[Code of Federal Regulations]
[Title 50, Volume 4]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 50CFR679.40]
[Page 705-709]
TITLE 50--WILDLIFE AND FISHERIES
DEPARTMENT OF COMMERCE
PART 679--FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA--Table of Contents
Subpart D--Individual Fishing Quota Management Measures
Sec. 679.40 Sablefish and halibut QS.
The Regional Administrator shall annually divide the TAC of halibut
and sablefish that is apportioned to the fixed gear fishery pursuant to
the annual management measures published in the Federal Register
pursuant to Sec. 300.62 of chapter III of this title and Sec. 679.20,
minus the CDQ reserve, among qualified halibut and sablefish quota share
holders, respectively.
(a) Initial allocation of QS--(1) General. The Regional
Administrator shall initially assign to qualified persons, on or after
October 18, 1994, halibut and sablefish fixed gear fishery QS that are
specific to IFQ regulatory areas and vessel categories. QS will be
assigned as a block in the appropriate IFQ regulatory area and vessel
category, if that QS would have resulted in an allocation of less than
20,000 lb (9 mt) of IFQ for halibut or sablefish based on the 1994 TAC
for fixed gear in those fisheries for specific IFQ regulatory areas and
the QS pools of those fisheries for specific IFQ regulatory areas as of
October 17, 1994.
(2) Qualified person. (i) As used in this section, a ``qualified
person'' means a ``person,'' as defined in Sec. 679.2:
(A) That owned a vessel that made legal landings of halibut or
sablefish, harvested with fixed gear, from any IFQ regulatory area in
any QS qualifying year; or
(B) That leased a vessel that made legal landings of halibut or
sablefish, harvested with fixed gear, from any IFQ regulatory area in
any QS qualifying year. A person who owns a vessel cannot be a qualified
person based on the legal fixed gear landings of halibut or sablefish
made by a person who leased the vessel for the duration of the lease.
(C) Who is a citizen of the United States at the time of application
for QS.
(D) Who is a corporation, partnership, association, or other entity
that would have qualified to document a fishing vessel as a vessel of
the United States during the QS qualifying years of 1988, 1989, and
1990.
(ii) Qualified persons, or their successors-in-interest, must exist
at the time of their application for QS.
(iii) A former partner of a dissolved partnership or a former
shareholder of a dissolved corporation who would otherwise qualify as a
person may apply for QS in proportion to his or her interest in the
dissolved partnership or corporation.
(iv) Sablefish harvested within Prince William Sound, or under a
State of Alaska limited entry program, will not be considered in
determining whether a person is a qualified person.
(3) Qualification for QS--(i) Year. A QS qualifying year is 1988,
1989, or 1990.
(ii) Vessel ownership. Evidence of vessel ownership shall be limited
to the following documents, in order of priority:
(A) For vessels required to be documented under the laws of the
United States, the USCG abstract of title issued in respect of that
vessel.
(B) A certificate of registration that is determinative as to vessel
ownership.
(C) A bill of sale.
(iii) Vessel lease. Conclusive evidence of a vessel lease will
include a written vessel lease agreement or a notarized statement from
the vessel owner and lease holder attesting to the existence of a vessel
lease agreement at any time during the QS qualifying years. Conclusive
evidence of a vessel lease must identify the leased vessel and indicate
the name of the lease holder and the period of time during which the
lease was in effect. Other evidence, which may not be conclusive, but
may tend to support a vessel lease, may also be submitted.
(iv) Ownership interest. Evidence of ownership interest in a
dissolved partnership or corporation shall be limited to corporate
documents (e.g., articles of incorporation) or notarized statements
signed by each former partner, shareholder or director, and specifying
their proportions of interest.
(v) Legal landing of halibut or sablefish--(A) Definition. As used
in this section, a ``legal landing of halibut or sablefish'' means
halibut or sablefish harvested with fixed gear and landed in
[[Page 706]]
compliance with state and Federal regulations in effect at the time of
the landing.
