[Federal Register Volume 85, Number 183 (Monday, September 21, 2020)]
[Rules and Regulations]
[Pages 59199-59204]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20686]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 200321-0084]
RIN 0648-BJ70
Extension of Emergency Measures To Address Fishery Observer
Coverage During the Coronavirus Pandemic
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Temporary rule; emergency action extended.
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SUMMARY: NMFS extends this temporary rule (also referred to herein as
``emergency action'') to provide it with authority to continue to waive
observer coverage requirements. NMFS is taking this action to address
public health concerns relating to the ongoing Coronavirus pandemic.
The intended effect is to provide the waiver mechanism necessary to
respond to the ongoing public health emergency. 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: The expiration date of the emergency measures to address fishery
observer coverage during the Coronavirus pandemic published on March
27, 2020 (85 FR 17285) is extended through March 26, 2021.
FOR FURTHER INFORMATION CONTACT: Michael Ruccio at 978-281-9104.
SUPPLEMENTARY INFORMATION:
Background
On March 27, 2020, NMFS published an emergency action (85 FR 17285)
that addresses public health concerns relating to the Coronavirus
Disease pandemic that began in 2019 (COVID-19). The emergency action
provides NMFS 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. The
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. Due
to the continuation and evolution of the COVID-19 pandemic, NMFS is now
extending this emergency action for an additional 186 days, as
authorized under MSA section 305(c)(3).
The background for why the emergency observer waiver is necessary
was provided in the original emergency action (85 FR 17285; March 27,
2020) and is not repeated here. Given the ongoing COVID-19 pandemic,
the continued national and local declarations of emergency, and
guidance from the Centers for Disease Control and Prevention, NMFS has
determined that an extension of the emergency action is needed to
enable NMFS to continue to waive observer coverage and some related
training and other program requirements. NMFS expects this extension to
advance the protection of and to promote public health and the safety
of fishermen, observers, and other parties that may come in contact
with those persons. NMFS will continue to consider applicable law and
international obligations when making decisions about observer coverage
waivers. In issuing such waivers, NMFS will continue to 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.
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; or (2) March 26, 2021, see MSA
section 305(c)(3)(B), 16 U.S.C. 1855(c)(3)(B). As warranted, if this
emergency continues beyond the end of this 186-day extension period,
NMFS may consult with the Secretary of Health and Human Services about
a further extension of this emergency action pursuant to MSA section
305(c)(3)(C) or may conduct a more permanent rulemaking.
Extended Emergency Management Measures
NMFS is extending the original emergency regulations with a minor
change to the text of the first criteria for waiving observer coverage.
Changes in text are to clarify the original intent and do not change
the meaning. The management measures in the emergency rule that are
being extended follow.
Under this emergency action, NMFS may waive observer coverage
requirements if:
Placing an observer conflicts with travel restrictions or
other requirements addressing COVID-19 related concerns issued by
local, state, or national governments, or the private companies that
deploy observers pursuant to NMFS regulations; 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 will be only issued as narrowly
[[Page 59200]]
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.
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.
Response to Comments
During the comment period on the emergency rule, we received 29
written comments from a variety of stakeholders including Regional
Fishery Management Councils (Councils), commercial fishermen, fishing
stakeholder organizations, nongovernmental environmental organizations,
and other interested parties. Three of the comments we received were
not related to this rule and are thus not included in the responses
provided below. Similarly, we do not provide responses to feedback on
implementation of the CARES Act (The Coronavirus Aid, Relief, and
Economic Security Act) as this is also outside the scope of this rule.
A summary of the major issues raised is provided below.
Comment 1: All responsive comments NMFS received were generally in
support of waiving observer coverage. Many commenters noted the need
for high quality fisheries dependent data, and supported the agency's
efforts to collect such data through observers.
