[Federal Register Volume 84, Number 206 (Thursday, October 24, 2019)]
[Proposed Rules]
[Pages 56991-56998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-23028]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 679
[Docket No.: 191016-0065]
RIN 0648-BJ07
Fisheries of the Exclusive Economic Zone off Alaska; IFQ Program;
Modify Medical and Beneficiary Transfer Provisions
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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SUMMARY: NMFS proposes 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 proposed 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 proposed rule would also make minor technical corrections to
regulations for improved accuracy and clarity. This proposed 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: Submit comments on or before November 25, 2019.
ADDRESSES: You may submit comments, identified by docket number NOAA-
NMFS-2019-0069, either of the following methods:
Electronic Submission: Submit all electronic public
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2019-0069, click the ``Comment Now!'' icon,
complete the required fields, and enter or attach your comments.
Mail: Submit written comments to Glenn Merrill, Assistant
Regional Administrator, Sustainable Fisheries Division, Alaska Region
NMFS, Attn: Records Office. Mail comments to P.O. Box 21668, Juneau, AK
99802-1668.
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), 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).
Electronic copies of the Regulatory Impact Review (referred to as
the ``Analysis'') and the Categorical Exclusion prepared for this
proposed rule are available from http://www.regulations.gov.
Written comments regarding the burden-hour estimates or other
aspects of the collection-of-information requirements contained in this
proposed rule may be submitted by mail to NMFS at the above address; by
email to [email protected]; or by fax to (202) 395-5806.
FOR FURTHER INFORMATION CONTACT: Stephanie Warpinski, 907-586-7228.
SUPPLEMENTARY INFORMATION:
Authority for Action
NMFS manages the groundfish fisheries in the exclusive economic
zone off Alaska under the Fishery Management Plan (FMP) for Groundfish
of the Gulf of Alaska (GOA) and under the FMP for Groundfish of the
Bering Sea and Aleutian Islands Management Area (BSAI). The North
Pacific Fishery Management Council (Council) prepared the FMPs under
the authority of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq.
Regulations governing U.S. fisheries and implementing the FMPs appear
at 50 CFR parts 600 and 679.
The International Pacific Halibut Commission (IPHC) and NMFS manage
fishing for Pacific halibut through regulations established under the
authority of the Northern Pacific Halibut Act of 1982 (Halibut Act).
The IPHC promulgates regulations governing the halibut fishery under
the Convention between the United States and Canada for the
Preservation of the Halibut Fishery of the Northern Pacific Ocean and
Bering Sea (Convention). The IPHC's regulations are subject to
[[Page 56992]]
approval by the Secretary of State with concurrence of the Secretary of
Commerce (Secretary). NMFS publishes the IPHC's regulations as annual
management measures pursuant to 50 CFR 300.62.
The Halibut Act, at sections 773c(a) and (b), provides the
Secretary with general responsibility to carry out the Convention and
the Halibut Act. In adopting regulations that may be necessary to carry
out the purposes and objectives of the Convention and the Halibut Act,
the Secretary is directed to consult with the Secretary of the
department in which the U.S. Coast Guard is operating, currently the
Department of Homeland Security.
The Halibut Act, at section 773c(c), also provides the Council with
authority to develop regulations, including limited access regulations,
that are in addition to, and not in conflict with, approved IPHC
regulations. Regulations developed by the Council may be implemented by
NMFS only after approval by the Secretary. The Council has exercised
this authority in the development of subsistence halibut fishery
management measures, codified at 50 CFR 300.65, and the limited access
program for charter operators in the charter fishery, codified at 50
CFR 300.67. The Council also developed the IFQ Program for the
commercial halibut and sablefish fisheries, codified at 50 CFR part
679, under the authority of section 773c of the Halibut Act and section
303(b) of the Magnuson-Stevens Act (16 U.S.C. 1801 et seq.).
Background
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.
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.
