AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

NMFS issues regulations to modify the medical and beneficiary transfer provisions of the Individual Fishing Quota (IFQ) Program for the fixed-gear commercial Pacific halibut and sablefish fisheries. This final rule is intended to simplify administration of the medical and beneficiary transfer provisions while promoting the long-standing objective of maintaining an owner-operated IFQ fishery. This final rule makes minor technical corrections to regulations for improved accuracy and clarity. This final rule is intended to promote the goals and objectives of the IFQ Program, the Magnuson-Stevens Fishery Conservation and Management Act, the Northern Pacific Halibut Act of 1982, and other applicable laws.

DATES:

This final rule is effective on March 16, 2020.

ADDRESSES:

Electronic copies of the Regulatory Impact Review (referred to as the “Analysis”) and the Categorical Exclusion prepared for this final rule may be obtained from https://www.regulations.gov or from the NMFS Alaska Region website at https://www.fisheries.noaa.gov/​region/​alaska.

FOR FURTHER INFORMATION CONTACT:

Stephanie Warpinski, 907-586-7228.

SUPPLEMENTARY INFORMATION:

NMFS published the proposed rule in the Federal Register on October 24, 2019 (84 FR 56998) with public comments invited through November 25, 2019.

The North Pacific Fishery Management Council (Council) recommended this final rule, which clarifies the administration of the IFQ Program medical transfer and beneficiary transfer provisions. These changes benefit IFQ Program participants, their beneficiaries, and NMFS by providing clear standards, reducing potential inconsistencies with other definitions used for other state or Federal programs, and reducing administrative costs and burdens associated with existing regulatory provisions.

The following background sections describe (1) the IFQ Program, (2) the IFQ medical transfer provision, (3) the IFQ beneficiary transfer provision, and (4) the appeals process. Additional detail is provided in the preamble to the proposed rule (84 FR 56998, October 24, 2019).

Background

The IFQ Program

The commercial halibut and sablefish fisheries in the GOA and the BSAI management areas are managed under the IFQ Program that was implemented in 1995 (58 FR 59375, November 9, 1993). The Council and NMFS developed the IFQ Program to resolve the conservation and management problems commonly associated with open access fisheries. The preamble to the proposed rule published on December 3, 1992 (57 FR 57130), describes the background issues leading to the Council's initial action recommending the adoption of the IFQ Program. Section 2.2 of the Analysis and the preamble of the proposed rule (see ADDRESSES) provide additional information on the sablefish and halibut IFQ Program.

The Council and NMFS created the provisions of the IFQ Program to support the conservation and management objectives of the Magnuson-Stevens Act and the Halibut Act while retaining the “owner-operator” character of the fishing fleets as much as possible.

Medical Transfer Provision

The IFQ Program includes a medical transfer provision that allows quota share (QS) holders of catcher vessel QS (referred to as class B, C, and D QS shares) who are not otherwise eligible to use a hired master to temporarily transfer (lease) their annual IFQ to another individual if the QS holder or an immediate family member has a temporary medical condition that precludes the QS holder from fishing (72 FR 44795, August 9, 2007). This provision allows QS holders with a temporary medical condition, or caring for an immediate family member with a medical condition, that would preclude the QS holder from fishing during a season, to transfer their annual IFQ to another qualified individual. In recommending this medical transfer provision, the Council and NMFS balanced the objective to limit long-term leasing of QS to promote an owner-onboard fishery with its recognition that a medical transfer provision would provide a mechanism for QS holders to retain their QS during bona fide medical hardships.

Prior to implementation of this provision in 2007, a QS holder with a medical condition was required to divest his or her QS or allow the IFQ to go unfished during years he or she could not be on board the vessel. Medical transfers were not intended to be a mechanism for persons unable or unwilling to participate in the fishery as an owner onboard to continue to receive economic benefits from their QS holdings, but were intended to address legitimate medical conditions that precluded participation (72 FR 44795, August 9, 2007).

To limit potential for repeated, long-term, or illegitimate use of the medical transfer provision, the current provisions: (1) Apply only to individuals who are not otherwise eligible to use hired masters; (2) apply only to IFQ derived from catcher vessel QS held by the applicant; (3) require certification by specific types of medical providers who must describe the condition (and the care required if caring for an immediate family member); (4) require verification of the inability of the QS holder to participate in IFQ fisheries; and (5) contain a use cap of two years in a five-year period.

