[Federal Register Volume 86, Number 222 (Monday, November 22, 2021)]
[Proposed Rules]
[Pages 66259-66268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25367]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 600, 648, 660, and 679
[Docket No. 211110-0228]
RIN 0648-BJ33
Establish National Minimum Insurance Standard for National Marine
Fisheries Service Programs That Permit or Approve Observer Providers
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule.
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SUMMARY: NMFS is proposing to establish a uniform, nationally
consistent minimum insurance standard that would apply in regional
regulatory programs that authorize an observer provider to deploy a
person in any mandatory or voluntary observer program and that specify
responsibilities of authorized providers. NMFS has concluded that this
action is necessary to clarify the types of insurance that are
appropriate to address the financial risks that observer coverage
presents in any federally managed fishery that is subject to observer
coverage. The proposed standard would establish a nationally consistent
suite of insurance coverages that an observer provider seeking
authorization, or that has been authorized, must have to mitigate the
financial risks associated with providing observer services;
specifically observer deployments to fishing vessels or shoreside
locations such as processing facilities, and those that arise with
training personnel for these deployments. Through compliance with this
minimum standard, observer providers would be properly insured, thereby
mitigating the financial risks that fishing vessels, first receivers,
and shoreside processors have when complying with observer coverage
requirements. This proposed rule would also revise regional observer
program regulations to reference the newly established national minimum
insurance standard, but existing regional observer program regulatory
procedures that specify how an observer provider demonstrates
compliance with insurance requirements would not be modified.
DATES: Interested persons are invited to submit comments on or before
January 21, 2022.
ADDRESSES: You may submit comments on this document, identified by FDMS
Docket Number NOAA-NMFS-2019-0142 by either of the following methods:
Electronic Submission: Submit all electronic public comments via
the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and
enter NOAA-NMFS-2019-0142 in the Search box. Click on the ``Comment''
icon, complete the required fields, and enter or attach your comments.
Mail: Submit written comments to Dennis Hansford, 1315 East West
Highway, Room 12506, Silver Spring, MD 20910.
Fax: (301) 713-4137; Attn: Dennis Hansford.
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).
FOR FURTHER INFORMATION CONTACT: Requests for additional information
should be directed to Dennis Hansford, 301-427-8136 or
[email protected].
SUPPLEMENTARY INFORMATION:
Background
The Magnuson-Stevens Fishery Conservation and Management Act (MSA),
16 U.S.C. 1801 et seq., establishes a national program for conservation
and management of fishery resources within the United States Exclusive
Economic Zone (EEZ). See id. 1801(a)(6), 1811(a). NMFS, acting under
authority delegated from the Secretary of Commerce, is responsible for
managing fisheries under the MSA, in conjunction with eight regional
fishery management councils (Councils) established under the Act. See
id. 1852(a). Each Council has authority to develop fishery management
plans (FMPs) for fisheries in a specific geographical area and to deem
proposed regulations that are necessary for plan implementation. See
id. 1852(a), (c).
Collection of information on fishing and fish processing, such as
type and quantity of fishing gear used, catch in numbers of fish or
weight thereof, fishing locations, and biological
[[Page 66260]]
information, are critical to effective fishery management. See id.
1853(a)(5). To obtain this information, the MSA authorizes, among other
things, that an FMP may require that one or more observers be carried
on board a vessel of the United States engaged in fishing for species
that are subject to the plan, for the purpose of collecting data
necessary for the conservation and management of the fishery. See id.
1853(b)(8). The MSA defines the term ``observer'' as any person
required or authorized to be carried on a vessel for conservation and
management purposes by regulations or permits under this Act. See id.
1802(31). This definition would thus cover persons referred to in FMPs
and regulations as ``observers'' as well as ``catch-monitors'' or ``at-
sea monitors.''
In 2018, 54 fisheries subject to management under an FMP were
monitored by observer programs. To carry out required observer
coverage, NMFS administers 14 observer programs (referred to as NMFS
Regional Observer Programs or NMFS Observer Programs) that operate in
the agency's five regions. These programs train and deploy observers,
establish information collection protocols, establish risk mitigations,
and debrief observers following deployment to provide quality control
on information that observers collect. While observers most frequently
are deployed under the MSA to collect information on vessels that are
catching, taking, or harvesting fish or attempting to do so, observers
also are deployed to motherships, first receivers, and shoreside
processing facilities. NMFS' regional observer programs deploy catch-
monitors and at-sea monitors to collect vessel catch or bycatch
information and to ensure accurate catch accounting, reduce uncertainty
of bycatch estimates, provide information for fishery assessments, or
address other fishery information purposes. In this proposed rule, the
term ``observer'' refers to a person who is deployed as an observer, a
catch or at-sea monitor on a fishing vessel or mothership, or as an
observer deployed to a shoreside first receiver location or processing
facility. Also, in the preamble of this proposed rule, NMFS refers to a
company that provides observer or catch monitor or at-sea monitor
services as an ``observer provider.''
At present, all at-sea and shoreside observer deployments for NMFS
observer programs are staffed by observer providers. These companies
provide observer staffing support under two distinct models: (1) Direct
service, where the NMFS observer program contracts with an observer
provider and oversees the provider's services based on the terms of the
contract; and (2) industry-funded service, where the observer provider
provides services directly to a vessel or a fleet of vessels, and a
NMFS regional observer program oversees the provision of those services
based on requirements set forth in NMFS regulations.
In the North Pacific and most West Coast programs, an observer
provider must be permitted under the programs' regulations and satisfy
other responsibilities specified in regulations in order to provide
services in either the direct contract model or industry-funded model.
The permitting and regulatory responsibilities for the North Pacific
Observer Program are codified at 50 CFR 679.52, while those for West
Coast programs are codified at 50 CFR 660.16 (Groundfish observer
program), 50 CFR 660.17 (Catch monitor program), 50 CFR 660.18
(Observer and catch monitor provider permits and endorsements), 50 CFR
660.140 (Shorebased Individual Fishing Quota (IFQ) Program), 50 CFR
660.150 (Mothership Cooperative Program), and 50 CFR 660.160 (Catcher
Processor Cooperative Program).
