Federal Register / Vol. 83, No. 136 / Monday, July 16, 2018 / Proposed Rules 32829 

governments, or the agency consults 

with State and local government 

officials early in the process of 

developing the regulation. 

This proposed rule has been analyzed 

consistent with the principles and 

criteria in Executive Order 13132. This 

proposed rule would not have a 

substantial effect on the States or their 

political subdivisions; it would not 

impose any substantial direct 

compliance costs; and it would not 

affect the relationships between the 

Federal government and the States or 

their political subdivisions, or the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

However, this proposed rule could 

have preemptive effect under certain 

provisions of the Federal railroad safety 

statutes, specifically the former Federal 

Railroad Safety Act of 1970 (former 

FRSA), repealed and re-codified at 49 

U.S.C. 20106, and the former 

Locomotive Boiler Inspection Act (LIA) 

at 45 U.S.C. 22–34, repealed and recodified at 49 U.S.C. 20701–03. The 

former FRSA provides that States may 

not adopt or continue in effect any law, 

regulation, or order related to railroad 

safety or security that covers the subject 

matter of a regulation prescribed or 

order issued by the Secretary of 

Transportation (with respect to railroad 

safety matters) or the Secretary of 

Homeland Security (with respect to 

railroad security matters), except when 

the State law, regulation, or order 

qualifies under the ‘‘local safety or 

security hazard’’ exception to section 

20106. Moreover, the U.S. Supreme 

Court has held the former LIA preempts 

the field concerning locomotive safety. 

See Napier v. Atl. Coast Line R.R., 272 

U.S. 605 (1926) and Kurns v. R.R. 

Friction Prods. Corp., 565 U.S. 625 

(2012). Therefore, if this proposed rule 

were adopted, it is possible States 

would be preempted from requiring that 

locomotives display a permanent badge 

or tag certifying the locomotive 

complies with FRA’s noise emission 

standards. 

Environmental Impact 

FRA has evaluated this proposed 

regulation consistent with its 

‘‘Procedures for Considering 

Environmental Impacts’’ (FRA’s 

Procedures), 64 FR 28545 (May 26, 

1999), as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and related 

regulatory requirements. FRA has 

determined this proposed regulation is 

not a major FRA action (requiring the 

preparation of an environmental impact 

statement or environmental assessment) 

because it is categorically excluded from 

detailed environmental review pursuant 

to section 4(c)(20) of FRA’s Procedures. 

64 FR 28547–48. 

Under section 4(c) and (e) of FRA’s 

Procedures, the agency has further 

concluded no extraordinary 

circumstances exist with respect to this 

regulation that might trigger the need for 

a more detailed environmental review. 

Consequently, FRA finds this proposed 

regulation is not a major Federal action 

significantly affecting the quality of the 

human environment. 

Unfunded Mandates Reform Act of 1995 

Under Section 201 of the Unfunded 

Mandates Reform Act of 1995, 2 U.S.C. 

1531, each Federal agency ‘‘shall, unless 

otherwise prohibited by law, assess the 

effects of Federal regulatory actions on 

State, local, and tribal governments, and 

the private sector (other than to the 

extent that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act, 2 U.S.C. 

1532, further requires that before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in promulgation of any rule that 

includes any Federal mandate that may 

result in the expenditure by State, local, 

and tribal governments, in the aggregate, 

or by the private sector, of $100,000,000 

or more (adjusted annually for inflation) 

in any 1 year, and before promulgating 

any final rule for which a general notice 

of proposed rulemaking was published, 

the agency shall prepare a written 

statement detailing the effect on State, 

local, and tribal governments and the 

private sector. The proposed rule would 

not result in the expenditure, in the 

aggregate, of $100,000,000 or more in 

any one year (adjusted annually for 

inflation), and thus preparation of such 

a statement is not required. 

Privacy Act 

In accordance with 5 U.S.C. 553(c), 

DOT solicits comments from the public 

to better inform its rulemaking process. 

