Title 50—Wildlife and Fisheries--Volume 1
PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA
§ 679.42   Limitations on use of QS and IFQ.
(a) IFQ regulatory area and vessel category. (1) The QS or IFQ specified for one IFQ regulatory area must not be used in a different IFQ regulatory area, except for the following:
(i) All or part of the QS and IFQ specified for regulatory area 4C may be harvested in either Area 4C or Area 4D.
(ii) All or part of the halibut CDQ specified for regulatory area 4D may be harvested in either Area 4D or Area 4E.
(iii) If a CDQ group is authorized to receive a transfer of halibut IFQ assigned to vessel categories B, C, or D in IFQ regulatory area 4D as specified in § 679.41(o) of this part, all or part of the halibut IFQ specified for regulatory area 4D that is held by or transferred to a CDQ group may be harvested in either Area 4D or Area 4E.
(2) The QS or IFQ assigned to one vessel category must not be used to harvest IFQ species on a vessel of a different vessel category, except:
(i) As provided in § 679.41(i)(1) of this part (CDQ compensation QS exemption);
(ii) IFQ derived from QS held by a CQE may be used to harvest IFQ species from a vessel of any length, with the exception of IFQ derived from QS in IFQ regulatory areas 3A and 4B that are assigned to vessel category D.
(A) Halibut IFQ derived from QS assigned to vessel category D in Area 3A that is held by a CQE located in Area 3A may be used to harvest IFQ halibut on a vessel less than or equal to 60 ft (18.3 m) LOA from August 15 to the end of the IFQ fishing season.
(B) [Reserved]
(iii) In IFQ regulatory areas 3B, 4B, and 4C, category D QS and associated IFQ authorizes an IFQ permit holder to harvest IFQ halibut on a vessel less than or equal to 60 ft (18.3 m) LOA.
(iv) Halibut IFQ assigned to vessel category B, C, or D held by a CDQ group may not be used on a vessel over 51 feet LOA, irrespective of the vessel category assigned to the IFQ.
(v) In IFQ regulatory areas 2C and 3A, RFQ held by an RQE may be harvested aboard charter vessels as defined at 50 CFR 300.61 of any size, regardless of the QS category from which that RFQ originated.
(b) Gear —(1) IFQ Fisheries. Authorized fishing gear to harvest IFQ halibut and IFQ sablefish is defined in § 679.2.
(i) IFQ halibut. IFQ halibut must not be harvested with trawl gear in any IFQ regulatory area.
(ii) IFQ sablefish. IFQ sablefish must not be harvested with trawl gear in any IFQ regulatory area, or with pot-and-line gear in the GOA. A vessel operator using longline pot gear in the GOA to fish for IFQ sablefish must comply with the GOA sablefish longline pot gear requirements in paragraph (l) of this section.
(2) Seabird avoidance gear and methods. The operator of a vessel using hook-and-line gear authorized at § 679.2 while fishing for IFQ halibut, CDQ halibut, or IFQ sablefish must comply with requirements for seabird avoidance gear and methods set forth at § 679.24(e).
(c) Permit holder aboard requirement. Any individual who harvests halibut or sablefish with fixed gear must have a valid IFQ permit, and if a hired master is conducting the harvest, a valid IFQ hired master permit, and must be aboard the vessel at all times during the fishing trip and be present during the landing.
(d) Emergency waivers and medical transfers. The person authorized to fish IFQ halibut or sablefish must be aboard the vessel during fishing operations and must sign the IFQ landing report except as provided in § 679.41 and under the following circumstances:
(1) Emergency waiver. In the event of extreme personal emergency during a fishing trip involving a person authorized to fish IFQ halibut or sablefish, the requirements or paragraph (c)(1) of this section may be waived. The waiving of these requirements under this provision shall apply to IFQ halibut or IFQ sablefish retained on the fishing trip during which the emergency occurred.
(2) Medical transfers. In the event of a medical condition affecting a QS holder or an immediate family member of a QS holder that prevents the QS holder from being able to participate in the halibut or sablefish IFQ fisheries, a medical transfer may be approved for the IFQ derived from the QS held by the person affected by the medical condition.
(i) General. A medical transfer will be approved if the QS holder demonstrates that:
(A) He or she is unable to participate in the IFQ fishery for which he or she holds QS because of a medical condition that precludes participation by the QS holder; or
(B) He or she is unable to participate in the IFQ fishery for which he or she holds QS because of a medical condition involving an immediate family member that requires the QS holder's full time attendance.
(ii) Eligibility. To be eligible to receive a medical transfer, a QS holder must:
(A) Possess one or more catcher vessel IFQ permits; and
(B) Not qualify for a hired master exception under paragraph (i)(1) of this section.
(iii) Application. A QS holder may apply for a medical transfer by submitting a medical transfer application to the Alaska Region, NMFS. A QS holder who has received an approved medical transfer from RAM may transfer the IFQ derived from his or her own QS to an individual eligible to receive IFQ. A medical transfer application is available at https://alaskafisheries.noaa.gov/region/alaska or by calling 1-800-304-4846. Completed applications must be mailed to: Restricted Access Management Program, NMFS, Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668. A complete application must include:
(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 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) The primary source of financing for the transfer, how the IFQ was located, and the transferee's (buyer's) relationship to the transferor (seller);
(F) A written declaration from a health care provider as defined in § 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; and
(G) The signatures and printed names of the transferor and transferee, and date.
(iv) Restrictions. (A) A medical transfer shall be valid only during the calendar year for which the permit is issued;
(B) A medical transfer will be issued only for the IFQ derived from the QS held by the applicant; and
(C) Except as provided for in paragraph (d)(2)(iv)(C)( 1 ) of this section, 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 reason.
( 1 ) Medical transfers approved in 2020, 2021, or 2022 do not count toward the restriction detailed in paragraph (d)(2)(iv)(C) of this section.
( 2 ) [Reserved]
(v) Medical transfer evaluations and appeals —(A) Initial evaluation. The Regional Administrator will evaluate an application for a medical transfer submitted in accordance with paragraphs (d)(2)(iii) and (d)(2)(iv) of this section. An applicant who fails to submit the information specified in the application for a medical transfer will be provided a reasonable opportunity to submit the specified information or submit a revised application.
(B) Initial administrative determinations (IAD). The Regional Administrator will prepare and send an IAD to the applicant if the Regional Administrator determines that the application provided by the applicant is deficient or if the applicant fails to submit the specified information or a revised application. The IAD will indicate the deficiencies in the application, including any deficiencies with the information on the revised application. An applicant who receives an IAD may appeal under the appeals procedures set out at § 679.43.
(e) Sablefish QS Use. (1) No person other than a CQE representing the community of Adak, AK, individually or collectively, may use more than 3,229,721 units of sablefish QS, except if the amount of a person's initial allocation of sablefish QS is greater than 3,229,721 units, in which case that person may not use more than the amount of the initial allocation.
(2) In the IFQ regulatory area east of 140° W. long., no person, individually or collectively, may use more than 688,485 units of sablefish QS for this area, except if the amount of a person's initial allocation of sablefish QS is greater than 688,485 units, in which case that person may not use more than the amount of the initial allocation.
(3) No CQE may hold sablefish QS in the IFQ regulatory area of the Bering Sea subarea.
(4) No CQE may hold more than:
(i) 3,229,721 units of sablefish QS on behalf of any single eligible community in the GOA; or
(ii) 4,789,874 units of sablefish QS on behalf of any single eligible community in the Aleutian Islands subarea.
(5) In the IFQ regulatory area east of 140° W. long., no CQE may hold more than 688,485 units of sablefish QS for this area on behalf of any single eligible community.
(6) In the aggregate, all CQEs are limited to holding a maximum of:
(i) 21 percent of the total QS in each regulatory area specified in § 679.41(e)(2)(i) through (e)(2)(iv) of this part for sablefish.
(ii) 15 percent of the total QS specified in § 679.41(e)(2)(v) of this part for sablefish.
(7) No individual that receives IFQ derived from sablefish QS held by a CQE may hold, individually or collectively, more than 50,000 lb (22.7 mt) of IFQ sablefish derived from any sablefish QS source.
(8) A CQE receiving category B or C sablefish QS through transfer and representing an eligible community:
(i) In the GOA may lease the IFQ resulting from that QS only to an eligible community resident of the eligible community on whose behalf the QS is held; and
(ii) In the Aleutian Islands subarea may lease the IFQ resulting from that QS to any person who has received an approved Application for Eligibility as described in § 679.41(d) prior to February 28, 2028, but only to an eligible community resident of Adak, AK, after February 28, 2028.
(9) A CQE representing an eligible community in the Aleutian Islands subarea may receive by transfer or use sablefish QS only in the Aleutian Islands subarea.
(f) Halibut QS use. (1) Unless the amount in excess of the following limits was received in the initial allocation of halibut QS, no person other than a CQE representing the community of Adak, AK, individually or collectively, or an RQE, may use more than:
(i) IFQ regulatory Area 2C. 599,799 units of halibut QS, including halibut QS issued as IFQ and transferred to GAF, as defined in § 300.61 of this title.
(ii) IFQ regulatory area 2C, 3A, and 3B. 1,502,823 units of halibut QS, including halibut QS issued as IFQ and transferred to GAF, as defined in § 300.61 of this title.
(iii) IFQ regulatory area 4A, 4B, 4C, 4D, and 4E. 495,044 units of halibut QS.
(2) No CQE may receive an amount of halibut QS on behalf of any single eligible community which is more than:
(i) IFQ regulatory area 2C. 599,799 units of halibut QS.
(ii) IFQ regulatory area 2C, 3A, and 3B. 1,502,823 units of halibut QS.
(iii) IFQ regulatory area 4B. 1,392,716 units of halibut QS.
(3) No CQE may hold halibut QS in the IFQ regulatory areas 4A, 4C, 4D, and 4E.
(4) A CQE representing an eligible community may receive by transfer or use QS only in the IFQ regulatory areas designated for that species and for that eligible community as described in Table 21 to this part.
(5) In the aggregate, all CQEs are limited to holding a maximum of:
(i) 21 percent of the total QS in each regulatory area specified in § 679.41(e)(3)(i) through (e)(3)(iii) of this part for halibut.
(ii) 15 percent of the total QS specified in § 679.41(e)(3)(v) of this part for halibut.
(6) No individual that receives IFQ derived from halibut QS held by a CQE, including GAF as defined in § 300.61 of this title, may hold, individually or collectively, more than 50,000 pounds (22.7 mt) of IFQ halibut, including IFQ halibut received as GAF, derived from any halibut QS source.
(7) A CQE receiving category B, C, or D halibut QS through transfer:
(i) In an IFQ regulatory area specified in § 679.41(e)(3)(i) through (e)(3)(iii) of this part may lease the IFQ resulting from that QS only to an eligible community resident of the eligible community represented by the CQE.
(ii) In IFQ regulatory Area 4B may lease the IFQ resulting from that QS to any person who has received an approved Application for Eligibility as described in § 679.41(d) prior to February 28, 2028 but only to an eligible community resident of Adak, AK, after February 28, 2028.
(8)(i) Annual transfer limits. The RQE may not receive by transfer more than 594,774 units of Area 2C halibut QS and more than 2,218,716 units of Area 3A halibut QS in a year.
(ii) Cumulative use limits. The RQE may not hold more than 5,947,740 units of Area 2C halibut QS and more than 22,187,161 units of Area 3A halibut QS.
(iii) Vessel category restrictions. (A) The RQE may not hold more than 889,548 units of halibut QS in IFQ regulatory area 2C that is assigned to vessel category D.
(B) The RQE may not hold halibut QS in IFQ regulatory area 3A that is assigned to vessel category D.
(C) The RQE may not hold more than 265,524 units of halibut QS that is assigned to vessel category B in IFQ regulatory area 2C.
(g) Limitations on QS blocks —(1) Number of blocks per species. No person, individually or collectively, may hold more than two blocks of sablefish or three blocks of halibut in any IFQ regulatory area, except:
(i) A person, individually or collectively, who holds unblocked QS for a species in an IFQ regulatory area, may hold only one QS block for that species in that regulatory area; and
(ii) A CQE may hold no more than ten blocks of halibut QS in any IFQ regulatory area and no more than five blocks of sablefish QS in any IFQ regulatory area on behalf of any eligible community.
(iii) The RQE may not receive:
(A) Transfers of halibut QS blocks of less than or equal to 24,250 quota share units in IFQ regulatory area 2C.
(B) Transfers of halibut QS blocks of less than or equal to 35,620 quota share units in IFQ regulatory area 3A.
(2) Action by the Regional Administrator in Areas 3B and 4A. In Areas 3B and 4A, the Regional Administrator shall:
(i) Identify any halibut blocks that result in an allocation of more than 20,000 lb (9.1) mt of halibut IFQ, based on the 2004 TAC for fixed gear halibut in those areas and the QS pools for those areas as of January 31, 2004; and
(ii) Divide those halibut blocks into one block of 20,000 lb (9.1 mt) and the remainder unblocked, based on the 2004 TAC for fixed gear halibut in those areas and the QS pools for those areas as of January 31, 2004.
(3) Transfer of QS blocks. Notwithstanding paragraph (g)(1)(i) of this section, a person who holds more than one block of halibut QS and unblocked halibut QS as a result of the Regional Administrator's action under paragraph (g)(2) of this section may transfer unblocked QS until such time as that person transfers a halibut QS block to another person.
(4) Holding or to hold blocks of QS. For purposes of this section, “holding” or “to hold” blocks of QS means being registered by NMFS as the person who received QS by initial assignment or approved transfer.
(h) Vessel limitations —(1) Halibut. No vessel may be used, during any fishing year, to harvest more IFQ halibut than one-half percent of the combined total catch limits of halibut for IFQ regulatory areas 2C, 3A, 3B, 4A, 4B, 4C, 4D, and 4E, except that:
(i) In IFQ regulatory area 2C, no vessel may be used to harvest more than 1 percent of the halibut catch limit for this area.
(ii) No vessel may be used, during any fishing year, to harvest more than 50,000 lb (22.7 mt) of IFQ halibut derived from QS held by a CQE, and no vessel used to harvest IFQ halibut derived from QS held by a CQE may be used to harvest more IFQ halibut than the vessel use caps specified in paragraphs (h)(1) introductory text and (h)(1)(i) of this section.
(iii) Notwithstanding the vessel use caps specified in paragraphs (h)(1) introductory text and (h)(1)(ii) of this section, vessel use caps do not apply to vessels harvesting IFQ halibut in IFQ regulatory Areas 4A, 4B, 4C, and 4D during the 2023 through 2027 fishing years. IFQ halibut harvested in regulatory Areas 4A, 4B, 4C, and 4D is excluded from the calculation of vessel use caps for IFQ regulatory Area 2C, 3A, or 3B during the 2023 through 2027 fishing years.
(2) Sablefish. No vessel may be used, during any fishing year, to harvest more IFQ sablefish than one percent of the combined fixed gear TAC of sablefish for the GOA and BSAI IFQ regulatory areas, except that:
(i) In the IFQ regulatory area east of 140 degrees W. long., no vessel may be used to harvest more than 1 percent of the fixed gear TAC of sablefish for this area.
(ii) No vessel may be used, during any fishing year, to harvest more than 50,000 lb (22.7 mt) of IFQ sablefish derived from QS held by a CQE, and no vessel used to harvest IFQ sablefish derived from QS and held by a CQE may be used to harvest more IFQ sablefish than the vessel use caps specified in paragraphs (h)(2) introductory text and (h)(2)(i) of this section.
(3) Excess. An IFQ permit holder who receives an approved IFQ allocation of halibut or sablefish in excess of these limitations may nevertheless catch and retain all that IFQ with a single vessel. However, two or more IFQ permit holders may not catch and retain their IFQs with one vessel in excess of these limitations.
(4) Liability. Owners and operators of vessels exceeding these limitations are jointly and severally liable with IFQ permit holders and IFQ hired master permit holders whose harvesting causes the vessel to exceed these limitations.
(i) Use of IFQ resulting from QS assigned to vessel category B, C, or D by individuals. In addition to the requirements of paragraph (c) of this section, IFQ permits issued for IFQ resulting from QS assigned to vessel category B, C, or D must be used only by the individual who holds the QS from which the associated IFQ is derived, except as provided in paragraph (i)(1) of this section.
(1) An individual who received an initial allocation of QS assigned to category B, C, or D does not have to be aboard the vessel on which his or her IFQ is being fished or to sign IFQ landing reports if that individual:
(i) For a documented vessel, during the 12-month period previous to the application by the individual for a hired master permit, continuously owned a minimum 20-percent interest in the vessel as shown by the U.S. Abstract of Title issued by the U.S. Coast Guard that lists the individual as an owner and, if necessary to show 20-percent ownership for 12 months, additional written documentation; or
(ii) For an undocumented vessel, during the 12-month period previous to the application by the individual for a hired master permit, continuously owned a minimum 20-percent interest in the vessel as shown by a State of Alaska license or registration that lists the individual as an owner and, if necessary to show the 20-percent ownership for 12 months, additional written documentation; and
(iii) Is represented on the vessel by a hired master employed by that individual and permitted in accordance with § 679.4(d)(2).
(iv) NMFS review of application for exemption —(A) Initial evaluation. The Regional Administrator will evaluate an application for a hired master submitted in accordance with paragraphs (i)(1), (i)(6), and (i)(7) of this section. An applicant who fails to submit the information specified in the application for a hired master will be provided a reasonable opportunity to submit the specified information or submit a revised application.
(B) Initial administrative determinations (IAD). The Regional Administrator will prepare and send an IAD to an individual submitting an application for a hired master submitted in accordance with paragraphs (i)(1), (i)(6), and (i)(7) of this section if the Regional Administrator determines that the information required to be submitted to NMFS is deficient or if the applicant fails to submit the required information. The IAD will indicate the deficiencies with the information submitted. An applicant who receives an IAD may appeal under the appeals procedures set out at § 679.43.
(v) Upon request by the Regional Administrator or an authorized officer, a person must submit additional written documentation necessary to establish the required minimum 20-percent interest in the vessel during the 12-month period previous to the application by the individual for a hired master permit.
(2) Paragraph (i)(1) of this section does not apply to any individual who received an initial allocation of QS assigned to category B, C, or D and who, prior to April 17, 1997, employed a master to fish any of the IFQ issued to that individual, provided the individual continues to own the vessel from which the IFQ is being fished at no lesser percentage of ownership interest than that held on April 17, 1997, and provided that this individual has not acquired additional QS through transfer after September 23, 1997.
(3) Paragraph (i)(1) of this section does not apply to individuals who received an initial allocation of QS assigned to vessel category B, C, or D for halibut in IFQ regulatory Area 2C or for sablefish QS in the IFQ regulatory area east of 140° W. long., and this exemption is not transferable.
(4) The exemption provided in paragraph (i)(1) of this section may be exercised by an individual on a vessel owned by a corporation, partnership, association or other non-individual entity in which the individual is a shareholder, partner, or member, provided that during the 12-month period previous to the application by the individual for a hired master permit, the individual continuously maintained a minimum 20-percent ownership interest in the vessel owned by the corporation, partnership, association or other non-individual entity. For purposes of this paragraph, an individual's interest in a vessel is determined by the percentage ownership by the individual of a corporation, partnership, association or other non-individual entity that has an ownership interest in the vessel multiplied by the percentage of ownership of the vessel by the corporation, partnership, or other non-individual entity.
(5) IFQ derived from QS held by a CQE must be used only by the individual whose IFQ permit account contains the resulting IFQ.