In the Northeast/Mid-Atlantic region an observer provider must be
approved to provide services in the At-sea sampler/observer coverage
(formally entitled Monitoring coverage) codified at 50 CFR 648.11(h) or
at-sea monitoring services in the Northeast Multispecies sector program
codified at 50 CFR 648.87(b)(4).
The Southeast, Southwest, and Pacific Islands programs use only the
direct contract model, and do not have regulations to authorize a
company to deploy observers in their programs through an approval or
permit process. Nor do these programs have regulations that specify
observer provider responsibilities. Further information about NMFS'
regional observer programs is available at https://www.fisheries.noaa.gov/topic/fishery-observers.
Observer Coverage and Financial Risks
The 2017 Bureau of Labor Statistics, Census of Fatal Occupational
Injuries ranks commercial fishing as one of the most dangerous
occupations. Because most observers are deployed to fishing vessels or
motherships, observers' risk of occupational injury is on par with that
of commercial fishermen. All observer deployments, whether at-sea or
shoreside, involve exposure to natural elements, physical labor, and
proximity to mechanical equipment. Given the work environment in which
observers are deployed and the duties they perform, observer coverage
presents heightened financial risks for observer employers and the
fishing vessels and shoreside processors that are subject to observer
coverage. Additionally, observer training for deployments occurs in the
same environment and involves simulation of the same duties with the
same equipment as an actual deployment. Thus, the financial risks
presented in training observers for deployments are the same as those
presented by actual deployments.
Following is a summary of the financial risks presented by observer
coverage for observers; owners of vessels, first receivers, and
shoreside processing facilities subject to coverage; and observer
providers.
1. Observers incur risks associated with occupational injury
resulting in inability to work.
2. Vessel owners, first receivers, and shoreside processors incur
risks from observer claims for compensation for incidents arising out
of deployment, e.g., occupational injury.
3. Observer employers incur risks from observer compensation claims
for occupational injury, and from vessel/shoreside processor owner
claims for damages resulting from observer negligence.
Private insurance coverages and state workers' compensation
programs are traditional mechanisms to address the financial risks that
observer deployments present. However, the nuances of maritime law,
combined with the unique role that observers have in monitoring fishing
activities, have complicated efforts to address the financial risks of
observer deployment, whether through private insurance or statutory
compensation programs. Since 1994, Councils and NMFS have taken various
actions to address insurance issues for observer providers. In regions
that do not have regulatory requirements, insurance requirements are
included as part of the contracts between NMFS and the observer
providers for observer coverage. These insurance requirements--whether
based in regulations or contracts--differ across regions. At present,
the types of insurance policies that observer providers are required to
have, either by regulation or by contract, include the following:
Maritime liability to cover seamen's claims under the
Merchant Marine Act (Jones Act) and General Maritime Law;
U.S. Longshore and Harbor Workers' Compensation Act;
State Workers' Compensation;
Contractual General Liability;
Marine General Liability;
Commercial General Liability;
Marine Employers Liability; and
[[Page 66261]]
Excess or Umbrella Coverage.
Contract-based insurance requirements vary but generally consist of
Marine General Liability, Marine Employers Liability, and State
Workers' Compensation policies.
Regulatory-based insurance requirements currently exist for
observer providers that are permitted under the North Pacific Observer
Program (50 CFR 679.52(b)(11)(vi)), the West Coast Catch Monitor
Program (50 CFR 660.17(f)(1)(vii)(B)), the West Coast Shoreside IFQ
Program (50 CFR 660.140(h)(5)(xi)(C)), and the West Coast Mothership
Cooperative Program (50 CFR 660.150(j)(4)(xi)(B)(3)). In each of these
programs, a company permitted to deploy observers must annually provide
copies of certificates of insurance that name the applicable program as
the certificate holder and that verify that the company has the
insurance specified in the applicable regulation.
The Northeast at-sea sampler/observer coverage program insurance
requirements at 50 CFR 648.11(h)(3)(vii) are included as elements of an
approved program provider application. In other words, an observer
provider must demonstrate evidence that it holds the insurance
specified in the regulation as part of its application to become an
approved provider. Likewise, as part of an application to be an
approved services provider in the Northeast Multispecies sector at-sea
monitoring program, a company must demonstrate that it holds insurance
that NMFS deems adequate (see 50 CFR 648.87(b)(4)(i)(G)).
In addition, Congress addressed compensation for observer
occupational risks through the 1996 Sustainable Fisheries Act (SFA).
Public Law 104-297 (Oct. 11, 1996). That statute amended the MSA to
deem observers to be Federal employees for purposes of Federal
Employees' Compensation Act (FECA) while deployed on a vessel under the
MSA or the Marine Mammal Protection Act (16 U.S.C. 1881b(c)). The
extension of FECA coverage to observers deployed at-sea filled a gap in
coverage for observer occupational injuries that occur at-sea.
NMFS Reevaluation of Observer Provider Insurance Requirements
Beginning in 2014, NMFS initiated a reevaluation of regional
observer provider insurance requirements. This effort was prompted by a
letter from Alaskan Observers, Inc. (AOI) to the North Pacific Fishery
Management Council (NPFMC). In this letter, AOI provided information
supporting its position that some of the observer provider insurance
requirements under the North Pacific Observer Program are excessive or
inapplicable, and that there are inconsistent insurance requirements
among regional observer programs. To address these issues, AOI proposed
a series of amendments to the North Pacific Observer Program
regulations. In a 2015 letter to the NPFMC Executive Director (2015
NPFMC Letter), NMFS agreed with AOI's position that certain insurance
requirements under the North Pacific Observer Program are unnecessary;
specifically, coverage for claims under the Merchant Marine Act of 1920
(also known as the Jones Act), General Maritime Law (GML), and the U.S.
Longshore and Harbor Workers Compensation Act (LHWCA). To make a claim
under the Jones Act, and certain claims under GML, a person must have
status as a ``seaman''.\1\ Courts in a number of jurisdictions have
held that observers do not qualify as seamen and therefore have
dismissed Jones Act claims filed by observers and those filed under GML
that require such status. In the case of the LHWCA, a person must be
within the scope of an employee for purposes of the LHWCA, which
generally covers longshore workers, ship-repairers, harbor construction
workers and other traditional maritime labor performed shoreside. Thus,
by definition, the LHWCA does not apply to observers when they are
deployed at-sea.