DOT posts these comments, without 

edit, to www.regulations.gov, as 

described in the system of records 

notice, DOT/ALL–14 FDMS, accessible 

through www.dot.gov/privacy. In order 

to facilitate comment tracking and 

response, we encourage commenters to 

provide their name, or the name of their 

organization; however, submission of 

names is completely optional. Whether 

or not commenters identify themselves, 

all timely comments will be fully 

considered. If you wish to provide 

comments containing proprietary or 

confidential information, please contact 

the agency for alternate submission 

instructions. 

List of Subjects in 49 CFR Part 210 

Noise control. 

The Proposed Rule 

For the reasons discussed in the 

preamble, FRA proposes to amend part 

210 of chapter II, subtitle B of title 49, 

Code of Federal Regulations, as follows: 

■ 1. The authority citation for part 210 

is revised to read as follows: 

Authority: Sec. 17, Pub. L. 92–574, 86 

Stat. 1234 (42 U.S.C. 4916); 49 CFR 1.89. 

§ 210.27 [Amended] 

■ 2. Amend § 210.27 by removing 

paragraph (d). 

Issued in Washington, DC. 

Ronald Louis Batory, 

Administrator. 

[FR Doc. 2018–14961 Filed 7–13–18; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 648, 660, and 679 

RIN 0648–XG338 

Request for Information on National 

Reform of Regional Observer Program 

Insurance Requirements 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notification; Request for 

Information (RFI). 

SUMMARY: NMFS requests information 

from the public to support a national 

initiative to reform and streamline 

observer program insurance 

requirements. The goals of this reform 

effort are to: ease the regulatory burden 

and reduce costs for private companies 

that provide observer staffing to NMFS 

observer programs through more 

efficient, nationally applicable 

insurance requirements; eliminate 

outdated and/or inappropriate 

regulatory requirements; reduce 

observer deployment risks for vessel 

owners and shore side processors; and 

identify insurance that could improve 

observer safety and facilitate full 

compensation for observer occupational 

injuries. To proceed with this effort, 

NMFS seeks technical information on 

the types of insurance and minimum 

coverage amounts (in dollars) that 


sradovich on DSK3GMQ082PROD with PROPOSALS
32830 Federal Register / Vol. 83, No. 136 / Monday, July 16, 2018 / Proposed Rules 

would minimize observer deployment 

risks to the extent practicable 

considering costs and other factors. 

Additionally, NMFS seeks public 

comment on Federal Employees 

Compensation Act (FECA) claims and 

benefits processing for observer 

occupational injuries and whether 

observer companies should carry private 

insurance to supplement FECA benefits 

for observers. 

DATES: Interested persons are invited to 

submit comments on or before 

September 14, 2018. 

ADDRESSES: You may submit written 

comments by any of the following 

methods: 

• Email: NMFS-HQ-ST.InsuranceReform@NOAA.GOV. Please include the 

subject heading of ‘‘Comments on 

Regional Observer Program RFI’’. 

Attachments to electronic comments 

will be accepted in Microsoft Word or 

Excel, or Adobe PDF formats only. 

• Mail: Dennis Hansford, 1315 East 

West Highway, Room 12506, Silver 

Spring, MD 20910. 

Instructions: Comments containing 

references, studies, research, and other 

empirical data that are not widely 

published should include copies or 

electronic links of the referenced 

materials. All submissions, including 

attachments and other supporting 

materials, will become part of the public 

record and subject to public disclosure. 

Sensitive personal information, such as 

account numbers or Social Security 

numbers, or names of individuals, 

should not be included. Submissions 

will not be edited to remove any 

identifying or contact information. Do 

not submit confidential business 

information, or otherwise sensitive or 

protected information. Comments that 

contain profanity, vulgarity, threats, or 

other inappropriate language will not be 

considered. 

FOR FURTHER INFORMATION CONTACT: 

Requests for additional information 

should be directed to Dennis Hansford, 

301–427–8136 or dennis.hansford@

noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Overview 

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 

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 ‘‘[r]equire 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). 

In 2016, 53 fisheries subject to 

management under an FMP or 

international authority were monitored 

by observer programs. To carry out 

required observer coverage, NMFS 

administers 14 observer programs that 

operate in the agency’s five regions. 