(6) In the event of the total loss or irreparable damage to a vessel owned by an individual who qualifies for the exemption in paragraph (i)(1) of this section, the individual may remain exempt under paragraph (i)(1) of this section until December 31 of the year following the year in which the vessel was lost or damaged, provided that the individual meets the following requirements:
(i) The loss or irreparable damage to the vessel was caused by an act of God, an act of war, a collision, an act or omission of a party other than the individual or agent of the individual, or any other event not caused by the willful misconduct of the individual or agent of the individual.
(ii) The lost or irreparably damaged vessel is a commercial fishing vessel that was previously used to harvest halibut IFQ or sablefish IFQ of the individual who qualifies for the exemption in paragraph (i)(1) of this section;
(iii) As part of the application for exemption, the individual submits to NMFS a copy of the USCG Form 2692 submitted to the USCG as specified in 46 CFR 4.05; and
(iv) The individual is applying to use a hired master on a vessel in which the individual has a minimum 20-percent ownership interest as of the date of the application by the individual for a hired master permit.
(7) In the event of temporary disablement of a vessel owned by an individual who qualifies for the exemption in paragraph (i)(1) of this section, the individual may remain exempt under paragraph (i)(1) of this section until December 31 of the year following the year in which the vessel was disabled, provided that the individual meets the following requirements:
(i) The temporary disablement of the vessel results from repairs required by an accident that materially and adversely affected the vessel's seaworthiness or fitness for service, such as from sinking, grounding, or fire;
(ii) The repairs from the accident require at least 60 days to be completed;
(iii) The disabled vessel is a commercial fishing vessel that was previously used to harvest halibut IFQ or sablefish IFQ of the individual who qualifies for the exemption in paragraph (i)(1) of this section;
(iv) The individual submits to NMFS a copy of the USCG Form 2692 submitted to the USCG as specified in 46 CFR 4.05; and
(v) The individual is applying to use a hired master on a vessel in which the individual has a minimum 20-percent ownership interest as of the date of the application by the individual for a hired master permit.
(8) Paragraphs (i)(1) and (i)(4) of this section do not apply to any QS assigned to vessel category B, C, or D received by transfer by any person described in paragraph (i)(1) after February 12, 2010, except a hired master may be used to harvest IFQ derived from QS blocks that were consolidated under § 679.41(e)(2) or (e)(3) after February 12, 2010, and before December 1, 2014.
(j) Use of IFQ resulting from QS assigned to vessel category B, C, or D by corporations, partnerships, or other non-individual entities. (1) Except as provided in paragraph (j)(7) of this section, a corporation, partnership, association, or other non-individual entity that received an initial allocation of QS assigned to category B, C, or D may fish the IFQ resulting from that QS and any additional QS acquired within the limitations of this section from a vessel if that corporation, partnership, association, or other non-individual entity:
(i) For a documented vessel, owns a minimum 20-percent interest in the vessel as shown by the U.S. Abstract of Title issued by the U.S. Coast Guard that lists the corporation, partnership, association, or other non-individual entity as an owner and, if necessary to prove the required percentage ownership, other written documentation;
(ii) For an undocumented vessel, owns a minimum 20-percent interest in the vessel as shown by a State of Alaska vessel license or registration that lists the corporation, partnership, association, or other non-individual entity as an owner and, if necessary to show the required percentage ownership interest, other written documentation; and
(iii) Is represented on the vessel by a hired master employed by that individual and permitted in accordance with § 679.4(d)(2).
(2) The provision of paragraph (j)(1) of this section is not transferable and does not apply to QS assigned to vessel category B, C, or D for halibut in IFQ regulatory Area 2C or for sablefish in the IFQ regulatory area east of 140° W. long. that is transferred to a corporation, partnership, association, or other non-individual entity. Such transfers of additional QS within these areas must be to an individual pursuant to § 679.41(c) and be used pursuant to paragraphs (c) and (i) of this section.
(3) A corporation, partnership, association, or other non-individual entity, except for a publicly held corporation, that receives an initial allocation of QS assigned to vessel category B, C, or D loses the exemption provided under this paragraph (j) on the effective date of a change in the corporation, partnership, association, or other non-individual entity from that which existed at the time of initial allocation.
(4) For purposes of this paragraph (j), “a change” means:
(i) For corporations and partnerships, the addition of any new shareholder(s) or partner(s), except that a court appointed trustee to act on behalf of a shareholder or partner who becomes incapacitated is not a change in the corporation, partnership, association, or other non-individual entity; or
(ii) For estates, the final or summary distribution of the estate.
(5) The Regional Administrator must be notified of a change in the corporation, partnership, association, or other non-individual entity as defined in this paragraph (j) within 15 days of the effective date of the change. The effective date of change, for purposes of this paragraph (j), is the date on which the new shareholder(s) or partner(s) may realize any corporate liabilities or benefits of the corporation, partnership, association, or other non-individual entity or, for estates, the date of the determination of a legal heir to the estate, or the date of the order for distribution of the estate.
(6) QS assigned to vessel category B, C, or D and IFQ resulting from that QS held in the name of a corporation, partnership, association, or other non-individual entity that changes, as defined in this paragraph (j), must be transferred to an individual, as prescribed in § 679.41, before it may be used at any time after the effective date of the change.
(7) A corporation, partnership, association, or other non-individual entity that received an initial allocation of QS assigned to category B, C, or D and that, prior to April 17, 1997, employed a master to fish any of the IFQ issued to that corporation, partnership, association, or other non-individual entity may continue to employ a master to fish its IFQ on a vessel owned by the corporation, partnership, association, or other non-individual entity provided that the corporation, partnership, association, or other non-individual entity continues to own the vessel at no lesser percentage of ownership interest than that held on April 17, 1997, and provided that corporation, partnership, association, or other non-individual entity did not acquire additional QS through transfer after September 23, 1997.
(8) A corporation, partnership, or other non-individual entity, except for a publicly held corporation, that receives an allocation of QS must provide annual updates to the Regional Administrator identifying all current shareholders, partners, or members to the individual person level and affirming the entity's continuing existence as a corporation or partnership, or other non-individual entity.
(9) The exemption provided in this paragraph (j) may be exercised by a corporation, partnership, association or other non-individual entity on a vessel owned by a person who is a shareholder in the corporation, partnership, association, or other non-individual entity, provided that the corporation, partnership, association, or other non-individual entity maintains a minimum of 20-percent interest in the vessel. For purposes of this paragraph (j), interest in a vessel is determined as the percentage of ownership in the corporation, partnership, association, or other non-individual entity by that person who is a shareholder in the corporation, partnership, association, or other non-individual entity, multiplied by the percentage of ownership in the vessel by that person who is a shareholder in the corporation, partnership, association, or other non-individual entity.
(10) Paragraphs (j)(1) and (j)(9) of this section do not apply to any QS assigned to vessel category B, C, or D received by transfer after February 12, 2010, by an entity described in paragraph (j)(1) except a hired master may be used to harvest IFQ derived from QS that were consolidated under § 679.41(e)(2) or (e)(3) after February 12, 2010, and before December 1, 2014.
(k) Sablefish vessel clearance requirements —(1) Bering Sea or Aleutian Islands. Any vessel operator who fishes for IFQ sablefish in the Bering Sea or Aleutian Islands must possess a transmitting VMS transmitter while fishing for IFQ sablefish. The operator of the vessel must comply with VMS requirements at § 679.28(f)(3) through (5).
(2) Gulf of Alaska. A vessel operator using longline pot gear to fish for IFQ sablefish in the Gulf of Alaska must possess a transmitting VMS transmitter while fishing for sablefish. The operator of the vessel must comply with VMS requirements at § 679.28(f)(3) through (5).
(l) GOA sablefish longline pot gear requirements. Additional regulations that implement specific requirements for any vessel operator who fishes for IFQ sablefish in the GOA using longline pot gear are set out under: § 300.61 Definitions, § 679.2 Definitions, § 679.5 Recordkeeping and reporting (R&R), § 679.7 Prohibitions, § 679.20 General limitations, § 679.23 Seasons, § 679.24 Gear limitations, and § 679.51 Observer requirements for vessels and plants.
(1) Applicability. Any vessel operator who fishes for IFQ sablefish with longline pot gear in the GOA must comply with the requirements of this paragraph (l). The IFQ regulatory areas in the GOA include the Southeast Outside District of the GOA, the West Yakutat District of the GOA, the Central GOA regulatory area, and the Western GOA regulatory area.
(2) General. To use longline pot gear to fish for IFQ sablefish in the GOA, a vessel operator must:
(i)-(ii) [Reserved]
(iii) Deploy and retrieve longline pot gear as specified in paragraph (l)(5);
(iv) Retain IFQ halibut caught in longline pot gear if sufficient halibut IFQ is held by persons on board the vessel as specified in paragraph (l)(6); and
(v) Comply with other requirements as specified in paragraph (l)(7).
(3)-(4) [Reserved]
(5) Restrictions on GOA longline pot gear deployment and retrieval —(i) General. (A) A vessel operator must mark longline pot gear used to fish IFQ sablefish in the GOA as specified in § 679.24(a).
(B) A vessel operator must deploy and retrieve longline pot gear to fish IFQ sablefish in the GOA only during the sablefish fishing period specified in § 679.23(g)(1).
(C) The gear retrieval and removal requirements in paragraphs (l)(5)(iii) and (iv) of this section apply to all longline pot gear that is assigned to the vessel and deployed to fish IFQ sablefish and to all other fishing equipment attached to longline pot gear that is deployed in the water by the vessel to fish IFQ sablefish. All other fishing equipment attached to longline pot gear includes, but is not limited to, equipment used to mark longline pot gear as required in § 679.24(a)(3).
(ii) Pot limits. A vessel operator is limited to deploying a maximum number of pots to fish IFQ sablefish in each IFQ regulatory area in the GOA.
(A) In the Southeast Outside District of the GOA, a vessel operator is limited to deploying a maximum of 120 pots.
(B) In the West Yakutat District of the GOA, a vessel operator is limited to deploying a maximum of 200 pots.
(C) In the Central GOA regulatory area, a vessel operator is limited to deploying a maximum of 300 pots.
(D) In the Western GOA regulatory area, a vessel operator is limited to deploying a maximum of 300 pots.
(iii) Gear retrieval. (A) In the Southeast Outside District of the GOA, a catcher vessel operator must redeploy or remove from the fishing grounds all longline pot gear that is assigned to the vessel and deployed to fish IFQ sablefish within five days of deploying the gear.
(B) In the Southeast Outside District of the GOA, a catcher/processor must redeploy or remove from the fishing grounds all longline pot gear that is assigned to the vessel and deployed to fish IFQ sablefish within five days of deploying the gear.
(C) In the West Yakutat District of the GOA, a vessel operator must redeploy or remove from the fishing grounds all longline pot gear that is assigned to the vessel and deployed to fish IFQ sablefish within five days of deploying the gear.
(D) In the Western GOA regulatory area, a vessel operator must redeploy or remove from the fishing grounds all longline pot gear that is assigned to the vessel and deployed to fish IFQ sablefish within seven days of deploying the gear.
(E) In the Central GOA regulatory area, a vessel operator must redeploy or remove from the fishing grounds all longline pot gear that is assigned to the vessel and deployed to fish IFQ sablefish within seven days of deploying the gear.
(iv) Longline pot gear used on multiple vessels. Longline pot gear assigned to one vessel and deployed to fish IFQ sablefish in the GOA must be removed from the fishing grounds, and returned to port before being deployed by another vessel to fish IFQ sablefish in the GOA.
(6) Retention of halibut. (i) A vessel operator who fishes for IFQ sablefish using longline pot gear must retain IFQ halibut if:
(A) The IFQ halibut is caught in any GOA reporting area in accordance with paragraph (l) of this section; and
(B) An IFQ permit holder on board the vessel has unused halibut IFQ for the IFQ regulatory area fished and IFQ vessel category.
(ii) [Reserved]
(7) Other requirements. A vessel operator who fishes for IFQ sablefish using longline pot gear in the GOA must:
(i) Complete a longline and pot gear Daily Fishing Logbook (DFL) or Daily Cumulative Production Logbook (DCPL) as specified in § 679.5(c); and
(ii) Comply with Vessel Monitoring System (VMS) requirements specified in paragraph (k)(2) of this section.
(m) BSAI halibut and sablefish pot gear requirements. Additional regulations that implement specific requirements for any vessel operator who fishes for IFQ or CDQ halibut or IFQ or CDQ sablefish in the BSAI using pot gear are set out under § 300.61 of this title and §§ 679.2, 679.5, 679.7, 679.20, 679.22, 679.24, 679.25, 679.28, 679.42, and 679.51.
(1) Applicability. Any vessel operator who fishes for IFQ or CDQ halibut or IFQ or CDQ sablefish with pot gear in the BSAI must comply with the requirements of paragraph (m) of this section. The IFQ regulatory areas in the BSAI include 4B, 4C, 4D, and 4E and the portion of Area 4A in the Bering Sea Aleutian Islands west of 170°00′ W long.
(2) General. To use pot gear to fish for IFQ or CDQ halibut or IFQ or CDQ sablefish in the BSAI, a vessel operator must:
(i) Retain IFQ or CDQ halibut caught in pot gear if sufficient halibut IFQ or CDQ is held by persons on board the vessel as specified in paragraph (m)(3) of this section; and
(ii) Comply with other requirements as specified in paragraph (m)(4) of this section.
(3) Retention of halibut. A vessel operator who fishes for IFQ or CDQ halibut or IFQ or CDQ sablefish using pot gear must retain IFQ or CDQ halibut if:
(i) The IFQ or CDQ halibut is caught in any IFQ regulatory area in the BSAI in accordance with paragraph (m) of this section; and
(ii) An IFQ or CDQ permit holder on board the vessel has unused halibut IFQ or CDQ for the IFQ regulatory area fished and IFQ vessel category.
(4) Other requirements. A vessel operator who fishes for IFQ or CDQ halibut or IFQ or CDQ sablefish using pot gear in the BSAI must:
(i) Complete a longline and pot gear Daily Fishing Logbook (DFL) or Daily Cumulative Production Logbook (DCPL) as specified in § 679.5(c); and
(ii) Possess a transmitting VMS transmitter and comply with the VMS requirements at § 679.28(f)(3) through (5).
(iii) Report pot gear information required when submitting a PNOL as described in § 679.5.
§ 679.43   Determinations and appeals.
(a) General. This section describes the procedure for appealing initial administrative determinations made in this title under parts 300, 679, 680, and subpart E of part 300 of this chapter.
(b) Who may appeal. Any person whose interest is directly and adversely affected by an initial administrative determination may file a written appeal. For purposes of this section, such persons will be referred to as “applicant” or “appellant.”
(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.
(d) Timing of appeals. (1) If an applicant appeals an initial administrative determination, the appeal must be filed not later than 60 days after the date the determination is issued.
(2) The time period within which an appeal may be filed begins to run on the date the initial administrative determination is issued. If the last day of the time period is a Saturday, Sunday, or Federal holiday, the time period will extend to the close of business on the next business day.
(e) Address of record. General —NMFS will establish as the address of record the address used by the applicant in initial correspondence to NMFS concerning the application. Notifications of all actions affecting the applicant after establishing an address of record will be mailed to that address, unless the applicant provides NMFS, in writing, with any changes to that address. NMFS bears no responsibility if a notification is sent to the address of record and is not received because the applicant's actual address has changed without notification to NMFS.
(f) Statement of reasons for appeals. Applicants must timely submit a full written statement in support of the appeal, including a concise statement of the reasons the initial administrative determination has a direct and adverse effect on the applicant and should be reversed or modified. If the applicant requests a hearing on any issue presented in the appeal, such request for hearing must be accompanied by a concise written statement raising genuine and substantial issues of adjudicative fact for resolution and a list of available and specifically identified reliable evidence upon which the factual issues can be resolved. The appellate officer will limit his/her review to the issues stated in the appeal; all issues not set out in the appeal will be waived.
(g) Hearings. The appellate officer will review the applicant's appeal and request for hearing, and has discretion to proceed as follows:
(1) Deny the appeal;
(2) Issue a decision on the merits of the appeal, if the record contains sufficient information on which to reach final judgment; or
(3) Order that a hearing be conducted. The appellate officer may so order only if the appeal demonstrates the following:
(i) There is a genuine and substantial issue of adjudicative fact for resolution at a hearing. A hearing will not be ordered on issues of policy or law.
(ii) The factual issue can be resolved by available and specifically identified reliable evidence. A hearing will not be ordered on the basis of mere allegations or denials or general descriptions of positions and contentions.
(iii) The evidence described in the request for hearing, if established at hearing, would be adequate to justify resolution of the factual issue in the way sought by the applicant. A hearing will not be ordered if the evidence described is insufficient to justify the factual determination sought, even if accurate.
(iv) Resolution of the factual issue in the way sought by the applicant is adequate to justify the action requested. A hearing will not be ordered on factual issues that are not determinative with respect to the action requested.
(h) Types of hearings. If the appellate officer determines that a hearing should be held to resolve one or more genuine and substantial issues of adjudicative fact, he/she may order:
(1) A written hearing, as provided in paragraph (m) of this section; or
(2) An oral hearing, as provided in paragraph (n) of this section.
(i) Authority of the appellate officer. The appellate officer is vested with general authority to conduct all hearings in an orderly manner, including the authority to:
(1) Administer oaths.
(2) Call and question witnesses.
(3) Issue a written decision based on the record.
(j) Evidence. All evidence that is relevant, material, reliable, and probative may be included in the record. Formal rules of evidence do not apply to hearings conducted under this section.
(k) Appellate officers' decisions. The appellate officer will close the record and issue a decision after determining there is sufficient information to render a decision on the record of the proceedings and that all procedural requirements have been met. The decision must be based solely on the record of the proceedings. Except as provided in paragraph (o) of this section, an appellate officer's decision takes effect 30 days after it is issued and, upon taking effect, is the final agency action for purposes of judicial review.
(l) Disqualification of an appellate officer. (1) The appellate officer will withdraw from an appeal at any time he/she deems himself/herself disqualified.
(2) The appellate officer may withdraw from an appeal on an appellant's motion if:
(i) The motion is entered prior to the appellate officer's issuance of a decision; and
(ii) The appellant demonstrates that the appellate officer has a personal bias or any other basis for disqualification.
(3) If the appellate officer denies a motion to withdraw, he/she will so rule on the record.
(m) Written hearing. (1) An appellate officer may order a written hearing under paragraph (h)(1) of this section if he/she:
(i) Orders a hearing as provided in paragraph (g)(3) of this section; and
(ii) Determines that the issues to be resolved at hearing can be resolved by allowing the appellant to present written materials to support his/her position.
(2) After ordering a written hearing, the appellate officer will:
(i) Provide the appellant with notification that a written hearing has been ordered.
(ii) Provide the appellant with a statement of issues to be determined at hearing.
(iii) Provide the appellant with 30 days to file a written response. The appellant may also provide documentary evidence to support his/her position. The period to file a written response may be extended at the sole discretion of the appellate officer, if the appellant shows good cause for the extension.
(3) The appellate officer may, after reviewing the appellant's written response and documentary evidence:
(i) Order that an oral hearing be held, as provided in paragraph (h)(2) of this section, to resolve issues that cannot be resolved through the written hearing process;
(ii) Request supplementary evidence from the appellant before closing the record; or
(iii) Close the record.
(4) The appellate officer will close the record and issue a decision after determining that the information on the record is sufficient to render a decision.
(n) Oral hearing. (1) The appellate officer may order an oral hearing under paragraphs (h)(2) and (m)(3)(i) of this section if he/she:
(i) Orders a hearing as provided in paragraph (g)(3) of this section; and
(ii) Determines that the issues to be resolved at hearing can best be resolved through the oral hearing process.