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\1\ To qualify for seaman status, a person must (1) have a more
or less permanent connection with (2) a vessel in navigation and (3)
the capacity in which the person is employed or the duties which he
or she performs must contribute to the function of the vessel, the
accomplishment of its mission or its operation or welfare in terms
of its maintenance during its movement or during anchorage for its
future trips.
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As part of NMFS' response to the NPFMC, it noted that the NPFMC
could consider revising the North Pacific Observer Program regulations
to require a Marine General Liability policy and other forms of
insurance that may better address certain financial risks that observer
companies have with their operations. Subsequent to issuing the 2015
NPFMC Letter, NMFS decided to reevaluate observer provider insurance
requirements across all regional observer programs, rather than focus
solely on revisions to the North Pacific Observer Program regulations.
This expanded, national effort made sense because the Jones Act, GML,
and LHWCA requirements deemed unnecessary in that program also apply in
the West Coast programs. In addition, a broader national evaluation
would enable NMFS to address the lack of consistency on insurance
requirements among regional observer programs. In 2016, NMFS held an
Observer Provider Insurance Workshop to discuss the efficiency of
observer provider insurance requirements and compensation for observer
occupational injuries. This workshop was attended by insurance experts,
observer providers, observers, and representatives from other Federal
agencies. Subsequent to the workshop, NMFS published an Observer
Provider Insurance Workshop Technical Report (Tech Report), available
at http://spo.nmfs.noaa.gov/tech-memos, which summarized the Workshop's
proceedings and identified actions that NMFS could take to reform
observer provider insurance requirements and facilitate compensation
for observer occupational injuries. As detailed in the Tech Report and
the 2015 NPFMC Letter, insurance coverages that observer providers are
required to have for claims under the Jones Act and GML are
inapplicable to observers as they lack seamen status or, in the case of
the LHWCA, the coverage requirement is overly broad as it does not
apply to observers who are deployed at-sea.
In addition, NMFS has learned that, while FECA does provide
coverage for observer at-sea injuries, the compensation formula under
FECA does not take into consideration overtime pay. Observers typically
work 12-16 hour shifts to correspond with fishing vessel crew shifts,
so they often do not receive full compensation for occupational injury
claims under FECA.
NMFS' findings based on its national reevaluation of regional
observer program insurance requirements are illustrated in the
following tables.
Table 1--Applicability of Remedial Authorities to Observers
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State workers'
Location of observer Jones Act seamen's claims GML seamen's claims LHWCA FECA compensation
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On Land................... Not applicable............ Not Applicable........... Applicable............... Not Applicable...... Applicable.
[[Page 66262]]
At-Sea.................... Not Applicable............ Not Applicable........... Not Applicable........... Applicable per MSA Applicable, but may
403(c). be limited to
injuries sustained
within state
jurisdiction.
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Table 2--Comparison of Regional Observer Program Insurance Requirements
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Jones Act/GML State Worker's Marine Commercial
Program seamen's claims LHWCA Compensation Employer's General
coverage (WC) Liability (MEL) Liability (CGL)
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North Pacific......... Required $1 Required $1 Must meet Not required.... Required--no
million minimum million minimum requirements minimum
coverage. coverage. within state of established.
operation.
West Coast............ Not required.... Required $1 Must meet Not required.... Required--no
million minimum requirements minimum
coverage. within state of established.
operation.
Northeast............. Not required.... Not required.... Required--$5 Required--$5 Not required.
million million
combined combined
minimum for MEL minimum for MEL
and WC. and WC.
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To address these issues, the Tech Report recommended that NMFS
explore replacing the divergent regional insurance requirements with a
consistent, nationally applicable minimum insurance standard.
Considering the highly technical nature of maritime insurance and
insurance markets in general, the Tech Report recommended that NMFS
first gather more information on the types of insurance and minimum
dollar coverage amounts for the financial risks that observer coverage
presents. To do so, NMFS published a Request for Information (RFI) on
National Reform of Regional Observer Provider Insurance Requirements
(83 FR 32829, July 16, 2018). In this RFI, NMFS asked observer
providers, maritime insurance experts, observers, and the public at
large for information on the types of insurance and associated minimum
dollar amounts that would be appropriate to address observer coverage
financial risks across all regional programs and in the different
contexts in which observers are deployed, i.e., at-sea and shoreside.
Minimum Insurance Standard for Observer Providers
NMFS proposes requiring a specific suite of insurance policies, the
elements of which are described below. The proposed standard is based
on an intensive, multiyear effort to identify to identify policies and
associated coverage amounts that would best address the financial risks
of observer provider operations. Specifically, to develop the proposed
minimum insurance standard, NMFS relied on the analysis and conclusions
set forth in the 2015 NPFMC Letter, and public input that NMFS obtained
through the 2016 Workshop and the 2018 RFI. Additionally, to gain
further insight on the fishing industry and observer providers, NMFS
coordinated with the regional FMCs in the North Pacific, West Coast,
and New England and conducted lengthy informal phone interviews with
each observer provider that operates an industry-funded program in
those regions. NMFS then reached out to insurance brokers who offer
specialized products for maritime employers, including observer
providers. Through these extensive outreach efforts, and its own
internal research and analysis, NMFS identified only one suite of
insurance policies that would address the financial risks of observer
provider operations. NMFS does not believe there is any other
information available upon which it could reach a different conclusion.
NMFS specifically notes that the insurance standard reflects two
points that it made in the 2015 NPFMC Letter. First, this standard does
not include coverages for seamen's claims under the Jones Act and those
made under GML because observers do not have seamen's status under
those authorities. Second, the standard clarifies that the LHWCA
applies to observers only when they perform duties shoreside because
that authority applies only to shoreside incidents. Based on input from
maritime insurance experts, the requirement to obtain LHWCA coverage
would apply only in those jurisdictions that require it.