(B) Documentation. Evidence of legal landings shall be limited to
documentation of state or Federal catch reports that indicate the amount
of halibut or sablefish harvested, the IPHC regulatory area or
groundfish reporting area in which it was caught, the vessel and gear
type used to catch it, and the date of harvesting, landing, or
reporting. State catch reports are Alaska, Washington, Oregon, or
California fish tickets. Federal catch reports are WPRs required under
Sec. 679.5. Sablefish harvested within Prince William Sound or under a
State of Alaska limited entry program will not be considered in
determining qualification to receive QS, nor in calculating initial QS.
(4) Calculation of initial QS--(i) Halibut QS. The Regional
Administrator shall calculate the halibut QS for any qualified person in
each IFQ regulatory area based on that person's highest total legal
landings of halibut in each IPHC regulatory area for any 5 years of the
7-year halibut QS base period 1984 through 1990. The sum of all halibut
QS for an IFQ regulatory area will be the halibut QS pool for that area.
(ii) Sablefish QS. The Regional Administrator shall calculate the
sablefish QS for any qualified person in each IFQ regulatory area based
on that person's highest total legal landings of sablefish in each
groundfish reporting area for any 5 years of the 6-year sablefish QS
base period 1985 through 1990. The sum of all sablefish QS for an IFQ
regulatory area will be the sablefish QS pool for that area.
(iii) CDQ program. Each initial QS calculation will be modified to
accommodate the CDQ program prescribed at subpart C of this part.
(5) Assignment of QS to vessel categories--(i) LOA. Each qualified
person's QS will be assigned to a vessel category based on the LOA of
vessel(s) from which that person made fixed gear legal landings of
groundfish or halibut in the most recent year of participation and the
product type landed. As used in this paragraph (a)(5), ``the most recent
year of participation'' means the most recent of 4 calendar years in
which any groundfish or halibut were harvested using fixed gear, as
follows: 1988, 1989, or 1990; or calendar year 1991 prior to September
26, 1991.
(ii) Vessel categories. QS and its associated IFQ assigned to vessel
categories include:
(A) Category A QS and associated IFQ, which authorizes an IFQ
cardholder to harvest and process IFQ species on a vessel of any length;
(B) Category B QS and associated IFQ, which authorizes an IFQ
cardholder to harvest IFQ species on a vessel of any length, except as
provided in Sec. 679.42(a);
(C) Category C QS and associated IFQ, which authorizes an IFQ
cardholder to harvest IFQ species on a vessel less than or equal to 60
ft (18.3 m) LOA:
(D) Category D QS and associated IFQ, which authorizes an IFQ
cardholder to harvest IFQ halibut on a vessel less than or equal to 35
ft (10.7 m) LOA;
(iii) QS assignment. A qualified person's QS will be assigned:
(A) To vessel category A if, at any time during his/her most recent
year of participation, that person's vessel processed any groundfish or
halibut caught with fixed gear.
(B) To vessel category B if, at any time during his/her most recent
year of participation, that person's vessel was greater than 60 ft (18.3
m) LOA and did not process any groundfish or halibut caught with fixed
gear.
(C) To each applicable vessel category in proportion to the landings
of halibut or sablefish made by that person if, at any time during their
most recent year of participation, that person used more than one vessel
in different categories.
(iv) Sablefish QS. A qualified person's sablefish QS will be
assigned:
(A) To vessel category C if, at any time during his/her most recent
year of participation, that person's vessel was less than or equal to 60
ft (18.3 m) LOA and did not process any groundfish or halibut caught
with fixed gear.
(B) To the vessel category in which halibut and groundfish were
landed, or vessel categories in proportion to the total fixed gear
landings of halibut and groundfish, if, at any time during the most
recent year of participation, that
[[Page 707]]
person's vessel(s) makes no landing(s) of sablefish.