(2) After ordering an oral hearing, the appellate officer will:
(i) Provide the appellant with notification that an oral hearing has been ordered.
(ii) Provide the appellant with a statement of issues to be determined at hearing.
(iii) Provide the appellant with notification, at least 30 days in advance, of the place, date, and time of the oral hearing. Oral hearings will be held in Juneau, AK, at the prescribed date and time, unless the appellate officer determines, based upon good cause shown, that a different place, date, or time will better serve the interests of justice. A continuance of the oral hearing may be ordered at the sole discretion of the appellate officer if the appellant shows good cause for the continuance.
(3) The appellate officer may, either at his/her own discretion or on the motion of the appellant, order a pre-hearing conference, either in person or telephonically, to consider:
(i) The simplification of issues.
(ii) The possibility of obtaining stipulations, admissions of facts, and agreements to the introduction of documents.
(iii) The possibility of settlement or other means to facilitate resolution of the case.
(iv) Such other matters as may aid in the disposition of the proceedings.
(4) The appellate officer must provide the appellant with notification of a pre-hearing conference, if one is ordered, at least 30 days in advance of the conference. All action taken at the pre-hearing conference will be made part of the record.
(5) At the beginning of the oral hearing, the appellate officer may first seek to obtain stipulations as to material facts and the issues involved and may state any other issues on which he/she may wish to have evidence presented. Issues to be resolved at the hearing will be limited to those identified by the appellate officer as provided in paragraph (g)(3) of this section. The appellant will then be given an opportunity to present his/her case.
(6) During the oral hearing, the appellant has the right to present reliable and material oral or documentary evidence and to conduct such cross-examination as may be required in the interests of justice.
(7) After the conclusion of the oral hearing, the appellant may be given time by the appellate officer to submit any supplementary information that may assist in the resolution of the case.
(8) The appellate officer will close the record and issue a decision after determining that the information on the record is sufficient to render a decision.
(o) Review by the Regional Administrator. An appellate officer's decision is subject to review by the Regional Administrator, as provided in this paragraph (o).
(1) The Regional Administrator may affirm, reverse, modify, or remand the appellate officer's decision before the 30-day effective date of the decision provided in paragraph (k) of this section.
(2) The Regional Administrator may take any of these actions on or after the 30-day effective date by issuing a stay of the decision before the 30-day effective date. An action taken under paragraph (o)(1) of this section takes effect immediately.
(3) The Regional Administrator must provide a written explanation why an appellate officer's decision has been reversed, modified, or remanded.
(4) The Regional Administrator must promptly notify the appellant(s) of any action taken under this paragraph (o).
(5) The Regional Administrator's decision to affirm, reverse, or modify an appellate officer's decision is a final agency action for purposes of judicial review.
(p) Issuance of a non-transferable license. A non-transferable license will be issued to a person upon acceptance of his or her appeal of an initial administrative determination denying an application for a license for license limitation groundfish, crab species under § 679.4(k) or scallops under § 679.4(g). This non-transferable license authorizes a person to conduct directed fishing for groundfish, crab species, or catch and retain scallops and will have specific endorsements and designations based on the person's claims in his or her application for a license. This non-transferable license expires upon the resolution of the appeal.
§ 679.44   Penalties.
Any person committing, or a fishing vessel used in the commission of, a violation of the Magnuson-Stevens Act or Halibut Act, or any regulation issued under the Magnuson-Stevens Act or Halibut Act, is subject to the civil and criminal penalty provisions and civil forfeiture provisions of the Magnuson-Stevens Act or Halibut Act, to part 600 of this chapter, to 15 CFR part 904 (Civil Procedures), and to other applicable law. Penalties include but are not limited to permanent or temporary sanctions to QS and associated IFQ.
§ 679.45   IFQ cost recovery program.
(a) Cost recovery fees —(1) Responsibility. An IFQ permit holder is responsible for cost recovery fees for landings of his or her IFQ halibut and sablefish, including any halibut landed as guided angler fish (GAF), as defined in § 300.61 of this title, derived from his or her IFQ accounts. An RQE is responsible for cost recovery fees for all RFQ issued to the RQE. An IFQ permit holder or RQE must comply with the requirements of this section.
(2) IFQ Fee Liability Determination —(i) General. IFQ fee liability means a cost recovery liability based on either the value of all landed IFQ and GAF derived from the permit holder's IFQ permit(s), or the value of all RFQ issued to an RQE.
(A) Each year, the Regional Administrator will issue each IFQ permit holder a summary of his or her IFQ equivalent pounds landed as IFQ and GAF and will issue an RQE a summary of its RFQ pounds issued as part of the IFQ Landing and Estimated Fee Liability page described at § 679.5(l)(7)(ii)(D).
(B) The summary will include information on IFQ and GAF landings and an estimated IFQ fee liability using the IFQ standard ex-vessel value for IFQ and GAF landings. For fee purposes:
( 1 ) Landings of GAF in IFQ regulatory area 2C or 3A are converted to IFQ equivalent pounds and assessed at the IFQ regulatory area 2C or 3A IFQ standard ex-vessel value.
( 2 ) GAF that is returned to the IFQ permit holder's account pursuant to § 300.65(c) of this title, and subsequently landed as IFQ during the IFQ fishing year, is included in the IFQ fee liability and subject to fee assessment as IFQ equivalent pounds.
( 3 ) All RFQ issued to an RQE in IFQ regulatory area 2C or 3A will be assessed at the IFQ regulatory area 2C or 3A IFQ standard ex-vessel value.
(C) The IFQ permit holder must either accept NMFS' estimate of the IFQ fee liability or revise NMFS' estimate of the IFQ fee liability using the IFQ Permit Holder Fee Submission Form described at § 679.5(l)(7)(ii), except that the standard ex-vessel value used to determine the fee liability for GAF is not subject to challenge. If the IFQ permit holder revises NMFS' estimate of his or her IFQ fee liability, NMFS may request in writing that the permit holder submit documentation establishing the factual basis for the revised calculation. If the IFQ permit holder fails to provide adequate documentation on or by the 30th day after the date of such request, NMFS will determine the IFQ permit holder's IFQ fee liability based on standard ex-vessel values.
(D) An RQE may not challenge the standard ex-vessel value used to determine the fee liability for all RFQ issued to the RQE.
(ii) Value assigned to GAF. The IFQ fee liability is computed from all net pounds allocated to the IFQ permit holder that are landed, including IFQ landed as GAF.
(A) NMFS will determine the IFQ equivalent pounds of GAF landed in IFQ regulatory area 2C or 3A that are derived from the IFQ permit holder's account.
(B) The IFQ equivalent pounds of GAF landed in IFQ regulatory area 2C or 3A are multiplied by the standard ex-vessel value computed for that area to determine the value of IFQ landed as GAF.
(iii) The value of IFQ landed as GAF is added to the value of the IFQ permit holder's landed IFQ, and the sum is multiplied by the annual IFQ fee percentage to estimate the IFQ permit holder's IFQ fee liability.
(3) Fee collection. (i) An IFQ permit holder with IFQ and/or GAF landings is responsible for collecting his or her own fee during the calendar year in which the IFQ fish and/or GAF are landed.
(ii) An RQE is responsible for collecting its own fees during the calendar year in which the RFQ is issued to the RQE.
(4) Payment —(i) Payment due date. An IFQ permit holder or RQE must submit its IFQ fee liability payment(s) to NMFS as instructed at paragraph (a)(4)(iii) of this section not later than January 31 of the year following the calendar year in which the IFQ or GAF landings were made or the RFQ was issued to the RQE.
(ii) Payment recipient. Make payment payable to NMFS.
(iii) Payment address. Submit payment and related documents as instructed on the fee submission form. Payments may be made electronically through the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov. Instructions for electronic payment will be made available on both the payment Web site and a fee liability summary letter mailed to the IFQ permit holder.
(iv) Payment method —(A) Prior to December 1, 2019, payment must be made in U.S. dollars by personal check drawn on a U.S. bank account, money order, bank-certified check, or electronically by credit card.
(B) On or after December 1, 2019, payment must be made electronically in U.S. dollars by automated clearing house, credit card, or electronic check drawn on a U.S. bank account.
(b) IFQ ex-vessel value determination and use —(1) General. (i) An IFQ permit holder must use either the IFQ actual ex-vessel value or the IFQ standard ex-vessel value when determining the IFQ fee liability based on ex-vessel value, except that landed GAF are assessed at the standard ex-vessel values derived by NMFS. An IFQ permit holder must base all fee liability calculations on the ex-vessel value that correlates to landed IFQ in IFQ equivalent pounds.
(ii) An RQE must use the IFQ standard ex-vessel value derived by NMFS for all RFQ issued to the RQE.
(2) IFQ actual ex-vessel value. An IFQ permit holder that uses actual ex-vessel value, as defined in § 679.2, to determine IFQ fee liability for landed IFQ must document actual ex-vessel value for each IFQ permit. The actual ex-vessel value cannot be used to assign value to halibut landed as GAF or issued as RFQ.
(3) IFQ standard ex-vessel value —(i) Use of standard price. An IFQ permit holder that uses standard ex-vessel value to determine the IFQ fee liability, as part of a revised IFQ fee liability submission, must use the corresponding standard price(s) as published in the Federal Register.
(ii) All landed GAF and RFQ issued to an RQE must be valued using the standard ex-vessel value for the year and for the IFQ regulatory area of harvest—Area 2C or Area 3A.
(iii) Duty to publish list. Each year the Regional Administrator will publish a list of IFQ standard prices in the Federal Register during the last quarter of the calendar year. The IFQ standard prices will be described in U.S. dollars per IFQ equivalent pound, for IFQ halibut and sablefish landings made during the current calendar year.
(iv) Effective duration. The IFQ standard prices will remain in effect until revised by the Regional Administrator by notification in the Federal Register based upon new information of the type set forth in this section. IFQ standard prices published in the Federal Register by NMFS shall apply to all landings made in the same calendar year as the IFQ standard price publication and shall replace any IFQ standard prices previously provided by NMFS that may have been in effect for that same calendar year.
(v) Determination. NMFS will apply the standard price, aggregated by IFQ regulatory area 2C or 3A, to GAF landings and RFQ issued to an RQE. NMFS will calculate the IFQ standard prices to reflect, as closely as possible by month and port or port-group, the variations in the actual ex-vessel values of IFQ halibut and IFQ sablefish landings based on information provided in the IFQ Registered Buyer Ex-Vessel Value and Volume Report as described in § 679.5(l)(7)(i). The Regional Administrator will base IFQ standard prices on the following types of information:
(A) Landed net pounds by IFQ species, port-group, and month;
(B) Total ex-vessel value by IFQ species, port-group, and month; and
(C) Price adjustments, including IFQ retro-payments.
(c) [Reserved]
(d) IFQ fee percentage —(1) Established percentage. The annual IFQ fee percentage is the amount as determined by the factors and methodology described in paragraph (d)(2) of this section. This amount will be announced by publication in the Federal Register in accordance with paragraph (d)(3) of this section. This amount must not exceed 3 percent pursuant to 16 U.S.C. 1854(d)(2)(B).
(2) Calculating the fee percentage. Each year NMFS shall calculate and publish the fee percentage according to the following factors and methodology:
(i) Factors. NMFS must use the following factors to determine the fee percentage:
(A) The IFQ, RFQ, and GAF landings to which the IFQ fee will apply;
(B) The ex-vessel value of that landed IFQ, RFQ, and GAF; and
(C) The costs directly related to the management and enforcement of the IFQ Program, which include RQE and GAF costs.
(ii) Methodology. NMFS must use the following equation to determine the fee percentage:
(3) Publication —(i) General. During or before the last quarter of each calendar year, NMFS shall publish the IFQ fee percentage in the Federal Register. NMFS shall base any IFQ fee liability calculations on the factors and methodology in paragraph (d)(2) of this section.
(ii) Effective period. The calculated IFQ fee percentage shall remain in effect through the end of the calendar year in which it was determined.
(4) Applicable percentage. The IFQ permit holder must use the IFQ fee percentage in effect for the year in which the IFQ, RFQ, and GAF landings are made to calculate his or her fee liability for such landed IFQ, RFQ, and GAF. The IFQ permit holder or RQE must use the IFQ fee percentage in effect at the time an IFQ retro-payment is received by the IFQ permit holder to calculate his or her IFQ fee liability for the IFQ retro-payment.
(e) Non-payment of fee. (1) If an IFQ permit holder or RQE does not submit a complete IFQ Permit Holder Fee Submission Form and corresponding payment by the due date described in § 679.45(a)(4), the Regional Administrator will:
(i) Send Initial Administrative Determination (IAD). Send an IAD to the IFQ permit holder or RQE stating that the estimated fee liability, as calculated by the Regional Administrator and sent to the IFQ permit holder or RQE pursuant to § 679.45(a)(2), is the amount of IFQ fee liability due from the IFQ permit holder or RQE. An IFQ permit holder or RQE who receives an IAD may appeal the IAD, as described in paragraph (h) of this section.
(ii) Disapprove transfer. Disapprove any transfer of GAF, IFQ, or QS to or from the IFQ permit holder or RQE in accordance with § 300.65(c) of this title and § 679.41(c), until the IFQ fee liability is reconciled, except that NMFS may return unused GAF to the IFQ permit holder's account from which it was derived on or after the automatic GAF return date.
(2) Upon final agency action determining that an IFQ permit holder has not paid his or her IFQ fee liability, as described in paragraph (f) of this section, any IFQ fishing permit or RFQ permit account held by the IFQ permit holder or RQE is not valid until all IFQ fee liabilities are paid.
(3) If payment is not received on or before the 30th day after the final agency action, the matter will be referred to the appropriate authorities for purposes of collection.
(f) Underpayment of IFQ fee. (1) When an IFQ permit holder or RQE has incurred a fee liability and made a timely payment to NMFS of an amount less than the NMFS estimated IFQ fee liability, the Regional Administrator will review the IFQ Permit Holder Fee Submission Form and related documentation submitted by the IFQ permit holder or RQE. If the Regional Administrator determines that the IFQ permit holder or RQE has not paid a sufficient amount, the Regional Administrator will:
(i) Disapprove transfer. Disapprove any transfer of GAF, IFQ, or QS to or from the IFQ permit holder or RQE in accordance with § 300.65(c) of this title and § 679.41(c), until the IFQ fee liability is reconciled, except that NMFS may return unused GAF to the IFQ permit holder's account from which it was derived 15 days prior to the closing of the commercial halibut fishing season each year.
(ii) Notify permit holder. Notify the IFQ permit holder or RQE by letter that an insufficient amount has been paid and that the IFQ permit holder has 30 days from the date of the letter to either pay the amount determined to be due or provide additional documentation to prove that the amount paid was the correct amount.
(2) After the expiration of the 30-day period, the Regional Administrator will evaluate any additional documentation submitted by an IFQ permit holder or RQE in support of its payment. If the Regional Administrator determines that the additional documentation does not meet the burden of proving the payment is correct, the Regional Administrator will send the IFQ permit holder or RQE an IAD indicating that the IFQ permit holder or RQE did not meet the burden of proof to change the IFQ fee liability as calculated by the Regional Administrator based upon the IFQ standard ex-vessel value. The IAD will set out the facts and indicate the deficiencies in the documentation submitted by the IFQ permit holder or RQE. An IFQ permit holder or RQE who receives an IAD may appeal the IAD, as described in paragraph (h) of this section.
(3) If the permit holder fails to file an appeal of the IAD pursuant to 15 CFR part 906, the IAD will become the final agency action.
(4) If the IAD is appealed and the final agency action is a determination that additional sums are due from the IFQ permit holder or RQE, the IFQ permit holder or RQE must pay any IFQ fee amount determined to be due not later than 30 days from the issuance of the final agency action.
(5) Upon final agency action determining that an IFQ permit holder or RQE has not paid his or her IFQ fee liability, any IFQ fishing permit held by the IFQ permit holder or RQE is not valid until all IFQ fee liabilities are paid.
(6) If payment is not received on or before the 30th day after the final agency action, the matter will be referred to the appropriate authorities for purposes of collection.
(g) Over payment. Upon issuance of final agency action, any amount submitted to NMFS in excess of the IFQ fee liability determined to be due by the final agency action will be returned to the IFQ permit holder or RQE unless the IFQ permit holder or RQE requests the agency to credit the excess amount against the IFQ permit holder's or RQE's future IFQ fee liability.
(h) Appeals and requests for reconsideration. An IFQ permit holder who receives an IAD may either appeal the IAD pursuant to 15 CFR part 906 or request reconsideration. Within 60 days from the date of issuance of the IAD, the Regional Administrator may undertake a reconsideration of the IAD on his or her own initiative. If a request for reconsideration is submitted or the Regional Administrator initiates a reconsideration, the 60-day period for appeal under 15 CFR part 906 will begin anew upon issuance of the Regional Administrator's reconsidered IAD. The Regional Administrator may undertake only one reconsideration of the IAD, if any. If an IFQ permit holder fails to file an appeal of the IAD pursuant to 15 CFR part 906, the IAD will become the final agency action. In any appeal or reconsideration of an IAD made under this section, an IFQ permit holder has the burden of proving his or her claim.
(i) Annual report. NMFS will publish annually a report describing the status of the IFQ Cost Recovery Program.
§ 679.50   Applicability.
(a) General. (1) The operator of a vessel designated or required to be designated on a Federal fisheries permit (FFP) under § 679.4(b); the operator of a processor designated or required to be designated on a Federal processor permit (FPP) under § 679.4(f)(1) or a Registered Buyer permit under § 679.4(d)(3); and the operator of a vessel used to harvest IFQ halibut, CDQ halibut, or IFQ sablefish must comply with this subpart. The owner of a vessel or a shoreside processor must ensure that the operator or manager complies with this subpart.
(2) Exceptions. A catcher vessel is not subject to the requirements of this subpart when delivering unsorted codends to a mothership.
(3) For purposes of this subpart, halibut means CDQ and IFQ halibut.
(b) [Reserved]
§ 679.51   Observer and Electronic Monitoring System requirements for vessels and plants.
(a) Observer requirements for vessels —(1) Groundfish and halibut fishery partial coverage category —(i) Vessel classes in partial coverage category. Unless otherwise specified in paragraph (a)(2) of this section, the following catcher vessels and catcher/processors are in the partial coverage category when fishing for halibut or when directed fishing for groundfish in a federally managed or parallel groundfish fishery, as defined at § 679.2:
(A) A catcher vessel designated on an FFP under § 679.4(b)(1);
(B) A catcher vessel when fishing for halibut while carrying a person named on a permit issued under § 679.4(d)(1)(i), (d)(2)(i), or (e)(2), or for IFQ sablefish, as defined at § 679.2, while carrying a person named on a permit issued under § 679.4(d)(1)(i) or (d)(2)(i); or
(C) A catcher/processor placed in the partial coverage category under paragraph (a)(3) of this section; or
(D) A catcher vessel less than or equal to 46 ft LOA using hook-and-line gear when groundfish CDQ fishing under § 679.32(c)(3)(iii).
(ii) Registration and notification of observer deployment. The Observer Declare and Deploy System (ODDS) is the communication platform for the partial coverage category by which NMFS receives information about fishing plans subject to randomized observer deployment. Vessel operators provide fishing plan and contact information to NMFS and receive instructions through ODDS for coordinating with an observer provider for any required observer coverage. Access to ODDS is available through the NMFS Alaska Region website
(A) Registration. NMFS will enter information into ODDS about all partial coverage category vessels that are designated on an FFP and all catcher vessels that are not designated on an FFP but that landed sablefish IFQ or halibut IFQ or CDQ in the previous or current year. Owners or operators are not responsible for initial registration of their vessel in ODDS.