The IFQ Program limits access to the halibut and sablefish
fisheries to those persons holding quota share (QS) in specific
management areas. The IFQ Program allocates QS annually, and each year
that QS yields an exclusive harvest privilege, an annual IFQ permit,
among participants in the fixed gear commercial fishery. An IFQ permit
is expressed in pounds and is based on the amount of QS held in
relation to the total QS pool. Each year, NMFS issues IFQ to each QS
holder to harvest a specific percentage of either the total allowable
catch (TAC) in the sablefish fishery or the annual commercial catch
limit in the halibut fishery. In addition to being specific to
sablefish or halibut, QS and IFQ are designated for specific geographic
areas of harvest (commonly known as regulatory areas), a specific
vessel operation type (catcher vessel or catcher/processor), and for a
specific range of vessel sizes that may be used to harvest the
sablefish or halibut (vessel category). Section 2.2 of the Analysis
(see ADDRESSES) provides additional information on the sablefish and
halibut IFQ Program.
The Council and NMFS designed the IFQ Program to provide economic
stability to the commercial halibut and sablefish fisheries and retain
the character and distribution of the fishing fleets as much as
possible. The IFQ Program includes several provisions, such as
ownership caps and vessel use caps, to protect rural coastal community
participants, part-time participants, and entry-level participants that
could be adversely affected by excessive consolidation. The IFQ Program
also includes other restrictions intended to slow consolidation of QS
and prevent the fishery from being dominated by large vessels or by any
particular vessel class.
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. The three main
exceptions to the owner-operator requirement are for initial issuees of
QS to be able to use hired masters to fish the IFQ resulting from their
QS; a medical transfer provision that allows QS holders with approved
medical conditions to use hired masters for the IFQ derived from their
QS if they are not able to harvest their own IFQ; and a beneficiary
transfer provision that provides for temporary annual transfers of IFQ
to a hired master for up to three years after a QS holder's death.
Since implementation of the IFQ Program, the Council has recommended
and NMFS has implemented many amendments to revise the IFQ Program to
maintain the owner-operator character of the IFQ fishery. This proposed
rule would not modify existing regulations that apply to initial
issuances of QS, but would modify the medical and beneficiary transfer
provisions.
Medical Transfer Provision
The IFQ Program currently includes a medical transfer provision
that allows 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
(i.e., persons who are not initial issuees of QS) 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 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 bona fide medical hardships.
Prior to implementation of this provision in 2007, a QS holder with
a medical condition was required to divest of his or her QS or allow
his or her 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 provision's application is
limited (1) to individuals who are not otherwise eligible to use hired
masters; (2) to IFQ derived from catcher vessel QS held by the
applicant; (3) to include a requirement for certification by specific
types of medical providers who must describe the condition (and the
care required if caring for a immediate family member); (4) to require
verification of the inability of the QS holder to participate in IFQ
fisheries; and (5) a use cap of 2 years in a 5-year period.
[[Page 56993]]
An applicant for a temporary medical transfer must document the QS
holder's, or immediate family member's, medical condition by submitting
an affidavit to NMFS from a licensed medical doctor, an advanced nurse
practitioner, or a primary community health aide, that describes the
medical condition affecting the applicant (or applicant's immediate
family member) that prevents participation in the fishery for the
calendar year. In the case of an immediate family member's medical
emergency, the affidavit must describe the necessity for the QS holder
to care for an immediate family member who suffers from the medical
condition. The QS holder must resubmit the application on an annual
basis if his or her medical condition, or that of an immediate family
member, continues.
Beneficiary Transfer Provision
The beneficiary transfer provision allows for temporary annual
transfers of catcher vessel IFQ to be approved for up to three years
after the QS holder's death. 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 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. Typically, NMFS requires a copy
of the death certificate and the decedent's will to accompany a QS
transfer. 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 3-year
period expires, the spouse or designated beneficiary must either
qualify to hold the QS 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.
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.
NMFS issues an initial administrative determination (IAD) on behalf
of the Regional Administrator to deny a medical or beneficiary
transfer. If this happens, a QS holder may file an appeal. Prior to
2014, the procedure for appealing an IAD was to submit the appeal
directly to the NMFS's Alaska Office of Administrative Appeals and was
described at Sec. 679.43. However, NMFS centralized the appeals
process to be located in the National Appeals Office (NAO), which
operates out of NMFS's headquarters in Silver Spring, Maryland as
described at 15 CFR part 906 (79 FR 7056, February 6, 2014).