Beneficiary Transfer Provision

In 1996, NMFS amended the IFQ Program regulations to allow for a temporary transfer of QS to surviving spouses of deceased QS holders (61 FR 41523, August 9, 1996). In 2000, a final rule (65 FR 78126, December 14, 2000) expanded the existing survivorship transfer provisions in 50 CFR 679.41(k) to include an immediate family member designated as a beneficiary to whom the survivorship transfer privileges would extend in the absence of a surviving spouse. This transfer is intended to benefit the surviving spouse, or an immediate family member designated by the QS holder, for a limited period of time.

To transfer QS under this beneficiary provision, the surviving spouse, or the designated beneficiary named on the QS/IFQ Beneficiary Designation Form by the QS holder, submits an Application for Transfer of QS/IFQ. These forms are processed by NMFS Restricted Access Management (RAM) Program.

NMFS may approve an application to transfer QS to the surviving spouse or designated beneficiary, unless a contrary intent is expressed by the decedent in a will and if sufficient evidence has been provided to verify the death of the individual. Legally, for purposes of transferring QS, a beneficiary identified in a will overrides any beneficiary designated on the form submitted to NMFS. NMFS allows the transfer of IFQ resulting from the QS transferred to the beneficiary by right of survivorship for a period of three years following the death of the QS holder. After the three-year period expires, the spouse or designated beneficiary must qualify to either hold the QS through eligibility criteria found at 50 CFR 679.41(d) or transfer the QS. Currently, the program allows the QS holder to designate a beneficiary that can either be the surviving spouse, or in the absence of a surviving spouse, an immediate family member.

Section 2.5.1 of the Analysis states that NMFS has received beneficiary transfer applications from persons who do not meet a commonly used definition of an immediate family member, which currently includes a person's parents, spouse, siblings, and children. This traditional definition for making determinations regarding transfer eligibility under the designated beneficiary transfer provision is narrower than many State and Federal beneficiary definitions currently applied in a variety of government programs. Since the current surviving regulations were implemented, the definition of immediate family has changed in many State and Federal jurisdictions and now includes other persons connected to a QS holder by birth, adoption, marriage, civil partnership, or cohabitation. NMFS and IFQ Program participants would benefit from clarifying this provision's applicability to those family members.

Appeals Process

If NMFS denies a transfer under the existing medical and beneficiary transfer provisions, a QS holder may appeal this denial through the National Appeals Office (NAO). If a claim is submitted that is inconsistent with the information required in regulations or if the transfer requested is beyond the number of years allowed, the QS holder would have the burden of proving that the submitted claim is correct. NMFS would not accept claims that are inconsistent with the official record, unless they are supported by clear, written documentation.

Prior to 2014, the procedure for appealing an initial administrative determination (IAD) was to submit the appeal directly to the NMFS's Alaska Office of Administrative Appeals. That process was described at § 679.43. However in 2014, NMFS centralized the appeals process to be located in the NAO, which operates out of NMFS's headquarters in Silver Spring, Maryland. That process is described at 15 CFR part 906 (79 FR 7056, February 6, 2014). The appeals process described at § 679.43 is no longer applicable given the regulatory changes made in 2014.

Final Rule

This section describes this rule, its effects on fishery participants and the environment, and the changes to current regulations at 50 CFR part 679. The Council recommended and NMFS approves the following changes to the medical and beneficiary transfer provisions of the IFQ Program.

Medical Transfer Provision

This final rule makes several changes to the medical transfer provision that include changes to: (1) Remove the definitions at § 679.2 for “Advanced nurse practitioner,” “Licensed medical doctor,” and “Primary community health aide;” and add a definition at § 679.2 for “Health care provider,” and (2) modify § 679.42(d)(2) to allow medical transfers for any medical condition and to allow the transfers to be used for three of the seven most recent years.