(B) Notification. Upon entry into ODDS, NMFS will notify the owner or operator of his or her vessel's selection pool. Owners and operators must comply with all further instructions set forth by ODDS.
(C) Trip selection pool. ( 1 ) A minimum of 72 hours prior to embarking on each fishing trip, the operator of a vessel in the trip selection pool must register the anticipated trip with ODDS.
( 2 ) When a fishing trip is registered with ODDS per paragraph (a)(1)(ii)(C)( 1 ) of this section, the vessel operator will be notified by ODDS whether the trip is selected for observer coverage and a receipt number corresponding to this notification will be provided by ODDS. Trip registration is complete when the vessel operator receives a receipt number.
( 3 ) An operator may embark on a fishing trip registered with ODDS:
( i ) Not selected trip. At any time if ODDS indicates that the fishing trip is not selected for observer coverage.
( ii ) Selected trip. When an observer is aboard the vessel if ODDS indicates that the fishing trip is selected for observer coverage.
( 4 ) Delayed trip. A selected fishing trip not embarked upon within 48 hours of the time specified in the registration with ODDS is invalidated. The operator must register any new trip in accordance with paragraph (a)(1)(ii)(C)( 1 ) of this section.
( 5 ) Observer coverage duration. If selected, a vessel is required to carry an observer for the entire fishing trip.
( i ) A fishing trip selected for observer coverage may not begin until all previously harvested fish has been offloaded and an observer is aboard the vessel.
( ii ) An observer may not be transferred off a catcher vessel until the observer confirms that all fish from the observed fishing trip are offloaded.
( iii ) A vessel must make a minimum of one delivery to a tender vessel to be subject to paragraph (3)(ii) of the fishing trip definition at § 679.2.
(D) Vessel selection pool. A vessel selected for observer coverage is required to have an observer on board for all groundfish and halibut fishing trips specified at paragraph (a)(1)(i) of this section for the time period indicated by ODDS.
(iii) Release from observer coverage. The Observer Program may release a selected trip per paragraph (a)(1)(ii)(C) of this section or a selected vessel per paragraph (a)(1)(ii)(D) of this section, from observer coverage on a case-by-case basis.
(iv) Observer workload at shoreside processors and stationary floating processors. Regarding shoreside processors and stationary floating processors, the time required for an observer to complete sampling, data recording, and data communication duties, per this paragraph (a)(1), may not exceed 12 hours in each 24-hour period.
(2) Groundfish and halibut fishery full observer coverage category —(i) Vessel classes in the full coverage category. The following classes of vessels are in the full observer coverage category when harvesting halibut or when harvesting, receiving, or processing groundfish in a federally managed or parallel groundfish fishery, as defined at § 679.2:
(A) Catcher/processors, except a catcher/processor placed in the partial observer coverage category under paragraph (a)(3) of this section;
(B) Motherships; and
(C) Catcher vessels while:
( 1 ) Directed fishing for pollock in the BS;
( 2 ) Using trawl gear or hook-and-line gear when groundfish CDQ fishing (see § 679.2), except for catcher vessels less than or equal to 46 ft LOA using hook-and-line gear when groundfish CDQ fishing under § 679.32(c)(3)(iii);
( 3 ) Participating in the Rockfish Program; or
( 4 ) Using trawl gear in the BSAI if the vessel has been placed in the full observer coverage category under paragraph (a)(4) of this section; or
( 5 ) Participating in the PCTC Program.
(ii) Observer coverage requirements. A vessel listed in paragraphs (a)(2)(i)(A) through (C) of this section must have at least one observer aboard the vessel at all times. Some fisheries require additional observer coverage in accordance with paragraph (a)(2)(vi) of this section. The following exceptions apply:
(A) A vessel subject to the partial observer coverage category as per paragraph (a)(1)(i) of this section;
(B) A vessel approved to be in the full coverage trawl EM category; vessels in the full coverage trawl EM category are subject to observer coverage if NMFS determines that at-sea coverage is necessary in the Annual Deployment Plan.
(iii) Observer workload. The time required for an observer to complete sampling, data recording, and data communication duties per paragraph (a)(2) of this section may not exceed 12 consecutive hours in each 24-hour period.
(iv) Catcher/processor classification. (A) For purposes of this subpart, a vessel is classified as a catcher/processor according to the operation designation on its FFP. A vessel designated as a catcher/processor at any time during the calendar year is classified as a catcher/processor for the remainder of the calendar year.
(B) [Reserved]
(v) [Reserved]
(vi) Additional observer requirements —(A) CDQ fisheries. The owner or operator of a vessel must comply with the following requirements each day that the vessel is used to catch, process, deliver, or receive CDQ groundfish.
( 1 ) Catcher/processors using trawl gear and directed fishing for pollock CDQ in the BSAI and motherships taking deliveries from catcher vessels directed fishing for pollock CDQ in the BSAI. See paragraph (a)(2)(vi)(B)( 2 ) of this section.
( 2 ) Catcher/processors using trawl gear and groundfish CDQ fishing. See paragraph (a)(2)(vi)(C) of this section.
( 3 ) Catcher/processors using hook-and-line gear and groundfish CDQ fishing. See paragraph (a)(2)(vi)(E) of this section.
( 4 ) Catcher/processors using pot gear for groundfish CDQ fishing. A catcher/processor using pot gear must have at least one lead level 2 observer aboard the vessel. More than one observer must be aboard if the observer workload restriction would otherwise preclude sampling as required.
( 5 ) Motherships. A mothership that receives unsorted codends from catcher vessels groundfish CDQ fishing must have at least two observers aboard the mothership, at least one of whom must be endorsed as a lead level 2 observer. More than two observers must be aboard if the observer workload restriction would otherwise preclude sampling as required.
(B) BSAI pollock fisheries —( 1 ) Listed AFA catcher/processors, catcher/processors designated on listed AFA catcher/processor permits, and AFA motherships. The owner or operator of a listed AFA catcher/processor, a catcher/processor designated on a listed AFA catcher/processor permit, or an AFA mothership must have aboard at least two observers, at least one of whom must be endorsed as a lead level 2 observer, for each day that the vessel is used to catch, process, or receive groundfish. More than two observers must be aboard if the observer workload restriction would otherwise preclude sampling as required.
( 2 ) Pollock CDQ catcher/processors and motherships. The owner or operator of a catcher/processor or mothership used to catch, process, or receive pollock CDQ must comply with the observer coverage requirements in paragraph (a)(2)(vi)(B)( 1 ) of this section for each day that the vessel is used to catch, process, or receive pollock CDQ.
( 3 ) Unlisted AFA catcher/processors and catcher/processors designated on unlisted AFA catcher/processor permits. The owner or operator of an unlisted AFA catcher/processor or a catcher/processor designated on an unlisted AFA catcher/processor permit must have aboard at least two observers for each day that the vessel is used to engage in directed fishing for pollock in the BSAI, or receive pollock harvested in the BSAI. At least one observer must be endorsed as a lead level 2 observer. When a listed AFA catcher/processor is not engaged in directed fishing for BSAI pollock and is not receiving pollock harvested in the BSAI, the observer coverage requirements at paragraph (a)(2)(ii) of this section apply.
( 4 ) AI directed pollock fishery catcher/processors and motherships. A catcher/processor participating in the AI directed pollock fishery or a mothership processing pollock harvested in the AI directed pollock fishery must have aboard at least two observers, at least one of which must be endorsed as a lead level 2 observer, for each day that the vessel is used to catch, process, or receive groundfish. More than two observers must be aboard if the observer workload restriction would otherwise preclude sampling as required.
(C) Amendment 80 vessels and catcher/processors not listed in § 679.4(1)(2)(i) and using trawl gear in the BSAI. All Amendment 80 vessels using any gear but dredge gear while directed fishing for scallops and catcher/processors not listed in § 679.4(1)(2)(i) and using trawl gear in the BSAI must have aboard at least two observers for each day that the vessel is used to catch, process, or receive groundfish harvested in a federally managed or parallel groundfish fishery. At least one observer must be endorsed as a lead level 2 observer. More than two observers are required if the observer workload restriction would otherwise preclude sampling as required.
(D) Catcher/processors participating in the Rockfish Program —( 1 ) Rockfish cooperative. A catcher/processor that is named on an LLP license that is assigned to a rockfish cooperative and is fishing under a CQ permit must have at least two observers aboard for each day that the vessel is used to catch or process fish in the Central GOA from April 1 through the earlier of November 15 or the effective date and time of an approved rockfish cooperative termination of fishing declaration. At least one observer must be endorsed as a lead level 2 observer. More than two observers must be aboard if the observer workload restriction would otherwise preclude sampling as required.
( 2 ) Rockfish sideboard fishery for catcher/processors in a rockfish cooperative. A catcher/processor that is subject to a sideboard limit as described under § 679.82(e) must have at least two observers aboard for each day that the vessel is used to harvest or process fish in the West Yakutat District, Central GOA, or Western GOA management areas from July 1 through July 31. At least one observer must be endorsed as a lead level 2 observer. More than two observers must be aboard if the observer workload restriction would otherwise preclude sampling as required.
(E) Longline catcher/processor subsector. The owner and operator of a catcher/processor subject to § 679.100(b) must comply with the following observer coverage requirements:
( 1 ) Increased observer coverage option. If the vessel owner selects the increased observer coverage option under § 679.100(b)(1), at least two observers must be aboard the vessel at all times when the vessel is operating in either the BSAI or GOA groundfish fisheries when directed fishing for Pacific cod is open in the BSAI, or while the vessel is groundfish CDQ fishing. At least one of the observers must be endorsed as a lead level 2 observer. More than two observers are required if the observer workload restriction would otherwise preclude sampling as required.
( 2 ) Scales option. If the vessel owner selects the scales option under § 679.100(b)(2), one lead level 2 observer must be aboard the vessel at all times when the vessel is operating in either the BSAI or GOA groundfish fisheries when directed fishing for Pacific cod is open in the BSAI, or while the vessel is groundfish CDQ fishing.
(F) Halibut deck sorting. Vessels subject to § 679.102 must have at least two observers aboard at all times when halibut deck sorting may occur; one observer must be endorsed as a lead level 2 observer. More than two observers are required if the observer workload restriction would otherwise preclude sampling as required.
(G) PCTC Program motherships. A mothership that receives unsorted codends from catcher vessels harvesting Pacific cod under the PCTC Program must have at least two observers aboard the mothership, at least one of whom must be endorsed as a lead level 2 observer. More than two observers must be aboard if the observer workload restriction would otherwise preclude sampling as required.
(H) Catcher/processors using pot gear for groundfish fishing. A catcher/processor subject to § 679.101(a) must comply with the following observer coverage requirements:
( 1 ) Observer coverage. A catcher/processor must have aboard at least one Level 2 observer, as defined in § 679.53(a)(5)(iv).
( 2 ) Increased observer coverage option. A catcher/processor may carry more than one observer. A vessel choosing this option must have aboard at least one Level 2 observer as described in paragraph (a)(2)(vi)(H)( 1 ) of this section.
(3) Catcher/processor placement in the partial observer coverage category for a year —(i) Definitions. For purposes of this paragraph (a)(3), these terms are defined as follows:
(A) Average weekly groundfish production means the annual groundfish round weight production estimate for a catcher/processor, divided by the number of separate weeks during which production occurred, as determined by production reports, excluding any groundfish caught using trawl gear.
(B) Fishing year means the year during which a catcher/processor might be placed in partial observer coverage.
(C) Standard basis year means the fishing year minus two years.
(D) Alternate basis year means the most recent year before the standard basis year in which a catcher/processor had any groundfish production but not earlier than 2009.
(ii) Deadline for requesting partial observer coverage. For the 2017 fishing year and every fishing year after 2017, the deadline for requesting partial observer coverage is July 1 of the year prior to the fishing year.
(iii) Requirements for placing a catcher/processor in the partial observer coverage category. NMFS will place a catcher/processor in the partial observer coverage category for a fishing year if the owner of the catcher/processor requests placement in partial observer coverage by the deadline for requesting partial observer coverage for that fishing year and the catcher/processor meets the following requirements:
(A) An average weekly groundfish production of:
( 1 ) 79,000 lb (35.8 mt) or less, but more than zero lb, in the standard basis year; or
( 2 ) Zero lb in the standard basis year and 79,000 lb (35.8 mt) or less, but more than zero lb, in the alternate basis year; or
( 3 ) Had no production from 2009 through the standard basis year; and
(B) Is not a catcher/processor using trawl gear; and
(C) Is not subject to additional observer coverage requirements in paragraph (a)(2)(vi) of this section.
(iv) How to request placement of a catcher/processor in partial observer coverage. A vessel owner must submit a request form to NMFS. The request form must be completed with all required fields accurately completed. The request form is provided by NMFS and is available on the NMFS Alaska Region website. The submittal methods are described on the form.
(v) Notification of placement in the partial observer coverage category. NMFS will notify the owner if the catcher/processor has been placed in the partial observer coverage category in writing. Until NMFS provides notification, the catcher/processor is in the full observer coverage category for that fishing year.
(vi) Initial Administrative Determination (IAD). If NMFS denies a request to place a catcher/processor in the partial observer coverage category, NMFS will provide an IAD, which will explain the basis for the denial.
(vii) Appeal. If the owner of a catcher/processor wishes to appeal NMFS' denial of a request to place a catcher/processor in the partial observer coverage category, the owner may appeal the determination under the appeals procedure set out at 15 CFR part 906.
(4) BSAI trawl catcher vessel placement in the full observer coverage category for one year —(i) Applicability. The owner of a catcher vessel in the partial observer coverage category under paragraph (a)(1)(i) of this section may request to be placed in the full observer coverage category for all directed fishing for groundfish using trawl gear in the BSAI for a calendar year.
(ii) How to request full observer coverage for one year. A trawl catcher vessel owner must complete a full observer coverage request and submit it to NMFS using ODDS. ODDS is described in paragraph (a)(1)(ii) of this section.
(iii) Deadline to request full observer coverage. A full observer coverage request must be submitted by October 15 of the year prior to the calendar year in which the catcher vessel would be placed in the full observer coverage category.
(iv) Notification. NMFS will notify the vessel owner through ODDS of approval or denial to place a trawl catcher vessel in the full observer coverage category. Unless otherwise specified in paragraph (a)(2) of this section, a trawl catcher vessel remains in the partial observer coverage category under paragraph (a)(1)(i) of this section until a request to place a trawl catcher vessel in the full observer coverage category has been approved by NMFS. Once placement in the full observer coverage category is approved by NMFS, a trawl catcher vessel cannot be placed in the partial observer coverage category until the following year.
(v) Initial Administrative Determination (IAD). If NMFS denies a request to place a trawl catcher vessel in the full observer coverage category, NMFS will provide an IAD, which will explain the basis for the denial.
(vi) Appeal. If the owner of a trawl catcher vessel wishes to appeal NMFS' denial of a request to place a trawl catcher vessel in the full observer coverage category, the owner may appeal the determination under the appeals procedure set out at 15 CFR part 906.
(b) Observer requirements for shoreside processors and stationary floating processors —(1) Shoreside processor and stationary floating processor partial observer coverage category. (i) Unless otherwise specified in paragraph (b)(2) of this section, a shoreside processor or a stationary floating processor designated or required to be designated on an FPP under § 679.4(f)(1) is in the partial observer coverage category when receiving or processing groundfish harvested in federally managed or parallel groundfish fisheries, as defined at § 679.2.
(ii) Coverage. The manager of a shoreside processor or stationary floating processor must provide observers access to unsorted and sorted catch any time an observer is present at the facility.
(2) Shoreside processor and stationary floating processor full observer coverage category. An AFA inshore processor is in the full observer coverage category.
(i) Coverage level. (A) An AFA inshore processor must provide an observer for each 12-consecutive-hour period of each calendar day during which the processor takes delivery of, or processes, groundfish harvested by a vessel engaged in a directed pollock fishery in the BS. An AFA inshore processor that, for more than 12 consecutive hours in a calendar day, takes delivery of or processes pollock harvested in the BS directed pollock fishery must provide two observers for each such day.
(B) The owner and operator of an AFA shoreside or stationary floating processor receiving deliveries from a catcher vessel in the trawl EM category must provide the necessary number of observers to meet the criteria prescribed by NMFS in the Annual Deployment Plan for each calendar day during which the processor takes delivery of, or processes, groundfish harvested by a vessel engaged in a directed pollock fishery in the BS.
(ii) Multiple processors. An observer deployed to an AFA inshore processor may not be assigned to cover more than one processor during a calendar day in which the processor receives or processes pollock harvested in the BS directed pollock fishery.
(iii) Observers transferring between vessels and processors. An observer transferring from an AFA catcher vessel to an AFA inshore processor may not be assigned to cover the AFA inshore processor until at least 12 hours after offload and sampling of the catcher vessel's delivery is completed.
(3) Shoreside processor and stationary floating processor receiving a delivery from catcher or tender vessels in the trawl EM category —(i) Deadline to submit a request to receive trawl EM deliveries. A shoreside processor and stationary floating processor must submit a request to NMFS by November 1 of the year prior to the fishing year in which they intend to receive deliveries from catcher vessels or tender vessels in the trawl EM category.
(ii) [Reserved]
(c) NMFS employee observers. (1) Any vessel, shoreside processor, or stationary floating processor required to comply with observer coverage requirements under paragraphs (a) or (b) of this section or under § 679.7(f)(4) must use, upon written notification by the Regional Administrator, a NMFS employee to satisfy observer coverage requirements as specified in paragraphs (a) and (b) of this section or for other conservation and management purposes as specified by the Regional Administrator.
(2) Prior to deployment of a NMFS employee, the agency will provide written notification to the owner or operator of a vessel, shoreside processor, or stationary floating processor whether observer coverage credit will be granted for that deployment.
(3) Vessel, shoreside processor, and stationary floating processor owners and operators, as well as observers and observer providers, may contact NMFS in writing to request assistance in improving observer data quality and resolving observer sampling issues. Requests may be submitted to: NMFS Observer Program, 7600 Sand Point Way NE., Seattle, WA 98115-0070 or other method specified by NMFS on the NMFS Observer Program website.
(d) Procurement of observer services —(1) Full coverage category. (i) The owner of a vessel, shoreside processor, or stationary floating processor required to have full observer coverage under paragraphs (a)(2) and (b)(2) of this section must arrange and pay for observer services from a permitted observer provider.
(ii) The owner of a vessel, shoreside processor, or stationary floating processor is required to arrange and pay for observer services directly from NMFS when the agency has determined and notified them under paragraph (c) of this section that the vessel, shoreside processor, or stationary floating processor shall use a NMFS employee or individual authorized by NMFS in lieu of, or in addition to, an observer provided through a permitted observer provider to satisfy requirements under paragraphs (a)(2) and (b)(2) of this section or for other conservation and management purposes.
(2) Partial coverage category. The owner of a vessel in the partial observer coverage category per paragraph (a)(1) of this section must comply with instructions provided by ODDS to procure observer coverage for the required duration.
(e) Responsibilities —(1) Vessel responsibilities. An operator of a vessel required to carry one or more observers must:
(i) Accommodations and food. Provide, at no cost to observers or the United States, accommodations and food on the vessel for the observer or observers that are equivalent to those provided for officers, engineers, foremen, deck-bosses, or other management level personnel of the vessel.