Response: NMFS appreciates and agrees with these comments. NMFS
acknowledges that it is facing an unprecedented situation with observer
and monitor deployment and the ongoing COVID-19 pandemic and public
health mandates. Also, NMFS recognizes that there is a need for
flexibility to balance the ongoing public health concerns and the need
to continue to collect fishery-dependent data.
Comment 2: NMFS received comments that observers are not essential,
and that the emergency rule does not provide sufficient protections for
fishermen nor does it ensure the safety of the crew. Many of these
commenters believe the close quarters on fishing vessels would mean the
virus could spread to entire crews and their families. Some commenters
felt the lack of protection for the crew would put the entire food
supply in jeopardy.
Response: NMFS disagrees. Observers and monitors, at-sea and
shoreside, are an essential component of commercial fishing operations.
Observers provide important fishery-dependent data, which are used to
understand catch, bycatch, and interactions with species protected
under the Endangered Species Act (ESA) and Marine Mammal Protection Act
(MMPA). Observers also collect biological information that may not
otherwise be collected.
On August 18, 2020, the U.S. Department of Homeland Security
released updated guidance on essential critical infrastructure
workforce during COVID-19. Seafood harvesting facilities are listed as
part of food manufacturer workers and their supplier workers. In
addition, the memo states that those workers include ``Animal
agriculture workers . . . employed in . . . animal production
operations . . . and associated regulatory and government workforce.''
As the agency charged with conservation and management of Federal
fisheries, NMFS asserts that fisheries observers are an associated
government workforce necessary for fisheries because they provide
important data for science-based fisheries management.
In general, observers create no more risk than a crew member, and
observer provider companies are generally able to match precautionary
measures that the vessels impose on crew members. Within our regulatory
and contract oversight authority, NMFS's goal is to have observer
providers and their observers and monitors meet or exceed the risk
mitigation protocols that have been adopted by fishermen.
Comment 3: NMFS received multiple comments concerned with
inconsistencies on the issuance of waivers between regions.
Response: The fisheries of the United States are highly variable;
ranging from large catcher-processor boats targeting pollock in the
Bering Sea to small fishing boats targeting multi-species fisheries in
the Caribbean. Fisheries vary not only in the species targeted and
fishing methods used, but also in their goals, objectives, and
operating procedures. In addition, there are and continue to be
regional differences in the occurrence of COVID-19 cases and
restrictions on travel. NMFS decisions on observer waivers are
dependent on the unique conditions of each program. The operational
aspects of some fisheries have allowed the agency and observer service
providers to more quickly adapt processes and procedures for
deployment. In other cases, more time has been needed. For example, in
the Northeast, because of the number of different jurisdictions,
additional time was needed to finalize observer redeployment protocols.
Consequently, resumption of observer coverage was delayed for an
additional month. Overall, NMFS' approach to observer coverage and
monitoring allows it to be as adaptable as possible given all of the
variability across our regions and fisheries.
Comment 4: NMFS received comments from a number of fishing
organizations that stated NMFS should modify the emergency rule to
allow waivers to protect the health and safety of fishery participants
and observers, and not just when an observer was unavailable.
Other comments on health and safety protection varied. There were
comments that carrying observers is in conflict with or inconsistent
with local or state social mandates or guidance for things such as
shelter-in-place orders. Commenters stated that in such situations,
NMFS should be responsible for ensuring observer deployments comply
with such mandates. One comment stated that vessel insurance carriers
are opposed to allowing observers to interact with vessel personnel
until the pandemic is better understood and the rate of infection is
under control. Commenters also noted concerns about the age of most
fishery participants, existing health conditions, and the need to
adhere to National Standard 10 of the MSA (safety at sea).
Response: The March 2020 emergency rule provides the ability to
waive observer coverage to protect the health and safety of fishery
participants and observers. With this rule we have revised the first
criteria to increase clarity while retaining the original meaning. NMFS
may waive observer coverage requirements if one of the below conditions
is met:
Placing an observer conflicts with travel restrictions or
other requirements addressing COVID-19 related concerns issued by
local, state, or national governments, or the private companies that
deploy observers pursuant to NMFS regulations; or
No qualified observer(s) are available for placement due
to health, safety, or training issues related to COVID-19.