Need for This Proposed Rule
As part of the 20-year review of the IFQ Program conducted in 2016,
NMFS identified several problems administering the medical and
beneficiary transfer provisions discussed in Section 1.3 of the
Analysis. Challenges with administering the medical transfer provision
include: (1) The current definition of a ``certified medical
professional'' does not include commonly used medical care providers
such as chiropractors or providers located outside of the United
States, and (2) difficulties enforcing the limitation on the use of the
medical transfer provisions to two years of the previous five years for
the same medical condition.
Section 2.4.1 of the Analysis indicates that NMFS regularly
receives medical transfer applications that include attestations from
health care providers such as chiropractors or from health care
providers located outside of the United States. Because these persons
may not meet the current definition of a ``certified medical
professional'' as defined in regulation, NMFS has to review these
claims and make evaluations of the credentials of the professional
qualifications. This review increases administrative costs and
uncertainty for medical transfer applicants.
As noted earlier in this preamble, the medical transfer provisions
were intended for limited medical conditions and not to address long-
term chronic conditions. Section 2.4.1 of the Analysis indicates that
some QS holders have used the medical transfer provision for the
majority or all of the years during which medical leasing has been
allowed. The repetitive use of the provision may indicate that a select
group of shareholders is using it as a means of bypassing the owner-on-
board provision altogether. Furthermore, some QS holders may be using
the medical lease provision for chronic conditions, from which recovery
is unlikely, although the provision was intended to provide relief from
fishing for IFQ participants in emergency hardship situations.
Challenges with the beneficiary transfer provision include the lack of
a regulatory definition of an ``immediate family member'' and the fact
that an estate is not listed in regulations as a representative that is
eligible to receive IFQ held by the decedent.
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 generally
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 heir 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 clarification for this
provision's administration. NMFS has received requests from QS holders
and their beneficiaries to clearly define immediate family member.
Section 2.5.1 of the Analysis states that NMFS regularly receives
QS transfer requests from a decedent's
[[Page 56994]]
estate representative. However, regulations do not currently authorize
a QS holder's estate to apply to transfer the associated IFQ resulting
from a decedent's QS. This can create additional challenges when
attempting to resolve the distribution of assets and can limit an
heir's ability to receive the benefits from a decedent's QS.
This proposed rule would clarify the administration of the medical
transfer and beneficiary transfer provisions. The proposed changes
would benefit both 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.
Proposed Rule
This section describes this proposed rule, its anticipated effects
on fishery participants and the environment, and the proposed changes
to current regulations at 50 CFR part 679. The Council recommended and
NMFS proposes the following changes to the medical and beneficiary
transfer provisions of the IFQ Program.
Medical Transfer Provision
This proposed rule would make several changes to the medical
transfer provision that include changes to: (1) Remove the definitions
for ``Advanced nurse practitioner,'' ``Licensed medical doctor,'' and
``Primary community health aide;'' and add the definition for ``Health
care provider,'' and (2) modify Sec. 679.42(d)(2) to allow medical
transfers for any medical condition and to allow the transfers to be
used for 3 of 7 most recent years.
The first proposed change would broaden 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 to include a broad range of health care providers. This would
increase 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
proposed rule would broaden the current definition while limiting the
persons to those who are licensed or certified by the state or country
in which they practice. The current definition prohibits commonly used
licensed medical providers, such as chiropractors, from attesting to
medical conditions they treat. This creates an additional
administrative burden for NMFS and the person seeking the medical
transfer as credentials have to be evaluated and reviewed. This
proposed rule also would allow 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 proposed change would remove the administrative step for
NMFS staff to differentiate medical conditions and reduce the
information required to be submitted to process a medical transfer
application. This provision would apply the medical transfer limits
such that a QS holder could only use the medical transfer provision
during 3 of the 7 most recent years. This provision would not require
NMFS staff to verify the nature of a specific medical condition and
whether it is materially different from other medical claims, but only
to verify that a medical condition exists and to apply the transfer
provisions for a specific period of time. NMFS would apply this
provision to applications of medical transfers that are received after
the effective date of this rule, if approved.