NMFS believes that this suite of insurance policy coverages and
associated coverage amounts would set a nationally consistent minimum
level of insurance that is appropriate to address the financial risks
that observer providers have in providing observer services. NMFS
believes this suite of insurance policy coverages would help to
mitigate the financial risks that observer deployments present for
fishing vessels, first receivers, and shoreside processors that are
subject to coverage. Additionally, this proposed minimum insurance
standard would provide observers who are injured during their period of
employment as an observer with appropriate compensation safeguards.
Elements of Proposed Minimum Insurance Standard
Marine General Liability (MGL) Policy at $1 Million for Each Occurrence
This policy would cover an observer provider for bodily injury and
property damage liability caused by their observers' conduct while
deployed. By ensuring that an observer provider is covered for
liability risks arising from the deployment of its observers, an MGL
policy would mitigate financial risks for vessel owners and shoreside
processors that are subject to observer monitoring. Based on input from
marine insurance experts obtained through the RFI, NMFS found that an
MGL policy would provide coverage for a range of marine liability
exposures and thus is preferable to a CGL policy presently required
under the North Pacific regulations and the West Coast regulations.
NMFS proposes coverage at $1 million per occurrence, as recommended by
input from marine insurance experts.
In addition, unlike a CGL policy, an MGL policy can be enhanced
with an endorsement that extends protection to vessel or shoreside
processor owners from legal actions filed by an observer. That
endorsement, however, is discretionary and not required as part of the
proposed minimum insurance standard. NMFS believes the risks of
observer-initiated legal actions against parties other than their
employer are low, and any risks of such actions should be addressed
through a Marine Employer's Liability policy, discussed below.
Nonetheless, NMFS specifically requests comment on whether an MGL
[[Page 66263]]
endorsement for legal actions brought against a vessel owner or
shoreside processor should be an element of the minimum insurance
standard.
Marine Employer's Liability (MEL) Policy With a Death on the High Seas
Act Endorsement at $1 Million for Each Occurrence
An MEL policy is appropriate for observer providers to cover
certain claims that an observer can make for incidents that occur at-
sea. These claims include General Maritime Law (GML) remedies of
Unseaworthiness, Wrongful Death, Transportation, Wages, Maintenance and
Cure, and claims under the Death on the High Seas Act. An MEL policy
would also cover a seaman's negligence lawsuit filed by an observer
under the Jones Act. As explained above, NMFS 2015 NPFMC Letter
reflected the consensus view among Federal courts that observers are
not seaman for purposes of the Jones Act. Nonetheless, this does not
preclude an observer from filing a Jones Act claim. An MEL policy would
cover an observer provider's costs defending against a Jones Act claim,
and a vessel owner's defense costs if named as a party to the Jones Act
action.
NMFS proposes that an MEL policy provide coverage at $1 million per
occurrence. This amount is based on recommended input from marine
insurance experts obtained through the 2018 RFI. Because an MEL policy
covers claims for at-sea incidents, the proposed minimum standard
provides that the MEL policy be required only for approved or permitted
observer providers that deploy observers at-sea.
State Workers' Compensation Policy
A state workers' compensation policy would cover injuries that an
observer sustains while deployed shoreside. The proposed minimum
insurance standard would include this policy as required by the
state(s) in which a company deploys observers.
U.S. Longshore and Harbor Workers' Compensation Act (LHWCA) Coverage at
Statutory Limits
Coverage for LHWCA claims would provide insurance for injuries that
an observer sustains while deployed shoreside. While the LHWCA does not
apply to observers when they are at-sea, claims under the LHWCA for
injuries sustained shoreside have been paid in some jurisdictions. The
LHWCA compensation formula yields better benefits for observers than
coverage that is available under state workers' compensation. Thus, it
is important to include LHWCA coverage in the insurance standard, given
that observers deployed as dockside monitors or to shoreside facilities
perform all of their duties shoreside. In addition, observers deployed
at-sea begin their deployments by traveling to the point of embarkation
on land and perform some duties shoreside prior to embarking.
The proposed minimum insurance standard includes LHWCA coverage as
a stand-alone policy, or as an endorsement to a company's state
workers' compensation policy. Under the proposed minimum standard,
either a stand-alone policy or a policy endorsement for LHWCA coverage
would be required only if LHWCA coverage is required in a state where
the company deploys observers. If required under state law, NMFS
proposes that the LHWCA policy or policy endorsement provide coverage
at the LHWCA's claim limits.
Excess or Umbrella Coverage Over the MGL Policy or MEL Policy Limits of
Not Less Than $2 Million
To insure against events that may exceed the single event limits
under an MGL policy or an MEL policy, NMFS has included in the minimum
standard excess or umbrella coverage at not less than $2 million.
Scope of Coverage
The primary purpose of all elements of the proposed minimum
insurance standard is to address the specific financial risks presented
by the full scope of an observer's employment to include deployment,
which includes travel to the vessel or facility to be observed, and
training for deployments. Therefore, under the proposed minimum
standard, insurance must extend to observer injury, liability, and
accidental death during their period of employment, to include
training.
Proposed Action
NMFS proposes that this suite of required insurance policy coverage
and associated coverage amounts be codified at 50 CFR 600.678 as a
minimum national standard for NMFS regional observer programs that
permit or otherwise approve an observer provider to deploy a person in
any mandatory or voluntary observer program and that specify authorized
provider responsibilities. NMFS further proposes that the current
insurance requirements for observer providers specified in the
following regional regulations be removed and replaced with a reference
to the proposed minimum insurance standard (50 CFR 600.678):
North Pacific
[cir] North Pacific Observer Program, 50 CFR 679.52(b)(11)(vi);
West Coast
[cir] West Coast Catch Monitor Program, 50 CFR 660.17(f)(1)(vii)(B);
[cir] West Coast Shore Side IFQ Program, 50 CFR 660.140(h)(5)(xi)(C);
[cir] West Coast Mothership Cooperative Program, 50 CFR
660.150(j)(4)(xi)(B)(3);
Northeast
[cir] Northeast at-sea sampler/observer coverage program, 50 CFR
648.11(h)(3)(vii); and
[cir] Northeast Multispecies sector at-sea monitoring program, 50 CFR
648.87(b)(4)(i)(G).