NMFS also clarifies that it will consider a trip waiver if the
observer
[[Page 59201]]
providers cannot meet the risk mitigation protocols imposed by a state
on commercial fishing crew or by the vessel or vessel company on its
crew. Based on our regulatory and contract oversight authority, NMFS
intends to ensure that observer providers and their observers and
monitors are following the same risk mitigation protocols that
fishermen are following.
The decision to operate rests ultimately with each individual
vessel captain. See 50 CFR 600.355 (National Standard 10 guidelines
clarify that the safety of a vessel and the people aboard is ultimately
the responsibility of the master of that vessel). It is our position
that observers do not introduce additional risk when compared to
fishing crew when the observer, and their employer, take identical or
more stringent risk mitigation protocols. In the circumstance where an
observer provider cannot meet the risk mitigation protocols imposed by
a state on commercial fishing crew, or those taken by the vessel or a
vessel company for its crew, NMFS will consider a waiver on a trip-
specific basis.
The National Standard 10 guidelines (50 CFR 600.355) set forth
safety considerations (e.g., weather patterns, gear and loading
requirements, etc.) and possible mitigation measures (e.g., avoiding
hazardous weather, avoiding race-to-fish `derby' fisheries, tailoring
gear requirements, spreading effort over time and area, etc.). While
the guidelines do not address the current, unprecedented situation,
NMFS believes the emergency rule and its extension are consistent with
National Standard 10. The rule provides continued operational
flexibility for vessel masters to establish overall risk mitigation
protocols for their vessels, ensuring that observers meet or exceed the
same standards established for the vessel in question. In situations
where observer providers cannot meet the vessel specific risk
mitigation protocols established or where observers are otherwise
unavailable, NMFS will continue to consider waivers of observer
coverage.
Comment 5: NMFS received multiple comments that NMFS should have
issued more comprehensive guidance on when fishing and associated
activities are safe and compatible with public health rules.
Response: As mentioned in response to Comment 3 above, there is
high variability across fisheries in the operational components of
fisheries (e.g., gears, boat sizes, locations, methods, etc.) as well
as observer or monitor coverage rates. NMFS has determined that
comprehensive guidance on fishing activities is thus not appropriate
nor manageable.
Comment 6: NMFS received comments that NMFS should not relax the
training requirements for observers. Some of these commenters felt that
the current level of training is not sufficient as newly trained
observers are not always prepared for the difficult conditions at-sea
and sending out observers without proper training endangers fishermen
and their families. Commenters suggested training may need to be longer
to include information related to COVID-19 safety. One commenter noted
that bad data was worse than no data. Other commenters stated that NMFS
should work with regional partners to determine what training needs
could be waived without sacrificing the data that needs to be
collected.
Response: NMFS agrees that sufficient training of observers is
necessary. NMFS will ensure that any waivers related to training do not
remove requirements that ensure the health and safety of the observer,
fishing captain, or crew.
Comment 7: NMFS received a number of comments regarding the lack of
a specific waiver length prescribed in the emergency rule. Some
commenters indicated that any length of time for a waiver of observer
coverage was welcome. Other commenters indicated that NMFS should issue
blanket waivers that stop all observer coverage for significant periods
of time including 90 days, 120 days, or for the rest of 2020.
Response: Waivers for all fisheries administered under a Regional
Office were granted in many regions during the beginning of the COVID-
19 pandemic while NMFS, observer providers, and fishing businesses
explored the appropriate safety requirements. Moving forward, NMFS
anticipates broadly applicable waivers will likely not be needed. On a
regionally-decided, case-by-case basis, individual trip waivers can be
granted per the conditions described in the response to Comment 4. This
emergency rule extension is in effect through March 26, 2021. If
necessary, NMFS will consider a further extension. See 16 U.S.C.