These programs train and deploy 

observers, establish information 

collection protocols, debrief observers 

following deployment to provide quality 

control on information that observers 

collect, and oversee private companies 

that provide program support. At 

present, all NMFS observer programs 

staff their at-sea and shore side observer 

deployments through private 

companies, commonly referred to as 

observer providers. Observer providers 

service NMFS regional observer 

programs under two distinct models: (1) 

Direct service, where the NMFS 

observer program contracts with an 

observer provider; and (2) industryfunded, where the observer provider 

contracts with industry to fulfill 

observer coverage requirements. Further 

information about NMFS’ regional 

observer programs is available at https:// 

www.fisheries.noaa.gov/topic/fisheryobservers. 

While observers most frequently are 

deployed under the MSA to collect 

information on fishing vessels, 

observers also are deployed on 

motherships, and shore side processing 

facilities. Additionally, NMFS’ regional 

observer programs deploy at-sea 

monitors, who collect only vessel catch 

information under ‘‘catch share 

programs,’’ which allocate a portion of 

a fishery total allowable catch to permit 

holders or sectors. For purposes of this 

RFI, the term ‘‘observer’’ refers to a 

person deployed in any of these roles. 

Observer Deployment Risks 

The 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, observer risk of occupational 

injury is on par with that of commercial 

fishermen. Observer programs also 

entail risks for observer employers— 

private companies—and the fishing 

vessels and shore side processors that 

are subject to observer coverage. The 

risks for the three parties include:— 

1. Observers—risk of occupational 

injury. 

2. Vessel owners and shore side 

processors—observer claims for 

compensation for incidents arising out 

of deployment, e.g., occupational injury. 

3. Private companies—observer 

claims for compensation for incidents 

arising out of deployment, e.g., 

occupational injury, and vessel/shore 

side processor owner claims for 

damages resulting from observer 

negligence. 

Insurance and statutory compensation 

programs are the traditional 

mechanisms to address the risks that 

private companies entail. However, the 

nuances of maritime law combined with 

the unique nature of the fishery observer 

occupation have complicated efforts to 

address observer risks, whether through 

insurance or statutory program. Since 

1994, Councils and NMFS have taken 

various efforts to resolve insurance 

issues for observer programs. These 

efforts have resulted in regulatory—or 

contract based—insurance requirements 

that 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 Worker’s 

Compensation Act 

• State Worker’s Compensation 

• Contractual General Liability 

• Marine General Liability 

• Commercial General Liability 

• Marine Employers Liability 

Regulatory based observer provider 

insurance requirements are codified at 

50 CFR 679.52(b)(11)(vi) (North Pacific 

Groundfish Observer Program), 50 CFR 

660.17(e)(vii) (West Coast Groundfish 

Observer Program), and 50 CFR 

648.11(h)(3) (Northeast Observer 

Program). 

In addition, Congress addressed 

compensation for observer occupational 

risks through the 1996 Sustainable 


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Federal Register / Vol. 83, No. 136 / Monday, July 16, 2018 / Proposed Rules 32831 

Fisheries Act (SFA). Public Law 104– 

297 (Oct. 11, 1996). Through that 

statute, Congress amended the MSA to 

deem observers to be federal employees 

for purposes of FECA while deployed 

on a vessel under the Act 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, 

but this extension is not applicable to 

shore side observers. 

NMFS Reevaluation of Observer 

Program Insurance Requirements 

Beginning in 2014, NMFS initiated a 

reevaluation of regional observer 

program insurance requirements. This 

effort included an Observer Provider 

Insurance Workshop in 2016 during 

which observer providers, insurance 

experts, and observers joined NMFS and 

representatives from other federal 

agencies to discuss the efficiency of 

observer provider insurance 

requirements and compensation for 

observer occupational injuries. 

