[Federal Register Volume 83, Number 136 (Monday, July 16, 2018)]
[Proposed Rules]
[Pages 32829-32831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15057]


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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).

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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nationally applicable insurance requirements; eliminate outdated and/or 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

[[Page 32830]]

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:
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#216f6c67720c69700c72750f684f525453404f42440c7344474e534c616f6e60600f666e77"><span class="__cf_email__" data-cfemail="145a595247395c453947403a5d7a676166757a7771394671727b6679545a5b55553a535b42">[email protected]</span></a>. 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.
    <bullet> 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 
<a href="/cdn-cgi/l/email-protection#dbbfbeb5b5b2a8f5b3bab5a8bdb4a9bf9bb5b4babaf5bcb4ad"><span class="__cf_email__" data-cfemail="7d19181313140e53151c130e1b120f193d13121c1c531a120b">[email protected]</span></a>.

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) industry-funded, 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/fishery-observers.
    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:

<bullet> Maritime liability to cover ``seamen's claims'' under the 
Merchant Marine Act (Jones Act) and General Maritime Law
<bullet> U.S. Longshore and Harbor Worker's Compensation Act
<bullet> State Worker's Compensation
<bullet> Contractual General Liability
<bullet> Marine General Liability
<bullet> Commercial General Liability
<bullet> 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

[[Page 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-program-review-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 at-sea 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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