[Federal Register Volume 86, Number 58 (Monday, March 29, 2021)]
[Rules and Regulations]
[Pages 16307-16309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06458]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 210324-0064]
RIN 0648-BK33


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; interim final action; request for comments.

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SUMMARY: NMFS promulgates this interim final rule to revise the 
termination date of an emergency action that provides authority to 
waive observer coverage requirements. NMFS is taking this action to 
address public health concerns that relate to the ongoing Coronavirus 
(COVID-19) pandemic. The intended effect of the interim final rule is 
to provide NMFS with continued authority to waive observer coverage 
requirements when such action is necessary because of the COVID-19 
public health emergency and mitigation measures taken in response to 
it. This interim final rule will also provide NMFS with continued 
authority to waive some training or other program requirements to 
ensure that as many observers as possible are available for deployment 
while ensuring their safety and health and that of observer program 
staff who train observers.

DATES: Effective March 27, 2021, through March 26, 2022. Comments must 
be received by May 28, 2021.

ADDRESSES: You may submit comments on this document by using an 
electronic submission via the Federal e-Rulemaking portal. Go to 
https://www.regulations.gov and enter ``NOAA-NMFS-2021-0011'' in the 
Search box. Click on the ``Comment'' 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 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).

FOR FURTHER INFORMATION CONTACT: Wendy Morrison at 301-427-8564.

SUPPLEMENTARY INFORMATION: 

Background

    NMFS promulgated emergency observer waiver rulemaking in response 
to the COVID-19 pandemic on March 27, 2020 (85 FR 17285). That initial 
emergency action, hereafter referred to as the Observer Waiver Rule, 
was taken under the authority of the Magnuson-Stevens Fishery 
Conservation and Management Act (MSA) emergency rulemaking authority at 
section 305(c)(3), 16 U.S.C. 1855(c)(3), and was effective for 180 
days. The Observer Waiver Rule authorized waiver of observer coverage 
and training and some other program requirements. On September 21, 
2020, due to the ongoing pandemic, NMFS extended the effectiveness of 
the Observer Waiver Rule for 186 days, or until March 26, 2021, as 
allowed under MSA section 305(c)(3)(B). 85 FR 59199. In promulgating 
the initial Observer Waiver Rule and extension, NMFS stated that if 
there was a need to continue waiver measures beyond March 26, 2021, it 
would further extend the Observer Waiver Rule. MSA section 305(c)(3)(C) 
authorizes NMFS to promulgate an emergency regulation that responds to 
a public health emergency. In this situation, the emergency regulation 
may remain in effect until the circumstances that created the emergency 
no longer exist, provided that the public has an opportunity to comment 
after the regulation is published and that the Secretary of Health and 
Human Services concurs with the action. 16 U.S.C. 1855(c)(3)(C). Given 
the ongoing COVID-19 pandemic concerns and issues (expected to continue 
through at least mid-year 2021), 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 
Observer Waiver Rule is needed.
    Therefore, this interim final rule revises the termination date of 
the Observer Waiver Rule to March 26, 2022, or until the Secretary of 
Health and Human Services (HHS) determines that the COVID-19 Pandemic 
is no longer a public health emergency, whichever is earlier. In the 
event of the latter case, NMFS will publish a notice of termination in 
the Federal Register for the Observer Waiver Rule as quickly as 
practicable following the declaration by the Secretary of HHS. 16 
U.S.C. 1855(c)(3)(D). If such notice of termination were issued, NMFS 
does not intend to take additional public comment, as public comment on 
this rule will have been considered. In addition, if a notice of 
termination were issued, NMFS intends to delay the effectiveness of the 
termination, providing NMFS the authority to waive observer coverage 
for an additional 30 days. The Secretary of HHS, by memo dated February 
25, 2021, concurs with the extension of the Observer Waiver Rule. NMFS 
solicits public comment on this interim final rule through May 28, 
2021, and will take into consideration any comments received as it 
evaluates whether any modifications to this interim final rule are 
needed.
    This interim final rule only revises the termination date of the 
Observer Waiver Rule and does not change the waiver criteria. See the 
Extension of Emergency Management Measures section below for the 
criteria. For further background, see the Observer Waiver Rule, 85 FR 
17285 (March 27, 2020), and extension, 85 FR 59199 (September 21, 
2020), which includes responses to comments on the initial rule. This 
interim final rule will continue to advance the protection of and to 
promote public health and the safety of fishermen, observers, and other 
parties who 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 to date, NMFS has carefully monitored 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. 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 has and will continue to 
consider applicable law (e.g., the Endangered Species Act and other 
statutes noted in the Classification section below) and international 
obligations when prioritizing observer coverage and making decisions 
about observer coverage waivers. NMFS has