Table 3--Regional Program Insurance Requirements That Would Result From the Proposed Action
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Jones Act/GML State Worker's Commercial Marine Excess or
Program seamen's clams LHWCA Compensation General Marine General Employer's Umbrella
coverage Coverage (WC) Liability (CGL) Liability (MGL) Liability (MEL) Coverage
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Pacific Current........ Required $1 Required $1 Must meet Required--no Not required... Not required... Not required.
million million requirements minimum
coverage. coverage. within state of established.
operation.
North Pacific Proposed Rule.. Not required.... $1 million per No change....... Not required.... Required $1 Required $1 Required $2
occurrence million per million per million.
coverage if occurrence. occurrence.
required under
applicable
state law.
West Coast Current........... Not required.... Required $1 Must meet Required--no Not required... Not required... Not required.
million requirements minimum
coverage. within state of coverage
operation. established.
[[Page 66264]]
West Coast Proposed rule..... No change....... $1 million per No change....... Not required.... Required $1 Required $1 Required $2
occurrence million per million per million.
coverage if occurrence. occurrence.
required under
applicable
state law.
Northeast Current............ Not required.... Not required.... Required $5 Not required.... Not required... Required $5 Not required.
million million
combined combined
minimum minimum
coverage for coverage for
MEL and WC. MEL and WC.
Northeast Proposed rule...... No change....... $1 million per Must meet No change....... Required $1 Required $1 Required $2
occurrence requirements million per million per million.
coverage if within state of occurrence. occurrence.
required under operation.
applicable
state law.
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Each of these regional regulatory programs already include
procedures to monitor and confirm observer provider compliance with
current insurance requirements. This action would not change these
procedures, and they would apply to monitor and confirm observer
provider compliance with the proposed minimum standard. Compliance with
a minimum standard that is made final through a rulemaking would be
required during the next insurance certification for the relevant
program, or six months after promulgation of the final rule, whichever
is later. We expect that this will provide sufficient time for
providers to work with their insurance broker on getting the
appropriate coverages.
The current regulations for the West Coast Catcher Processor
Program (50 CFR 660.160) are unclear on whether they include insurance
requirements for permitted observer providers. NMFS takes this
opportunity clarify that those regulations do include insurance
requirements. Therefore, as with other programs that have insurance
requirements, this proposed rule would add a reference to the minimum
insurance standard to the regulatory provisions regarding
responsibilities for permitted observer providers that deploy observers
in this program and procedures for demonstrating compliance with those
standard. It would also require that an observer provider that is
permitted to deploy observers in the West Coast Catcher Processor
Program would demonstrate compliance with the minimum insurance
standard by submitting copies of ``certificates of insurance,'' which
name the Northwest Fisheries Science Center Observer Program manager as
the ``certificate holder,'' to the Observer Program Office by February
1 of each year. In addition, these certificates of insurance must
verify all coverage provisions specified in the national minimum
insurance standard regulations, and state that the insurance company
will notify the certificate holder if insurance coverage is changed or
canceled. This procedure for demonstrating compliance with insurance
requirements is the same as that which applies in other West Coast
observer programs that currently specify insurance requirements for
permitted observer providers and this proposed rule clarifies that it
also applies in the West Coast Catcher Processor Program.
The proposed minimum national insurance standard would promote
effective operation of regional observer programs by ensuring that
observer providers have a consistent suite of insurance policy
coverages that properly addresses the financial risks of their
operations, regardless of the fishery observed or the region in which
the provider operates. For these reasons, NMFS has concluded that this
action is necessary to carry out FMP monitoring requirements performed
by observers, and, as such, is authorized under MSA 305(d), 16 U.S.C.
1855(d).
As stated above, the Southeast, Southwest, and Pacific Islands
observer programs are currently serviced only under the direct contract
model and do not have regulations for authorizing a company to deploy
observers in their programs, or regulations that specify observer
provider responsibilities. For these programs, NMFS intends to require
the national minimum insurance standard (50 CFR 600.678), as finalized,
as a condition of direct contracts for observer provider services. This
would be carried out through the National Oceanic and Atmospheric
Administration's, Acquisitions and Grants Office Policy Manual and not
as a separate rulemaking.
Given the technical nature of insurance policies that are
applicable to observer programs, NMFS seeks detailed public comments on
whether each type of insurance required in the proposed minimum
national insurance standard, and associated policy coverage amounts,
adequately addresses observer deployment risks for vessels, observer
providers, and observers. NMFS emphasizes that, in proposing minimum
insurance standard, NMFS is establishing a floor, not a ceiling, for
the appropriate insurance policy types and levels of associated
insurance policy coverage amounts to address the financial risks of
observer deployment. This proposed rule would not prevent an observer
provider from choosing to have insurance or coverage amounts that
exceed the proposed minimum insurance standard. Nor would this proposed
rule preclude a region from initiating a separate and distinct
rulemaking that requires insurance types or coverage amounts beyond
that which is provided under the proposed minimum standard in this
proposed rule.
Private Insurance Options To Address Gap in FECA Coverage
NMFS takes this opportunity to address other information obtained
through the 2018 RFI that it considered when developing the proposed
minimum insurance standard. In the 2018 RFI, NMFS presented a series of
questions about FECA coverage that applies to observers when deployed
at-sea under the MSA. Information obtained through the 2018 RFI showed
that there is a gap in FECA coverage; specifically FECA wage-loss
benefits do not include consideration of overtime pay. One observer
provider reported that they were able to address that gap by
supplementing their MEL policy to provide their observers with
additional
[[Page 66265]]
benefits. This form of an MEL policy, however, is customized to the
operations of that provider and is not a policy that could form the
basis of a policy that all providers must have. Therefore, NMFS decided
not to require this form of an MEL policy in the proposed national
insurance standard.
However, recognizing the implications of the gaps in FECA coverage
for observers, NMFS encourages observer providers to consider obtaining
this form of an MEL policy or a separate insurance policy that would
provide observers with compensation that is not provided under FECA.
Classification
NMFS issues this proposed rule pursuant to Magnuson-Stevens Act
(MSA) section 305(d), which provides the Secretary of Commerce with
general responsibility to carry out any FMP or FMP amendment, and to
promulgate regulations as may be necessary to discharge such
responsibility (16 U.S.C. 1855(d)). The NMFS Assistant Administrator
has determined that this proposed rule is consistent with the MSA and
other applicable laws, subject to further consideration after public
comment.