1855(c)(3)(C) (responding to public health emergency).
Comment 8: NMFS received multiple comments suggesting other
management changes NMFS should make in response to the COVID-19
pandemic related to either safety or sustainable management. Multiple
commenters noted that NMFS should consider decreasing catch limits to
account for the increased uncertainty and increased bias in the self-
reported data due to the lack of observer data. One commenter requested
NMFS temporarily suspend area-based management measures during the
pandemic to decrease time spent on the boat and in close-quarters, and
to decrease economic hardships. Another commenter suggested revising
the observer duties to remove duties that require prolonged
interactions (e.g., measuring net width, extensive economic questions).
Other comments included requests to: Increase the availability of
protective equipment for crew, adjust post-deployment procedures so
that observers do not need to travel to complete their debriefings,
minimize the number of people on docks, and to focus on fishing that is
essential for food security. In addition, commenters suggest NMFS
should find other lawful avenues for protecting fishery livelihoods and
should keep supply chains safe and reliable.
Response: Many of the requested actions are currently outside the
scope of this action which is to provide authority to waive observer
coverage requirements. We appreciate the ideas suggested and encourage
commenters to contact their NMFS regional office and/or work with their
Councils to suggest these changes.
NMFS regional offices and science centers, working collaboratively
with Councils will consider how the decrease in fishery-dependent data
will impact future stock assessments and will make adjustments on a
fishery-by-fishery basis, as needed. Catch advice for many stocks is
provided on a multi-year basis such that advice for 2021 and
potentially beyond has already been discussed and catch limits
established through council processes. Many Councils have a robust risk
assessment process that can and will evaluate the potentially increased
uncertainty that may arise from decreased fishery dependent data.
Finally, there is significant expertise within NMFS science centers and
on the council's scientific and statistical committees and with council
technical staff to provide analysis and advice on if or by how much
catch advice should be modified in response to fishery dependent data
gaps, changes in overall fishing effort and harvest, or both.
Comment 9: NMFS received numerous comments that the agency must
maintain its ability to meet conservation and management mandates under
MSA, ESA, the Migratory Bird Treaty Act, and the MMPA, and ensure that
any waiver issued is consistent with these conservation requirements.
Commenters suggested NMFS look at the role of observers within each
fishery when determining if observer coverage
[[Page 59202]]
can be waived, and that the Secretary may exercise his authority to
uphold conservation needs and safety at sea by temporarily shutting
down fishing activities. Finally, one commenter noted that NMFS cannot
assume removal of observers will have no ecological impacts.
Response: NMFS is committed to maintaining the sustainable use of
our marine resources, protecting endangered species, marine mammals,
and seabirds, and providing seafood to the country during the ongoing
COVID-19 pandemic. NMFS does not agree that it is necessary to
temporarily shut down a fishery due to a short-term reduction in the
number of trips observed.
NMFS will continue to consider applicable law (e.g., ESA and other
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, etc.) per existing regulations or may
issue emergency regulations, as necessary and appropriate. As a result,
no ecological or socioeconomic impacts are expected by this extension
beyond any caused by the COVID-19 pandemic itself.
Comment 10: Some commenters indicated a concern that vessel owners/
operators would not have control when allowing observers onboard their
vessels, and that they may be required to carry observers even if the
observer was symptomatic. One commenter asked if a vessel operator
could refuse to carry an observer if the observer was symptomatic.
Response: NMFS agrees and remains concerned about health of both
fishermen and observers. Observer provider companies have developed
protocols that are generally able to match or exceed risk mitigation
measures that the vessels and fishing companies impose on crew members
and that help ensure health of both observers and fishery participants.