(ii) Safe conditions. (A) Maintain safe conditions on the vessel for the protection of observers including adherence to all U.S. Coast Guard and other applicable rules, regulations, or statutes pertaining to safe operation of the vessel.
(B) Have on board:
( 1 ) A valid Commercial Fishing Vessel Safety Decal issued within the past 2 years that certifies compliance with regulations found in 33 CFR Chapter I and 46 CFR Chapter I;
( 2 ) A certificate of compliance issued pursuant to 46 CFR 28.710; or
( 3 ) A valid certificate of inspection pursuant to 46 U.S.C. 3311.
(iii) Communications and observer data entry —(A) Observer use of equipment. Allow an observer to use the vessel's communications equipment and personnel, on request, for the confidential entry, transmission, and receipt of work-related messages (including electronic transmission of data), at no cost to the observer or the United States.
(B) Equipment, software, and data transmission requirements. The operator of a catcher/processor (except for a catcher/processor placed in the partial observer coverage category under paragraph (a)(3) of this section), mothership, catcher vessel 125 ft (38.1 m) LOA or longer (except for a catcher vessel fishing for groundfish with pot gear), or a catcher vessel participating in the PCTC Program (except for paragraph (e)(1)(iii)(D) of this section) must provide the following equipment, software and data transmission capabilities:
( 1 ) Observer access to computer. Make a computer available for use by the observer.
( 2 ) NMFS-supplied software. Ensure that the most recent release of NMFS data entry software provided by the Regional Administrator or other approved software is installed on the computer described in paragraph (e)(1)(iii)(B)( 1 ) of this section.
( 3 ) Data transmission. The computer and software described in paragraphs (e)(1)(iii)(B)( 1 ) and ( 2 ) of this section must be connected to a communication device that provides a point-to-point connection to the NMFS host computer.
( 4 ) Functional and operational equipment. Ensure that the required equipment described in paragraph (e)(1)(iii)(B) of this section and that is used by an observer to enter or transmit data is fully functional and operational. “Functional” means that all the tasks and components of the NMFS-supplied, or other approved, software described in paragraph (e)(1)(iii)(B)( 2 ) of this section and any required data transmissions to NMFS can be executed effectively aboard the vessel by the equipment.
(C) The operator of a catcher vessel participating in the Rockfish Program or a catcher vessel less than 125 ft LOA directed fishing for pollock in the BS must comply with the computer and software requirements described in paragraphs (e)(1)(iii)(B)( 1 ), ( 2 ), and ( 4 ) of this section.
(D) PCTC Program. The operator of a non-AFA catcher vessel participating in the PCTC Program is not required to comply with paragraph (e)(1)(iii)(B)( 3 ) of this section to provide data transmission capability until September 7, 2026. However, once any non-AFA catcher vessel in the PCTC Program is capable of at-sea data transmission, the operator must comply.
(iv) Vessel position. Allow observers access to, and the use of, the vessel's navigation equipment and personnel, on request, to determine the vessel's position.
(v) Access. Allow observers free and unobstructed access to the vessel's bridge, trawl or working decks, holding bins, processing areas, freezer spaces, weight scales, cargo holds, and any other space that may be used to hold, process, weigh, or store fish or fish products at any time.
(vi) Prior notification. Notify observers at least 15 minutes before fish are brought on board, or fish and fish products are transferred from the vessel, to allow sampling the catch or observing the transfer, unless the observers specifically request not to be notified.
(vii) Records. Allow observers to inspect and copy the vessel's DFL, DCPL, product transfer forms, any other logbook or document required by regulations, printouts or tallies of scale weights, scale calibration records, bin sensor readouts, and production records.
(viii) Assistance. Provide all other reasonable assistance to enable observers to carry out their duties, including, but not limited to:
(A) Measuring decks, codends, and holding bins.
(B) Providing the observers with a safe work area adjacent to the sample collection site.
(C) Collecting bycatch when requested by the observers.
(D) Collecting and carrying baskets of fish when requested by observers.
(E) Allowing observers to determine the sex of fish when this procedure will not decrease the value of a significant portion of the catch.
(F) Collecting all seabirds that are incidentally taken on the observer-sampled portions of hauls using hook-and-line gear or as requested by an observer during non-sampled portions of hauls.
(G) During halibut deck sorting, providing halibut to the observer on deck.
(ix) Transfer at sea. (A) Ensure that transfers of observers at sea are carried out during daylight hours, under safe conditions, and with the agreement of observers involved.
(B) Notify observers at least 3 hours before observers are transferred, such that the observers can collect personal belongings, equipment, and scientific samples.
(C) Provide a safe pilot ladder and conduct the transfer to ensure the safety of observers during transfers.
(D) Provide an experienced crew member to assist observers in the small boat or raft in which any transfer is made.
(2) Shoreside processor and stationary floating processor responsibilities. A manager of a shoreside processor or a stationary floating processor that is required to maintain observer coverage as specified under paragraph (b) of this section must:
(i) Safe conditions. Maintain safe conditions at the shoreside processing facility for the protection of observers by adhering to all applicable rules, regulations, or statutes pertaining to safe operation and maintenance of the processing facility.
(ii) Operations information. Notify the observers, as requested, of the planned facility operations and expected receipt of groundfish prior to receipt of those fish.
(iii) Transmission of data. Facilitate transmission of observer data by:
(A) Observer use of equipment. Allowing observers to use the shoreside processor's or stationary floating processor's communication equipment and personnel, on request, for the entry, transmission, and receipt of work-related messages, at no cost to the observers or the United States.
(B) Communication equipment requirements —( 1 ) Observer access to computer. Making a computer available for use by the observer. This computer must be connected to a communication device that provides a point-to-point connection to the NMFS host computer.
( 2 ) NMFS-supplied software. Ensuring that the shoreside or stationary floating processor specified in paragraph (e)(2) of this section has installed the most recent release of NMFS data entry software provided by the Regional Administrator, or other approved software.
( 3 ) Functional and operational equipment. Ensuring that the communications equipment required under paragraph (e)(2)(iii)(B) of this section that is used by observers to enter and transmit data is functional and operational. “Functional” means that all the tasks and components of the NMFS-supplied, or other approved, software described at paragraph (e)(2)(iii)(B)( 2 ) of this section and any data transmissions to NMFS can be executed effectively by the communications equipment.
(iv) Access. Allow observers free and unobstructed access to the shoreside processor's or stationary floating processor's holding bins, processing areas, freezer spaces, weight scales, warehouses, and any other space that may be used to hold, process, weigh, or store fish or fish products at any time.
(v) Document access. Allow observers to inspect and copy the shoreside processor's or stationary floating processor's landing report, product transfer forms, any other logbook or document required by regulations; printouts or tallies of scale weights; scale calibration records; bin sensor readouts; and production records.
(vi) Assistance. Provide all other reasonable assistance to enable the observer to carry out his or her duties, including, but not limited to:
(A) Assisting the observer in moving and weighing totes of fish.
(B) Providing a secure place to store sampling gear.
(3) The owner of a vessel, shoreside processor, stationary floating processor, buying station, or tender vessel is responsible for compliance and must ensure that the operator or manager of a vessel, shoreside processor, or stationary floating processor required to maintain observer coverage under paragraphs (a) or (b) of this section complies with the requirements given in paragraphs (e)(1) and (e)(2) of this section.
(f) Electronic monitoring system requirements for vessels that use nontrawl gear. Vessels that use nontrawl gear in the partial coverage category in paragraph (a)(1)(i) of this section may be eligible for EM coverage instead of observer coverage.
(1) Vessel placement in the nontrawl EM selection pool —(i) Applicability. The owner or operator of a vessel that uses nontrawl gear in the partial coverage category under paragraph (a)(1)(i) of this section may request to be placed in the nontrawl EM selection pool.
(ii) How to request placement in the nontrawl EM selection pool. A vessel owner or operator must complete an EM request and submit it to NMFS using ODDS. Access to ODDS is available through the NMFS Alaska Region website ODDS is described in paragraph (a)(1)(ii) of this section.
(iii) Deadline to submit an EM request. A vessel owner or operator must submit an EM request in ODDS by November 1 of the year prior to the calendar year in which the catcher vessel would be placed in the nontrawl EM selection pool.
(iv) Approval for placement in the nontrawl EM selection pool. NMFS will approve a nontrawl gear vessel for placement in the nontrawl EM selection pool based on criteria specified in NMFS' Annual Deployment Plan, available through the NMFS Alaska Region website Criteria may include, but are not limited to, availability of EM systems, vessel gear type, vessel length, area fished, number of trips or total catch, sector, target fishery, and home or landing port.
(v) Notification of approval for placement in the nontrawl EM selection pool. (A) NMFS will notify the vessel owner or operator through ODDS of approval for the nontrawl EM selection pool for the next calendar year. The vessel remains subject to observer coverage under paragraph (a)(1)(i) of this section unless NMFS approves the request for placement of the vessel in the nontrawl EM selection pool.
(B) Once the vessel owner or operator receives notification of approval from NMFS, the vessel owner or operator must comply with the vessel owner or operator responsibilities in paragraphs (f)(4) and (5) of this section and all further instructions set forth by ODDS.
(vi) Initial Administrative Determination (IAD). If NMFS denies a request to place a vessel in the nontrawl EM selection pool, NMFS will provide an IAD to the vessel owner, which will explain the basis for the denial.
(vii) Appeal. If the vessel owner wishes to appeal NMFS' denial of a request to place the vessel in the nontrawl EM selection pool, the owner may appeal the determination under the appeals procedure set out at 15 CFR part 906.
(viii) Duration. Once NMFS approves a vessel for the nontrawl EM selection pool, that vessel will remain in the nontrawl EM selection pool until—
(A) NMFS disapproves the VMP under paragraph (f)(4) of this section;
(B) The vessel owner or operator notifies NMFS that the vessel intends to leave the nontrawl EM selection pool in the following fishing year under paragraph (f)(1)(ix) of this section; or
(C) The vessel no longer meets the nontrawl EM selection pool criteria specified by NMFS.
(ix) How to leave the nontrawl EM selection pool. A vessel owner must complete a request to leave the nontrawl EM selection pool and submit it to NMFS using ODDS. ODDS is described in paragraph (a)(1)(ii) of this section.
(x) Deadline to submit a request to leave the nontrawl EM selection pool. A vessel owner or operator must submit a request to leave the nontrawl EM selection pool by November 1 of the year prior to the calendar year in which the vessel would be placed in observer coverage.
(2) Notification of nontrawl EM trip selection. —(i) Prior to embarking on each fishing trip, the operator of a vessel in the nontrawl EM selection pool with a NMFS-approved VMP must register the anticipated trip with ODDS.
(ii) ODDS will notify the vessel operator whether the trip is selected for EM coverage and provide a receipt number corresponding to this notification. Trip registration is complete when the vessel operator receives the receipt number.
(iii) An operator may embark on a fishing trip registered with ODDS:
(A) Not selected trip. At any time if ODDS indicates that the fishing trip is not selected for EM coverage.
(B) Selected trip. After the vessel operator follows the instructions in ODDS and complies with the responsibilities under paragraphs (f)(4) and (5) of this section, if ODDS indicates that the fishing trip is selected for EM coverage.
(3) EM coverage duration. If selected, a vessel is required to use the EM system for the entire fishing trip.
(i) A fishing trip selected for EM coverage may not begin until all previously harvested fish have been offloaded.
(ii) At the end of the fishing trip selected for EM coverage, the vessel operator must use ODDS to close the fishing trip following the instructions in the VMP and submit EM data and associated documentation as outlined in paragraph (f)(5)(vii) of this section.
(4) Vessel Monitoring Plan (VMP). Once approved for the nontrawl EM selection pool and prior to registering a fishing trip in ODDS under paragraph (f)(2) of this section, the vessel owner or operator must develop a VMP with the EM service provider following the VMP template available through the NMFS Alaska Region website.
(i) The vessel owner or operator must sign and submit the VMP to NMFS each calendar year.
(ii) NMFS will approve the VMP for the calendar year if it meets all the requirements specified in the VMP template available through the NMFS Alaska Region website.
(iii) If the VMP does not meet all the requirements specified in the VMP template, NMFS will provide the vessel owner or operator the opportunity to submit a revised VMP that meets all the requirements specified in the VMP template.
(iv) If NMFS does not approve the revised VMP, NMFS will issue an IAD to the vessel owner or operator that will explain the basis for the disapproval. The vessel owner or operator may file an administrative appeal under the administrative appeals procedures set out at 15 CFR part 906.
(v) If, at any time, changes are required to the VMP to improve the data collection of the EM system or address fishing operation changes, the vessel owner or operator must work with NMFS and the EM service provider to amend the VMP. The vessel owner or operator must sign the amended VMP and submit these changes to the VMP to NMFS prior to departing on the next fishing trip selected for EM coverage.
(vi) The VMP will require information regarding:
(A) Vessel and contact information;
(B) Gear used;
(C) EM hardware functionality requirements;
(D) Requirements for meeting program objectives as specified in the Annual Deployment Plan;
(E) List of potential solutions for hardware malfunctions;
(F) Images of camera locations and camera views;
(G) EM hardware service provider information;
(H) Valid signatures from the EM hardware service provider and vessel owner or operator; and
(I) Any other information required by the applicable VMP.
(5) Vessel owner or operator responsibilities. To use an EM system under this section, the vessel owner or operator must:
(i) Make the vessel available for the installation of EM equipment by an EM service provider.
(ii) Provide access to the vessel's systems and reasonable assistance to the EM service provider.
(iii) Maintain a copy of a NMFS-approved VMP aboard the vessel at all times when the vessel is directed fishing in a fishery subject to EM coverage.
(iv) Comply with all elements of the VMP when selected for EM coverage in ODDS.
(v) Maintain the EM system, including the following:
(A) Ensure power is maintained to the EM system at all times when the vessel is underway.
(B) Ensure the system is functioning for the entire fishing trip, camera views are unobstructed and clear in quality, and catch and discards may be completely viewed, identified, and quantified.
(C) Ensure EM system components are not tampered with, disabled, destroyed, or operated or maintained improperly.
(vi) Complete pre-departure function test and daily verification of EM system.
(A) Prior to departing port, the vessel operator must conduct a system function test following the instructions from the EM service provider. The vessel operator must verify that the EM system has adequate memory to record the entire fishing trip.
( 1 ) If the EM system function test detects a malfunction identified as a high priority in the vessel's VMP or does not allow the data collection objectives to be achieved, the vessel must remain in port for up to 72 hours to allow an EM service provider time to conduct repairs. If the repairs cannot be completed within the 72-hour time frame, the vessel is released from EM coverage for that fishing trip and may depart on the scheduled fishing trip. A malfunction must be repaired prior to departing on a subsequent fishing trip. The vessel will automatically be selected for EM coverage for the subsequent fishing trip after the malfunction has been repaired.
( 2 ) If the EM system function test detects a malfunction identified as a low priority in the vessel's VMP, the vessel operator may depart on the scheduled fishing trip following the procedures for low priority malfunctions described in the vessel's VMP. At the end of the trip the vessel operator must work with the EM service provider to repair the malfunction. The vessel operator may not depart on another fishing trip selected for EM coverage with this system malfunction unless the vessel operator has contacted the EM service provider.
(B) During a fishing trip selected for EM coverage, before each set is retrieved the vessel operator must verify all cameras are recording and all sensors and other required EM system components are functioning as instructed in the vessel's VMP.
( 1 ) If a malfunction is detected, prior to retrieving the set the vessel operator must attempt to correct the problem using the instructions in the vessel's VMP.
( 2 ) If the malfunction cannot be repaired at sea, the vessel operator must notify the EM service provider of the malfunction at the end of the fishing trip. The malfunction must be repaired prior to departing on a subsequent fishing trip selected for EM coverage.
(vii) At the end of a fishing trip selected for EM coverage, the vessel operator must submit EM data and associated documentation identified in the vessel's VMP to NMFS using a method that requires a signature for delivery and provides a return receipt or delivery notification to the sender. The vessel operator must postmark EM data and associated documentation no later than 2 business days after the end of the fishing trip. If the fishing trip ends in a remote port with limited postal service or at a tender vessel, the vessel operator must ensure EM data and associated documentation is postmarked as soon as possible but no later than two weeks after the end of the fishing trip.
(viii) Make the EM system and associated equipment available for inspection upon request by OLE, a NMFS-authorized officer, or other NMFS-authorized personnel.
(6) EM for fishing in multiple regulatory areas. If a vessel owner or operator intends to fish in multiple regulatory areas using an EM system under the exception provided at § 679.7(f)(4), the vessel owner or operator must:
(i) Meet the requirements described in paragraph (f) of this section.
(ii) Register in ODDS that he or she intends to fish in multiple regulatory areas using the exception in § 679.7(f)(4).
(iii) Ensure the EM system is powered continuously during the fishing trip. If the EM system is powered down during periods of non-fishing, the VMP must describe alternate methods to ensure location information about the vessel is available for the entire fishing trip, as specified in the VMP template available through the NMFS Alaska Region website.
(iv) If an EM system malfunction occurs during a fishing trip that does not allow the recording of retrieval location information and imagery of catch as described in the vessel's VMP, the vessel operator must cease fishing and contact OLE immediately.
(g) Trawl EM category —(1) Vessel placement in the trawl EM category —(i) Applicability. (A) The owner or operator of a catcher vessel with a pollock trawl endorsement (PTW) on their FFP in the partial coverage category under paragraph (a)(1)(i) of this section, or in the full coverage category in paragraph (a)(2)(i) of this section, may request to be placed in the trawl EM category.
( 1 ) Partial coverage trawl EM category. Catcher vessels directed fishing for pollock with pelagic trawl gear in the GOA or AI fisheries.
( 2 ) Full coverage trawl EM category. Catcher vessels directed fishing for pollock with pelagic trawl gear in the BS or CDQ fisheries.
(B) The owner or operator of a tender vessel must request to be placed in the trawl EM category before receiving a delivery from a catcher vessel in the trawl EM category.
(ii) How to request placement in the trawl EM category. The owner or operator of a vessel must complete the trawl EM category request and submit it to NMFS using ODDS. Access to ODDS is available through the NMFS Alaska Region website. ODDS is described in paragraph (a)(1)(ii) of this section.
(iii) Deadline to submit a trawl EM category request. A vessel owner or operator must submit an annual trawl EM category request in ODDS by November 1 of the year prior to the fishing year in which the vessel would be placed in the trawl EM category.
(iv) Approval for placement in the trawl EM category. NMFS may approve a vessel for placement in the trawl EM category based on criteria specified by NMFS in the Annual Deployment Plan, available through the NMFS Alaska Region website. Criteria for disapproval may include actions by the vessel leading to data gaps, noncompliance with program elements such as discarding of catch, vessel configuration or fishing practices that cannot provide the necessary camera views to meet data collection goals, failure to follow the trawl EM category VMP, and/or failure to adhere to an incentive plan agreement as specified in § 679.57 for partial coverage catcher vessels or § 679.21(f)(12) for full coverage catcher vessels. For the trawl EM application to be considered complete, all fees due to NMFS from the owner or authorized representative of a catcher vessel subject to the fees specified at § 679.56 at the time of application must be paid.
(v) Notification of approval for placement in the trawl EM category. (A) NMFS will notify the owner or operator through ODDS of approval for the trawl EM category for the following fishing year. Catcher vessels remain subject to observer coverage under paragraphs (a)(1)(i) or (a)(2)(i) of this section unless and until NMFS approves the request for placement of the catcher vessel in the trawl EM category.