NEPA Determination
NOAA's Policy and Procedures for Compliance with the National
Environmental Policy Act (NEPA) and Related Authorities (NOAA
Administrative Order 216-6A and Companion Manual for NAO 216-6A)
establishes that all NOAA major Federal actions be reviewed with
respect to environmental consequences on the human environment. NOAA
Administrative Order 216-6A and Companion Manual for NAO 216-6A were
used to examine this proposed rule for its potential to impact the
quality of the human environment and it concluded that it would not
have a significant adverse effect, individually or cumulatively, on the
human environment and does not involve any extraordinary circumstances
listed in the Companion Manual for NAO 216-6A. Further, NMFS determined
that this proposed rule may appropriately be categorically excluded
from the requirement to prepare either an environmental assessment or
environmental impact statement in accordance with the categorical
exclusion described in the Companion Manual for NAO 216-6A, G7, which
applies to preparation of policy directives, rules, regulations, and
guidelines of an administrative, financial, legal, technical, or
procedural nature, or for which the environmental effects are too
broad, speculative or conjectural to lend themselves to meaningful
analysis and will be subject later to the NEPA process, either
collectively or on a case-by-case basis.
Executive Order 12866
This proposed rule has been determined to be significant for
purposes of Executive Order 12866.
Regional regulatory programs that authorize an observer provider to
deploy a person in any mandatory or voluntary observer program and that
specify responsibilities of authorized providers already include
insurance requirements. Thus, to operate in these programs, observer
providers already must demonstrate that they have the insurance
specified in the applicable regulations.
Due to the nuances of maritime law and the unique nature of
observer deployments, regions have adopted differing insurance
requirements that are in some cases overly burdensome and inefficient.
This action would provide a national standard that clarifies the types
and amounts of insurance and associated coverage amounts that best
address the financial risks of observer provider operations regardless
of the fishery or region in which an observer provider operates. In
some cases, compliance with the proposed national insurance standard
would require observer providers to have insurance that is different
from what they are required to have under current regulations. While
this proposed action would change the suite of insurance that observer
providers are required to have, it does not make substantive increases
to the insurance that is required in current regional programs. In
fact, the proposed action makes clarifications that would result in
observer providers not being required to have coverages for seaman's
claims under the Jones Act and General Maritime Law.
For these reasons, we do not expect this action to result in a
significant increase in the premiums that observer providers currently
pay. In fact, the action could result in lower premiums because it
would establish a national standard that does not include certain
coverages that are required under current regulations. Additionally,
the increased efficiency of a national standard may bring about lower
premiums. NMFS invites public commenters to provide information that
could inform these assumptions.
Paperwork Reduction Act
This action does not contain a change to a collection-of-
information requirement for purposes of the Paperwork Reduction Act.
NMFS' regional observer program regulations that authorize observer
providers or that specify authorized provider responsibilities already
include procedures for demonstrating compliance with program insurance
requirements, and this proposed rule would not change those procedures.
The following existing collection of information requirements would
continue to apply, under the following control numbers: (1) 0648-0318,
Alaska Observer Program (applies to the North Pacific Observer
Program); (2) 0648-0500, An Observer Program for At-Sea Processing
Vessels in the Pacific Coast Groundfish Fishery; and (3) 0648-0546,
Northeast Region Observer Providers Requirements. Note that, while this
action would make clear that the existing regulations for the West
Coast Catcher Processor Program (50 CFR 660.160) include insurance
requirements for permitted observer providers (by adding a reference to
the minimum insurance standard to the program's regulations), the
collection of an insurance certificate from observer providers that are
permitted to operate in this program is already covered under the
existing control number 0648-0500, An Observer Program for At-Sea
Processing Vessels in the Pacific Coast Groundfish Fishery.
Initial Regulatory Flexibility (IRFA) Analysis
Pursuant to Section 603 of the Regulatory Flexibility Act (RFA),
NMFS has prepared an IRFA to analyze the potential impact that this
rule, if adopted, would have on small entities. The RIR and IRFA are
available for public review (see ADDRESSES). A summary of the IRFA
follows.
Description of the Reasons Why Action Is Being Considered
The policy reasons for issuing this proposed rule are discussed
previously in the preamble of this document, and are not repeated here.
Statement of the Objectives of, and Legal Basis for, the Proposed Rule;
Identification of All Relevant Federal Rules Which May Duplicate,
Overlap, or Conflict With the Proposed Rule
The objective of this proposed rule is to promote effective
operation of regional observer programs by ensuring that observer
providers have a nationally consistent suite of insurance coverages
that properly addresses the financial risks of their operations,
regardless of the fishery observed or the region in which the provider
operates.
[[Page 66266]]
The legal basis for this proposed rule is 16 U.S.C. 1855(d). No other
Federal rules duplicate, overlap, or conflict with this proposed rule.
Number and Description of Small Entities Regulated by the Proposed
Action
Currently, there are six companies that provide observer services
in a NMFS mandatory or voluntary observer program. These entities,
which would be directly regulated by the proposed action, include:
A.I.S. Inc.; Alaskan Observers, Inc.; Saltwater, Inc.; TechSea
International; Fathom Resources LLC; and East West Technical Services,
LLC. Four of these entities operate in the North Pacific Observer
Program. Three operate in the West Coast Observer Program, and two
operate in the Northeast Observer Program. The specific NMFS regional
observer programs in which these companies may be permitted or approved
to deploy observers are as follows: The North Pacific Observer Program,
50 CFR 679.52; the West Coast Groundfish Observer Program, 50 CFR
660.16; the West Coast Catch Monitor Program, 50 CFR 660.17; the West
Coast Groundfish Observer and Catch Monitor Provider Permits Program,
50 CFR 660.18; the West Coast Shoreside IFQ Program, 50 CFR 660.140;
the West Coast Mothership Cooperative Program, 50 CFR 660.150; the West
Coast Catcher Processor Cooperative Program, 50 CFR 660.160; the
program for Northeast at-sea sampler/observer coverage, 50 CFR
648.11(h); and the Northeast Multispecies at-sea sector monitoring
program, 50 CFR 648.87(b)(4). The information available to NMFS
indicates that the principal activity of most of these companies is
providing observers. All of the current observer provider companies are
considered small entities under the RFA.
Additionally, firms interested in obtaining approval or a permit to
provide observer services under a NMFS regional observer program in the
future would be regulated under the proposed action. Observer provider
services are a specialized area, and NMFS does not know how many other
firms might want to become providers in the future. In any event, NMFS
anticipates that any new providers would be considered small entities.
For purposes of the RFA, NMFS established a small business size
standard (NAICS 11411) for all businesses in the commercial fishing
industry including their affiliates, whose primary industry is
commercial fishing. (See 80 FR 81194; 50 CFR 200.2). A business
primarily engaged in commercial fishing (NAICS code 11411) 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 $11
million for all of its affiliated operations worldwide. Based on
available information, NMFS has determined that all six of these
companies are small entities, i.e., they are engaged in the business of
fish harvesting (NAICS 114111), are independently owned or operated,
are not dominant in their field of operation, and have annual gross
receipts not in excess of $11 million.
Even though this proposed action would apply to a substantial
number of the relevant businesses, the implementation of this action
would not result in a significant adverse economic impact on individual
companies. As described below, the proposed action could result in
possible changes in insurance costs for these companies, ranging from
an increase of approximately $10,000 to an approximate decrease of a
similar amount. This range includes potential benefits to the companies
stemming from clarifying requirements and allowing them to drop certain
insurance policies that are no longer necessary.
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements of the Proposed Rule
This proposed rule does not include new reporting, recordkeeping,
or other compliance requirements. As noted under the Paperwork
Reduction Act header above, NMFS' regional observer program regulations
that authorize observer providers or that specify authorized provider
responsibilities, already include procedures for demonstrating
compliance with program insurance requirements, and this proposed rule
would not change those procedures.
Description of Any Significant Alternatives to the Proposed Rule That
Accomplish the Stated Objectives of Applicable Statutes and That
Minimize Any Significant Economic Impact of the Proposed Rule on Small
Entities
As required by 5 U.S.C. 603(c), NMFS' analysis considered whether
there are any significant alternatives to the proposed rule that would
accomplish its stated objectives while minimizing any significant
economic impact on small entities. To identify alternatives, NMFS took
several information gathering actions. In 2016, NMFS held an Observer
Provider Insurance Workshop (2016 Workshop), which was attended by
marine insurance experts, observer providers, observer representatives,
and officials from relevant Federal and state agencies. Additionally,
in 2018, NMFS issues a Request for Information (2018 RFI) in which it
asked for input on an appropriate suite of insurance and associated
coverage amounts for observer providers (83 FR 32829, July 16, 2018).
Through this engagement, NMFS identified no alternatives to the
proposed rule that would reasonably address the unique risks that
observer coverage presents for observer providers, observers, and the
industry that is subject to observer coverage requirements. Therefore,
NMFS analyzed only whether the proposed rule would have a significant
adverse economic impact on observer providers, all of which are small
entities.
The question of whether this proposed rule would have a significant
economic impact on the small entity observer providers depends upon
whether carrying the required policies under the minimum national
standard would result in increased premiums compared to the premiums
that observer providers currently pay to comply with existing regional
requirements. However, as described below, NMFS lacks the precise
baseline information on existing premium costs that is necessary to
determine, with any specificity the economic impact that may result
from the proposed rule. NMFS attempted to obtain baseline information
on current observer provider insurance premium costs through outreach
to the six companies that provide observer services in a NMFS mandatory
or voluntary observer program. However, these companies viewed
insurance cost information as proprietary, and, therefore, declined to
provide details of their insurance costs or estimates of what premium
costs would be to comply with the proposed national minimum standard.
Nonetheless, based on the limited information that these companies did
provided, NMFS estimated that current observer provider insurance
premiums cost less than $5,000 per employee. It is possible that the
proposed rule could result in a decrease of premiums from the estimated
$5,000 per employee baseline, due to cost savings from lower premiums,
from the consolidation of policies, or from the cancellation of
policies that are no longer necessary. It is also possible for a
premium increase to an outer bound of $10,000 per employee if a company
previously had no policy coverage at all. Using these general
assumptions, NMFS developed ranges in observer provider premium changes
that could result upon
[[Page 66267]]
implementation of the proposed rule (see table below).
To form an accurate assessment of the economic impact that may
result from the proposed rule, NMFS requests comment on the ranges
described below. NMFS is seeking comments on two aspects of these
premium ranges. Specifically, NMFS would like comments on whether the
magnitude of the ranges described below accurately captures the likely
premium changes that may result from the proposed rule. In addition,
NMFS would like comments on which of these ranges is most likely to
apply, should the proposed rule be finalized.
Proposed Action Estimated Ranges of Observer Provider Premium Changes
------------------------------------------------------------------------
Insurance premium increases Insurance premium decreases
------------------------------------------------------------------------
$0 to $2,500 per employee................. $0 to $2,500 per employee.
$2,500 to $5,000 per employee............. $2,500 to $5,000 per
employee.
$5,000 to $7,500 per employee............. $5,000 to $7,500 per
employee.
$7,500 to $10,000 per employee............ $7,500 to $10,000 per
employee.
------------------------------------------------------------------------
List of Subjects
50 CFR Part 600
Administrative practice and procedure, Confidential business
information, Fish, Fisheries, Fishing, Fishing vessels, Foreign
relations, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Statistics.
50 CFR Part 648
Fisheries, Fishing, Reporting and recordkeeping requirements.
50 CFR Part 660
Fisheries, Fishing, Indians, Recreation and recreation areas,
Reporting and recordkeeping requirements, Treaties.
50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: November 16, 2021.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NOAA proposes to amend 50
CFR parts 600, 648, 660, and 679 as follows:
PART 600--MAGNUSON-STEVENS ACT PROVISIONS
0
1. The authority citation for 50 CFR part 600 continues to read as
follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
2. In subpart H, add Sec. 600.748 to read as follows:
Sec. 600.748 National Minimum Observer Provider Insurance Standard.