Under these protocols, it is highly unlikely that a symptomatic
observer would be deployed. However, in that unlikely scenario, the
vessel in question should work with both the observer provider and
regional observer program and/or regional office to address the
situation. Ultimately, NMFS's goal is to have observers and monitors
following the same or more stringent risk mitigation protocols than
fishermen are following.
Comment 11: NMFS received comments concerning the economic
implications of continuing to require observer coverage. Commenters
indicated the daily operational costs coupled with the loss of revenue
could be heavily impactful on some of the fisherman and associated
business. One commenter asked who is liable if an observer passes the
virus to the persons on a fishing vessel, and whether the agency would
be willing to pay for time lost fishing as a result. Commenters
indicated that NMFS should further evaluate the sociological conditions
of each fleet before determining the efficacy of an observer waiver.
Commenters suggested the impacts of continuing observer coverage during
the pandemic could further exacerbate the economic decline of the
fishing industry.
Response: NMFS is concerned about the economic impacts of the
COVID-19 pandemic on the fishermen, fishing fleets, and fishing
communities. NMFS continues to conduct ongoing evaluation of the
economic impacts resulting from the pandemic and has routinely provided
this information to Congress as it works to relieve the economic
impacts of the pandemic. As previously mentioned, observer provider
companies have developed protocols to minimize the risk of deploying
observers or monitors. In addition, this rule provides for
consideration of waivers when observers/monitors cannot meet the risk
mitigation protocols in place on a vessel, as implemented by the
captain and crew, or state. See response to Comment 4. Observer
provider protocols, vessel protocols, and the waiver criteria in this
rule ensure that risks to fisheries participants and observers/monitors
are minimized. Because the decision to operate rests with each
individual vessel captain, NMFS would not pay for any lost fishing time
in the unlikely event that a vessel crew or captain's contraction of
COVID-19 could be traced to an observer or monitor. NMFS notes that the
Federal government has sovereign immunity (i.e., cannot be sued),
unless it specifically waives that immunity. Sovereign immunity has not
been waived for claims related to compliance with regulatory
requirements.
Comment 12: NMFS received multiple comments noting that the rule
does not place enough emphasis on the health of fishing communities,
including the ability of small fishing communities to handle a large
number of COVID-19 infected patients. Commenters noted the need for
NMFS to focus on minimizing economic impacts to fishing communities and
suggested NMFS consider other management actions to protect these
communities.
Response: NMFS is concerned with the health and safety of U.S.
fishing communities. We understand that medical capabilities and
hospital infrastructure varies across communities. We emphasize that
observers do not introduce more risk than fishing crews for the spread
of COVID-19 when following identified risk mitigation protocols. For
remote communities where access to travel and lodging are reduced due
to the ongoing COVID-19 pandemic, the emergency rule and its extension
allow for consideration of observer coverage waivers due to the lack of
available observers. Fishing businesses are urged to be in
communication with their respective observer provider and NMFS regional
observer program/regional office to discuss further, as needed.
Comment 13: Two commenters stated that NMFS should follow the
``proper procedure for emergency action.'' Specifically, they state
NMFS must publish the details of each waiver issued in the Federal
Register. The commenters suggested that this process would mean the
agency should request public comment when observer requirements are
potentially waived for each fishery.
Response: NMFS adopted the emergency rule and this extension
pursuant to the procedure for emergency regulations under MSA section
305(c). The quickly evolving nature of this unprecedented pandemic
requires a nimble response to local conditions through issuance of
temporary, region-specific, vessel-specific, or trip-specific waivers.