(B) Once NMFS notifies the catcher vessel owner or operator that their request to be placed in the trawl EM category has been approved, the vessel owner or operator must comply with the responsibilities in paragraphs (g)(2) and (3) of this section and all further instructions set forth in ODDS when they operate in the trawl EM category. When a catcher vessel approved for placement in the trawl EM category does not operate in the trawl EM category on a particular fishing trip, the vessel remains subject to observer coverage under paragraphs (a)(1)(i) or (a)(2)(i) of this section.
(vi) Initial Administrative Determination (IAD). If NMFS denies a request to place a vessel in the trawl EM category, NMFS will provide an IAD to the vessel owner, which will explain the basis for the denial.
(vii) Appeal. If the vessel owner wishes to appeal NMFS' denial of a request to place the vessel in the trawl EM category, the owner may appeal the determination under the appeals procedure set out at 15 CFR part 906.
(viii) Duration. Once NMFS approves a vessel for placement in the trawl EM category, that vessel will remain in the trawl EM category for the following upcoming fishing year or until:
(A) NMFS disapproves the vessel's VMP under paragraph (g)(2) of this section; or
(B) The vessel no longer meets the trawl EM category criteria specified by NMFS.
(ix) Procurement of EM services. (A) In the partial coverage category, the owner or operator of a vessel approved for the trawl EM category must use the EM hardware service provider as outlined by NMFS in the Annual Deployment Plan.
(B) In the full coverage category, the owner or operator of a vessel approved for the trawl EM category must arrange and pay for EM service provider services from a permitted EM hardware service provider.
(2) Vessel Monitoring Plan (VMP). Once approved for the trawl EM category, and prior to the first trawl EM fishing trip in the fishing year, the vessel owner or operator must develop a VMP with the EM hardware service provider following the VMP template available through the NMFS Alaska Region website.
(i) VMP Submission. The vessel owner or operator must sign and submit the VMP to NMFS each fishing year.
(ii) VMP Approval. NMFS may approve the VMP for the fishing year if it meets all the requirements specified in the VMP template available through the NMFS Alaska Region website.
(iii) VMP Resubmission. If the VMP does not meet all the requirements specified in the VMP template, NMFS will provide the vessel owner or operator the opportunity to submit a revised VMP that meets all the requirements specified in the VMP template.
(iv) VMP Disapproval. If NMFS does not approve the revised VMP, NMFS will issue an IAD to the vessel owner or operator that will explain the basis for the disapproval. The vessel owner or operator may file an administrative appeal under the administrative appeals procedures set out at 15 CFR part 906.
(v) VMP Revision. If, at any time, changes must be made to the VMP to improve the data collection of the EM system or address fishing operation changes, the vessel owner or operator must work with NMFS and the EM hardware service provider to amend the VMP. The vessel owner or operator must sign the updated VMP and submit those changes to NMFS. NMFS must approve the amended VMP prior to departing on the next fishing trip selected for EM coverage.
(vi) VMP Components. The VMP will require information regarding:
(A) Vessel and contact information;
(B) Gear used;
(C) EM hardware functionality requirements;
(D) Requirements for meeting program objectives as specified in the Annual Deployment Plan;
(E) List of potential solutions for hardware malfunctions;
(F) Images of camera locations and camera views;
(G) EM hardware service provider information;
(H) Valid signatures from the EM hardware service provider and either the vessel owner or operator; and
(I) Any other information required by the applicable VMP.
(3) Responsibilities. To use an EM system under this section the vessel owner and operator must:
(i) Installation. Make the vessel available for the installation of EM equipment by an EM hardware service provider;
(ii) Access. Provide access to the vessel's EM system and reasonable assistance to the EM hardware service provider;
(iii) Copy. Maintain a copy of a NMFS-approved VMP onboard the vessel at all times when the vessel is directed fishing in a fishery subject to EM coverage;
(iv) Compliance. Comply with all elements of the VMP during trawl EM category fishing trips;
(v) Maintenance. Maintain the EM system, including by doing the following:
(A) Ensure the EM system is functioning before departing on a fishing trip.
(B) Ensure power is maintained to the EM system for the duration of a trawl EM category fishing trip;
(C) Ensure the system is functioning for the entire fishing trip, camera views are unobstructed and clear in quality, and discards may be completely viewed, identified, and quantified; and
(D) Ensure EM system components are not tampered with, disabled, destroyed, or operated or maintained improperly.
(vi) Communication. Communicate catch information to the shoreside processor or stationary floating processor receiving catch through a NMFS approved system. The following information must be transmitted as outlined in the VMP:
(A) Vessel name;
(B) Identify which Management areas the vessel was operating in;
(C) Most precise estimate available of tonnage aboard the vessel;
(D) Estimated deckload size, if present;
(E) Estimated time of arrival at shoreside processor or stationary floating processor; and
(F) Information to meet other requirements of this part, if requested by NMFS.
(4) EM coverage duration and duties. (i) Beginning a Fishing Trip. A fishing trip in the trawl EM category may not begin until all previously harvested fish have been landed.
(ii) Ending a Fishing Trip. At the end of the fishing trip in the trawl EM category, the vessel operator must follow the instructions in the VMP and submit the EM data and associated documentation identified in the VMP.
(iii) Daily Tests. The vessel operator must complete daily tests of equipment functionality as instructed in the vessel's VMP.
(A) During a fishing trip in the trawl EM category, before each haul is retrieved, the vessel operator must verify all cameras are recording and all sensors and other required EM system components are functioning as instructed in the vessel's VMP.
( 1 ) If a malfunction is detected prior to retrieving the haul the vessel operator must attempt to correct the problem using the instructions in the vessel's VMP.
( 2 ) If the malfunction cannot be repaired at sea, the vessel operator must notify the EM hardware service provider of the malfunction at the end of the fishing trip. The malfunction must be repaired prior to departing on the next fishing trip in the trawl EM category.
(B) [Reserved]
(iv) Inspection. Make the EM system and associated equipment available for inspection upon request by OLE, a NMFS-authorized officer, or other NMFS-authorized personnel.
(5) ODDS requirements for trawl EM category catcher vessels in the partial coverage category —(i) EM trips. Prior to embarking on each fishing trip, the operator of a catcher vessel in the partial coverage trawl EM category with a NMFS-approved VMP must register the anticipated trip with ODDS. The owner or operator must specify the use of pelagic trawl gear to determine trawl EM category participation for the upcoming fishing trip.
(ii) [Reserved]
§ 679.52   Observer provider permitting and responsibilities.
(a) Observer provider permit —(1) Permit. The Regional Administrator may issue a permit authorizing a person's participation as an observer provider for operations requiring full observer coverage per § 679.51(a)(2) and (b)(2). Persons seeking to provide observer services under this section must obtain an observer provider permit from NMFS.
(2) New observer provider. An applicant seeking an observer provider permit must submit a completed application by fax or mail to the Observer Program at the address listed at § 679.51(c)(3).
(3) Contents of application. An application for an observer provider permit shall consist of a narrative that contains the following:
(i) Identification of the management, organizational structure, and ownership structure of the applicant's business, including identification by name and general function of all controlling management interests in the company, including but not limited to owners, board members, officers, authorized agents, and other employees. If the applicant is a corporation, the articles of incorporation must be provided. If the applicant is a partnership, the partnership agreement must be provided.
(ii) Contact information —(A) Owner(s) information. The permanent mailing address, phone and fax numbers where the owner(s) can be contacted for official correspondence.
(B) Business information. Current physical location, business mailing address, business telephone and fax numbers, and business email address for each office.
(C) Authorized agent. For an observer provider with ownership based outside the United States, identify an authorized agent and provide contact information for that agent including mailing address and phone and fax numbers where the agent can be contacted for official correspondence. An authorized agent means a person appointed and maintained within the United States who is authorized to receive and respond to any legal process issued in the United States to an owner or employee of an observer provider. Any diplomatic official accepting such an appointment as designated agent waives diplomatic or other immunity in connection with the process.
(iii) A statement signed under penalty of perjury from each owner, or owners, board members, and officers if a corporation, that they have no conflict of interest as described in paragraph (c) of this section.
(iv) A statement signed under penalty of perjury from each owner, or owners, board members, and officers if a corporation, describing any criminal convictions, Federal contracts they have had and the performance rating they received on the contract, and previous decertification action while working as an observer or observer provider.
(v) A description of any prior experience the applicant may have in placing individuals in remote field and/or marine work environments. This includes, but is not limited to, recruiting, hiring, deployment, and personnel administration.
(vi) A description of the applicant's ability to carry out the responsibilities and duties of an observer provider as set out under paragraph (b) of this section, and the arrangements to be used.
(4) Application evaluation. (i) The Regional Administrator will establish an observer provider permit application review board, comprised of NMFS employees, to review and evaluate an application submitted under paragraph (a) of this section. The review board will evaluate the completeness of the application, the application's consistency with needs and objectives of the observer program, or other relevant factors. If the applicant is a corporation, the review board also will evaluate the following criteria for each owner, or owners, board members, and officers:
(A) Absence of conflict of interest as defined under paragraph (c) of this section;
(B) Absence of criminal convictions related to:
( 1 ) Embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property, or
( 2 ) The commission of any other crimes of dishonesty, as defined by Alaska State law or Federal law, that would seriously and directly affect the fitness of an applicant in providing observer services under this section;
(C) Satisfactory performance ratings on any Federal contracts held by the applicant; and
(D) Absence of any history of decertification as either an observer or observer provider;
(ii) [Reserved]
(5) Agency determination on an application. NMFS will send a written determination to the applicant. If an application is approved, NMFS will issue an observer provider permit to the applicant. If an application is denied, the reason for denial will be explained in the written determination.
(6) Transferability. An observer provider permit is not transferable. An observer provider that experiences a change in ownership that involves a new person must submit a new permit application and cannot continue to operate until a new permit is issued under this paragraph (a).
(7) Expiration of observer provider permit. (i) An observer provider permit will expire after a period of 12 continuous months during which no observers are deployed by the provider under this section to the North Pacific groundfish or halibut industry.
(ii) The Regional Administrator will provide a written initial administrative determination (IAD) of permit expiration to an observer provider if NMFS' deployment records indicate that the observer provider has not deployed an observer during a period of 12 continuous months. An observer provider who receives an IAD of permit expiration may appeal under § 679.43. An observer provider that appeals an IAD will be issued an extension of the expiration date of the permit until after the final resolution of the appeal.
(8) Sanctions. Procedures governing sanctions of permits are found at subpart D of 15 CFR part 904.
(b) Responsibilities of observer providers. An observer provider that supplies observers for operations requiring full observer coverage per § 679.51(a)(2) and (b)(2) must:
(1) Provide qualified candidates to serve as observers. (i) To be a qualified candidate an individual must have:
(A) A Bachelor's degree or higher from an accredited college or university with a major in one of the natural sciences;
(B) Successfully completed a minimum of 30 semester hours or equivalent in applicable biological sciences with extensive use of dichotomous keys in at least one course;
(C) Successfully completed at least one undergraduate course each in math and statistics with a minimum of 5 semester hours total for both; and
(D) Computer skills that enable the candidate to work competently with standard database software and computer hardware.
(ii) Prior to hiring an observer candidate, the observer provider must provide to the candidate copies of NMFS-prepared pamphlets and other information describing observer duties.
(iii) For each observer employed by an observer provider, either a written contract or a written contract addendum must exist that is signed by the observer and observer provider prior to the observer's deployment and that includes the following conditions for continued employment:
(A) That all of the observer's in-season catch messages (data) between the observer and NMFS are submitted to the Observer Program as outlined in the current Observer Sampling Manual.
(B) That the observer completes in-person mid-deployment data reviews, unless:
( 1 ) The observer is specifically exempted by the Observer Program, or
( 2 ) The observer does not at any time during his or her deployment travel through a location where an Observer Program employee is available for an in-person data review and the observer completes a phone, email, or other NMFS-specified method for mid-deployment data review, as described in the Observer Sampling Manual; and
(C) The observer informs the observer provider prior to the time of embarkation if he or she is experiencing any new mental illness or physical ailments or injury since submission of the physician's statement as required in paragraph (b)(11)(iii) of this section that would prevent him or her from performing his or her assigned duties;
(2) Ensure an observer completes duties in a timely manner. An observer provider must ensure that an observer employed by that observer provider performs the following in a complete and timely manner:
(i) When an observer is scheduled for a final deployment debriefing under paragraph (b)(11)(v) of this section, submit to NMFS all data, reports required by the Observer Sampling Manual, and biological samples from the observer's deployment by the completion of the electronic vessel and/or processor survey(s);
(ii) Complete NMFS electronic vessel and/or processor surveys before performing other jobs or duties that are not part of NMFS groundfish observer requirements;
(iii) Report for his or her scheduled debriefing and complete all debriefing responsibilities; and
(iv) Return all sampling and safety gear to the Observer Program.
(3) Observer conduct. (i) An observer provider must develop, maintain, implement, and enforce a policy addressing observer conduct and behavior for their employees that serve as observers. The policy shall address the following behavior and conduct regarding:
(A) Observer use of alcohol;
(B) Observer use, possession, or distribution of illegal drugs; and
(C) Sexual contact with personnel of the vessel or processing facility to which the observer is assigned, or with any vessel or processing plant personnel who may be substantially affected by the performance or non-performance of the observer's official duties.
(ii) An observer provider shall provide a copy of its conduct and behavior policy:
(A) To observers, observer candidates; and
(B) By February 1 of each year to the Observer Program.
(4) Assign observer to vessels and processors. An observer provider must assign to vessels or shoreside or floating processors only observers:
(i) With valid North Pacific groundfish and halibut observer certifications and endorsements to provide observer services;
(ii) Who have not informed the provider prior to the time of embarkation that he or she is experiencing a mental illness or a physical ailment or injury developed since submission of the physician's statement, as required in paragraph (b)(11)(iii) of this section that would prevent him or her from performing his or her assigned duties; and
(iii) Who have successfully completed all NMFS required training and briefing before deployment.
(5) Respond to industry requests for observers. An observer provider must provide an observer for deployment as requested by vessels and processors to fulfill vessel and processor requirements for observer coverage under § 679.51(a) and (b). An alternate observer must be supplied in each case where injury or illness prevents the observer from performing his or her duties or where the observer resigns prior to completion of his or her duties.
(6) Provide observer salaries and benefits. An observer provider must provide to its observer employees, salaries and any other benefits and personnel services in accordance with the terms of each observer's contract.
(7) Provide observer deployment logistics. (i) An observer provider must provide to each observer it employs:
(A) All necessary transportation, including arrangements and logistics, to the initial location of deployment, to all subsequent vessel and shoreside or stationary floating processor assignments during that deployment, and to the debriefing location when a deployment ends for any reason; and
(B) Lodging, per diem, and any other necessary services necessary to observers assigned to fishing vessels or shoreside processing or stationary floating processing facilities.
(ii) Except as provided in paragraph (b)(7)(iii) of this section, an observer provider must provide to each observer deployed to a shoreside processing facility or stationary floating processor, and each observer between vessel, stationary floating processor, or shoreside assignments while still under contract with an observer provider, shall be provided with accommodations at a licensed hotel, motel, bed and breakfast, stationary floating processor, or other shoreside accommodations for the duration of each shoreside assignment or period between vessel or shoreside assignments. Such accommodations must include an assigned bed for each observer and no other person may be assigned that bed for the duration of that observer's stay. Additionally, no more than four beds may be in any room housing observers at accommodations meeting the requirements of this section.
(iii) An observer under contract may be housed on a vessel to which the observer is assigned:
(A) Prior to the vessel's initial departure from port;
(B) For a period not to exceed 24 hours following completion of an offload for which the observer has duties and is scheduled to disembark; or
(C) For a period not to exceed 24 hours following the vessel's arrival in port when the observer is scheduled to disembark.
(iv) During all periods an observer is housed on a vessel, the observer provider must ensure that the vessel operator or at least one crew member is aboard.
(v) Each observer deployed to a shoreside processing facility must be provided with individually assigned communication equipment in working order, such as a cell phone or pager, for notification of upcoming deliveries or other necessary communication. Each observer assigned to a shoreside processing facility located more than 1 mile from the observer's local accommodations shall be provided with motorized transportation that will ensure the observer's arrival at the processing facility in a timely manner such that the observer can complete his or her assigned duties.
(8) Limit observer deployment. Unless alternative arrangements are approved by the Observer Program, an observer provider must not:
(i) Deploy an observer on the same vessel or at the same shoreside or stationary floating processor for more than 90 days in a 12-month period;
(ii) Deploy an observer for more than 90 days in a single deployment;
(iii) Include in a single deployment of an observer, assignments to more than four vessels, including groundfish and all other vessels, and/or shoreside processors; or
(iv) Move an observer from a vessel or stationary floating processor or shoreside processor before that observer has completed his or her sampling or data transmission duties.
(9) Verify vessel USCG Safety Decal. An observer provider must verify that a vessel has a valid USCG Safety Decal as required under § 679.51(e)(1)(ii)(B)( 1 ) before the vessel with an observer aboard may depart. One of the following acceptable means of verification must be used to verify the decal validity:
(i) An employee of the observer provider, including the observer, visually inspects the decal aboard the vessel and confirms that the decal is valid according to the decal date of issuance; or
(ii) The observer provider receives a hard copy of the USCG documentation of the decal issuance from the vessel owner or operator.
(10) Provide 24 hours a day communications with observers. An observer provider must have an employee responsible for observer activities on call 24 hours a day to handle emergencies involving an observer or problems concerning observer logistics, whenever an observer is at sea, stationed at a shoreside processor or stationary floating processor, in transit, or in port awaiting vessel or processor (re)assignment.
(11) Provide information to the Observer Program. An observer provider must provide all the following information to the Observer Program by electronic transmission (email), or other method specified by NMFS within the specified timeframes.
(i) Registration materials. Observer training and briefing registration materials must be submitted to the Observer Program at least 5 business days prior to the beginning of a scheduled observer certification training or briefing session. Registration materials consist of the following:
(A) Observer training registration, including:
( 1 ) Date of requested training;
( 2 ) A list of observer candidates. The list must include each candidate's full name ( i.e., first, middle, and last names), date of birth, and gender;
( 3 ) A copy of each candidate's academic transcripts and resume; and
( 4 ) A statement signed by the candidate under penalty of perjury that discloses any criminal convictions of the candidate.
(B) Observer briefing registration, including:
( 1 ) Date and type of requested briefing session and briefing location; and
( 2 ) List of observers to attend the briefing session. Each observer's full name (first, middle, and last names) must be included.
(ii) Statement of projected observer assignments. Prior to the observer or observer candidate's completion of the training or briefing session, the observer provider must submit to the Observer Program a statement of projected observer assignments that includes the observer's name; vessel, shoreside processor, or stationary floating processor assignment, gear type, and vessel/processor code; port of embarkation; target species; and area of fishing.
(iii) Physician's statement. A signed and dated statement from a licensed physician that he or she has physically examined an observer or observer candidate. The statement must confirm that, based on the physical examination, the observer or observer candidate does not have any health problems or conditions that would jeopardize their individual safety or the safety of others while the observer or observer candidate is deployed, or prevent the observer or observer candidate from performing his or her duties satisfactorily. The statement must declare that, prior to the examination, the physician read the NMFS-prepared pamphlet provided to the candidate by the observer provider as specified in paragraph (b)(1)(ii) of this section and was made aware of the duties of the observer as well as the dangerous, remote, and rigorous nature of the work. The physician's statement must be submitted to the Observer Program prior to certification of an observer. The physical exam must have occurred during the 12 months prior to the observer's or observer candidate's deployment. The physician's statement will expire 12 months after the physical exam occurred. A new physical exam must be performed, and accompanying statement submitted, prior to any deployment occurring after the expiration of the statement.