(v) Halibut QS. A qualified person's halibut QS will be assigned:
(A) To vessel category C if, at any time during his/her most recent
year of participation, that person's vessel was less than or equal to 60
ft (18.3 m), but greater than 35 ft (10.7 m), LOA and did not process
any groundfish or halibut caught with fixed gear.
(B) To vessel category D if, at any time during his/her most recent
year of participation, that person's vessel was less than or equal to 35
ft (10.7 m) LOA and did not process any groundfish or halibut caught
with fixed gear.
(C) To the vessel category in which groundfish were landed, or
vessel categories in proportion to the total fixed gear landings of
groundfish, if, at any time during the most recent year of
participation, that person's vessel(s) makes no landing(s) of halibut.
(vi) Both species QS. A qualified person's QS for both species will
be assigned to the vessel category in which groundfish were landed in
the most recent year of participation if, at any time during that year,
that person landed halibut in one vessel category and sablefish in a
different vessel category.
(6) Application for initial QS--(i) Application form. The
Application period for QS ended on July 15, 1994. As of that date, the
Request for QS Application form replaced the QS Application form as the
means by which the Administrator, RAM, reviews and makes initial
administrative determinations on requests for initial allocations of QS.
A Request for QS Application must contain the following: information
identifying the individual, representative of a deceased fisherman's
estate, corporation or partnership, or dissolved corporation or
partnership making the request; contact numbers; vessel identification,
length overall, and purchase date; and information on any vessel leasing
arrangement pertinent to the claim of eligibility.
(ii) Application period. An application period of no less than 180
days will be specified by notification in the Federal Register and other
information sources that the Regional Administrator deems appropriate.
(iii) Complete application. Complete applications received by the
Regional Administrator will be acknowledged. An incomplete application
will be returned to the applicant with specific kinds of information
identified that are necessary to make it complete.
(7) Insufficient documentation. Halibut and sablefish catch history,
vessel ownership or lease data, and other information supplied by an
applicant will be compared with data compiled by the Regional
Administrator. If additional data presented in an application are not
consistent with the data compiled by the Regional Administrator, the
applicant will be notified of insufficient documentation. The applicant
will have 90 days to submit corroborating documents (as specified in
paragraph (a) of this section) in support of his/her application or to
resubmit a revised application. All applicants will be limited to one
opportunity to provide corroborating documentation or a revised
application in response to notification of insufficient documentation.
(8) Verified data. Uncontested data in applications will be approved
by the Regional Administrator. Based on these data, the Regional
Administrator will calculate each applicant's initial halibut and
sablefish QS, as provided in paragraph (b) of this section, for each IFQ
regulatory area, respectively, and will add each applicant's halibut and
sablefish QS for an IFQ regulatory area to the respective QS pool for
that area.
(9) Unverified data. Catch history, vessel ownership, or lease data
that cannot be verified by the Regional Administrator, following the
procedure described in paragraph (a)(7) of this section, will not
qualify for QS. An initial determination denying QS on the grounds that
claimed catch history, vessel ownership or lease data were not verified
may be appealed following the procedure described in Sec. 679.43. Quota
share reflecting catch history, vessel ownership, or lease data that are
contested between two or more applicants, at least one of which is
likely to qualify for QS when the dispute is resolved, will be assigned
to a reserve that will be considered part of the QS pool for the
appropriate IFQ regulatory area. Any QS and IFQ that results from agency
action resolving the dispute
[[Page 708]]
will be assigned to the prevailing applicant(s) pursuant to paragraphs
(a)(4), (a)(5), (b), and (c) of this section. If the assigned IFQ for
the 1995 fishing season becomes moot by passage of time needed to
resolve the dispute, the assignment of QS and IFQ for subsequent fishing
seasons will be unaffected.
(b) Annual allocation of IFQ. The Regional Administrator shall
assign halibut or sablefish IFQs to each person holding unrestricted QS
for halibut or sablefish, respectively, up to the limits prescribed in
Sec. 679.42 (e) and (f). Each assigned IFQ will be specific to an IFQ
regulatory area and vessel category, and will represent the maximum
amount of halibut or sablefish that may be harvested from the specified
IFQ regulatory area and by the person to whom it is assigned during the
specified fishing year, unless the IFQ assignment is changed by the
Regional Administrator within the fishing year because of an approved
transfer or because all or part of the IFQ is sanctioned for violating
rules of this part.