The first change removes definitions of specific types of medical professionals and includes a definition of a “Health care provider” at § 679.2. This change broadens the definition of who may attest to a medical condition of the QS holder, or his or her immediate family member, that precludes a QS holder from participating in the IFQ fisheries. This increases flexibility for a QS holder when selecting a health care provider for treatment and verifying the condition on the medical transfer application. Defining a certified medical professional is important because it sets the boundaries for who is allowed to attest that a QS holder is not physically able to fish his or her IFQ. This final rule broadens the current definition while limiting the persons to those who are licensed or certified by the state or country in which they practice. This final rule also allows health care providers outside the United States to sign the medical transfer form. NMFS expects that any expansion of the definition over the status quo would be beneficial to QS holders, or their immediate family member, who need medical care and would lead to less rejections of applications based solely on the specialty of the health care provider.

The second change to § 679.42(d)(2) applies to the medical transfer limits. This final rule extends the number of years a medical transfer could be used from two of the five most recent years to three of the seven most recent years, which increases flexibility for those who need it. A year is defined as a calendar year, which is how IFQ permits are currently issued. NMFS will begin to measure a seven-year period during the first calendar year that a medical transfer of IFQ is approved. After the third year a medical transfer is approved under the medical transfer provision, QS holders will not be able to transfer their IFQ for any medical condition for the remainder of the seven-year period that began the first calendar year the medical transfer of IFQ was approved. Section 2.4.4 of the Analysis and the preamble of the proposed rule provide additional detail on the range of years during which a medical transfer could apply and additional rationale for the provisions selected in this final rule.

This final rule also makes several minor revisions to § 679.42(d)(2) to implement these changes to the medical transfer provisions. This final rule removes the current regulatory requirements at § 679.42(d)(2)(iii)(F) that require that the application describe the medical condition affecting the applicant or applicant's immediate family member. This change reduces the requirement that medical information would need to be reviewed by NMFS staff. This final rule removes requirements at § 679.42(d)(2)(iii) that an applicant provide his or her social security number because such information is no longer required to process transfer applications. This final rule replaces references to “advanced nurse practitioner,” “licensed medical doctor,” and “primary community health aide” with “health care provider” at § 679.42.

These revisions apply only to medical transfers that are approved after the effective date of these regulations.

Beneficiary Transfer Provision

This final rule makes two changes to the beneficiary transfer provision to: (1) Define “immediate family member” at § 679.2; and (2) modify § 679.41 to add estate representative to the list of people who can receive IFQ held by the decedent for up to three years. These changes improve and simplify the process of approving beneficiary transfers without causing undue negative impacts on a QS holder's estate planning.

This final rule defines “immediate family member” in § 679.2 using a current definition established by the U.S. Office of Personnel Management (OPM) that is broader, providing greater flexibility to QS holders and their beneficiaries. The OPM definition is commonly used in Federal programs that provide benefits to immediate family members and includes persons connected to the QS holder by birth, adoption, marriage, civil partnership, or cohabitation, such as grandparents, great-grandparents, grandchildren, great-grandchildren, aunts, uncles, siblings-in-law, half-siblings, cousins, adopted children, step-parents/step-children, and cohabiting partners. Section 2.5.4 of the Analysis describes the range of definitions considered by the Council and NMFS and additional information on the rationale for the specific definition described in this rule.

This final rule modifies all references in § 679.41 to surviving spouse and immediate family member in regulation by adding the term “estate.” Without this change, the QS holder's estate would not be eligible to hold QS under the beneficiary transfer provision.

This final rule clarifies that an estate could receive QS, and the court-appointed estate representative for the QS holder's estate are authorized to use (if they are eligible to hold QS) or transfer the IFQ derived from the estate's QS for the benefit of the estate for a period of three years following the QS holder's death. NMFS will allow the estate representative to manage the use of the decedent's QS holdings by allowing the representative to transfer IFQ annually on behalf of the estate. If after three years the estate is not settled, the estate representative could determine whether the QS held by the estate should be sold and the proceeds retained by the estate, or the estate should continue to hold the QS. However, the estate would no longer be eligible to use the beneficiary transfer provisions to lease the annual IFQ. An estate representative is required to submit court-issued documents to demonstrate his or her eligibility to NMFS that they are legally representing the estate before they could use, permanently transfer, or temporarily transfer (lease) the IFQ. This addition provides clear and consistent eligibility criteria for NMFS to determine if a person is eligible to transfer QS held by the estate of the deceased QS holder as well as use or lease the IFQ derived from those QS holdings. For more information on the beneficiary transfer provisions, please see the preamble of the proposed rule.