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narrowly tailored waivers in terms of duration and scope. Thus, even 
where coverage has been waived, observers are being deployed and data 
are being collected on a subset of trips in these fisheries. The 
observer data collected on these trips can be compared with data 
collected in previous years to determine similarities and differences 
in catch between current and previous years and monitor the 
conservation and management goals of the fisheries. In addition, where 
possible, regional observer programs are making adjustments to increase 
observer deployments so that coverage goals are achieved on a seasonal 
basis.
    With this interim final rule, NMFS will continue to carefully 
monitor the status of the fishery and/or protected species that are 
being observed or monitored to ensure that the relevant conservation 
and management goals are still being met under any reduced observer 
coverages. 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 will consider whether additional, separate actions 
(e.g., fishery closures or additional monitoring) should be implemented 
per existing regulations or may issue emergency regulations, as 
necessary and appropriate. As a result, no ecological impacts are 
expected by this extension of the Observer Waiver Rule beyond any 
caused by the COVID-19 pandemic itself.

Extension of Emergency Management Measures

    Under this interim final rule, NMFS will continue to have authority 
to 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 condition is satisfied, 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. In the September 2020 rule 
extension, NMFS made a minor change to the first waiver criterion and 
provided clarifications on issues raised by public comments on NMFS' 
application of the criteria. This interim final rule retains the 
criteria as revised, and approaches as clarified, in the September 2020 
extension. As noted in the September 21, 2020 extension to the original 
Observer Waiver Rule, NMFS restates its policy that, under the first 
criteria, it will consider a trip waiver if the observer 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 its 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.
    NMFS will issue waivers as narrowly as possible, in terms of 
duration and scope, to meet the particular circumstances. Such waivers 
would be communicated in writing or electronic format. If, at any time, 
the circumstances that prompted the need for a waiver change to the 
extent that the waiver is no longer warranted, NMFS will communicate in 
writing or electronic format to withdraw the 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 interim final rule will allow NMFS to waive certain observer 
training and other observer program requirements (e.g., requiring a 
minimum class size, experience needed for a specific endorsement level, 
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.

Classification

    This action is issued pursuant to section 305(c)(3)(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 Marine 
Mammal Protection Act (16 U.S.C. 1361 et seq.). This interim final 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)(C), this action 
will remain in effect as to all such requirements until March 26, 2022, 
or until the Secretary of HHS determines that the COVID-19 pandemic is 
no longer a public health emergency, whichever is earlier. If this 
interim final rule is no longer necessary under the latter condition, 
NMFS will publish a notice of termination in the Federal Register 
pursuant to MSA section 305(c)(3)(D).
    Pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3), the 
Assistant Administrator for Fisheries finds good cause to waive the 
otherwise applicable requirements for both notice-and-comment 
rulemaking and a 30-day delay in effectiveness for this interim final 
rule, which simply extends the effectiveness of the Observer Waiver 
Rule. The COVID-19 pandemic is unpredictable. Complications from a 
localized COVID-19 outbreak, or increases in community spread of virus 
mutations, combined with travel restrictions and other safety threats 
may unexpectedly create circumstances where it is logistically 
impossible to deploy observers or conduct elements of observer programs 
such as training that must be held in person. Fishermen are prohibited 
from fishing without required observer coverage, and certain observer 
deployments cannot proceed unless certain training requirements are 
meet. Therefore, NMFS must have continued authority to waive observer 
coverage and other observer program requirements such as training. 
Given the unpredictable circumstances that could arise from the COVID-
19 pandemic, any delay in this interim final rule could result in 
adverse economic impacts to fishers and impact their ability to supply 
seafood for the nation. Additionally, delaying this action could cause 
health and safety risks posed by continuing observer deployments and 
other related requirements during a COVID-19 outbreak.
    NMFS solicited public comment when it promulgated the initial 
Observer Waiver Rule and responded to comments in the rule extension. 
For this interim final rule, NMFS also solicits public comment and will 
take those comments into consideration as it evaluates whether any 
modifications to this rule are needed.
    For the above reasons, NMFS finds it impracticable and contrary to 
the public interest to provide prior opportunity to

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comment on this interim final rule, and to delay its date of 
effectiveness.
    OMB has determined that this interim final rule is significant 
under E.O. 12866 section 3(f). As such, NMFS has prepared a Regulatory 
Impact Analysis pursuant to E.O. 12866 section 6(a)(3)(B) and, given 
the COVID-19 public health emergency, section 6(a)(3)(D). The 
Regulatory Impact Analysis is available in the regulations.gov docket. 
This interim final rule is exempt from the procedures of the Regulatory 
Flexibility Act because the rule is issued without opportunity for 
prior notice and opportunity for public comment.
    This interim final rule contains no information collection 
requirements under the Paperwork Reduction Act of 1995.

    Dated: March 24, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. 2021-06458 Filed 3-25-21; 8:45 am]
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