(iv) Observer deployment/logistics report. An accurate deployment/logistics report must be submitted within 24 hours of the observer assignment, or daily by 4:30 p.m., Pacific time, each business day with regard to each observer. The deployment/logistics report must include the observer's name, cruise number, current vessel, shoreside processor or stationary floating processor assignment and vessel/processor code, embarkation date, and estimated or actual disembarkation dates.
(v) Observer debriefing registration. The observer provider must contact the Observer Program within 5 business days after the completion of an observer's deployment to schedule a date, time, and location for debriefing. Observer debriefing registration information must be provided at the time the debriefing is scheduled and must include the observer's name, cruise number, vessel, or shoreside or stationary floating processor assignment name(s) and code(s), and requested debriefing date.
(vi) Certificates of insurance. Copies of “certificates of insurance” that name the NMFS Observer Program leader as the “certificate holder” must be submitted to the Observer Program by February 1 of each year. The certificates of insurance shall verify all coverage provisions specified at § 600.748(b) and (c) of this chapter and state that the insurance company will notify the certificate holder if insurance coverage is changed or canceled.
(vii) Observer provider contracts. Observer providers must submit to the Observer Program a completed and unaltered copy of each type of signed and valid contract (including all attachments, appendices, addendums, and exhibits incorporated into the contract) between the observer provider and those entities requiring observer services under § 679.51(a)(2) and (b)(2), by February 1 of each year. Observer providers must also submit to the Observer Program, upon request, a completed and unaltered copy of the current or most recent signed and valid contract (including all attachments, appendices, addendums, and exhibits incorporated into the contract and any agreements or policies with regard to observer compensation or salary levels) between the observer provider and the particular entity identified by the Observer Program or with specific observers. The copies must be submitted by electronic transmission (email or through an electronic system as designated by NMFS) or other method specified by NMFS within 5 business days of the request for the contract at the address listed in § 679.51(c)(3). Signed and valid contracts include the contracts an observer provider has with:
(A) Vessels required to have observer coverage as specified at § 679.51(a)(2);
(B) Shoreside processors or stationary floating processors required to have observer coverage as specified at § 679.51(b)(2); and
(C) Observers.
(viii) Observer provider invoices. A certified observer provider must submit to the Observer Program a copy of all invoices for observer coverage required or provided pursuant to § 679.51(a)(2) and § 679.51(b)(2).
(A) A copy of the invoices must be received by the Observer Program within 45 days of the date on the invoice and must include all reconciled and final charges.
(B) Invoices must contain the following information:
( 1 ) Name of each catcher/processor, catcher vessel, mothership, stationary floating processor, or shoreside processing plant to which the invoice applies;
( 2 ) Dates of service for each observer on each catcher/processor, catcher vessel, mothership, stationary floating processor, or shoreside processing plant. Dates billed that are not observer coverage days must be identified on the invoice;
( 3 ) Rate charged in dollars per day (daily rate) for observer services;
( 4 ) Total charge for observer services (number of days multiplied by daily rate);
( 5 ) Amount charged for air transportation; and
( 6 ) Amount charged by the provider for any other observer expenses, including but not limited to: Ground transportation, excess baggage, and lodging. Charges for these expenses must be separated and identified.
(ix) Change in observer provider management and contact information. Except for changes in ownership addressed under paragraph (a)(6) of this section, an observer provider must submit notification of any other change to the information submitted on the provider's permit application under paragraphs (a)(3)(i) through (iv) of this section. Within 30 days of the effective date of such change, the information must be submitted by electronic submission (email or online through NMFS-designated electronic system) or mail to the Observer Program at the address listed in § 679.51(c)(3). Any information submitted under paragraphs (a)(3)(iii) or (a)(3)(iv) of this section will be subject to NMFS review and determinations under paragraphs (a)(4) through (7) of this section.
(x) Other reports. Reports of the following must be submitted in writing to the Observer Program by the observer provider via electronic submission (email or online through NMFS-designated electronic system):
(A) Within 24 hours after the observer provider becomes aware of the following information:
( 1 ) Any information regarding possible observer harassment;
( 2 ) Any information regarding any action prohibited under § 679.7(g) or § 600.725(o), (t), and (u) of this chapter;
( 3 ) Any concerns about vessel safety or marine casualty under 46 CFR 4.05-1(a)(1) through (7), or processor safety;
( 4 ) Any observer illness or injury that prevents the observer from completing any of his or her duties described in the Observer Sampling Manual; and
( 5 ) Any information, allegations or reports regarding observer conflict of interest or failure to abide by the standards of behavior described in § 679.53(b)(1) through (b)(2), or;
(B) Within 72 hours after the observer provider determines that an observer violated the observer provider's conduct and behavior policy described at paragraph (b)(3)(i) of this section; these reports shall include the underlying facts, circumstances, and provider responses to the violation, including the steps taken to enforce the provider's conduct and behavior policy.
(12) Replace lost or damaged gear. An observer provider must replace all lost or damaged gear and equipment issued by NMFS to an observer under contract to that provider. All replacements must be in accordance with requirements and procedures identified in writing by the Observer Program.
(13) Maintain confidentiality of information. An observer provider must ensure that all records on individual observer performance received from NMFS under the routine use provision of the Privacy Act remain confidential and are not further released to anyone outside the employ of the observer provider company to whom the observer was contracted except with written permission of the observer.
(c) Limitations on conflict of interest. Observer providers:
(1) Are authorized to provide observer services under an FMP or the Halibut Act for the waters off Alaska as required in § 679.51(a)(2) or (b)(2), or scientific data collector and observer services to support NMFS-approved scientific research activities, exempted educational activities, or exempted or experimental fishing as defined in § 600.10 of this chapter.
(2) Must not have a direct financial interest, other than the provision of observer or scientific data collector services, in a North Pacific fishery managed under an FMP or the Halibut Act for the waters off Alaska, including, but not limited to:
(i) Any ownership, mortgage holder, or other secured interest in a vessel, shoreside processor or stationary floating processor facility involved in the catching or processing of fish,
(ii) Any business involved with selling supplies or services to any vessel, shoreside processor, or stationary floating processor participating in a fishery managed pursuant to an FMP or the Halibut Act in the waters off Alaska, or
(iii) Any business involved with purchasing raw or processed products from any vessel, shoreside processor, or stationary floating processor participating in a fishery managed pursuant to an FMP or the Halibut Act in the waters off Alaska.
(3) Must assign observers without regard to any preference by representatives of vessels, shoreside processors, or stationary floating processors other than when an observer will be deployed.
(4) Must not solicit or accept, directly or indirectly, any gratuity, gift, favor, entertainment, loan, or anything of monetary value from anyone who conducts fishing or fish processing activities that are regulated by NMFS, or who has interests that may be substantially affected by the performance or nonperformance of the official duties of the observer provider.
(d) EM hardware service provider permit. —(1) Permit. The Regional Administrator may issue a permit authorizing a person's participation as an EM hardware service provider for operations requiring EM system coverage per § 679.51(f) and (g). Persons seeking to provide EM services under this section must obtain an EM hardware service provider permit from the NMFS Alaska Region.
(2) EM hardware service provider. An applicant seeking an EM hardware service provider permit must submit a completed application to the Regional Administrator for review. This application can be found on the NMFS Alaska Region website.
(3) Contents of application. An application for an EM hardware service provider permit must contain the following:
(i) Contact information. (A) The permanent phone number and email address of the owner(s) of the EM hardware service provider.
(B) Current physical location, business mailing address, business telephone, and business email address for each office of the EM hardware service provider.
(ii) Hardware and software testing. Description of testing conducted to ensure that the EM hardware is capable of withstanding environmental conditions in the North Pacific Ocean. NMFS will provide specifications for EM hardware upon request. At any time after initial approval of the EM hardware service provider permit, this testing requirement must be applied to and met by any EM system requiring new, or significantly updated, hardware or software installed onboard a vessel.
(iii) Data review. Provide a sample of EM data to NMFS that can be reviewed by NMFS EM data review software for compliance with program objectives as specified in § 679.51(f) and (g).
(iv) Conflict of interest. A statement signed under penalty of perjury from each owner or, if the owner is an entity, each board member and officer, if a corporation, that they have no conflict of interest as described in paragraph (c) of this section.
(v) Criminal convictions and Federal contracts. A statement signed under penalty of perjury from each owner or, if the owner is an entity, each board member and officer, if a corporation, describing:
(A) Any criminal convictions; and
(B) Any Federal contracts they have had and the performance rating they received for each such contract.
(vi) Prior experience. A description of any prior experience the EM hardware service provider may have in placing individuals in remote field and/or marine work environments. This includes recruiting, hiring, deployment, working with fishing fleets, and operations in remote areas.
(vii) Responsibilities and duties. A description of the EM hardware service provider's ability to carry out the responsibilities and duties of an EM hardware service provider as set out under paragraph (e) of this section and the arrangements to be used to do so.
(4) Application evaluation. NMFS staff will evaluate the completeness of the application, the application's consistency with needs and objectives of the EM program, and other relevant factors. NMFS will provide specifications for EM hardware upon request.
(5) Agency determination on an application. NMFS will send the Agency's determination on the application to the EM hardware service provider. If an application is approved, NMFS will issue an EM hardware service provider permit to the applicant. If an application is denied, the reason for denial will be explained in the electronic determination.
(6) Transferability. An EM hardware service provider permit is not transferable. To prevent a lapse in authority to provide EM hardware services, a provider that experiences a change in ownership that involves a new person may submit a new permit application prior to sale and ask to have the application approved under this paragraph (a) prior to date of sale.
(7) Expiration of EM hardware service provider permit. —(i) Permit duration. An EM hardware service provider permit will expire after a period of 12 continuous months during which no EM services are provided to vessels in an EM category.
(ii) Permit expiration. The Regional Administrator will provide a written initial administrative determination (IAD) of permit expiration to a provider if NMFS records indicate that the provider has not provided EM services to vessels in an EM category during a period of 12 continuous months. A provider who receives an IAD of permit expiration may appeal the IAD under § 679.43. A provider that appeals an IAD will be issued an extension of the expiration date of the permit until after the final resolution of the appeal.
(8) Removal of permit. Performance of the EM hardware service provider will be assessed annually on the ability of the provider to meet program objectives as outlined in § 679.51 and the Annual Deployment Plan. If the EM hardware service provider is unable to meet program objectives, the permit will be removed.
(e) Responsibilities of EM hardware service providers. Responsibilities of EM hardware service providers are specified in section § 679.51(f) and (g).
§ 679.53   Observer certification and responsibilities.
(a) Observer certification —(1) Applicability. Observer certification authorizes an individual to fulfill duties for operations requiring full observer coverage per § 679.51(a)(2) and (b)(2) as specified in writing by the NMFS Observer Program while under the employ of an observer provider permitted under § 679.52(a) and according to certification endorsements as designated under paragraph (a)(5) of this section.
(2) Observer certification official. The Regional Administrator will designate a NMFS observer certification official who will make decisions for the Observer Program on whether to issue or deny observer certification.
(3) Certification requirements. NMFS may certify an individual who, in addition to any other relevant considerations:
(i) Is employed by a permitted observer provider company at the time of the issuance of the certification;
(ii) Has provided, through their observer provider:
(A) Information identified by NMFS at § 679.52(b)(11)(i)(A)( 3 ) and ( 4 ) and in writing from the Observer Program; and
(B) Information identified by NMFS at § 679.52(b)(11)(iii) regarding the observer candidate's health and physical fitness for the job;
(iii) Meet all education and health standards as specified in § 679.52(b)(1)(i) and § 679.52(b)(11)(iii), respectively;
(iv) Has successfully completed a NMFS-approved training as prescribed by the Observer Program.
(A) Successful completion of training by an observer applicant consists of meeting all attendance and conduct standards issued in writing at the start of training; meeting all performance standards issued in writing at the start of training for assignments, tests, and other evaluation tools; and completing all other training requirements established by the Observer Program.
(B) If a candidate fails training, he or she will be orally notified of the unsatisfactory status of his or her training on or before the last day of training. Within 10 business days of the oral notification, the Observer Program will notify the observer candidate in writing. The written notification will specify why the candidate failed the training and whether the candidate may retake the training. If a determination is made that the candidate may not pursue further training, notification will be in the form of a written determination denying certification, as specified under paragraph (a)(4)(i) of this section.
(v) Have not been decertified under paragraph (c) of this section.
(4) Agency determinations on observer certification —(i) Denial of certification. The NMFS observer certification official will issue a written determination denying observer certification if the candidate fails to successfully complete training, or does not meet the qualifications for certification for any other relevant reason.
(ii) Issuance of an observer certification. An observer certification will be issued upon determination by the NMFS observer certification official that the candidate has successfully met all requirements for certification as specified in paragraph (a)(3) of this section.
(5) Endorsements. The following endorsements must be obtained, in addition to observer certification, in order for an observer to deploy as indicated.
(i) Certification training endorsement. A certification training endorsement signifies the successful completion of the training course required to obtain this endorsement. A certification training endorsement is required for any deployment as an observer in the Bering Sea and Aleutian Islands groundfish fisheries and the Gulf of Alaska groundfish fisheries or Halibut Act fisheries and will be granted with the initial issuance of an observer certification. This endorsement expires when the observer has not been deployed and performed sampling duties as required by the Observer Program for a period of time specified by the Observer Program after his or her most recent debriefing. In order to renew the endorsement, the observer must successfully retake the certification training. Observers will be notified of any changes to the endorsement expiration period prior to the effective date of the change.
(ii) Annual general endorsement. Each observer must obtain an annual general endorsement to their certification prior to his or her initial deployment within any calendar year subsequent to a calendar year in which a certification training endorsement is obtained. To obtain an annual general endorsement, an observer must successfully complete the annual briefing, as specified by the Observer Program. All briefing attendance, performance, and conduct standards required by the Observer Program must be met.
(iii) Deployment endorsements. Each observer who has completed an initial deployment after certification or annual briefing must receive a deployment endorsement to their certification prior to any subsequent deployments for the remainder of that year. An observer may obtain a deployment endorsement by successfully completing all pre-cruise briefing requirements. The type of briefing the observer must attend and successfully complete will be specified in writing by the Observer Program during the observer's most recent debriefing.
(iv) Level 2 endorsements. A certified observer may obtain a level 2 endorsement to their certification. A level 2 endorsement is required for purposes of performing observer duties aboard vessels or stationary floating processors or at shoreside processors participating in fisheries as prescribed in § 679.51(a)(2)(vi)(A) through (H). A level 2 endorsement to an observer's certification may be obtained if the observer meets the following requirements:
(A) Previously served as an observer in the groundfish or halibut fisheries off Alaska and has completed at least 60 days of observer data collection;
(B) Received an evaluation by NMFS for his or her most recent deployment that indicated the observer's performance met Observer Program expectations standards for that deployment; and
(C) Complies with all the other requirements of this section.
(v) An observer who has obtained a level 2 endorsement to his or her observer certification as specified in paragraph (a)(5)(iv) of this section may additionally receive a lead level 2 observer endorsement if the observer meets the following requirements:
(A) A lead level 2 observer on a catcher/processor using trawl gear or a mothership must have completed two observer cruises (contracts) and sampled at least 100 hauls on a catcher/processor using trawl gear or on a mothership.
(B) [Reserved]
(C) A lead level 2 observer on a vessel using nontrawl gear must have completed the following:
( 1 ) Two observer cruises (contracts) of at least 10 days each;
( 2 ) Successfully completed training or briefing as prescribed by the Observer Program; and
( 3 ) Either sampled at least 30 sets on a vessel using nontrawl gear or sampled at least 100 hauls on a catcher/processor using trawl gear or on a mothership.
(b) Standards of observer conduct —(1) Limitations on conflict of interest. (i) An observer fulfilling duties for operations in the full observer coverage category per § 679.51(a)(2) or (b)(2):
(A) Must not have a direct financial interest, other than the provision of observer services, in a North Pacific fishery, including, but not limited to:
( 1 ) Any ownership, mortgage holder, or other secured interest in a vessel, shoreside processor, or stationary floating processor facility involved in the catching or processing of fish,
( 2 ) Any business involved with selling supplies or services to any vessel, shoreside processor, or stationary floating processor participating in a North Pacific fishery, or
( 3 ) Any business involved with purchasing raw or processed products from any vessel, shoreside processor, or stationary floating processor participating in a North Pacific fishery.
(B) May not solicit or accept, directly or indirectly, any gratuity, gift, favor, entertainment, loan, or anything of monetary value from anyone who either conducts activities that are regulated by NMFS or has interests that may be substantially affected by the performance or nonperformance of the observer's official duties.
(C) May not serve as an observer on any vessel or at any shoreside or stationary floating processing facility owned or operated by a person who previously employed the observer.
(D) May not solicit or accept employment as a crew member or an employee of a vessel, shoreside processor, or stationary floating processor in a North Pacific fishery while employed by an observer provider.
(ii) Provisions for remuneration of observers under this section do not constitute a conflict of interest.
(2) Standards of behavior. An observer fulfilling duties for operations in the full observer coverage category per § 679.51(a)(2) or (b)(2) must:
(i) Perform assigned duties as described in the Observer Sampling Manual or other written instructions from the Observer Program;
(ii) Accurately record their sampling data, write complete reports, and report accurately any observations of suspected violations of regulations relevant to conservation of marine resources or their environment; and
(iii) Not disclose collected data and observations made aboard the vessel or in the processing facility to any person except the owner or operator of the observed vessel or processing facility, an authorized officer, or NMFS.
(c) Suspension and decertification —(1) Suspension and decertification review official. The Regional Administrator will establish an observer suspension and decertification review official(s), who will have the authority to review observer certifications issued under paragraph (a) of this section and issue initial administrative determinations of observer certification suspension and/or decertification.
(2) Causes for suspension or decertification. The suspension/decertification official may initiate suspension or decertification proceedings against an observer:
(i) When it is alleged that the observer has committed any acts or omissions of any of the following:
(A) Failed to satisfactorily perform the duties of an observer as specified in writing by the Observer Program; or
(B) Failed to abide by the standards of conduct for an observer as prescribed under paragraph (b) of this section;
(ii) Upon conviction of a crime or upon entry of a civil judgment for:
(A) Commission of fraud or other violation in connection with obtaining or attempting to obtain certification, or in performing the duties as specified in writing by the Observer Program;
(B) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
(C) Commission of any other offense indicating a lack of integrity or honesty that seriously and directly affects the fitness of observers.
(3) Issuance of initial administrative determination. Upon determination that suspension or decertification is warranted under paragraph (c)(2) of this section, the suspension/decertification official will issue a written initial administrative determination (IAD) to the observer via certified mail at the observer's most current address provided to NMFS under § 679.43(e). The IAD will identify whether a certification is suspended or revoked and will identify the specific reasons for the action taken. If the IAD issues a suspension for an observer certification, the terms of the suspension will be specified. Suspension or decertification can be made effective upon issuance of the IAD in cases of willfulness or in cases in which public health, interest, or safety require such action. In such cases, the suspension/decertification official will state in the IAD that suspension or decertification is effective at time of issuance and the reason for the action.
(4) Appeals. A certified observer who receives an IAD that suspends or revokes his or her observer certification may appeal pursuant to § 679.43.
§ 679.54   Release of observer data to the public.
(a) Summary of weekly data. The following information collected by observers for each catcher/processor and catcher vessel during any weekly reporting period may be made available to the public:
(1) Vessel name and Federal permit number.
(2) Number of Chinook salmon and “other salmon” observed.
(3) The ratio of total round weight of incidentally caught halibut or Pacific herring to the total round weight of groundfish in sampled catch.