Appeals Process and Other Additional Regulatory Changes

In addition to modifications to the medical and beneficiary transfer provisions and the revisions to the appeals process regulations, this final rule makes two minor regulatory clarifications. First, this final rule modifies regulations at § 679.42 to update the NOAA website URL and make minor technical corrections to remove unnecessary information collected such as Social Security numbers, number of IFQ units, and notary requirements. Second, this final rule modifies regulations at § 679.42(d)(2)(iii)(D) to add an additional way to describe “other method of compensation” to provide flexibility to industry who may use a percentage of the total revenue as compensation instead of price per pound when they conduct transfers under this provision.

Comments and Responses

NMFS received one comment letter and has summarized and responded to the comment below.

Comment 1: I do not support fishermen receiving any medical benefits. They are depleting fish stocks and destroying the marine ecosystem.

Response: This comment raises management issues that are beyond the scope of this regulatory action. This final rule does not modify the annual process for establishing annual catch limits, or other regulations that limit harvest to prevent overfishing. This final rule does not modify regulations that limit the amount or type of gear, or the location of fisheries in ways that would adversely affect marine ecosystems.

The IFQ Program does not provide medical benefits, such as health insurance, to participants. This provision was intended to provide a mechanism for QS holders with a temporary medical condition, or caring for an immediate family member with a medical condition, that would preclude the QS holder from fishing during a season to transfer their annual IFQ to another qualified individual. In recommending this medical transfer provision, the Council and NMFS balanced the objective to limit long-term leasing of QS to promote an owner-onboard fishery with its recognition that a medical transfer provision would provide a mechanism for QS holders to retain their QS during medical hardships.

Changes From Proposed to Final Rule

There were no changes from the proposed to final rule.

Classification

The NMFS Alaska Region Administrator determined that this final rule is necessary for the conservation and management of the IFQ sablefish and halibut fishery off Alaska and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act, the Halibut Act, and other applicable laws.

Regulations governing the U.S. fisheries for Pacific halibut are developed by the IPHC, the Pacific Fishery Management Council, the Council, and the Secretary. Section 5(c) of the Halibut Act allows the Regional Council having authority for a particular geographical area to develop regulations governing the allocation and catch of halibut in U.S. Convention waters as long as those regulations do not conflict with IPHC regulations (16 U.S.C. 773c(c)). This final rule is consistent with the Council's authority to allocate halibut catches among fishery participants in the waters in and off Alaska. The Halibut Act provides the Secretary with the general responsibility to carry out the Convention with the authority to, in consultation with the Secretary of the department in which the U.S. Coast Guard is operating, adopt such regulations as may be necessary to carry out the purposes and objectives of the Convention and the Halibut Act (16 U.S.C. 773c(a) and (b)). This final rule is consistent with the Halibut Act and other applicable laws.

This final rule has been determined to be not significant for the purposes of Executive Order 12866.

This final rule is considered an Executive Order 13771 deregulatory action. NMFS estimates that this rulemaking may result in cost savings to the industry and NMFS through an increase in flexibility and streamlined reporting requirements for participants who voluntarily chose to use these provisions. However, these cost savings cannot be quantified because NMFS does not know how many participants would benefit from the revised transfer provisions included in this rule and cannot associate a dollar amount with these benefits. This rule streamlines the NMFS administrative process to review and approve IFQ transfer applications. Any annual cost savings are expected to be small, however, because the time it will take to process each application is still expected to vary but will be overall less complicated.

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, NMFS included on its website a summary of compliance requirements that serves as the small entity compliance guide. Additionally, NMFS will engage in outreach with regulated entities regarding the compliance requirements. Copies of this final rule are available from NMFS at the following website: https://www.fisheries.noaa.gov/​region/​alaska.

Final Regulatory Flexibility Analysis (FRFA)

This final regulatory flexibility analysis (FRFA) incorporates the Initial Regulatory Flexibility Analysis (IRFA), a summary of any significant issues raised by the public comments in response to the IRFA, NMFS's responses to those comments, and a summary of the analyses completed to support the final rule.