(c) Calculation of annual IFQ allocation--(1) General. The annual
allocation of IFQ to any person (person p) in any IFQ regulatory area
(area a) will be equal to the product of the TAC of halibut or sablefish
by fixed gear for that area (after adjustment for purposes of the
Western Alaska CDQ Program) and that person's QS divided by the QS pool
for that area. Overages will be subtracted from a person's IFQ pursuant
to paragraph (d) of this section. Expressed algebraically, the annual
IFQ allocation formula is as follows:
IFQpa = [(fixed gear TACa - CDQ
reservea) x (QSpa/QS poola)] -
overage of IFQpa.
(2) QS amounts. For purposes of calculating IFQs for any fishing
year, the amount of a person's QS and the amount of the QS pool for any
IFQ regulatory area will be the amounts on record with the Alaska
Region, NMFS, as of 1200 hours, A.l.t., on January 31 of that year.
(3) IFQ permit. The Regional Administrator shall issue to each QS
holder, pursuant to Sec. 679.4, an IFQ permit accompanied by a statement
specifying the maximum amount of halibut and sablefish that may be
harvested with fixed gear in a specified IFQ regulatory area and vessel
category as of January 31 of that year. Such IFQ permits will be mailed
to each QS holder at the address on record for that person after the
beginning of each fishing year but prior to the start of the annual IFQ
fishing season.
(d) Ten-percent adjustment policy. A person's annual IFQ account
will be adjusted in the year following a determination that the person
harvested or landed IFQ species in an amount is greater than the amount
available in the person's annual IFQ account and if the amount greater
than the amount available does not exceed 10 percent of the amount
available in the person's annual IFQ account at the time of landing. The
adjustment would be a deduction of the amount of IFQ species harvested
or landed that was determined to exceed the amount available in the
person's annual IFQ account and will apply to any person to whom the
affected IFQ is allocated in the year following the determination.
(e) Underages. Underages of up to 10 percent of a person's total
annual IFQ account for a current fishing year will be added to that
person's annual IFQ account in the year following determination of the
underage. This underage adjustment to the annual IFQ allocation will be
specific to IFQ species, IFQ regulatory area, and vessel category for
which an IFQ is calculated, and will apply to any person to whom the
affected IFQ is allocated in the year following determination of an
underage.
(f) Harvesting privilege. Quota shares allocated or permits issued
pursuant to this part do not represent either an absolute right to the
resource or any interest that is subject to the ``takings'' provision of
the Fifth Amendment of the U.S. Constitution. Rather, such quota shares
or permits represent only a harvesting privilege that may be revoked or
amended subject to the requirements of the Magnuson-Stevens Act and
other applicable law.
(g) Tagged halibut and sablefish. (1) Nothing contained in this part
shall prohibit any person at any time from retaining and landing a
Pacific halibut or sablefish that bears at the time of capture a
research tag from any state,
[[Page 709]]
Federal, or international agency, provided that the halibut or sablefish
is:
(i) A Pacific halibut landed pursuant to 50 CFR 300.18; or
(ii) A sablefish landed in accordance with the Tagged Groundfish
Research Program.
(2) Tagged halibut or sablefish landed pursuant to paragraphs (1)(i)
or (1)(ii) of this section shall not be calculated as part of an
individual's IFQ harvest or be debited against an individual's halibut
or sablefish IFQ.
[61 FR 31230, June 19, 1996, as amended at 61 FR 35579, July 5, 1996; 61
FR 41525, Aug. 9, 1996; 61 FR 43314, Aug. 22, 1996; 62 FR 59299, Nov. 3,
1997; 66 FR 27910, May 21, 2001; 67 FR 4133, Jan. 28, 2002]