The Council recommended, and NMFS proposes, extending the number of
years a medical transfer could be used from 2 of the 5 most recent
years to 3 of the 7 most recent years, which would increase flexibility
for those who need it. A year is defined as a calendar year, which is
how IFQ permits are currently issued. Under the proposed revision, NMFS
would begin to measure a 7-year period that would begin 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 would not be able to transfer their IFQ
for any medical condition for the remainder of the 7-year period that
began the first calendar year the medical transfer of IFQ was approved.
Section 2.4.4 of the Analysis provides additional detail on the range
of years during which a medical transfer could apply and additional
rationale for the provisions selected in this proposed rule.
Any time the medical transfer is used by a QS holder during a year
it counts as one year of usage, regardless of the portion of the QS
holdings the person transferred. NMFS would implement this provision in
this manner because the intent of the medical transfer provision is to
provide a benefit for a person based on that person's medical condition
and is not intended to apply to specific QS units. In most cases, NMFS
anticipates that a person seeking a medical transfer will seek to
transfer all of the QS that they hold after a medical condition
requires transfer. However, if a person does not transfer all of his or
her QS during a year, NMFS would still count the first year that any
medical transfer of any QS occurs as the first year of the transfer.
For example, if a QS holder held QS in two regulatory areas (e.g.,
halibut regulatory Area 2C and Area 3A) and only used the medical lease
provision for the QS in one regulatory area (e.g., Area 2C) it would
count as one year the medical transfer was used for all QS holdings.
Only medical transfers that occur after the effective date of the final
rule would count towards the limit. All IFQ participants currently
using the medical transfer provision would be able to use all 3 of the
7 most recent years after this final rule's effective date, if
approved, regardless of how many years they have used it prior to rule
implementation.
This proposed rule would remove the current regulatory requirements
at Sec. 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 proposed change would reduce the
requirement that medical information would need to be reviewed by NMFS
staff because it would no longer be required to review a medical
transfer. Instead, the applicant would be only required to submit a
statement of the condition affecting the applicant or the applicant's
immediate family member. NMFS staff would still review all applications
to ensure they are filled out entirely with the correct documentation.
This proposed rule would also remove requirements at Sec.
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 proposed rule would also update associated cross references at
Sec. 679.42 to ``Advanced nurse practitioner,'' ``Licensed medical
doctor,'' and ``Primary community health aide;'' to ``Health care
provider.''
When considering this issue, the Council recommended, and NMFS
proposes, that it would be appropriate to only count transfers that are
approved after the effective date of these proposed regulations. This
would treat all QS
[[Page 56995]]
holders the same should the new regulations be implemented. Counting
medical transfers that have already been approved could eliminate the
ability of some QS holders to be eligible to use the provision in the
near future.
Beneficiary Transfer Provision
This proposed rule would make two changes to the beneficiary
transfer provision to: (1) Define ``immediate family member'' at Sec.
679.2; and (2) modify Sec. 679.41 to add estate representative to the
list of people to receive IFQ held by the decedent for up to three
years. These changes would improve and simplify the process of
approving beneficiary transfers without causing undue negative impacts
on a QS holder's estate planning.
This proposed rule would define ``immediate family member'' using a
current definition established by the U.S. Office of Personnel
Management (OPM) that includes a more current definition of the range
of relationship that comprise an immediate family member and provides
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 would include 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 proposed in
this rule.
This proposed rule would also modify all references 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 proposed rule would clarify that an estate could receive QS,
and the court-appointed estate representative for the QS holder's
estate would be 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 would 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. Including the estate representative
in the list of successive beneficiaries (spouse, immediate family
member) would not impact the existing order of priority. In the
instance where the decedent has not explicitly appointed an estate
representative in his or her will, for example, most states have an
order of priority for appointment of the representative of the estate.
An estate representative would be 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 would
provide 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. Allowing the estate to receive the QS for the purpose of
this regulation supersedes the requirement that a QS holder must have
designated an immediate family member with NMFS.
Adding the QS holder's estate representative to the list of current
beneficiaries eligible to receive IFQ after a QS holder's death would
have minimal impact on existing wills and would have a positive impact
on future beneficiary transfers of IFQ and QS. The 3-year transfer
period of IFQ would extend to the estate representative.
As part of this proposed rule, the Council and NMFS conducted an
analysis that assessed the potential impacts on persons currently
using, and who could potentially use, medical and beneficiary transfer
provisions (see ADDRESSES). Overall, the impact on persons using
existing medical transfer provisions would be limited since this
proposed rule would not apply to medical transfer provisions that have
been approved. This proposed rule could reduce the overall use of
medical transfers in the limited cases when a person has consistently
applied for and received consecutive medical transfer provisions
(Section 2.4.1 of the Analysis). As noted in this preamble and in the
preamble to the final rule that implemented the medical transfer
provision (72 FR 44795, August 9, 2007), the medical transfer
provisions were not intended to provide continuous opportunities to
transfer QS. The impacts of this proposed action on communities and
processors were evaluated in Sections 2.4.3.1 and 2.5.3 of Analysis and
found to be negligible.
This proposed rule is unlikely to negatively impact existing or
future QS holders and their beneficiaries. QS holders and their future
beneficiaries could benefit from improved clarity of the regulations
implementing this administrative provision. Upon implementation, NMFS
would conduct outreach to QS holders to increase awareness of the
beneficiary process (Section 2.5.4 of the Analysis).
Additional Regulatory Changes
In addition to modifications to the medical and beneficiary
transfer provisions, this proposed rule would make several minor
regulatory clarifications. First, this proposed rule would modify
regulations at Sec. 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. This proposed rule would add an additional way to
describe ``other methods 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 transfer under this provision.
Second, this proposed rule would update regulations at Sec. 679.43
to correctly cite the current process required to submit an appeal.
This would accurately reflect the current process for submission of
appeals to the National Appeals Office. The previous regulatory
procedure for appealing an IAD to the NMFS's Alaska Office of
Administrative Appeals was described at Sec. 679.43. Since 2014, all
appeals are processed in the National Appeals Office, which operates
out of NMFS's headquarters in Silver Spring, MD and is described at 15
CFR part 906 (79 FR 7056, February 6, 2014). This proposed revision
would not materially change the process that is currently used to
submit appeals.
Classification
Pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens
Act, the NMFS Assistant Administrator has determined that this proposed
rule is consistent with the BSAI and GOA FMPs, other provisions of the
Magnuson-Stevens Act, the Halibut Act, and other applicable law,
subject to further consideration after public comment.
Regulations governing the U.S. fisheries for Pacific halibut are
developed by the IPHC, the Pacific Fishery Management Council, the
North
[[Page 56996]]
Pacific Fishery Management Council (Council), and the Secretary of
Commerce. Section 5 of the Northern Pacific Halibut Act of 1982
(Halibut Act, 16 U.S.C. 773c) 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
which are in addition to, and not in conflict with, IPHC regulations.
The Halibut Act, at sections 773c(a) and (b), provides the
Secretary of Commerce 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. This proposed rule
has been determined to be not significant for the purposes of Executive
Order 12866.
An RIR was prepared to assess costs and benefits of available
regulatory alternatives. A copy of this analysis is available from NMFS
(see ADDRESSES). The Council recommended and NMFS proposes these
regulations based on those measures that maximize net benefits to the
Nation. Specific aspects of the economic analysis are discussed below
in the Initial Regulatory Flexibility Analysis section.
Initial Regulatory Flexibility Analysis
This Initial Regulatory Flexibility Analysis (IRFA) was prepared
for this action, as required by Section 603 of the Regulatory
Flexibility Act (RFA) to describe the economic impact this proposed
rule, if adopted, would have on small entities. The IRFA describes the
action; the reasons why this action is proposed; the objectives and
legal basis for this proposed rule; the number and description of
directly regulated small entities to which this proposed rule would
apply; the recordkeeping, reporting, and other compliance requirements
of this proposed rule; and the relevant Federal rules that may
duplicate, overlap, or conflict with this proposed rule. The IRFA also
describes significant alternatives to this proposed rule that would
accomplish the stated objectives of the Magnuson-Stevens Act, and any
other applicable statutes, and that would minimize any significant
economic impact of this proposed rule on small entities. The
description of the proposed action, its purpose, and the legal basis
are explained in the preamble and are not repeated here.
For RFA purposes only, NMFS has established a small business size
standard for businesses, including their affiliates, whose primary
industry is commercial fishing (see 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 its
affiliated operations worldwide.
Number and Description of Small Entities Regulated by This Proposed
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. The number of entities that held B, C, or D class QS
in 2018 are all assumed to be small entities because this action
impacts all QS holders, regardless of whether they own a vessel or not.
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,
regardless of whether they have a vessel or actively fish their QS.
Description of Significant Alternatives That Minimize Adverse Impacts
on Small Entities
Sections 2.4 and 2.5 of the Analysis describe the estimated impacts
on these entities. The medical transfer provisions would in general
benefit the majority of QS holders as would the proposed changes to the
designated beneficiary provision. The proposed change that NMFS
anticipates to have the greatest, potential negative impact on certain
QS holders is the limit on the number of medical transfers. Section
2.4.1 of the Analysis notes that only a small number of QS holders have
consistently used the medical transfer provisions and NMFS expects only
a limited number of persons to be impacted by this proposed rule. This
proposed rule would provide additional flexibility for the majority of
small entities directly regulated by this proposed rule by increasing
the number of years that the medical transfer can be used from 2 of 5
years to 3 of 7 years, and broadening the scope of health care
professionals that can attest to a medical condition. In addition, NMFS
would apply this provision only to medical transfer applications that
are received after the effective date of this proposed rule. Therefore,
this proposed rule would not be expected to impact those QS holders
that are currently using medical transfer provisions, and would be
expected to increase the number of years that a medical transfer
provision may be used for all QS holders after the effective date of
this rule. The proposed revisions to the beneficiary transfer provision
would improve the process to transfer IFQ to beneficiaries, which
should have a benefit for small entities.
There are no significant alternatives to this proposed rule that
would accomplish the objectives to modify the medical and beneficiary
transfers and minimize adverse economic impacts on small entities. The
Council considered several alternatives not recommended for the medical
and beneficiary provisions of the IFQ Program. These additional
alternatives are not included in this proposed rule because they did
not meet the Council's objectives and were not recommended (See
sections 2.4.2.2 and 2.5.2.2 in the Analysis for more detail).
Duplicate, Overlapping, or Conflicting Federal Rules
NMFS has not identified any duplication, overlap, or conflict
between this proposed action and existing Federal rules.
Recordkeeping, Reporting, and Other Compliance Requirements
This proposed 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.
Currently, a QS holder who submits an application for a temporary
medical transfer must submit an affidavit to NMFS from a licensed
medical doctor, an advanced nurse practitioner, or a primary community
health aide that describes the medical condition affecting the
applicant or the applicant's immediate family member that prevents the
QS holder's participation in the fishery for the calendar year. This
proposed rule would not require QS holders to disclose their
confidential medical condition and would improve administration of the
form by eliminating some information required on the previous form.
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
[[Page 56997]]
death of the individual. Typically, NMFS requires the death certificate
and the will to accompany a QS transfer to a beneficiary.
Collection-of-Information Requirements
This proposed 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.
Public comment is sought regarding whether these proposed
collections of information are necessary for the proper performance of
the functions of the agency, including whether the information shall
have practical utility; the accuracy of the burden estimate; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways to minimize the burden of the collections of
information, including through the use of automated collection
techniques or other forms of information technology. Send comments on
these or any other aspects of the collections of information to NMFS
(see ADDRESSES), and by email to [email protected] or fax to
202-395-5806.
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: http://www.cio.noaa.gov/services_programs/prasubs.html.
List of Subjects in 50 CFR Part 679
Alaska, Fisheries, Reporting and recordkeeping requirements.
Dated: October 17, 2019.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, 50 CFR part 679 is
proposed to be amended as follows:
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
0
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.
0
2. Amend Sec. 679.2 by:
0
a. Removing the definitions for ``Advanced nurse practitioner,''
``Licensed medical doctor,'' and ``Primary community health aide;'' and
0
b. Adding the definitions in alphabetical order for ``Health care
provider'' and ``Immediate family member''.
The additions read as follows:
Sec. 679.2 Definitions.
* * * * *
Health care provider means an individual licensed to provide health
care services by the state where he or she practices and performs
within the scope of his or her specialty to diagnose and treat medical
conditions as defined by applicable Federal, state, or local laws and
regulations. A health care provider located outside of the United
States and its territories who is licensed to practice medicine by the
applicable medical authorities is included in this definition.