Section 604 of the Regulatory Flexibility Act (RFA) requires that, when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code (5 U.S.C. 553), after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency shall prepare a FRFA (5 U.S.C. 604). Section 604 describes the required contents of a FRFA: (1) A statement of the need for and objectives of the rule; (2) a statement of the significant issues raised by the public comments in response to the IRFA, a statement of the assessment of the agency of such issues, and a statement of any changes made to the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping, and other compliance requirements of the rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in this final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

A description of this final rule and the need for and objectives of this rule are contained in the preamble to this final rule and the preamble to the proposed rule (84 FR 56998, October 24, 2019), and are not repeated here.

Public and Chief Counsel for Advocacy Comments on the IRFA

An IRFA was prepared in the Classification section of the preamble to the proposed rule. The Chief Counsel for Advocacy of the SBA did not file any comments on the proposed rule. NMFS received no comments relating to the IRFA.

Number and Description of Small Entities Regulated by This Final Rule

QS holders that fish catcher vessel QS (B, C, and D class QS) are assumed to be directly regulated by this action. Section 2.9 of the Analysis assumes that all halibut and sablefish QS operations are small for RFA purposes. In 2018, there were 2,418 QS holders that held class B, C, or D QS in the halibut and sablefish IFQ fisheries who could be impacted by this action. All of those QS holders are considered to be small entities using the SBA small entity criteria for harvest on catcher vessels.

Recordkeeping, Reporting, and Other Compliance Requirements

This final rule modifies the recordkeeping, reporting, and other compliance requirements for QS holders who use the medical transfer provision and beneficiary designation form. NMFS does not anticipate that these requirements would increase.

This final rule would not require NMFS to interpret the medical condition that prevents a QS holder from harvesting their IFQ. Instead, NMFS would apply a hard limit to the number of times the provision can be used.

Currently, NMFS provides QS holders an optional Beneficiary Designation form to designate a beneficiary to transfer IFQ under this provision. NMFS may approve an application to transfer QS to the surviving spouse or designated beneficiary, unless a contrary intent is expressed by the decedent in a will and if sufficient evidence has been provided to verify the death of the individual.

Description of Significant Alternatives Considered to the Final Action That Minimize Adverse Impacts on Small Entities

Both the medical transfer provision and the beneficiary transfer provision are voluntary and are expected to be used by QS holders only if they or their beneficiaries find them beneficial. The Council and NMFS considered requirements that would have imposed larger costs on directly regulated small entities through increased administrative costs. Ultimately, the Council and NMFS rejected options that would have led to an increase in costs that exceeded the marginal potential benefits that the option could have had. Several options that were rejected would have increased the cost to program and monitor for minimal benefit to participants. Therefore, this final rule meets the objectives of the final rule while minimizing adverse impacts on IFQ Program participants.

Collection-of-Information Requirements

This final rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). NMFS has submitted these requirements to OMB for approval under Control Number 0648-0272.

The public reporting burden per response is estimated to average 1.5 hours for the Application for Medical Transfer of IFQ and 30 minutes for the QS/IFQ Beneficiary Designation Form. The response time includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to penalty for failure to comply with, a collection of information subject to the requirement of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: https://www.reginfo.gov/​public/​do/​PRASearch#.

List of Subjects in 50 CFR Part 679

• Alaska
• Fisheries
• Reporting and recordkeeping requirements

For the reasons set out in the preamble, 50 CFR part 679 is amended as follows:

PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA

1. 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.

2. Amend § 679.2 by:

a. Removing the definition for “Advanced nurse practitioner;”

b. Adding definitions in alphabetical order for “Health care provider” and “Immediate family member;” and

c. Removing the definitions for “Licensed medical doctor” and “Primary community health aide.”

The additions read as follows:

3. In § 679.41, revise paragraphs (k)(1) and (3) to read as follows:

4. Amend § 679.42 by:

a. Removing in paragraph (d)(2)(iii) introductory text, the website http://alaskafisheries.noaa.gov and adding in its place https://alaskafisheries.noaa.gov/​region/​alaska;​

b. Revising paragraphs (d)(2)(iii)(A) through (D), (F), and (G);

c. Removing paragraph (d)(2)(iii)(H);

d. Adding “and” at the end of paragraph (d)(2)(iv)(B); and

e. Revising paragraph (d)(2)(iv)(C).

The revisions read as follows:

4. In § 679.43, revise paragraph (c) to read as follows: