary rule, and will consider 
any comments received as it evaluates whether any modifications to the 
emergency measures are needed. NMFS will continue to monitor and 
evaluate the COVID-19 pandemic and will take additional action if 
needed. Unless otherwise determined, NMFS anticipates that these 
emergency measures will be effective until the earlier of the following 
dates: (1) The date when the current COVID-19 pandemic is no longer 
deemed a public health emergency by the Secretary of Health and Human 
Services; and (2) September 23, 2020, with a possible extension of 186 
days following that date, see MSA section 305(c)(3)(B), 16 U.S.C. 
1855(c)(3)(B), if necessary. As warranted, if this emergency continues 
beyond the end of the 186-day extension period, NMFS may consult with 
the Secretary of Health and Human Services pursuant to MSA section 
305(c)(3)(C) or may conduct more permanent rulemaking.
    NMFS expects this emergency action to advance the protection of and 
to promote public health and the safety of fishermen, observers, and 
other parties in the area that may come in contact with those persons, 
consistent with relevant guidance and any local, State, and national 
requirements, and to help

[[Page 17287]]

secure the economic well-being of the Nation. NMFS will consider 
applicable law (e.g., the Endangered Species Act and the statutes noted 
above) and international obligations when making decisions about 
observer coverage waivers. In issuing such waivers, NMFS will carefully 
monitor the status of the fishery and/or protected species that were 
being observed or monitored to ensure that the relevant conservation 
and management goals are still being met. If needed to address any 
significant issues or concerns, or if NMFS determines that a waiver 
cannot be issued (e.g., observer coverage is required due to other 
applicable law or international obligations), NMFS may implement 
additional, separate actions (e.g., fishery closures, additional 
monitoring) per existing regulations or may issue emergency 
regulations, as necessary and appropriate. As a result, no ecological 
or socioeconomic impacts are expected by this temporary rule beyond any 
caused by the COVID-19 pandemic itself.

Classification

    This action is issued pursuant to section 305(c) of the MSA, 16 
U.S.C. 1855(c), and pursuant to the rulemaking authority under other 
statutes that apply to Federal fisheries management or that implement 
international agreements. Such statutes include, but are not limited 
to, the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq.), South 
Pacific Tuna Act of 1988 (16 U.S.C. 973 et seq.), Western and Central 
Pacific Commission Implementation Act (16 U.S.C. 6901 et seq.), Western 
and Central Pacific Fisheries Convention Implementation Act (16 U.S.C. 
6901 et seq.), Antigua Convention Implementing Act (16 U.S.C. 951 et 
seq.), High Seas Fishing Compliance Act (16 U.S.C. 5501 et seq.), and 
MMPA (16 U.S.C. 1361 et seq.). This temporary rule is intended to 
authorize NMFS to waive any observer requirement implemented under any 
of those authorities, consistent with other applicable law. Consistent 
with MSA section 305(c)(3)(B), this action will remain in effect as to 
all such requirements for 180 days, with a possible extension of up to 
an additional 186 days (unless, prior to these dates, the current 
COVID-19 pandemic is no longer deemed a public health emergency by the 
Secretary of Health and Human Services, in which case NMFS anticipates 
that a notice of termination of this temporary rule would be filed in 
the Federal Register pursuant to MSA section 305(c)(3)(D)). If this 
emergency needs to be extended beyond that time, or if this public 
health emergency evolves to the point where it is deemed necessary, 
NMFS will consult with the Secretary of Health and Human Services, 
pursuant to MSA section 305(c)(3)(C), to seek the Secretary's 
concurrence on extending the action until the circumstances that 
created the public health emergency related to COVID-19 no longer 
exist.
    The Assistant Administrator for Fisheries, NOAA (AA), finds good 
cause under 5 U.S.C. 553(b)(B) to waive prior notice and the 
opportunity for public comment. Prior notice and opportunity for public 
comment would be contrary to the public interest, as this action is 
needed immediately to enable NMFS to respond to evolving, public 
safety-related concerns. NMFS is implementing this emergency action to 
authorize action to prevent any potential health issues caused by 
spreading the virus to fishermen, observers, technicians, and other 
persons involved with observer coverage. Any delay of implementation of 
this emergency action could result in public health and safety issues 
during this global pandemic. In addition, this emergency action is 
needed to address potential disruptions in observer and technician 
availability due to health, training or travel issues or COVID-19-
related guidance, requirements, or restrictions.
    For the reasons stated above, the AA also finds good cause to waive 
the 30-day delay in effective date of this temporary rule under 5 
U.S.C. 553(d)(3).
    Because prior notice and opportunity for public comment are not 
required for this temporary rule by 5 U.S.C. 553 or any other law, the 
analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 
et seq., are inapplicable.

    Dated: March 24, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2020-06426 Filed 3-24-20; 4:15 pm]
 BILLING CODE 3510-22-P