[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]
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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.
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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
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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
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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]
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