Comment 14: NMFS received a number of comments recommending the use
of electronic monitoring (EM) in place of at-sea observers. Some of
these commenters indicated that they believed that fisheries with fully
implemented programs EM could replace the catch accounting provided by
at sea observers. Furthermore, commenters stated that fisheries with
pilot EM programs should be temporarily expanded to include additional
vessels to allow for monitoring without at-sea observers. Further
comments stated that all fisheries with EM capabilities should
[[Page 59203]]
require EM when observers are waived. Some commenters indicated that EM
could include vessel monitoring systems (VMS), Automatic Identification
Systems (AIS), video cameras, and electronic logbooks. These commenters
indicated that using these technologies could fill data gaps, and some
of the commenters suggested increasing the ``ping'' rate for VMS among
other modifications to increase EM coverage overall. Two commenters
also suggested that electronic reporting by fishermen and dealers
should be required in any fishery issued a waiver to assist in
mitigating any data gaps resulting from no observer coverage.
Response: NMFS is very supportive of expanding EM and electronic
reporting (ER). NMFS has provided approximately $42 million since 2015
to develop and implement EM and ER technologies; there are seven EM
programs in regulation (six in Alaska and the Atlantic Highly Migratory
Species program), seven more EM programs in pre-implementation (Alaska,
West Coast, and Northeast) and a wide-range of pilot projects across
U.S. fisheries. Where implemented in regulation, EM continues to be
used to gather fishery dependent data during this pandemic. However,
under the best conditions, developing and expanding EM programs still
requires resources to purchase and install systems, develop vessel-
specific monitoring plans, transmit and review data, and map out the
pathway for integrating and using the data for management and science.
NMFS agrees that the COVID-19 pandemic highlights the benefits of EM,
especially to make our data collection and monitoring more resilient,
and expects to see an increased interest and use of EM in the future.
However, given the challenges with EM listed above, NMFS' ability to
approve new EM programs or provide EM to more boats is limited at the
current time. NMFS will continue to work with existing projects and
programs to determine where EM expansion can occur in the short-term
and will continue to work with the Councils to improve our monitoring
programs, including the expansion of EM and ER.
Comment 15: NMFS received comments indicating that proper catch
accounting is a necessity for quality fisheries management, but that it
can be achieved without the use of observers. These commenters stated
that electronic dealer reporting is the gold standard in quota
monitoring and catch accounting, and that NMFS already uses this data
stream for real-time fisheries management. Since NMFS uses other
reporting methods for catch accounting, quota management and real time
fisheries management, these commenters believe that NMFS can grant a
long-term observer waiver without long term impacts to fisheries. A
separate commenter noted the need to substitute other data collection
and monitoring methods in lieu of observer data. Another commenter
noted that there was not a need for both 100 percent observer coverage
and 100 percent dock-side monitoring.
Response: NMFS agrees that catch accounting is an important part of
sustainable fisheries management. However, NMFS notes that fishery
management plans adopt data collection and reporting requirements
(e.g., fishery observers, dealer reporting, etc.) to address not only
catch accounting but other purposes. NMFS anticipates that broadly
applicable waivers of observer coverage will likely not be needed, and
waivers should be granted on a regionally-decided, case-by-case basis
depending on the fishery (see response to Comment 3).
Comment 16: NMFS received multiple comments pertaining to when
waivers should be lifted. Some commenters indicated that any waiver
issued must be limited in scope and duration. Other commenters felt any
waivers should remain in place until all travel restrictions and other
social control mechanisms have been removed from the regions where
observers are deployed or until testing availability increases
substantially or a vaccine becomes available. Other commenters
indicated that the rationale for deploying observers should be tied to
the same rationale for reopening NOAA offices and bringing employees
back to work sites. Finally, a commenter suggested the waiver should
match the duration of the shelter-at-home orders of the various
governors or local governments.
Response: As mentioned in response to Comment 3, the ability to re-
deploy observers depends on the operational components of the fisheries
(e.g., gears, methods, port of departure, mandated observer coverage
levels, etc.) as well as the availability of observers and the ability
of observer providers to at least match the deployment vessel's self-
imposed risk mitigation protocols. NMFS agrees that observers should
follow local travel restrictions and stay at home orders that apply to
essential employees. NMFS does not agree that observer coverage and
related requirements should be waived until NOAA offices are open.