* * * * *
Immediate family member includes an individual with any of the
following relationships to the QS holder:
(1) Spouse, and parents thereof;
(2) Sons and daughters, and spouses thereof;
(3) Parents, and spouses thereof;
(4) Brothers and sisters, and spouses thereof;
(5) Grandparents and grandchildren, and spouses thereof;
(6) Domestic partner and parents thereof, including domestic
partners of any individual in 1 through 5 of this definition; and
(7) Any individual related by blood or affinity whose close
association with the QS holder is the equivalent of a family
relationship.
* * * * *
0
3. In Sec. 679.41, revise paragraphs (k)(1), and (3) to read as
follows:
Sec. 679.41 Transfer of quota shares and IFQ.
* * * * *
(k) * * *
(1) On the death of an individual who holds QS or IFQ, the
surviving spouse or, in the absence of a surviving spouse, a
beneficiary designated pursuant to paragraph (k)(2) of this section or
the estate representative, receives all QS and IFQ held by the decedent
by right of survivorship, unless a contrary intent was expressed by the
decedent in a will. The Regional Administrator will approve an
Application for Transfer to the surviving spouse, designated
beneficiary, or estate representative when sufficient evidence has been
provided to verify the death of the individual.
(2) * * *
(3) The Regional Administrator will approve an Application for
Transfer of IFQ for a period of 3 calendar years following the date of
death of an individual to a designated beneficiary. NMFS will allow the
transfer of IFQ only resulting from the QS transferred to the surviving
spouse or, in the absence of a surviving spouse, from a beneficiary
from the QS holder's immediate family designated pursuant to paragraph
(k)(2) of this section or from an estate representative to a person
eligible to receive IFQ under the provisions of this section,
notwithstanding the limitations on transfers of IFQ in paragraph (h)(2)
of this section.
* * * * *
0
4. Amend Sec. 679.42 by:
0
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;
0
b. Revising paragraphs (d)(2)(iii)(A) through (D);
0
c. Revising paragraphs (d)(2)(iii)(F) and (G);
0
d. Removing paragraph (d)(2)(iii)(H); and
0
e. Revising paragraph (d)(2)(iv)(C).
The revisions read as follows:
Sec. 679.42 Limitations on use of QS and IFQ.
* * * * *
(d) * * *
(2) * * *
(iii) * * *
(A) The applicant's (transferor's) identity including his or her
full name, NMFS person ID, date of birth, permanent business mailing
address, business telephone and fax numbers, and email address (if
any). A temporary mailing address may be provided, if appropriate;
(B) The recipient's (transferee's) identity including his or her
full name, NMFS person ID, date of birth, permanent business mailing
address, business telephone and fax numbers, and email address (if
any). A temporary mailing address may be provided, if appropriate;
(C) The identification characteristics of the IFQ including whether
the transfer is for halibut or sablefish IFQ, IFQ regulatory area,
actual number of
[[Page 56998]]
IFQ pounds, transferor (seller) IFQ permit number, and fishing year;
(D) The price per pound (including leases), or other method of
compensation, and total amount paid for the IFQ in the requested
transaction, including all fees;
(E) * * *
(F) A written declaration from a health care provider as defined in
Sec. 679.2. The declaration must include:
(1) The identity of the health care provider including his or her
full name, business telephone, and permanent business mailing address
(number and street, city and state, zip code);
(2) A statement of the condition affecting the applicant or the
applicant's immediate family member, that the applicant is unable to
participate; and
(3) The dated signature of the health care provider who conducted
the medical examination;
(G) The signatures and printed names of the transferor and
transferee, and date.
(iv) * * *
(C) NMFS will not approve a medical transfer if the applicant has
received a medical transfer in any 3 of the previous 7 calendar years
for any medical condition.
* * * * *
0
4. In Sec. 679.43, revise paragraph (c) to read as follows:
Sec. 679.43 Determinations and appeals.
* * * * *
(c) Submission of Appeals. An appeal to an initial administrative
determination must be submitted under the appeals procedure set out at
15 CFR part 906.
* * * * *
[FR Doc. 2019-23028 Filed 10-23-19; 8:45 am]
BILLING CODE 3510-22-P