(a) Applicability. As part of regulations for observer provider
companies to obtain approval or a permit to deploy a person in any
mandatory or voluntary observer program, or regulations that specify
approved or permitted observer provider responsibilities, NMFS must
reference and ensure compliance with the following national minimum
insurance standard.
(b) Policies and Coverage Amounts. (1) Marine General Liability ($1
million any one occurrence).
(2) Marine Employers Liability ($1 million any one occurrence) for
an observer provider that is authorized, or has applied to be
authorized, to deploy observers or monitors at-sea.
(3) State workers' compensation as required by each state in which
the observer provider is authorized, or has applied to be authorized,
to deploy observers or monitors at-sea or shoreside.
(4) U.S. Longshore and Harbor Workers' Act coverage, either as a
stand-alone policy or as a state workers' compensation policy
endorsement, if that policy or a policy endorsement is required by the
respective state(s) in which the observer provider is authorized, or
has applied to be authorized, to deploy observers or monitors at-sea or
shoreside.
(5) Excess or umbrella coverage ($2 million any one occurrence).
(c) Policy coverages. Coverage must extend to injury, liability,
and accidental death during the period of employment, including
training, of observers or monitors at-sea or shoreside.
PART 648--FISHERIES OF THE NORTHEASTERN UNITED STATES
0
3. The authority citation for 50 CFR part 648 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.
0
4. In Sec. 648.11, revise the section heading and paragraph
(h)(3)(vii) to read as follows:
Sec. 648.11 At-sea sampler/observer coverage.
* * * * *
(h) * * *
(3) * * *
(vii) Evidence of holding insurance specified at Sec. 600.748(b)
and (c) of this chapter.
* * * * *
0
5. In Sec. 648.87, revise paragraph (b)(4)(i)(G) to read as follows:
Sec. 648.87 Sector allocation.
* * * * *
(b) * * *
(4) * * *
(i) * * *
(G) Evidence of holding insurance specified at Sec. 600.748(b) and
(c) of this chapter.
* * * * *
PART 660--FISHERIES OFF WEST COAST STATES
0
6. The authority citation for 50 CFR part 660 continues to read as
follows:
Authority: 16 U.S.C. 1801 et seq.; 773 et seq.; 7001 et seq.
0
7. In Sec. 660.17, revise paragraph (f)(1)(vii)(B) to read as follows:
Sec. 660.17 Catch monitor program.
* * * * *
(f) * * *
(1) * * *
(vii) * * *
(B) The observer provider must submit copies of ``certificates of
insurance,'' that names the Catch Monitor Program Coordinator as the
``certificate holder'' to the Catch Monitor Program Office by February
1 of each year. The certificates of insurance shall verify all coverage
provisions specified at Sec. 600.748(b) and (c) of this chapter and
state that the insurance company will notify the certificate holder if
insurance coverage is changed or canceled.
* * * * *
0
8. In Sec. 660.140, revise paragraph (h)(5)(xi)(C) to read as follows:
Sec. 660.140 Shorebased IFQ Program.
* * * * *
(h) * * *
(5) * * *
(xi) * * *
(C) Certificates of insurance. The observer provider must submit
copies of ``certificates of insurance'' that name the Northwest
Fisheries Science Center Observer Program manager as the ``certificate
holder'' to the Observer Program Office by February 1 of each year. The
certificates of insurance shall verify all coverage provisions
specified at Sec. 600.748(b) and (c) of this chapter and state that
the insurance company will notify the certificate holder if insurance
coverage is changed or canceled.
* * * * *
[[Page 66268]]
0
9. In Sec. 660.150, add paragraph (j)(4)(xi)(A)(6), and revise
paragraph (j)(4)(xi)(B)(3) to read as follows:
Sec. 660.150 Mothership (MS) Coop Program.
* * * * *
(j) * * *
(4) * * *
(xi) * * *
(A) * * *
(6) Certificates of insurance. The observer service provider must
submit copies of ``certificates of insurance'' that name the Northwest
Fisheries Science Center Observer Program manager as the ``certificate
holder'' to the Observer Program Office by February 1 of each year. The
certificates of insurance shall verify all coverage provisions
specified at Sec. 600.748(b) and (c) of this chapter and state that
the insurance company will notify the certificate holder if insurance
coverage is changed or canceled.
* * * * *
(B) * * *
(3) Certificates of insurance. The observer provider must submit
copies of ``certificates of insurance'' that name the Northwest
Fisheries Science Center Observer Program manager as the ``certificate
holder'' to the Observer Program Office by February 1 of each year. The
certificates of insurance shall verify all coverage provisions
specified at Sec. 600.748(b) and (c) of this chapter and state that
the insurance company will notify the certificate holder if insurance
coverage is changed or canceled.
* * * * *
0
10. In Sec. 660.160, add paragraph (g)(1)(iv) to read as follows:
Sec. 660.160 Catcher/processor (C/P) Coop Program.
* * * * *
(g) * * *
(1) * * *
(v) Certificates of insurance. The observer provider must submit
copies of ``certificates of insurance'' that name the Northwest
Fisheries Science Center Observer Program manager as the ``certificate
holder'' to the Observer Program Office by February 1 of each year. The
certificates of insurance shall verify all coverage provisions
specified at Sec. 600.748(b) and (c) of this chapter and state that
the insurance company will notify the certificate holder if insurance
coverage is changed or canceled.
* * * * *
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
11. The authority citation for 50 CFR part 679 continues to read as
follows:
Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.;
Pub. L. 108-447; Pub. L. 111-281.
0
12. In Sec. 679.52, revise paragraph (b)(11)(vi) to read as follows:
Sec. 679.52 Observer provider permitting and responsibilities.
* * * * *
(b) * * *
(11) * * *
(vi) Certificates of insurance. Copies of ``certificates of
insurance'' that name the NMFS Observer Program leader as the
``certificate holder'' must be submitted to the Observer Program by
February 1 of each year. The certificates of insurance shall verify all
coverage provisions specified at Sec. 600.748(b) and (c) of this
chapter and state that the insurance company will notify the
certificate holder if insurance coverage is changed or canceled.
* * * * *
[FR Doc. 2021-25367 Filed 11-19-21; 8:45 am]
BILLING CODE 3510-22-P