Observer work cannot be completed via telework. In analogous situations
where NMFS employees' work cannot be completed remotely, NMFS is
allowing the return of essential workers to NOAA facilities, consistent
with state and local public health service guidance.
Comment 17: Two commenters indicated that NMFS should consider the
economic and biological ramifications of waiving observer coverage
focused on ESA or MMPA species. Commenters noted that self-reporting is
insufficient for these species, especially in situations where
incidental take statements are present for interactions with ESA
species. They indicated that waivers that do not offer sufficient
coverage under the ESA could leave fishermen vulnerable to section 9
liability (section 9 states it is illegal to take, possess, or sell any
species protected under the ESA) at the same time that fishermen are
facing a significant reduction in demand and prices. Another commenter
noted that in some fisheries the observers assist fishing vessel
captains in marine mammal avoidance and that this role cannot be
replaced with logbooks.
Response: NMFS does not agree that waiving observer requirements
will impact ESA section 9 liability. Fishermen should be employing the
same fishing practices with or without observers on-board and thus the
section 9 liability should remain the same. NMFS will consider ESA
obligations when making decisions about observer coverage waivers. In
issuing such waivers, NMFS will carefully monitor the status of the
protected species that were being observed or monitored to ensure that
the relevant conservation and management goals and any applicable (or
associated) requirements are still being met. If needed to address any
significant issues or concerns, NMFS may implement additional, separate
actions (e.g., fishery closures, additional monitoring) per existing
regulations or may issue emergency regulations, as necessary and
appropriate.
Comment 18: NMFS received comments that waivers should not be
issued for fishing under exempted fishing permits.
Response: NMFS will consider the impact of waiving observers for
exempted fishing permits on a case-by-case basis. Waivers are expected
to vary depending on the goals and nature of the fishing activities and
details of the exempted fishing permits. For example, permits related
to the use of electronic monitoring could continue without observers,
or with observers based only shoreside, as information on catch is
still being collected.
Comment 19: NMFS received multiple comments noting that the
[[Page 59204]]
United States is a party to many different international agreements
that require observer coverage. They state that unless an international
body waives its observer coverage requirements, NMFS must ensure
individual waivers comply with international observer requirements
within the relevant convention waters.
Two commenters requested a waiver for the international purse seine
fishery. They indicated that several international agencies have
granted temporary allowances to allow for the relevant fisheries to
operate without observers as a result of the pandemic, and urge NMFS to
waive observer coverage fully for the relevant fisheries. They note
fishermen could experience economic harm if they are prohibited from
fishing when observers are not available. They also note concern that
these emergency measures will be lifted by NMFS on ``The date when the
current COVID-19 pandemic is no longer deemed a public health emergency
by the Secretary of Health and Human Services.'' They state that the
condition of the pandemic in the United States may not match the
conditions internationally.
Response: NMFS understand these concerns, is assessing conditions
around international fisheries, and is waiving observer coverage where
appropriate.
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 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 186 days (366 days from the original rulemaking)
(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) of the Administrative Procedure Act
(APA) that it is unnecessary, impracticable, and contrary to the public
interest to provide for any additional prior notice and opportunity for
the public to comment. As more fully explained above, the reasons
justifying promulgation of this rule on an emergency basis, coupled
with the fact that the public has had the opportunity to comment on the
original emergency rule, make solicitation of additional comment
unnecessary, impractical and contrary to the public interest. This
action is needed immediately to enable NMFS to continue to respond to
evolving, public safety-related concerns. NMFS is implementing this
extension of an emergency action to continue to authorize action to
prevent any potential health issues caused by spreading the COVID-19
virus to fishermen, observers, technicians, and other persons involved
with observer coverage. Any delay of implementation of this extension
could result in public health and safety issues during this global
pandemic. In addition, this extension 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: September 15, 2020.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
[FR Doc. 2020-20686 Filed 9-18-20; 8:45 am]
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