(4) The ratio of number of king crab or C. bairdi Tanner crab to the total round weight of groundfish in sampled hauls.
(5) The number of observed trawl hauls or fixed gear sets.
(6) The number of trawl hauls that were basket sampled.
(7) The total weight of basket samples taken from sampled trawl hauls.
(b) Haul-specific data. (1) The information listed in paragraphs (b)(1)(i) through (xiii) of this section and collected by observers from observed hauls on board vessels using trawl gear to participate in a directed fishery for groundfish other than rockfish, Greenland turbot, or Atka mackerel may be made available to the public:
(i) Date.
(ii) Time of day gear is deployed.
(iii) Latitude and longitude at beginning of haul.
(iv) Bottom depth.
(v) Fishing depth of trawl.
(vi) The ratio of the number of Chinook salmon to the total round weight of groundfish.
(vii) The ratio of the number of other salmon to the total round weight of groundfish.
(viii) The ratio of total round weight of incidentally caught halibut to the total round weight of groundfish.
(ix) The ratio of total round weight of herring to the total round weight of groundfish.
(x) The ratio of the number of king crab to the total round weight of groundfish.
(xi) The ratio of the number of C. bairdi Tanner crab to the total round weight of groundfish.
(xii) Sea surface temperature (where available).
(xiii) Sea temperature at fishing depth of trawl (where available).
(2) The identity of the vessels from which the data in paragraph (b)(1) of this section are collected will not be released.
(c) Competitive harm. In exceptional circumstances, the owners and operators of vessels may provide to the Regional Administrator written justification at the time observer data are submitted, or within a reasonable time thereafter, that disclosure of the information listed in paragraphs (a) and (b) of this section could reasonably be expected to cause substantial competitive harm. The determination whether to disclose the information will be made pursuant to 15 CFR 4.7.
§ 679.55   Observer fees.
(a) Responsibility. The owner of a shoreside processor or stationary floating processor named on a Federal Processing Permit (FPP), a catcher/processor named on a Federal Fisheries Permit (FFP), or a person named on a Registered Buyer permit at the time of the landing subject to the observer fee as specified at § 679.55(c) must comply with the requirements of this section. Subsequent non-renewal of an FPP, FFP, or a Registered Buyer permit does not affect the permit holder's liability for noncompliance with this section.
(b) Observer fee liability determination. After each fishing year, the Regional Administrator will mail an observer fee liability invoice to each permit holder specified in paragraph (a) of this section for landings of groundfish and halibut subject to the observer fee. The observer fee liability invoice will provide a summary of the round pounds of groundfish and headed-and-gutted weight for halibut landed during the previous fishing year for each permit by species, landing port or port-group, and gear category. The total fee liability for each permit holder will be determined by applying the observer fee percentage in paragraph (f) of this section to the ex-vessel value of the groundfish and halibut landings subject to the observer fee. The method for determining the ex-vessel value of the groundfish and halibut landings subject to the observer fee is provided in paragraph (e) of this section. The fee liability will be assessed on the groundfish round weight and the headed-and-gutted weight for halibut.
(c) Landings subject to the observer fee. The observer fee is assessed on landings by vessels not in the full observer coverage category described at § 679.51(a)(2) according to the following table:
(d) Standard ex-vessel prices —(1) General. NMFS will publish the standard ex-vessel prices used to determine the observer fee in the upcoming year in the Federal Register during the last quarter of each calendar year. The standard ex-vessel prices will be described in U.S. dollars per equivalent round pound for groundfish and per equivalent headed-and-gutted weight for halibut.
(2) Effective duration. The standard ex-vessel prices will remain in effect until revised by subsequent publication in the Federal Register.
(3) Standard ex-vessel price determination and use —(i) Groundfish standard ex-vessel prices. Except as described in paragraph (d)(3)(ii) of this section, NMFS will calculate groundfish standard ex-vessel prices based on standardized ex-vessel nominal prices calculated using information submitted in the Commercial Operator's Annual Report described at § 679.5(p) and the shoreside processor or stationary floating processor landing report described at § 679.5(e)(5), as well as methods established by the State of Alaska's Commercial Fisheries Entry Commission.
(A) Groundfish standard ex-vessel prices will be calculated as a 3-year rolling average of standard prices for each species, port or port-group, and gear.
(B) Gear categories for groundfish standard ex-vessel prices are: Pelagic trawl gear, non-pelagic trawl gear, and non-trawl gear.
(ii) Halibut and fixed gear sablefish standard ex-vessel prices. NMFS will use data submitted to NMFS on the IFQ Registered Buyer report under § 679.5(l)(7) to calculate the standard ex-vessel prices for each year for halibut and fixed gear sablefish, by port or port group. These standard ex-vessel prices will be applied to landings of:
(A) Halibut;
(B) IFQ sablefish; and
(C) Sablefish accruing against the fixed-gear sablefish CDQ allocation.
(iii) Confidentiality. Standard ex-vessel prices will be aggregated among ports if fewer than four processors participate in a price category for any species and gear combination.
(e) Determining the ex-vessel value of groundfish and halibut. The ex-vessel value of groundfish and halibut subject to the observer fee will be determined by applying the standard ex-vessel price published in the Federal Register in the year prior to the year in which the landing was made to the round weight of groundfish and the headed-and-gutted weight of halibut landings subject to the observer fee.
(f) Observer fee percentage. The observer fee percentage is 1.25 percent through December 31, 2020. Beginning January 1, 2021, the observer fee percentage is 1.65 percent.
(g) Fee collection. A permit holder specified in paragraph (a) of this section, receiving a groundfish or halibut landing subject to the observer fee under paragraph (c) of this section, is responsible for collecting fees during the calendar year in which the groundfish or halibut is received.
(h) Payment —(1) Payment due date. A permit holder specified in paragraph (a) of this section must submit his or her observer fee liability payment(s) to NMFS no later than February 15 of the year following the calendar year in which the groundfish or halibut landings subject to the observer fee were made.
(2) Payment recipient. Make electronic payment payable to NMFS.
(3) Payment address. Payments must be made electronically through the NMFS Alaska Region Web site at http://alaskafisheries.noaa.gov. Instructions for electronic payment will be provided on the payment Web site and on the observer fee liability invoice to be mailed to each permit holder.
(4) Payment method. Payment must be made electronically in U.S. dollars by automated clearinghouse, credit card, or electronic check drawn on a U.S. bank account.
(5) Underpayment of fee liability. (i) Under § 679.4, an applicant will not receive a new or amended FPP or Registered Buyer permit until he or she submits a complete permit application. For the application to be considered complete, all fees required by NMFS must be paid.
(ii) If a permit holder fails to submit full payment for the observer fee liability by the date described in paragraph (h)(1) of this section, the Regional Administrator may:
(A) At any time thereafter send an initial administrative determination to the liable permit holder stating that the permit holder's estimated fee liability, as calculated by the Regional Administrator and sent to the permit holder pursuant to paragraph (b) of this section, is the amount of observer fee due from the permit holder.
(B) Disapprove any issuance of an FPP or Registered Buyer permit to the applicant in accordance with § 679.4.
(iii) If payment is not received by the 30th day after the final agency action, the agency may pursue collection of the unpaid fees.
(i) Overpayment of fee. Upon issuance of final agency action, any amount submitted to NMFS in excess of the observer fee liability determined to be due by the final agency action will be returned to the permit holder unless the permit holder requests the agency to credit the excess amount against the permit holder's future observer fee liability.
(j) Appeals. A permit holder who receives an IAD may either pay the fee liability or appeal the IAD pursuant to § 679.43. In any appeal of an IAD made under this section, a permit holder specified in paragraph (a) of this section has the burden of proving his or her claim.
§ 679.56   Full coverage trawl Electronic Monitoring category fee.
(a) Full coverage trawl electronic monitoring (EM) category fee —(1) Responsibility. The owner of a catcher vessel in the full coverage trawl EM category must comply with the requirements of this section. Subsequent opting out of the trawl EM category does not affect the FFP permit holder's liability for paying the full coverage trawl EM category fee for any fishing year in which the vessel was approved to be in the full coverage trawl EM category and made pollock landings. Subsequent transfer of an AFA catcher vessel or AFA permit does not affect the catcher vessel owner's liability for non-compliance with this section.
(2) Landings subject to the observer fee. The full coverage trawl EM fee is assessed on pollock landings by catcher vessels in the full coverage trawl EM category as specified in § 679.51(g).
(3) Fee collection. The owner of a catcher vessel (as identified under paragraph (a)(1) of this section) is responsible for paying the full coverage trawl EM fee for all pollock landings.
(4) Payment. —(i) Payment due date. The owner of a catcher vessel (as identified under paragraph (a)(1) of this section) must submit all full coverage trawl EM fee payments to NMFS no later than May 31 of the fishing year following the year in which the pollock landings occurred.
(ii) Payment recipient and method. The owner of a catcher vessel (as identified under paragraph (a)(1) of this section) must submit payment and related documents as instructed on the fee submission form. Payments must be made electronically through the NMFS Alaska Region website. Instructions for electronic payment will be made available on both the payment website and a fee liability summary letter mailed to each permit holder.
(b) Full coverage standard ex-vessel value determination and use. NMFS will use the standard prices calculated for AFA cost recovery per § 679.66(b).
(c) Full coverage fee percentages. —(1) Established percentages. The trawl EM fee percentage is the amount as determined by the factors and methodology described in paragraph (c)(2) of this section. These amounts will be announced by publication in the Federal Register in accordance with paragraph (c)(3) of this section.
(2) Calculating fee percentage value. Each year NMFS will calculate and publish the trawl EM fee percentage for the full coverage trawl EM category catcher vessels according to the following factors and methodology:
(i) Factors. NMFS will use the following factors to determine the fee percentages:
(A) The catch to which the full coverage trawl EM fee will apply;
(B) The ex-vessel value of that catch; and
(C) The costs directly related to the EM data collection, EM data review, VMP approval, and trawl EM category data.
(ii) Methodology. NMFS will use the following equations to determine the trawl EM fee percentage: 100 × DPC ÷ V, where:
(A) DPC equals the trawl EM category costs for the directed full coverage pollock fisheries for the most recent fiscal year (October 1 through September 30) with any adjustments to the account from payments received in the previous year.
(B) V equals the total of the standard ex-vessel value of the catch subject to the trawl EM fee liability for the current year.
(iii) Program costs. Trawl EM category costs will be calculated only for catcher vessels that NMFS approves to be in the full coverage trawl EM category.
(3) Publication. —(i) General. NMFS will calculate and announce the trawl EM fee percentage in a Federal Register notice by December 1 of the year following the year in which the full coverage pollock landings were made. NMFS will calculate the trawl EM fee percentage based on the calculations described in paragraph (c)(2) of this section.
(ii) Effective period. NMFS will apply the calculated trawl EM fee percentage to all full coverage trawl EM category directed pollock landings made by vessels in the trawl EM category between January 1 and December 31 of the previous year.
(4) Applicable percentage. A designated representative must use the AFA fee percentage applicable at the time a Bering Sea directed pollock landing is debited from an AFA pollock fishery allocation to calculate the AFA fee liability for any retroactive payments for that landing.
§ 679.57   Trawl EM incentive plan agreements.
(a) Parties to a trawl EM Incentive Plan Agreement (TEM IPA) —(1) TEM IPA. A catcher vessel owner or operator must be a party to a TEM IPA to be approved for the trawl EM partial coverage category.
(2) Compliance. Once a party to a TEM IPA, a catcher vessel owner or operator cannot withdraw from the TEM IPA and must comply with the terms of the TEM IPA for the duration of the fishing year.
(b) Request for approval of a proposed TEM IPA. The TEM IPA representative must submit a proposed TEM IPA to NMFS. The proposed TEM IPA must contain the following information:
(1) Affidavit. The TEM IPA must include an affidavit affirming that each party to the TEM IPA is subject to the same terms and conditions.
(2) Name of the TEM IPA —(3) Representative. The TEM IPA must include the name, telephone number, and email address of the TEM IPA representative who is responsible for submitting the proposed TEM IPA on behalf of the TEM IPA parties, any proposed amendments to the TEM IPA, and the annual report required under paragraph (f) of this section.
(4) Incentive plan. The TEM IPA must contain provisions that address or contain the following:
(i) Restrictions, penalties, or performance criteria that will limit changes in fishing behavior.
(ii) Incentive measures to discourage catcher vessels from harvesting pollock catch in excess of 300,000 (136 mt) pounds during a fishing trip, on average in the GOA, and an explanation of how the incentive(s) encourage vessel operators to limit harvest in excess of 300,000 (136 mt) pounds of pollock per fishing trip in the GOA.
(iii) Incentive measures to prevent catcher vessels from exceeding the MRAs established in § 679.21(e) and how the incentives encourage vessel operators to avoid bycatch and avoid exceeding the maximum retainable amounts established in § 679.20(e).
(iv) Acknowledgment by the parties that NMFS will disclose to the public their vessels' performance under the TEM IPA and any restrictions, penalties, or performance criteria imposed under the TEM IPA by vessel name.
(5) Compliance agreement. The TEM IPA must include a provision that all parties to the TEM IPA agree to comply with all provisions of the TEM IPA.
(6) Signatures. The name and signature of the owner or operator for each vessel that is a party to the TEM IPA.
(c) Deadline and duration. —(1) Deadline for proposed TEM IPA. A proposed TEM IPA must be received by NMFS no later than 1700 hours, A.l.t., on December 1 of the year prior to the fishing year for which the TEM IPA is proposed to be effective.
(2) Duration. Once approved, a TEM IPA is effective starting January 1 of the fishing year following the year in which NMFS approves the IPA, unless the TEM IPA is approved between January 1 and January 19, in which case the TEM IPA is effective starting in the year in which it is approved. Once approved, a TEM IPA is effective until December 31 of the first year in which it is effective or until December 31 of the year in which the TEM IPA representative notifies NMFS in writing that the TEM IPA is no longer in effect, whichever is later. A TEM IPA may not expire mid-year. No party may leave a TEM IPA once it is approved, except as allowed under paragraph (d)(3) of this section.
(d) NMFS review of a proposed TEM IPA. —(1) Approval. A TEM IPA will be approved by NMFS if the TEM IPA meets the following requirements:
(i) Complies with the submission requirements of paragraphs (b) and (c) of this section; and
(ii) Contains the information required in paragraph (b) of this section.
(2) Amendments to a TEM IPA. Amendments in writing to an approved TEM IPA may be submitted to NMFS at any time and will be reviewed under the requirements of paragraph (b) of this section. An amendment to an approved TEM IPA is effective when NMFS notifies the TEM IPA representative in writing of NMFS approval.
(3) Disapproval. (i) NMFS will disapprove a proposed TEM IPA or a proposed amendment to a TEM IPA:
(A) If the proposed TEM IPA fails to meet any of the requirements of paragraph (b) of this section; or
(B) If a proposed amendment to a TEM IPA would cause the TEM IPA to no longer comply with the requirements of paragraph (b) of this section.
(ii) [Reserved]
(4) Initial Administrative Determination (IAD). If NMFS identifies deficiencies in the proposed TEM IPA, NMFS will notify the applicant in writing that the proposed TEM IPA will not be approved. The TEM IPA representative will be provided one 30-day period to address, in writing, all deficiencies identified by NMFS. Additional information or a revised TEM IPA received by NMFS after the expiration of the 30-day period specified by NMFS will not be considered. NMFS will evaluate any additional information submitted by the TEM IPA representative within the 30-day period. If the Regional Administrator determines that the additional information addresses the deficiencies in the proposed TEM IPA, the Regional Administrator will approve the proposed TEM IPA under paragraph (d) of this section. However, if NMFS determines that the proposed TEM IPA does not comply with the requirements of paragraph (b) of this section, NMFS will issue an IAD providing the reasons for disapproving the proposed TEM IPA.
(5) Appeal. A TEM IPA representative who receives an IAD disapproving a proposed TEM IPA may appeal under the procedures set forth at 15 CFR part 906. If the TEM IPA representative fails to timely file an appeal of the IAD pursuant to 15 CFR part 906, the IAD will become the final agency action. If the IAD is appealed and the final agency action approves the proposed TEM IPA, the TEM IPA will be effective as described in paragraph (c) of this section.
(6) Pending approval. While appeal of an IAD disapproving a proposed TEM IPA is pending, proposed parties to the TEM IPA subject to the IAD, which are not currently parties to an approved TEM IPA, are not authorized to participate in trawl EM category.
(e) Public release of a TEM IPA and performance metrics. Each fishing year NMFS will release to the public and publish on the NMFS Alaska Region website:
(1) Approvals. Approved TEM IPAs and Approval Memos;
(2) Parties. List of parties to each approved TEM IPA; and
(3) Names. Names of vessels covered by each approved TEM IPA that:
(i) On average, harvesting pollock catch in excess of 300,000 pounds (136 mt) per fishing trip in the GOA;
(ii) Harvest bycatch in quantities that exceed MRAs; and
(iii) Vessels' performance under the TEM IPA and any restrictions, penalties, or performance criteria imposed under the TEM IPA by vessel name.
(f) TEM IPA Annual Report. The representative of each approved TEM IPA must submit a written annual report to the Council at the address specified in § 679.61(f). The Council will make the annual report available to the public.
(1) Submission deadline. The TEM IPA Annual Report must be received by the Council no later than May 15 of the following fishing year.
(2) Information requirements. The TEM IPA Annual Report must contain the following information:
(i) A comprehensive description of the incentive measures in effect in the previous year;
(ii) A description of how these incentive measures affected individual vessels;
(iii) An evaluation of whether incentive measures were effective in limiting changes in vessel behavior including the effectiveness of:
(A) Measures to discourage participating vessels, on average, from harvesting pollock catch in excess of 300,000 pounds (136 mt) per fishing trip in the GOA;
(B) Measures that incentivize participating vessels to avoid exceeding MRAs established in § 679.20(e) applicable to non-EM vessels;
(C) Restrictions, penalties, or performance criteria that were imposed to prevent vessels from consistently exceeding catcher vessel harvest limit for pollock in the GOA or MRAs relative to non-EM vessels by vessel name (see §§ 679.7(b)(2) and 679.20(e));
(D) The frequency of vessels exceeding the catcher vessel harvest limit for pollock in the GOA and MRA limits relative to non-EM vessels (see §§ 679.7(b)(2) and 679.20(e)); and
(E) Identification of, and the TEM IPA's response to, vessels directed fishing in conflict with harvest specifications or directed fishing for Steller Sea Lion forage species within closed Steller Sea Lion protection areas.
(iv) A description of any amendments to the TEM IPA that were approved by NMFS since the last annual report and the reasons that the amendments to the TEM IPA were requested.
§ 679.60   Authority and related regulations.
(a) Regulations under this subpart were developed by the National Marine Fisheries Service and the North Pacific Fishery Management Council to implement the American Fisheries Act (AFA) (Div. C, Title II, Subtitle II, Public Law 105-277, 112 Stat. 2681 (1998)) and the Consolidated Appropriations Act of 2004 (Public Law 108-199, Sec. 803). Additional regulations in this part that implement specific provisions of the AFA and Consolidated Appropriations Act of 2004 are set out at §§ 679.2 Definitions, 679.4 Permits, 679.5 Recordkeeping and reporting (R &R), 679.7 Prohibitions, 679.20 General limitations, 679.21 Prohibited species bycatch management, 679.28 Equipment and operational requirements, 679.31 CDQ reserves, and 679.50 Groundfish Observer Program.
(b) Regulations developed by the Department of Transportation to implement provisions of the AFA are found at 46 CFR part 356.