Subsequent to the Insurance 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 

program insurance requirements and 

facilitate compensation for observer 

occupational injuries. As detailed in the 

Tech Report, some of the insurance 

policies that observer providers are 

required to have are inapplicable to 

observers or have limited applicability 

depending on whether the claim 

concerns an injury sustained at-sea or 

on shore. Furthermore, prior to the 

publication of the Tech Report, it was 

noted that other forms of insurance 

generally not required, such as a Marine 

General Liability policy, may better 

address certain observer company risks. 

In addition, NMFS has learned that, 

while FECA does provide coverage for 

observer at-sea injuries, the 

compensation formula under that Act 

does not provide for overtime pay. 

Because observers typically work 12–16 

hour shifts to correspond with fishing 

vessel crew shifts, they often do not 

receive full wage compensation for 

occupational injury claims under FECA. 

To address these issues, the Tech 

Report recommended that NMFS 

explore replacing regional insurance 

requirements with nationally applicable 

minimum insurance requirements. The 

goal of that action would be to 

streamline and improve the efficiency of 

regional observer provider insurance 

requirements, thereby resulting in 

reduced regulatory burden, cost savings, 

and a suite of insurance that better 

addresses observer deployment risks. 

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 risks that observer 

deployments present. NMFS issues this 

RFI to gather that information through 

the questions below. 

In addition, NMFS seeks public 

comment on the related issue of FECA 

compensation for observer occupational 

injuries and whether some form of 

private insurance could supplement 

FECA benefits. National inconsistencies 

with observer compensation for 

occupational injuries were noted not 

only in the Tech Report, but also in the 

Observer Program Safety Review (OPSR) 

Final Report, available at https://

www.fisheries.noaa.gov/resource/ 

document/observer-safety-programreview-report. The OPSR recommended 

that NMFS initiate action to improve the 

insurance scheme for compensation of 

observer occupational injuries. Through 

this notification, NMFS seeks 

information to respond to that 

recommendation and ways that 

insurance can improve observer safety. 

Request for Information 

To reform and streamline observer 

provider insurance requirements, and 

facilitate observer compensation for atsea occupational injuries under FECA, 

NMFS seeks public comment on the 

issues raised in this RFI and, in 

particular, on the following questions. 

See ADDRESSES for information on how 

to submit comments. 

1. What insurance policies and 

coverage amounts (in dollars) are 

appropriate to address observer 

deployment risks for: (a) Observers, (b) 

observer providers, and (c) owners of 

vessel and shore side processors and 

other observing platforms? 

2. If observer providers have different 

insurance requirements to cover the 

different contexts in which observers 

are deployed—at-sea and shore side, 

what would be the most feasible and 

efficient insurance package and 

associated dollar amounts for covering 

all of the various contexts? 

3. As an alternative to national 

minimum insurance requirements, 

would it be feasible, and more efficient, 

for observer providers to self-organize 

and self-insure? 

4. If an insurance policy for a Jones 

Act or General Maritime Law claim is 

required, acknowledging that courts in 

some jurisdictions have held that those 

claims are inapplicable to observers, 

might it be beneficial to continue the 

requirement? 

5. What gaps, if any, are there in 

FECA coverage for observer 

occupational injuries? For observers, 

what, if any, problems have you 

experienced with regard to claims and 

benefits for occupational injuries, 

whether under FECA, state worker’s 

compensation, or private insurance? 

6. If there are gaps in FECA coverage, 

is there a type of private insurance that 

could supplement FECA compensation 

for observer occupational injuries? 

7. What types of insurance could 

advance NMFS’ efforts to improve the 

safety of observer programs and reduce 

the occurrence of observer occupational 

injuries? 

8. To maximize efficiency of observer 

insurance requirements, should NMFS 

address the requirements regionally, 

through regional regulatory or 

contractual insurance requirements, or 

through nationally applicable minimum 

insurance standards? If a, what regional 

or national policies and dollar amounts 

of coverage would be appropriate? 

Dated: July 10, 2018. 

Edward C. Cyr, 

Director, Office of Science and Technology, 

National Marine Fisheries Service. 

[FR Doc. 2018–15057 Filed 7–13–18; 8:45 am] 

BILLING CODE 3510–22–P 


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